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ARCADIA EARTH LLC
Effective Date: July 26, 2023
IF YOU LIVE IN (OR YOUR PRINCIPAL PLACE OF BUSINESS IS IN) THE UNITED STATES, PLEASE READ THE BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER IN SECTION 14. IT AFFECTS HOW DISPUTES ARE RESOLVED.
This End User License Agreement and Terms of Service (this “Agreement”) is a binding contract between you, an individual user (“you” or “your”) and Arcadia Earth, LLC and its affiliates (“Arcadia,” “we,” “us” or “our”) governing your use of our platform for immersive 3-D experiences (the “Platform”) through our website www.metaverse.arcadia.earth (the “Site”) or through any mobile applications or other software we have developed in connection with the Site or the Platform (the “Software”) (together, the Platform, the Site and the Software, the “Service”).
By clicking “I AGREE” below, you expressly acknowledge that you are a party to this Agreement and agree to be bound by it. This Agreement applies to your use of the Service (including the license to the Software) and any related materials provided by Arcadia, including third-party components and materials (the “Materials”). BY ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, THEN YOU MAY NOT USE THE SERVICE.
As provided in greater detail in this Agreement (and without limiting the express language of this Agreement), you acknowledge the following:
If you are employed by or otherwise represent or have been authorized by a company or other legal entity or organization to access or use the Service, and/or if you have used the Service on its behalf, then the term “you” also includes such third party or entity. You hereby represent and warrant to Arcadia that you are authorized to act on such third party or entity’s behalf in accepting the terms of this Agreement, and you have the necessary authority to enter into this Agreement on its behalf. Whether intend to pay for and use the Service for your own as an individual, or whether you intend to use the Service on behalf of a third party or entity in accordance with this Agreement, in either event you are an authorized user (“User(s)”).
The term Service also includes any documentation, user guides, toolkits, upgrades, updates, supplements, third-party materials and components, internet-based services and support services provided by, for or on behalf of Arcadia in connection with use of the Service. Any Arcadia terms and conditions that appear in or on, or accompany, any Software, Materials, items or services also apply and bind you in connection with your use of and access to the Service.
By agreeing to use the Service below, and using it, you accept these Terms of Service. If you do not accept them, or if you are acting on behalf of a third party or entity but you are not authorized to bind the third party or entity on whose behalf you are subscribing to the Service, do not use the Service. The Service intended for use by children (as defined by applicable law). If you use the Service entirely as a guest, without establishing an account, we collect no personally identifiable information or personal data from you, but you would have limited functionality (e.g., no use of camera, microphone, chat function, and only use of pre-set “cartoon” avatars).
1. Registration.
a. Log-In Credentials. In order to enjoy the full benefits of the Service you must register an account with us (an “Account”).
b. Account Security. You are responsible for the security of your Account, and are fully responsible for all activities that occur through the use of your credentials. You agree to notify Arcadia immediately at [email protected] if you suspect or know of any unauthorized use of your log-in credentials or any other breach of security with respect to your Account. Arcadia will not be liable for any loss or damage arising from unauthorized use of your credentials prior to you notifying Arcadia of such unauthorized use or loss of your credentials. Separate log-in credentials may be required to access External Sites.
c. Accuracy of Information. When creating an Account, you will provide true, accurate, current, and complete information. You will update the information about yourself promptly, and as necessary, to keep it current and accurate. We reserve the right to disallow, cancel, remove, or reassign certain usernames and permalinks in appropriate circumstances, as determined by us in our sole discretion, and may, with or without prior notice, suspend or terminate your Account if activities occur on your Account which, in our sole discretion, would or might constitute a violation of this Agreement, cause damage to or impair the Service, infringe or violate any third party rights, or violate any laws or regulations. If messages sent to the e-mail address you provide are returned as undeliverable, then Arcadia may terminate your Account immediately without notice to you and without any liability to you or any third party
2. Intellectual Property
a. License. Subject to your complete and ongoing compliance with this Agreement, Arcadia hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, royalty-free and worldwide right and license to access and use the Service solely for your personal, non-commercial use and solely in strict compliance with the provisions of this Agreement. For clarity, the preceding license applies to your use of any Arcadia Software and/or Materials.
b. Content. Except for User Content (defined herein below), the content that Arcadia provides to Users on or through the Service, including, without limitation, any text, audiovisual works (including live streams and recordings), sound recordings, graphics, photos, software, and interactive features, is protected by copyright or other intellectual property rights and owned by Arcadia or its third party licensors (collectively, the “Arcadia Content”). Moreover, as between Arcadia and you, Arcadia solely owns all design rights, database and compilation rights and other intellectual property rights in and to the Service, in each case whether registered or unregistered, and any related goodwill.
c. Marks. The Arcadia trademarks, service marks, and logos (collectively, the “Arcadia Trademarks”) used and displayed on the Service are Arcadia’s registered and/or unregistered trademarks or service marks. Other product and service names located on the Service may be trademarks or service marks owned by third parties (collectively with the Arcadia Trademarks, the “Trademarks”). Except as otherwise permitted by law, you may not use the Trademarks to disparage Arcadia or the applicable third party, Arcadia’s or a third party’s products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks. You may not use any Trademarks as part of a link to or from any Service without Arcadia’s prior express written consent. All goodwill generated from the use of any Arcadia Trademark will inure solely to Arcadia’s benefit.
d. Restrictions. Arcadia hereby reserves all rights not expressly granted to you in this Section 2. Accordingly, nothing in this Agreement or on the Service will be construed as granting to you, by implication, estoppel, or otherwise, any additional license rights in and to the Service or any Arcadia Content or Trademarks located or displayed therein. When you access or use the Service, you agree that you will not copy, reverse engineer, decompile or disassemble the Software or any portion thereof, nor attempt any activities not expressly permitted by this Agreement. Further, you understand and agree that the Software is Confidential Information (as defined in Section 9) and property of Arcadia. Accordingly, you agree not to disclose the Software nor any Confidential Information about the Software, the Service or Arcadia, in whole or in part, to any third party without the prior express written consent of Arcadia in each instance. Arcadia has the right, but not the obligation, to monitor the activities that take place on the Site, and to suspend and/or remove User Content accounts in its sole discretion, primarily to ensure that there is no illegal or harmful activity taking place, to ensure that this Agreement is not being violated, and/or to respond to information we receive from other Users or third parties. Arcadia hereby disclaims all liability that might arise from any claim relating to any activity that takes place in a space or using the Service or any User Content, including without limitation any promotional or sales activity by or deriving from any act of any User of the Service or visitor to any space, unless otherwise indicated in this Agreement. You agree to indemnify and hold Arcadia harmless should any liability arise from your conduct if it violates the restrictions set forth in this Agreement
3. User Content.
a. Definition. “User Content” means any content that Users post on or to the Service including, without limitation, any text, photographs, sound recordings (and the musical works embodied therein), other audiovisual content, Personal Characteristics (defined below) and any other works subject to protection under the laws of the United States or any other jurisdiction, including, but not limited to, patent, trademark, trade secret, and/or copyright laws. “Personal Characteristics” means your likeness, name, voice, image, persona and any other personal attributes that you provide or make available to Arcadia in videos, audiovisual works, sound recordings and/or photographs. For the avoidance of doubt, User Content excludes any and all Arcadia Content and Feedback (defined in Section 12 below).
b. Intellectual Property Rights. SUBJECT TO ANY THIRD PARTY RIGHTS IN ANY PREEXISTING CONTENT INCLUDED WITHIN YOUR USER CONTENT, YOU RETAIN OWNERSHIP OF ANY RIGHTS YOU MAY HAVE IN YOUR USER CONTENT AND POSTING YOUR USER CONTENT TO THE SERVICE DOES NOT TRANSFER OWNERSHIP OF SUCH RIGHTS.
c. Licenses to User Content.
i. License to Arcadia. You hereby grant Arcadia an unrestricted, assignable, sublicensable, revocable, royalty-free license throughout the universe to reproduce (including in timed relation to visual images), distribute, publicly display, communicate to the public, publicly perform (including by means of digital audio transmissions and on a through-to-the-audience basis), make available, create derivative works from, retransmit from External Sites, and otherwise exploit and use (collectively, “Use”) all User Content you post on or to the Service by any means and through any media and formats now known or hereafter developed for the purposes of (i) advertising, marketing, and promoting Arcadia and the Service; (ii) displaying and sharing your User Content to other Users of the Service; and (iii) providing the Service as authorized by this Agreement and conducting Arcadia’s business. You must not post any User Content on or through the Service or transmit to Arcadia any User Content that you consider to be confidential or proprietary. Any User Content Posted by you on or to the Service or transmitted to Arcadia will be considered non-confidential and non-proprietary, and treated as such by Arcadia, and may be used by Arcadia in accordance with this Agreement without notice to you and without any liability to Arcadia. For the avoidance of doubt, and by way of example and not limitation, the rights granted in the preceding sentences of this Section include, but are not limited to, the right to reproduce sound recordings (and make mechanical reproductions of the musical works embodied in such sound recordings), and publicly perform and communicate to the public sound recordings (and the musical works embodied therein), all on a royalty-free basis. This means that you are granting Arcadia the right to Use your User Content without the obligation to pay royalties to any third party, including, but not limited to, a sound recording copyright owner (e.g., a record label), a musical work copyright owner (e.g., a music publisher), a performing rights organization (e.g., ASCAP, BMI, SESAC, etc.) (a “PRO”), a sound recording PRO (e.g., SoundExchange), any unions or guilds, and engineers, producers, or other royalty participants involved in the creation of any User Content.
ii. License to Other Users. If you post any User Content on the Service, then you hereby grant all other Users a non-exclusive, perpetual (for the duration of any copyrights), irrevocable, transferable, sublicenseable, worldwide and royalty-free license to use, reproduce, create derivative works of, publicly display and perform, distribute, adapt, modify, combine with other materials or content and otherwise exploit your User Content on the Service. For the avoidance of doubt, (A) you retain ownership rights to your User Content; and (B) if you remove or delete any User Content from the Service, then the license granted in this Section will survive in perpetuity with respect to any work that incorporates any User Content.
d. You Must Have Rights to the Content You Post. You must not post any User Content to the Service if you are not the copyright owner of or are not fully authorized to grant rights in all of the elements of that User Content. In addition, if you only own the rights in and to a sound recording, but not to the underlying musical works embodied in such sound recording, then you must not post such sound recording to the Service until you have all necessary rights, authorizations, and permissions with respect to such embedded musical works that grant you sufficient rights to grant the licenses to Arcadia under this Agreement. You represent and warrant that: (i) you own the User Content posted by you on or through the Service or otherwise have the right to grant the license set forth in this Agreement; (ii) the posting and Use of your User Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any person, including, but not limited to, the rights of any person visible in any of your User Content; (iii) the posting of your User Content on the Service will not require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; and (iv) the posting of your User Content on the Service does not result in a breach of contract between you and a third party. You agree to pay all monies owing to any person as a result of posting your User Content on the Service. Arcadia may require you to provide sufficient evidence of having all necessary rights, licenses, authorizations, permissions, and clearances for any of your User Content that you Post on or to the Service, and if you fail to provide such evidence within a reasonable period of time (as determined by Arcadia in its sole discretion), then Arcadia may remove some or all of your User Content from the Service and/or terminate your Account, without any liability to you. You are solely responsible for keeping copies of such evidence.
e. Specific Rules for Musical Works. If you are a composer or author of a musical work and are affiliated with a PRO, then you must notify your PRO of the royalty-free license you grant through this AGREEMENT to us. You are solely responsible for ensuring your compliance with the relevant PRO’s reporting obligations. If you have assigned your rights to a music publisher, then you must obtain the consent of such music publisher to grant the royalty-free license(s) set forth in this AGREEMENT or have such music publisher enter into this AGREEMENT with us. Just because you authored a musical work (e.g., wrote a song) does not mean you have the right to grant us the licenses in this AGREEMENT.
f. Through-To-The-Audience Rights. All of the rights you grant in this Agreement are provided on a through-to-the-audience basis, meaning the owners or operators of External Sites will not have any separate liability to you or any other third party for User Content Posted or Used on such External Sites via the Service.
g. Waiver of Rights to User Content. To the fullest extent permitted by law, by posting User Content to the Service, you hereby (i) waive all rights to prior inspection or approval of any marketing or promotional materials related to such User Content; (ii) waive all rights of privacy, publicity, or any other rights of a similar nature in connection with your User Content, or any portion thereof (including, without limitation, with respect to any avatar you may use on the Service and any live streams and/or recordings which may include your Personal Characteristics); and (iii) release Arcadia and its owners, members, officers, directors, employees and agents (collectively, the “Arcadia Parties”) from all claims in connection with any use of your Personal Characteristics by the Arcadia Parties. To the extent any moral rights are not transferable or assignable, you further hereby waive and agree never to assert any and all moral rights, or to support, maintain, or permit any action based on any moral rights that you may have in or with respect to any User Content you post on or through the Service.
h. No Liability. For the avoidance of doubt, Arcadia will not be liable for any unauthorized use of User Content by any User.
i. Objectionable Content. You are not permitted to and agree not to post any User Content to the Service that is or could be interpreted to be (i) abusive, bullying, defamatory, harassing, harmful, hateful, inaccurate, infringing, libelous, objectionable, obscene, offensive, pornographic, shocking, threatening, unlawful, violent, or vulgar; or (ii) promoting any product, good or service, or bigotry, discrimination, hatred, racism, or inciting violence, in each of clauses (i) and (ii) of this Section, as Arcadia may determine in its sole discretion (collectively, “Objectionable Content”). The Posting of any Objectionable Content may subject you to third party claims and none of the rights granted to you in this Agreement may be raised as a defense against any third party claims arising from your Posting of Objectionable Content. If you encounter any Objectionable Content on the Service, then please inform us through the functionality offered on the Service. You acknowledge and agree that Arcadia provides you the right to report Objectionable Content as a courtesy, and Arcadia has no obligation to remove or take any other action with respect to any Objectionable Content on the Service that you report to us. Arcadia may terminate, suspend, warn or take other appropriate actions against Users for Posting Objectionable Content to the Service, including, but not limited to, the removal of all User Content Posted to the Service by a User.
4. Restrictions on Use of the Service. Without limiting any other terms of this Agreement, when using the Service, you agree not to (and not to attempt to):
a. use any device, software or routine to interfere or attempt to interfere with the proper working of the Service, or any activity conducted on the Service;
b. decipher, decompile, disassemble, or reverse engineer any of the software or source code comprising or making up the Service;
c. delete or alter any material Arcadia or any other person or entity Posts on the Service;
d. frame or link to any of the materials or information available on the Service, or live stream any such content;
e. use or exploit any Trademarks, Arcadia Content, or User Content in any manner that is not expressly authorized by this Agreement;
f. access, tamper with, or use non-public areas of the Service, Arcadia’s (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of Arcadia’s providers;
g. provide any false personal information to Arcadia;
h. create a false identity or impersonate another person or entity in any way;
i. create a new Account with Arcadia, without Arcadia’s express written consent, if Arcadia has previously disabled an Account of yours;
j. solicit personal information (including, but not limited to, photographs) from other Users of the Service;
k. restrict, discourage, or inhibit any person from using the Service, disclose personal information about any third party without the consent of that person;
l. use the Service to (A) send Messages to others who have requested that you not send them Messages; or (B) send Messages to others who have not given you their express consent to receive such Messages;
m. use the Service, without Arcadia’s prior express written consent, for any commercial or unauthorized purpose, including communicating or facilitating any commercial advertisement or solicitation or spamming;
n. gain unauthorized access to the Service, to other Users’ Accounts, names, or personally identifiable information, or to other computers or websites connected or linked to the Service;
o. Post any virus, worm, spyware, or any other computer code, file, or program that may or is intended to disable, overburden, impair, damage, or hijack the operation of any hardware, software, or telecommunications equipment, or any other aspect of the Service or communications equipment and computers connected to the Service;
p. access the Service from a device other than your own;
q. violate any federal, state, or local laws or regulations or the terms of this Agreement; or
r. assist or permit any person in engaging in any of the activities described above.
5. Changes to this Agreement. You understand and agree that Arcadia may change this Agreement at any time without prior notice. Arcadia will endeavor to provide you with prior notice of any material changes. You may read a current, effective copy of this Agreement at any time by selecting the appropriate link on the Service. The revised Agreement will become effective at the time of posting and your use of the Service after such time will constitute your acceptance of such revised Agreement. If any change to this Agreement is not acceptable to you, then your sole remedy is to stop accessing, browsing and otherwise using the Service. The terms of this Agreement will govern any updates Arcadia provides to you that replace and/or supplement any portion of the Service, unless the upgrade is accompanied by a separate license or revised Agreement, in which case the terms of that license or revised Agreement will govern. Notwithstanding the preceding sentences of this Section 5, no revisions to this Agreement will apply to any dispute between you and Arcadia that arose prior to the effective date of such revision.
6. Privacy Policy. Your access to and use of the Service is also subject to the Privacy Policy, the terms and conditions of which are incorporated into this Agreement by reference.
7. Jurisdictional Issues. Arcadia makes no representation that materials on the Service are appropriate, lawful or available for use in any locations other than the United States of America. Those who choose to access or use the Service from locations outside the United States of America do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. Access to the Service from jurisdictions where the contents or practices of the Service are illegal, unauthorized or penalized is strictly prohibited.
8. Eligibility. THE SERVICE IS NOT FOR PERSONS UNDER THE AGE OF 13 OR FOR ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICE BY ARCADIA. IF YOU ARE UNDER 13 YEARS OF AGE, THEN YOU MUST NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER. Furthermore, by using the Service, you affirm that either you are at least 18 years of age or have been authorized to use the Service by your parent or guardian who is at least 18 years of age. If any person accepts this Agreement on your behalf, then you hereby represent and warrant that such person is your duly authorized agent (each, an “Agent”) and you are bound by the terms and conditions set forth in this Agreement.
9. Confidential Information. For purposes of this Agreement, “Confidential Information” includes innovations, any information, knowledge or data of either party which the other party and its employees may access or receive relating to the Service, Software, Materials, code, computer programs, accounting methods, marketing techniques, customer names, negotiated customer fee information, financial information, marketing plans, product plans, product or services roadmaps, business strategies, forecasts, personnel information, customer lists, trade secrets and any other nonpublic technical or business information, whether in writing, given to the recipient orally or in any other way communicated or provided to the recipient, which the recipient knows or has reason to know that disclosing party would like to treat as confidential for any purpose, such as maintaining a competitive advantage or avoiding undesirable publicity. The Service, Software and any nonpublic Materials/documentation shall remain the Confidential Information of Arcadia at all times. Neither party as the recipient shall disclose any Confidential Information of the disclosing party without the prior written consent of the disclosing party, and neither party shall use any Confidential Information of the disclosing party except with respect to you as recipient, to properly use the license granted under this Agreement, or with respect to Arcadia as recipient, only to the extent necessary to provide and enhance the Service and other services, or assist your use of the license you have obtained under this Agreement
10. No Warranties. The Service, Software and Materials are provided as is and with all faults. Arcadia makes no warranties of any kind in connection with the Service, Software and Materials, and hereby disclaims all warranties of every kind, express, implied and statutory, including without limitation, warranties of fitness for a particular purpose, merchantability and non-infringement. no warranty is given with respect to security or privacy unless otherwise indicated in this Agreement, or for any third-party materials unless a third-party warranty can be passed through to you. to the maximum extent permitted by applicable law, you and Users assume all risk for any damage that may result from use of or access to the Service, your and Users’ dealing with other users in a space and on the Service, and any User Content or Materials available through the Service.
11. External Sites. The Service may contain links to or the ability to share information with other websites or other online properties that are not owned or controlled by Arcadia (collectively, “External Sites”). Arcadia does not endorse any content on such External Sites. The content of such External Sites is not developed or provided by Arcadia. You should contact the site administrator or Webmaster for those External Sites if you have any concerns regarding such content located on such External Sites. Arcadia is not responsible for the content of any External Sites and does not make any representations regarding the content or accuracy of any materials on such External Sites. You should take precautions when downloading files from all websites to protect your devices from viruses and other destructive programs. If you decide to access any External Sites, then you do so at your own risk. Further, you will be solely responsible for compliance with any terms of service or similar terms imposed by any External Site in connection with your use of External Sites. Notwithstanding the foregoing, Arcadia prohibits your use of External Sites that are pornographic, obscene or violent in nature (including but not limited to sexual, physical and/or gun violence) as well as containing hate speech. Arcadia reserves all rights to terminate or suspend your use of the Service at any time should you violation this prohibition.
12. Feedback. While our own staff works to develop and evaluate our own product ideas and features, we pride ourselves on paying close attention to the interests, feedback, comments, and suggestions we receive from the User community. If you choose to contribute by sending Arcadia or our employees any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings (such as audio, visual, games, or other types of content), promotions, strategies, product/feature names, or any related documentation, artwork, computer code, diagrams, or other materials (collectively “Feedback”), then regardless of what your accompanying communication may say, the following terms will apply, so that future misunderstandings can be avoided. Accordingly, by sending Feedback to Arcadia, you agree that:
a. Arcadia has no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason;
b. Feedback is provided on a non-confidential basis, and Arcadia is not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and
c. You irrevocably grant Arcadia perpetual and unlimited permission to reproduce, distribute, create derivative works of, modify, publicly perform (including on a through-to-the-audience basis), communicate to the public, make available, publicly display, and otherwise use and exploit the Feedback and derivatives thereof for any purpose and without restriction, free of charge, and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.
13. Notice and Procedure for Making Claims of Copyright or Other Intellectual Property Infringements.
a. Respect of Third Party Rights. Arcadia respects the intellectual property of others and takes the protection of intellectual property very seriously, and we ask our Users to do the same. Infringing activity will not be tolerated on or through the Service.
b. Repeat Infringer Policy. Arcadia’s intellectual property policy is to (i) remove or disable access to material that Arcadia believes in good faith, upon notice from an intellectual property owner or his or her agent, is infringing the intellectual property of a third party by being made available through the Service; and (ii) remove any User Content Posted to the Service by “repeat infringers.” Arcadia currently considers a “repeat infringer” to be any User that has Posted User Content or Feedback on or to the Service and for whom Arcadia has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such User Content or Feedback. Arcadia has discretion, however, to terminate the Account of any User after receipt of a single Notification of Claimed Infringement (defined in Section 9.c below) or upon Arcadia’s own determination.
c. Procedure for Reporting Claimed Infringement. If you wish to send a notice of intellectual property infringement, including claims of copyright infringement, please at [email protected].
14. Binding Arbitration and Class Action Waiver. If you live in (or if a business your principal place of business is in) the United States:
a. We hope we never have a dispute, but if we do, you and we agree to try for 60 days to resolve it informally. If we can’t, you and we agree not to sue in court in front of a judge or jury but rather to binding individual arbitration before a single arbitrator administered by JAMS pursuant to its streamlined arbitration rules (or if you are not based in the United States, JAM’S international arbitration rules), subject to the application of the laws applicable in the State of Delaware. Class action lawsuits, class-wide arbitrations, private attorney-general actions, and any other proceeding where someone acts in a representative capacity aren’t allowed. Nor is combining individual proceedings without the consent of all parties. “We,” “our,” and “us” includes Arcadia’s affiliates.
b. Email a Notice of Dispute First. If you have a dispute and our customer service representatives can’t resolve it, send a Notice of Dispute by email to [email protected]. Tell us your name, address, how to contact you, what the problem is, and what you want. We’ll do the same if we have a dispute with you. After 60 days, you or we may start an arbitration if the dispute is unresolved.
c. Conflict with JAMS Rules. These Terms govern to the extent they conflict with the JAMS’ Streamlined Arbitration Rules or International Arbitration Rules.
d. Must File Within One Year. You and we must file in small claims court or arbitration any claim or dispute within one year from when it first could be filed. Otherwise, it’s permanently barred.
e. Severability. If the class action waiver is found to be illegal or unenforceable as to all or some parts of a dispute, then those parts won’t be arbitrated but will proceed in court, with the rest proceeding in arbitration. If any other provision of section 10 is found to be illegal or unenforceable, that provision will be severed but the rest of section 10 still applies.
f. Equitable Remedies. Notwithstanding the foregoing, nothing shall prevent Arcadia from seeking an injunction or other equitable remedy in a court of competent jurisdiction where the health or safety of any Users or Arcadia personnel may be at stake, or if necessary in connection with an actual or threatened claim or dispute with respect to Arcadia’s (or other) intellectual property rights or relating to the potential or actual occurrence of a security breach or incident.
15. Limitation of Liability and Disclaimer of Warranties. THE TERMS OF THIS SECTION 15 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW:
a. ARCADIA PARTIES DO NOT MAKE ANY WARRANTIES OR REPRESENTATIONS ABOUT THE SERVICE AND ANY CONTENT AVAILABLE ON THE SERVICE (INCLUDING, WITHOUT LIMITATION, THE ACCURACY, RELIABILITY, COMPLETENESS, APPROPRIATENESS OR TIMELINESS THEREOF). AS A RESULT, THE ARCADIA PARTIES WILL NOT BE SUBJECT TO ANY LIABILITY FOR (i) THE APPROPRIATENESS, ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF ANY CONTENT ON THE SERVICE OR ANY OTHER INFORMATION CONVEYED TO ANY USER ON OR THROUGH THE SERVICE; (ii) ANY ERRORS, MISTAKES, OR OMISSIONS IN SUCH CONTENT OR INFORMATION; OR (iii) ANY DELAYS OR INTERRUPTIONS TO THE SERVICE. ACCORDINGLY, THE SERVICE AND ALL CONTENT THEREON ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND THE ARCADIA PARTIES HEREBY DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND FITNESS FOR A PARTICULAR PURPOSE. CONSEQUENTLY, YOU AGREE THAT YOU SOLELY ASSUME ALL RISKS ARISING FROM YOUR USE OF THE SERVICE.
b. WITHOUT LIMITING THIS SECTION 15, THE ARCADIA PARTIES DO NOT WARRANT THAT THE SERVICE AND ANY CONTENT THEREON ARE FREE OF ERRORS, COMPUTER VIRUSES, OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SERVICE OR ANY CONTENT THEREON RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, THEN NO ARCADIA PARTY WILL BE RESPONSIBLE FOR THOSE COSTS.
c. IN NO EVENT WILL ANY ARCADIA PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM, OR IN CONNECTION WITH, THE USE OR INABILITY TO USE THE SERVICE AND ANY CONTENT THEREON, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH ARCADIA PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ARCADIA’S LIABILITY, AND THE LIABILITY OF ANY OF THE OTHER ARCADIA PARTIES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO U.S. $100.
d. For New Jersey residents, the limitations set forth above are inapplicable where attorneys’ fees, court costs, or other damages are mandated by statute.
16. Third Party Disputes. ANY DISPUTE YOU HAVE WITH ANY THIRD PARTY ARISING OUT OF OR RELATED TO YOUR USE OF THE SERVICE (INCLUDING, WITHOUT LIMITATION, ANY CARRIER OR OTHER USER), IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY. ACCORDINGLY, TO THE FULLEST EXTENT PERMITTED BY LAW, YOU IRREVOCABLY RELEASE THE ARCADIA PARTIES FROM ANY AND ALL CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
17. Indemnification. To the fullest extent permitted by law, you agree to defend, indemnify, and hold harmless the Arcadia Parties from and against any claims, actions, or demands (including, without limitation, reasonable legal and accounting fees) arising or resulting from (a) your breach of this Agreement; (b) your access to, use, or misuse of the Arcadia Content or the Service; and (c) your User Content, including but not limited to infringement or misappropriation by the User Content of the intellectual property rights of a third party. Arcadia will provide notice to you of any such claim, suit, or proceeding. Arcadia reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this Section if Arcadia believes that you are unwilling or incapable of defending Arcadia’s interests. In such case, you agree to cooperate with any reasonable requests assisting Arcadia’s defense of such matter at your expense.
18. Term and Termination of the Agreement.
a. Term. As between you and Arcadia, the term of this Agreement commences as of your first use of the Service and continues until the termination of this Agreement by either you or Arcadia.
b. Termination. You may terminate this Agreement by sending written notification to Arcadia at [email protected] and terminating all other uses of the Service. If you wish to delete any of your User Content from the Service, then you may do so using the permitted functionalities of the Service, but the removal or deletion of such User Content will not terminate this Agreement. Arcadia reserves the right, in its sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Service at any time without prior notice or liability if you breach any provision of this Agreement or violate the rights of any third party on or through the Service. Arcadia may further terminate this Agreement for any other reason upon 10 days’ notice to you using the email address associated with your Account credentials or immediately in the event that your email address is no longer current. Arcadia reserves the right to change, suspend, or discontinue all or any part of the Service at any time without prior notice or liability.
c. Sections 2, 3, 5, 6, 7, 9, 10, 11, 13, 14, 15, 16, 17, 18, 19, 20, and 21 and any defined terms used in those Sections will survive the termination of this Agreement indefinitely.
19. Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us as further described in the Privacy Policy. Please read the Privacy Policy to learn more about your choices regarding our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
20. Miscellaneous. This Agreement is governed by the internal substantive laws of the State of Delaware without respect to its conflict of laws provisions. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Arcadia as a result of this Agreement or use of the Service. You further acknowledge that by submitting User Content, no confidential, fiduciary, contractually implied, or other relationship is created between you and Arcadia other than pursuant to this Agreement. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of this Agreement, which will remain in full force and effect. Failure of Arcadia to act on or enforce any provision of this Agreement will not be construed as a waiver of that provision or any other provision in this Agreement. No waiver will be effective against Arcadia unless made in writing, and no such waiver will be construed as a waiver in any other or subsequent instance. Except as expressly agreed by Arcadia and you, this Agreement constitutes the entire agreement between you and Arcadia with respect to the subject matter hereof, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter herein. The Section headings are provided merely for convenience and will not be given any legal import. This Agreement will inure to the benefit of our successors and assigns. You may not assign this Agreement or any of the rights or licenses granted hereunder, directly or indirectly, without the prior express written consent of Arcadia. Arcadia may assign this Agreement, including all its rights hereunder, without restriction.
21. Entire Agreement. You agree that this Agreement sets forth the entire Agreement and understanding between You and Arcadia concerning the Service, Software and Materials and your license to use them, and this Agreement supersedes all prior and contemporaneous communications, written or oral, concerning the Service, Software and Materials and is intended to be a complete and exclusive statement of the terms of your Agreement with Arcadia. You hereby acknowledge that you have not relied upon any representation whatsoever of Arcadia which is not contained in this Agreement. Any waiver by Arcadia of any breach or default by you of any of the terms or conditions of this Agreement will not be considered as a continuing waiver or a waiver of any prior, subsequent or different breach. Arcadia shall have the ongoing, unfettered right to assign this Agreement to any current or future Arcadia affiliated company or third party, whether by merger, acquisition, reorganization, sale of substantially all assets or equity, or by operation of law, without your consent and without notice. Any assignment or attempted assignment by you of this Agreement in whole or in part, or of any of the rights granted herein, without the prior written consent of Arcadia, shall be void. No alteration, amendment, variation, supplementation, modification or waiver of any of the terms of this Agreement shall be binding or effective for any purpose, unless made pursuant to an instrument in writing signed by an authorized representative of Arcadia. In the event that you are entering into this Agreement on behalf of an entity or third party, you hereby represent that you are at least 18 years old , and fully authorized to do so and bind such entity or third party to this Agreement
22. Contact Us. If you would like to contact us in connection with your use of the Service, then please contact us by email at [email protected].
