Welcome, and thank you for your interest in MikoVerse, Inc. (“MikoVerse,” “we,” or “us”). This End User License Agreement (“Agreement”) is a binding legal agreement between you and MikoVerse, relating to your use of MikoVerse’s website at http://www.mikoverse.com/ (“Site”), MikoVerse’s proprietary desktop applications (each, an “App”), and other services provided by us (collectively, including any Apps, the “Platform”), including all content on the Site and the Platform and all intellectual property rights arising out of or related to the foregoing any updates, add-ons, variations, expansion packs, trials, enhancements, or improvements thereof that are made available by MikoVerse, whether available now or in the future.
IMPORTANT NOTICE: By accepting this Agreement, either by clicking a box indicating your acceptance, by clicking on the “yes” or “install” button, or by accessing, using (or making any payment for) the Platform, (1) you indicate your acceptance of this Agreement and your agreement to be bound by this Agreement, (2) you represent and warrant that you are 18 years of age or over and have read and accepted the Agreement, or if you are aged between 13 and 18, your parent or legal guardian has read and accepted the terms of this Agreement. We may immediately terminate your access to the Platform if we are not satisfied that such acceptance by parent or legal guardian has been given. You and your parent(s) or legal guardian(s) must read these terms together. Parents or legal guardians are responsible for the actions or inactions of children under 18 years of age when using the Platform or the Site.
IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE CLICK THE “NO” OR “EXIT” BUTTON AND/OR DO NOT USE THE PLATFORM OR THE SITE IN ANY WAY. IN SUCH CASE, YOU WILL NOT BE PERMITTED TO INSTALL, DOWNLOAD, ACCESS, OR USE THE PLATFORM.
This Agreement can be changed, modified, supplemented, and/or updated by MikoVerse at any time; provided that in certain instances we will endeavor to provide you with notice of material changes. Your continued use of the Platform and the Site, in each case, after the modification of this Agreement means that you accept all such changes. Accordingly, you are advised to consult this Agreement each time you access the Platform and the Site, in each case, in order to view any changes to this Agreement. This Agreement last modified as of the date indicated above.
By agreeing to this Agreement, you acknowledge and agree that, as provided in greater detail in this Agreement:
⦁ The Platform is licensed to you under the terms of the Agreement, not sold.
⦁ You may use the Platform only as allowed in these Terms and in accordance with the use restrictions in the “Your Responsibilities” section below.
⦁ You grant MikoVerse a license to use the content you upload to the Platform or you create using the Platform. MikoVerse cannot guarantee the protection of your avatars or models once you upload and use them in the Platform. You can find more information in the “User Data” section below.
⦁ The Platform is provided “as is” without warranties of any kind and MikoVerse’s liability to you is limited;
⦁ You and MikoVerse agree to resolve disputes between us in individual arbitration (not in court). We believe the alternative dispute-resolution process of arbitration will resolve any dispute fairly and more quickly and efficiently than formal court litigation. IMPORTANT NOTICE: WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND MIKOVERSE THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 16 “ARBITRATION” BELOW FOR DETAILS REGARDING ARBITRATION. IF YOU ARE AN INDIVIDUAL PERSON, YOU CAN OPT OUT OF THESE TERMS TO ARBITRATE BY CONTACTING US VIA EMAIL AT SUPPORT@MIKOVERSE.COM WITHIN 30 DAYS AFTER FIRST ACCEPTING THESE TERMS AND STATING YOUR FIRST AND LAST NAME, COMPANY NAME (IF APPLICABLE), AND EMAIL, AND THAT YOU DECLINE THE TERMS TO ARBITRATE.
1. Platform Overview. The Platform provides you with certain tools to create, publish and interact with social virtual reality experiences. Subject to your compliance with this Agreement, and dependent on the then-current functionality of the Platform, users of the Platform (“Users”) may be able to use it to create, share, and interact with virtual worlds and avatars. Unless otherwise agreed to between you and MikoVerse, MikoVerse will not provide support for the Platform. In instances where MikoVerse may offer support, such support will be subject to applicable additional terms.
2. Use of the Platform. Subject to your compliance with this Agreement, MikoVerse hereby grants you a limited, revocable, non-exclusive, non-sublicensable, non-transferable license, during the Term, to: (1) access and use the Site; and (2) download from a legitimate marketplace (such as Steam), install, and use the Platform on compatible authorized devices that User owns or controls; in each case, solely for your personal use and for lawful purposes. The term “App”, as used in this Agreement, includes any updates or modifications to the applicable App made available to you by or on behalf of MikoVerse (unless provided with separate terms, in which case those terms are hereby incorporated into this Agreement unless otherwise stated in those separate terms, and will control in the event of a conflict with the terms of this Agreement, but only with respect to the applicable App).
3. Accounts; Registration; Your Responsibilities.
A. Users. To access the Platform, you may need to register for an account. In such case, you must complete the registration process by providing us with current, complete, and accurate information, as prompted by the applicable registration form. You acknowledge that if you provide any information to us that is not current, complete, and accurate, we may terminate this Agreement and your access and use of the Platform. You agree to update your information if it is no longer current, complete, and accurate.
B. Closing your Account. You may close your account at any time and without cost, but you will remain liable for any outstanding purchases as well as any fees or other charges incurred in connection with your account. MikoVerse will not issue refunds for amounts previously incurred through the Platform once you close your account. You can close your account by submitting a request to MikoVerse by emailing email@example.com.
C. Eligibility. You represent and warrant that: (1) YOU ARE 18 YEARS OF AGE OR OVER AND HAVE READ AND ACCEPTED THE AGREEMENT, OR IF YOU ARE AGED BETWEEN 13 AND 18, YOU AND YOUR PARENT OR LEGAL GUARDIAN HAS READ AND ACCEPTED THE TERMS OF THIS AGREEMENT, INCLUDING ALL THE CONDITIONS, LIMITATIONS, DISCLAIMERS, AND WAIVERS PROVIDED HEREIN; (2) you have not been previously suspended or removed from the Platform; and (3) your access and use of the Platform is in compliance with all applicable laws. If you are a parent or guardian consenting to this Agreement on behalf of a child between the ages of 13 and 18, you additionally agree to guarantee and be fully responsible for the child’s performance hereunder, including all financial obligations or liability the child may incur, and all disclaimers and waivers of applicable legal protections provided herein, and you agree to take all actions (including executing such additional documents or agreements) necessary to effect and perfect the foregoing. MikoVerse provides the Platform and the Site from the United States. If you are using the Platform or the Site from outside the United States, the Platform or the Site may not be appropriate or permitted under applicable law. It is your responsibility to use the Platform and the Site, in each case, in accordance with all applicable laws in any jurisdiction that applies to you. You further represent and warrant that you are not listed on or covered by any sanctioned person lists administered by the United States government or United Nations, including but not limited to the United States Department of Treasury’s List of Specially Designated Nationals and Blocked Persons, the United States Department of Commerce’s List of Denied Persons or Entity List, and the United Nations Security Council Sanctions. You further represent that you are not located in a country subject to comprehensive United States sanctions, which may include Iran, Syria, Cuba, North Korea, the Crimea region of Ukraine, the Donetsk People’s Republic, or the Luhansk People’s Republic. Should you become listed on or otherwise subject to any such list or are in a country subject to comprehensive United States sanctions, then you agree to immediately cease using or accessing the Platform.
D. Credentials. As part of the registration process, you might be asked to select a username, password, or other login credentials (collectively, “Credentials”). MikoVerse will also collect information that relates to Users in connection with the use and administration of the Platform, including location data (together with Credentials, “Account Information”). You are responsible for maintaining the security and confidentiality of your Credentials. You agree to notify MikoVerse immediately of any unauthorized use of your account or any other breach of security. To notify us, contact us by emailing us at firstname.lastname@example.org. You are responsible for all use of the Platform occurring under your account and all content posted with your account on the Platform. You may not share your Credentials with any third party. MikoVerse will not be liable for any loss that you incur as a result of someone else using your Credentials or account.
E. Your Responsibilities. You may use the Site and the Platform solely for lawful purposes, as intended through the provided functionality of the same. You may not use the Platform or the Site in any manner that could damage, disable, overburden, or impair MikoVerse’s servers or networks, or interfere with any other party’s use and enjoyment of the Platform or the Site. You may not attempt to gain unauthorized access to the Platform, user accounts, or computer systems or networks, through hacking, password mining, or any other means. We may collect relevant information needed for our investigation and enforcement purposes such as your account information, details related to your use of the Platform, and any times cheating was detected. Without limiting any of the foregoing, you may not (and you may not allow or assist any third party to):
i. use, copy, install, transfer, or distribute the Site or the Platform (1) outside of its intended use; or (2) except as expressly permitted in this Agreement;
ii. modify, create derivative works of, adapt, translate, reverse engineer, decompile, disassemble, or otherwise attempt to derive or gain improper access to any portion of the Platform or the Site;
iii. remove or alter any copyright, trademark, or other proprietary rights notices contained in or on the Platform and the Site, or other content and materials obtained through the Platform and the Site or the use of the same;
iv. probe, scan, or test the vulnerability of any system or network or breach any security or authentication measures of the Platform and the Site;
v. reformat, mirror, sell, resell, rent, lease, or frame any portion of the Platform and the Site, except as specifically intended by the functionality of the Platform;
vi. express or imply that any statements you make are endorsed by MikoVerse, without MikoVerse’s prior written consent in each instance;
vii. transmit any software or other materials that contain any virus, worm, time bomb, Trojan horse, or other harmful or disruptive component through the Platform or the Site;
viii. use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine,” or in any way reproduce or circumvent the navigational structure or presentation of the Platform, the Site, or its contents;
ix. harvest or collect information about other Users, except as expressly permitted through the Platform’s functionality and intended purpose;
x. access, tamper with, or use non-public areas of (1) the Platform or the Site; (2) MikoVerse’s, or its service providers’, computer systems and infrastructure; or (3) the technical delivery systems of MikoVerse’s service providers;
xi. harass, abuse, harm, or advocate or incite harassment, abuse, or harm of another person or group, including MikoVerse’s personnel, and other Users of the Platform;
xii solicit, or attempt to solicit, personal information from other Users of the Platform, except as expressly permitted through the Platform’s intended functionality;
xiii. restrict, discourage, or inhibit any third party from using the Platform or the Site;
xiv. gain unauthorized access to the Platform, to other Users’ accounts, names, or personally identifiable information, or to other computers or websites connected or linked to the Platform;
xv. disclose personal information of a third party or another User received as a result of using the Platform without the consent of such third party or User;
xvi. use the Platform to transmit (i) any content or information that is unlawful, fraudulent, threatening, harassing, abusive, hateful, libelous, defamatory, obscene or otherwise objectionable, (ii) any material, non-public information about individuals or companies without the authorization to do so, (iii) any trade secret of any third party, and/or (iv) any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities, or other unsolicited commercial communication (except as otherwise expressly permitted by us), or engage in spamming or flooding;
xvii. use the Platform or the Site in violation of MikoVerse’s policies or any applicable international, federal, state, provincial, or local laws or regulations; or
xviii. use or access the Platform or the Site to build or improve a competing service;
xix. monitor the availability, performance, or functionality of the Platform;
xx. use the Platform in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person; attempt to copy, repurpose, publish or otherwise distribute any User Data, including any avatars or models of other Users;
xxi. interfere with, or disrupt the integrity or performance of, the Platform, or any data or content contained therein or transmitted thereby; or
xxii. use the Platform, Site, or any other MikoVerse Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license, or sell any product, service or technology that could, directly or indirectly, compete with the Platform.
We may take any legal action and implement any technical remedies to prevent the violation of these restrictions and to enforce this Agreement.
4. Payment; Packages.
A. Payment. MikoVerse may offer different packages for access and use of Platform as indicated on MikoVerse’s website (“Packages”). Certain Packages within the Platform may require you to pay fees, including one-time fees (“One-Time Payment”) or fees on a subscription basis (“Subscription”) (each, a “Transaction”), and may provide you the option to activate recurring automatic payments for recurring fees. All fees and applicable taxes, if any, are in U.S. Dollars unless otherwise indicated. Before you pay any fees, including before activating or updating any recurring payments, you will have an opportunity to review the fees that you will be charged before you accept them. We may ask you to supply additional information relevant to your Transaction, including your credit card number, the expiration date of your credit card and your email and postal addresses for billing and notification (such information, “Payment Information”). You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. When you initiate a Transaction, you authorize us to provide your Payment Information to third parties so we can complete your Transaction and to charge your payment method for the type of Transaction you have selected (plus any applicable taxes and other charges). You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information). By initiating a Transaction, you agree to the pricing, payment and billing policies applicable to such fees and charges, as posted or otherwise communicated to you. All payments for Transactions are non-refundable and non-transferable except as expressly provided in this Agreement. By agreeing to this Agreement and electing to purchase a Package, you acknowledge that your Package has recurring payment features and you accept responsibility for all recurring payment obligations prior to cancellation of your Package by you or MikoVerse.
i. Subscriptions. If you purchase a Subscription, you will be charged the Subscription fee on a frequency applicable to the Subscription you purchase (each period of the Subscription, the “Subscription Period”), plus any applicable taxes, and other charges (“Subscription Fee”), at the beginning of your Subscription and each Subscription Period thereafter, at the then-current Subscription Fee. BY PURCHASING A SUBSCRIPTION, YOU AUTHORIZE MIKOVERSE TO INITIATE RECURRING, NON-REFUNDABLE PAYMENTS AS SET FORTH BELOW. If you purchase a Subscription, we (or our third-party payment processor) will automatically charge you each Subscription Period on the anniversary of the commencement of your Subscription, using the Payment Information you have provided until you cancel your Subscription. No less than thirty (30) days and no more than sixty (60) days before your Subscription term ends (for subscriptions with a Subscription Period greater than a month), or otherwise in accordance with applicable law, MikoVerse will send you a reminder with the then-current Subscription Fee. By agreeing to this Agreement and electing to purchase a Subscription, you acknowledge that your Subscription has recurring payment features and you accept responsibility for all recurring payment obligations prior to cancellation of your Subscription by you or MikoVerse. Your Subscription continues until (1) cancelled by you; or (2) we terminate your access to the Platform or Subscription in accordance with this Agreement.
ii. Cancelling One-Time Payment or Subscription. YOUR PURCHASE IS FINAL AND YOU WILL NOT BE ABLE TO CANCEL THE PURCHASE AND/OR RECEIVE A REFUND OF YOUR ONE-TIME PAYMENT OR SUBSCRIPTION FEE AT ANY TIME. But if something unexpected happens in the course of completing a Transaction, we reserve the right to cancel your Transaction for any reason; if we cancel your Transaction, we’ll refund any payment you have already remitted to us for such Transaction. Without limiting the foregoing, you may cancel your Subscription at any time, but please note that such cancellation will be effective at the end of the then-current Subscription period. EXCEPT AS SET FORTH ABOVE WITH RESPECT TO YOUR INITIAL SUBSCRIPTION PURCHASE, YOU WILL NOT RECEIVE A REFUND OF ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN CURRENT SUBSCRIPTION PERIOD AT THE TIME OF CANCELLATION. To cancel, you can contact us . You will be responsible for all Subscription Fees (plus any applicable taxes and other charges) incurred for the then-current Subscription period. If you cancel, you can use the Platform until the end of your then current Subscription period and you Subscription will terminate at the end of your then current Subscription period without further charges.
B. Payment Processing. Payment processing services for MikoVerse may be provided by our third-party payment processors, including those offered by the marketplace where the App is available for purchase. The processing of credit card charges or credits, as applicable, relating to your use of the Platform will be subject to the third-party payment processor’s terms. As a condition of MikoVerse enabling payment processing services, you agree to provide MikoVerse with current, accurate, and complete information about you and your payment methods (billing address, credit card number, expiration date, etc.) and you authorize MikoVerse to share it and Transaction information related to your use of the payment processing services provided by MikoVerse.
C. Changes. Prices and descriptions for Packages are subject to change without notice. We do not guarantee that the colors, features, specifications, and details of the Platform will be accurate or free of errors, and your device’s display may not accurately reflect the actual colors and details of the Platform. We may limit the sales of Packages to any person, geographic region, or jurisdiction. We may limit the quantities of any Packages that we offer, and may discontinue any Packages without notice. We do not warrant that the quality of any Packages you purchase will meet your expectations. We may refuse any order you place with us. If we make a change to or cancel an order, we may attempt to notify you by contacting the email, billing address, or phone number you provide. MikoVerse is under no obligation to accept or fulfill an order for a Package that was advertised at an incorrect price, and we may reject or cancel those orders.
D. Taxes, Fees, Late Payments. All fees are quoted exclusive of taxes. You are responsible for all taxes that apply to the Platform, excluding taxes on MikoVerse’s income. You are responsible for any reasonable costs MikoVerse incurs to collect any unpaid or past due amounts, including reasonable attorneys’ fees and other associated costs. Delinquent payments may result in immediate termination of the Package or access to the Platform.
5. Third-Party Services, Third-Party Fees, and Linked Websites.
A. Access to Third-Party Materials. The MikoVerse Platform may provide you with, or the use of the Platform may require you to access third-party websites (such as Live Link Face App), integrations (such as Twitch), data, databases, networks, servers, information, software, programs, systems, directories, applications, products, or services (e.g. maps, geolocation data, communication tools) (collectively, “Third-Party Services”).
B. No Control Over Third-Party Services. MikoVerse does not have or maintain any control over Third-Party Services, and is not and cannot be responsible for their content, operation, or use. BY LINKING OR OTHERWISE DISPLAYING INFORMATION FROM OR PROVIDING ACCESS TO ANY THIRD-PARTY SERVICES, MIKOVERSE DOES NOT GIVE ANY REPRESENTATION, WARRANTY OR ENDORSEMENT, EXPRESS OR IMPLIED, WITH RESPECT TO THE AVAILABILITY, ACCESS, LEGALITY, ACCURACY, QUALITY, OR AUTHENTICITY OF CONTENT, INFORMATION, OR SERVICES PROVIDED BY THOSE THIRD-PARTY SERVICES. MikoVerse does not control or monitor any monetary transaction made between you and the Third-Party Service Providers.
D. Disclaimer of Liability for Third-Party Services. You are solely responsible for taking the precautions necessary against fraud risks when using Third-Party Services, and to protect your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content and material that may be included on or may emanate from any Third-Party Services. MIKOVERSE DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY FOR ANY HARM RESULTING FROM YOUR USE OF THIRD-PARTY SERVICES, AND YOU HEREBY IRREVOCABLY WAIVE ANY CLAIM AGAINST MIKOVERSE WITH RESPECT TO THE CONTENT OR OPERATION OF ANY THIRD-PARTY SERVICES.
E. Third-Party Fees. Your use of the Platform may incur third-party fees, such as fees charged by your carrier for data usage or fees charged by a third-party streaming platform, application, storage, or data provider, or other service provider, and may be subject to third-party terms. You agree to pay all such fees and abide by all such terms. You are solely responsible for all of those fees incurred for your use of the Platform.
A. MikoVerse IP. The Platform and the Site, and any and all content, enhancements, updates, derivatives, improvements, and modifications thereof, and all intellectual property rights therein (collectively, “MikoVerse IP”), is owned by MikoVerse and its licensors. The MikoVerse IP is protected by copyright law and other applicable law. No ownership rights in the MikoVerse IP are transferred to you by this Agreement. You do not have any rights in or to the MikoVerse IP except for the limited express rights granted in this Agreement.
B. Trademarks. You acknowledge that MikoVerse has acquired, and is the owner of, common law or registered trademark rights in the name and word mark “MikoVerse” and in the other marks and design marks displayed on the Platform and the Site. You acknowledge that these names and marks are famous and internationally known. You will not challenge the validity of, or MikoVerse’s ownership of, the foregoing names or marks, and you waive any rights you may have to do so. You may not use our names or marks in connection with any product or service that is not ours, or in any manner that is likely to cause confusion. All use of the foregoing names and marks by you will inure exclusively to MikoVerse’s benefit. All marks shown on the Platform and Site but not owned by MikoVerse are the property of their respective owners.
C. Feedback. If you give MikoVerse feedback, comments, or suggestions concerning the Platform or the Site (collectively, “Feedback”), you hereby assign to MikoVerse all right, title, and interest in and to the Feedback, and MikoVerse is free to use the Feedback without payment, attribution, or restriction.
7. User Data.
A. “User Data” means all non-public data, including files, images, avatars, models and other content or information, uploaded, sent, published, or broadcasted by you, as applicable, to the Platform or otherwise shared with MikoVerse by User through electronic means. User Data does not include Account Information, User Information, or Credentials.
B. Limited License Grant to MikoVerse. You hereby grant MikoVerse a worldwide, perpetual, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute User Data, in whole or in part, in any and all media or distribution methods (now known or later developed) in accordance with (1) the settings in your account, or (2) the features of the Platform that you elect to use. MikoVerse may use the User Data, including any transactional information relating to User Data, for any internal business purpose, including to improve the usability, accountability, functionality, and accuracy of the Platform.
C. NO PROTECTION. By posting or sharing User Data with, or providing access to, or otherwise disclosing User Data to or with other Users, or the public, you hereby grant those Users or the public (as applicable) a non-exclusive right to access and use such User Data for any purpose without payment or restriction. Upon sharing your User Data with other Users or the public, you are solely responsible for your User Data and the consequences of sharing it on the Platform. You acknowledge that your avatar may be accessed, modeled, or otherwise used by third parties. None of the User Data shared by you will be subject to any obligation, whether of confidentiality, attribution, or otherwise, on our part and we will not be liable for any use or disclosure of any User Data. MIKOVERSE DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY FOR ANY HARM RESULTING FROM ANY ACTION OR INACTION BY A THIRD PARTY CONCERNING USER DATA, AND YOU HEREBY IRREVOCABLY WAIVE ANY CLAIM AGAINST MIKOVERSE WITH RESPECT TO THE ACTIONS OR INACTIONS OF ANY THIRD PARTIES.
D. Restrictions; Data Retention. You represent and warrant to MikoVerse that User Data does not and will not contain, and User has not and will not otherwise provide or make available to MikoVerse for processing, any sensitive information that identifies or relates to any natural person, including but not limited to financial information (e.g. credentials to any financial accounts or tax return data); health information (e.g. protected health information subject to the Health Insurance Portability and Accountability Act (HIPAA) or other information regarding an individual’s medical history, mental, or physical condition, or medical treatment or diagnosis by a health care professional, health insurance information, or genetic information); biometric information; government IDs or other government-issued identifiers (e.g. social security numbers); passwords for online accounts (other than passwords to access the Platform); credit reports or consumer reports; any payment card information subject to the Payment Card Industry Data Security Standard; information subject to the Gramm-Leach-Bliley Act, Fair Credit Reporting Act, or similar laws, or the regulations promulgated thereunder; information subject to restrictions under applicable law governing personal data of children, including, without limitation, all information about children under 16 years of age; or any information that falls within any special categories of data, including as defined under applicable privacy laws. You agree that MikoVerse will have no responsibility or liability with respect to any such information, including to the extent that it is processed in connection with the Platform. MikoVerse is not responsible for performing, and is not liable for any failure to perform, any back-up of any User Data provided, processed, or stored in or through the Platform. Upon deactivation of a MikoVerse account, all data associated with that account may be deleted.
F. User Information. MikoVerse will collect information that relates to User, as applicable, and/or third parties in connection with your use of the Platform, including location data (“User Information”).
G. Usage Data. MikoVerse shall have the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Platform, and related systems and technologies in a de-identified form (“Usage Data”) and MikoVerse will be free (during and after the Term) to use and distribute such Usage Data to maintain, improve, and enhance the Platform and for other development, diagnostic, and corrective purposes in connection with the Platform and other MikoVerse offerings.
8. Confidentiality. In the course of providing the Platform, MikoVerse may disclose or make available to you information about its business. You acknowledge that all knowledge, information, and data provided by MikoVerse to you with respect to the business, operations, servers, systems, and marketing of MikoVerse’s products and services that is not generally known or publicly available, whether or not designated as “confidential,” is MikoVerse’s confidential information and you will not use or disclose such confidential information to any third party without MikoVerse’s prior written consent.
9. Consent to Electronic Communications.
A. MikoVerse Communications. By using the Platform, you consent to receiving electronic communication from MikoVerse regarding registration, security, privacy, and administrative issues relating to your use of the Platform. If you sign up to receive text messages from MikoVerse, you agree that MikoVerse may send marketing and/or informational text messages to the phone number provided via an automatic telephone dialing system. Message and data rates may apply. You agree that any notices, agreements, disclosures, or other communications that MikoVerse sends to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
B. Messages. The Platform may allow Users to exchange communications via email, text or other through other means (“User Communications”) with each other. You represent and warrant that the User Communications that you send are and will be in compliance with all applicable laws. Sending User Communications is a privilege, not a right, and MikoVerse may terminate such privileges of any User at any time and for any reason. If a User sends you an objectionable User Communication, please contact MikoVerse immediately by emailing email@example.com. You are solely responsible for the content of any User Communication you send. You agree that MikoVerse may monitor messages for compliance with this Agreement, and User Communications should not be considered confidential or proprietary.
10. Term and Termination.
A. Term. This Agreement will be effective on the date on which you first access or use the Platform or the Site and will continue as long as you continue to access or use the Platform or the Site, or until terminated in accordance with this Agreement (the “Term”).
B. Termination. MikoVerse may, in its sole discretion and with no other obligations, terminate this Agreement and your User account and/or limit, suspend, or terminate your access to the Platform, with or without notice. You may terminate this Agreement based on MikoVerse’s breach of this Agreement via emailing firstname.lastname@example.org, as applicable.
C. Effect of Termination. Upon termination of this Agreement, you remain obligated to pay any outstanding fees relating to your use of the Platform that were incurred prior to termination. Fees are not refundable. The following Sections of this Agreement will survive termination of this Agreement: 3.E, 4-6, 7.B, 7.C, 7.D, 7.G, 8, 10.C, 11-18. Either party’s termination of this Agreement is without prejudice to any other remedies it may have at law or in equity, and does not relieve either party of liability for breaches occurring prior to the effective date of termination. Neither party will be liable to the other for damages arising solely as a result of terminating this Agreement.
D. Deactivation. MikoVerse may, without notice to you: (1) restrict, deactivate, or terminate your access to the Platform (or any portion); or (2) terminate or modify the Platform (or any portion). MikoVerse will not be liable to you or any third party for any termination of or modification to the Platform regardless of the reason for such termination or modification. If you are dissatisfied with any termination or modification of the Platform, your only remedy is to stop using the Platform.
11. Representations and Warranties; Disclaimer.
A. Representations and Warranties. You represent and warrant that: (1) this Agreement constitute a binding agreement enforceable against you; (2) no authorization or approval from any third party is required in connection with your acceptance or performance of this Agreement; (3) your acceptance or performance of this Agreement do not violate the terms of any other agreement to which you are a party or by which you are otherwise bound; (4) the User Data, and use of User Data as contemplated by this Agreement, and your use of the Platform and Site, does not and will not infringe, misappropriate, dilute, or otherwise violate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right, or violate any applicable laws; (5) User Data does not contain any viruses, adware, spyware, worms, or other harmful or malicious code; (6) User Data could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate; (7) unless you have received prior written authorization, User Data does not contain any confidential information of any third party; and (8) you will use the Platform and the Site, as applicable, in compliance with this Agreement and applicable laws.
B. DISCLAIMER. MikoVerse makes no other express or implied warranties with respect to the MikoVerse IP, Usage Data, or otherwise, and specifically disclaims all implied and statutory warranties, including the implied warranties of non-infringement of third-party rights, merchantability, satisfactory quality, accuracy, title, and fitness for a particular purpose, and any warranties arising from course of dealing, usage, or trade practice. the MikoVerse IP is provided “as is.” MikoVerse does not warrant that the MikoVerse IP will satisfy your requirements, are without defect or error, or that the operation of the Platform will be uninterrupted. No advice or information, whether oral or written, obtained by you from Platform or the Site will create any warranty regarding any of the MikoVerse or MikoVerse IP that is not expressly stated in this Agreement. You assume all risk for any damage that may result from your use of or access to MikoVerse IP, your dealing with any other User, and any materials or content available through the Platform. You understand and agree that your use any portion of the Platform, and use, access, download, or otherwise obtain materials or content through the platform and any associated sites or platforms, is at your own discretion and risk, and that you are solely responsible for any damage to your property (including your computer system or mobile device used in connection with the platform), or the loss of data that results from your use of the Platform or such material or content. Without limiting the generality of the foregoing, MikoVerse, its licensors, and its and their affiliates make no warranty that the operation of the Platform will be bug free, or error free in any or all circumstances, or that any defects in the Site or the Platform can or will be corrected. Some jurisdictions do not allow the exclusion or limitation of warranties, so the above limitation or exclusion may not apply to you.
A. Defense. At MikoVerse’s option and request, you will defend MikoVerse, its affiliates, licensors, service providers, and their respective directors, officers, employees, agents, and contractors (the “MikoVerse Parties”) from any actual or threatened third-party claim, proceeding, or suit arising out of or based on: (1) your breach of any representation, warranty, or covenant in this Agreement; (2) your violation of applicable law or any third-party intellectual property, proprietary, or privacy right; (3) any dispute between you and any other User or any third party; or (4) your use of the MikoVerse IP in a manner not authorized under this Agreement (each, a “Claim”). If MikoVerse requests you to defend a MikoVerse Party from any Claim, MikoVerse will: (a) give you prompt written notice of the Claim; (b) grant you full and complete control over the defense and settlement of the Claim; (c) provide assistance in connection with the defense and settlement of the Claim as you may reasonably request; and (d) comply with any settlement or court order made in connection with the Claim. Notwithstanding the previous sentence, you may not enter into any settlement that involves an admission of guilt or liability of a MikoVerse Party without MikoVerse’s prior written consent. MikoVerse may participate in the defense of a Claim at its own expense and with counsel of its own choosing.
B. Indemnification. You will indemnify the MikoVerse Parties from and pay: (1) all damages, costs, and attorneys’ fees finally awarded against a MikoVerse Party in any Claim; (2) all out-of-pocket costs (including attorneys’ fees) reasonably incurred by a MikoVerse Party in connection with the defense of a Claim; and (3) all amounts that you agree to pay to any third party to settle any Claim.
13. Limitation of Liability.
A. EXCLUSION OF DAMAGES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER MIKOVERSE NOR ANY MIKOVERSE PARTY WILL BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR USE OF THE MIKOVERSE SYSTEM OR PROFESSIONAL SERVICES, INCLUDING LOST PROFITS, LOSS OF BUSINESS, OR LOSS OF DATA, EVEN IF MIKOVERSE IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. MIKOVERSE SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY, OR LOSSES ARISING OUT OF YOUR RECEIPT OR PROVISION OF COMMUNITY RESOURCES, OR ANY THIRD-PARTY SERVICES.
B. DAMAGES CAP. MIKOVERSE PARTIES’ TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, WILL NOT EXCEED THE GREATER OF: (1) THE AMOUNT OF FEES PAID BY YOU TO MIKOVERSE DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION); OR (2) $100.
14. New Jersey Notice. IF YOU ARE A RESIDENT OF NEW JERSEY, SECTIONS 11.B (DISCLAIMER) AND 13 (LIMITATION OF LIABILITY) ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
15. Release. If you have a dispute with one or more Users, you release us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees, and agents) from all claims, demands, and damages (actual and consequential) of every kind, known and unknown, arising out of or in any way connected with such disputes. YOU EXPRESSLY WAIVE ANY PROTECTIONS (WHETHER STATUTORY OR OTHERWISE) THAT WOULD OTHERWISE LIMIT THE COVERAGE OF THIS RELEASE TO INCLUDE ONLY THOSE CLAIMS WHICH YOU MAY KNOW OR SUSPECT TO EXIST IN YOUR FAVOR AT THE TIME OF AGREEING TO THIS RELEASE.
A. General. In the interest of resolving disputes between you and MikoVerse in the most expedient and cost-effective manner, you and MikoVerse agree that any dispute arising out of or related to this Agreement or your use of the Platform and the Site, in each case, will be resolved by binding arbitration and not in a class, representative or consolidated action or proceeding. Arbitration uses a neutral arbitrator instead of a judge or jury and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or in any way related to this Agreement or your use of the MikoVerse IP, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the expiration or termination of this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND MIKOVERSE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS OR COLLECTIVE ACTION. YOU FURTHER UNDERSTAND THAT THIS SECTION 16 WILL APPLY TO YOU AND MIKOVERSE UNLESS YOU CHOOSE TO OPT OUT PURSUANT TO SECTION 16.K (OPT OUT).
Whether to agree to arbitration is an important decision. It is your decision to make, and you should not rely solely on the information provided in this Agreement, as they are not intended to contain a complete explanation of the consequences of arbitration. You should take further steps to conduct research and to consult with others, including an attorney, regarding the consequences of your decision, just as you would when making any other important business or life decision.
B. Exceptions. Despite the provisions of Section 16.A (General), nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (1) bring an individual action in small claims court; (2) bring an action in a court pursuant to the California Private Attorneys General Act of 2004, California Labor Code § 2698 et seq.; (3) seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of such party’s intellectual property rights; and (4) to litigate in a court of law claims that User owes MikoVerse fees.
C. Arbitrator. Any arbitration between you and MikoVerse will be governed by the U.S. Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and filing forms are available online at adr.org, by calling the AAA at 1-800-778-7879, or by contacting MikoVerse. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
D. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party within the applicable statute of limitations period (“Notice”). MikoVerse’s email address for Notice is email@example.com. The Notice must: (1) describe the nature and basis of the claim or dispute; (2) set forth the specific relief sought; and (3) if you are sending the Notice to MikoVerse, include your name and address (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 45 days after the Notice is received, you or MikoVerse may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or MikoVerse must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.
E. Fees; Location; Language. If you are an individual person, the arbitrator shall apply the AAA Consumer Arbitration Rules. If you are not an individual person, but are an entity or company, the arbitrator shall apply the AAA Commercial Arbitration Rules. If you are an individual person and bring a claim solely for monetary relief of $10,000 or less: MikoVerse will agree to pay for any filing, administrative, or hearing fees charged by the AAA. If you are an individual person and bring a claim for monetary relief exceeding $10,000, the AAA Consumer Arbitration Rules will govern payment of administrative or hearing fees charged by the AAA, including limiting your filing fee to $200. In addition, fee waivers or other forms of cost relief at the arbitrator’s discretion may be available. If you are not an individual person, the AAA Commercial Arbitration Rules will govern payment of administrative or hearing fees charged by the AAA. Any arbitration hearing will take place at a location to be agreed upon in Los Angeles, California. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse MikoVerse for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits. The language of the arbitration shall be English, unless you do not speak English, in which case the arbitration shall be conducted in both English and your native language.
F. Confidentiality. The parties agree to keep confidential the existence of the arbitration, the arbitral proceedings, the submissions made by the parties, and the decisions made by the arbitrator, including its awards, except as required by applicable law and to the extent not already in the public domain.
G. Injunctive and Declaratory Relief. Except as provided in Section 16.B above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To the extent that you or MikoVerse prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
H. No Class Actions. YOU AND MIKOVERSE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING (OTHER THAN ACTIONS UNDER THE CALIFORNIA PRIVATE ATTORNEYS GENERAL ACT OF 2004, CALIFORNIA LABOR CODE § 2698 ET SEQ., WHICH ARE NOT COVERED BY THIS SECTION 16 (ARBITRATION)). Unless both you and MikoVerse agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
I. Modifications to this Arbitration Provision. If MikoVerse makes any future change to this arbitration provision, other than a change to MikoVerse’s address for Notice, you may reject the change by sending a written notice to MikoVerse’s address for Notice within 30 days of the change, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and MikoVerse. If you do not send such written notice, your continued use of the Platform following any such change means that you have consented to such change.
J. Enforceability. If Section 16.H (No Class Actions) is found to be unenforceable or if the entirety of this Section 16 (Arbitration) is found to be unenforceable, then the entirety of this Section 16 will be null and void and the exclusive jurisdiction and venue described in Section 18.B (Governing Law) will govern any action arising out of or related to this Agreement or your use of the Platform and the Site.
K. Opt Out. Arbitration is not a mandatory condition of this Agreement. If you do not want to be subject to this Section 16 (Arbitration), you may opt out by notifying MikoVerse in writing of your decision by sending, within 30 days after the effective date of this Agreement, a requesting using our Contact Us form found at https://MikoVerse.com/contact-us/, stating clearly your full name, address, and intent to opt out of this Section 16. Should you choose not to opt out within the 30-day period, you and MikoVerse will be bound by the terms of this Section 16. You have the right to consult with counsel of your choice concerning regarding your right to opt out of this Section 16, and you understand that you will not be subject to retaliation if you exercise your right to opt out.
17. Compliance with Applicable Law. You will comply with all applicable international, federal, state, provincial, and local laws, regulations, binding regulatory guidance, directives, and governmental requirements in connection with exercising its rights or performing its obligations under this Agreement.
A. Subcontractors. MikoVerse may use subcontractors or other third parties to perform its obligations under this Agreement, but MikoVerse will remain responsible for all such obligations.
B. Governing Law. This Agreement governed by the laws of the state of California without reference to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Except for claims subject to arbitration as set forth in Section 16 (Arbitration), all claims arising under this Agreement that you are not required to arbitrate will be litigated exclusively in the federal or state courts of Los Angeles, California. The parties submit to the jurisdiction of those courts. In any proceeding to enforce rights under this Agreement, subject to AAA Arbitration Rules, the prevailing party will be entitled to recover costs and attorneys’ fees.
C. Injunctive Relief. If you breach Sections 3 (Accounts; Registration; Your Responsibilities), 6 (Ownership), or 8 (Confidentiality), MikoVerse may suffer irreparable harm, and monetary damages may be inadequate to compensate MikoVerse. Accordingly, MikoVerse may, in addition to any other remedies available, seek injunctive or other equitable relief in response to any such breach.
D. Further Assurances. You agree to execute and deliver any documents or instruments, and take any further actions that are reasonably required, to provide the other party the full benefits and rights described in this Agreement.
E. Assignment. You may not assign this Agreement or delegate your performance without MikoVerse’s prior written consent, and any attempt to do so is void. MikoVerse may assign or transfer this Agreement without your consent. This Agreement are binding upon and inure to the benefit of the parties’ permitted successors and assigns.
F. Severability. If any provision of this Agreement or portion of a provision is invalid, illegal, or unenforceable, the rest of this Agreement will remain in effect.
G. No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.
H. Entire Agreement. This Agreement constitutes the entire agreement and supersede any other agreement of the parties relating to their subject matter. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, or supplement this Agreement.
I. Nature of Rights. The licenses granted under this Agreement are rights in “intellectual property” within the scope of Section 101 (or its successors) of the United States Bankruptcy Code (the “Code”). Each party as licensee will have and may fully exercise all rights available to a licensee under the Code, including under Section 365(n) or its successors.
J. Relationship. Your access to and use of the Platform or the Site does not create any direct business relationship between you and MikoVerse. You acknowledge and agree that this Agreement not an employment agreement, nor does it create an employment or contractor relationship, between you and MikoVerse; and no joint venture, partnership, or agency relationship exists between you and MikoVerse. As a User, YOU ACT EXCLUSIVELY ON YOUR OWN AND FOR YOUR OWN BENEFIT, AND NOT ON BEHALF OF OR FOR THE BENEFIT OF MIKOVERSE. YOU AGREE NOT TO DO ANYTHING TO CREATE A FALSE IMPRESSION THAT YOU ARE ENDORSED BY, PARTNERING WITH, OR ACTING ON BEHALF OF OR FOR THE BENEFIT OF MIKOVERSE.
K. No Third-Party Beneficiaries. Except for the MikoVerse Parties and as described in Section 12 (Indemnification), there are no third-party beneficiaries of this Agreement.
L. Notices. All notices under this Agreement must be in writing and will be considered given: (1) upon delivery, if delivered personally or by internationally recognized courier service; (2) three business days after being sent, if delivered by U.S. registered or certified mail (return receipt requested); or (3) upon acknowledgement of receipt, if delivered by email. MikoVerse may update its notice address by updating it through online channels, and you can update your notice address through your account, if any, or by notice to MikoVerse in accordance with this Section. Notwithstanding the foregoing, notifications sent via email by MikoVerse to your email address registered in MikoVerse’s records, based on or related to Sections 3 (Accounts; Registration; Your Responsibilities), 6 (Ownership), 7.D (Restrictions; Data Retention), and 10.B (Termination) will be deemed to be delivered on the date sent by email. All notices to MikoVerse will be sent to:
5800 S. Eastern Ave. Suite 500.
Commerce, CA 90040
M. Force Majeure. MikoVerse will not be liable for any delay or failure to perform under this Agreement as a result of any cause or condition beyond MikoVerse’s reasonable control (a “Force Majeure Event”), so long as MikoVerse uses reasonable efforts to avoid or remove those causes of delay or non-performance. If a Force Majeure Event causes MikoVerse to delay or fail to perform its obligations under this Agreement for 30 consecutive days, either party may terminate this Agreement.
N. NOTICE FOR CALIFORNIA USERS. Under California Civil Code Section 1789.3, Users located in California are entitled to the following notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.
O. Contact Us. If you have any questions about this Agreement or otherwise need to contact us for any reason, you can reach us by emailing firstname.lastname@example.org.