vSpatial Terms of Service
Last modified: November 30, 2016
1. Acceptance of Terms.
1.2. vSpatial may change this Agreement periodically. If We make a material change to the Agreement, We will provide you with reasonable notice prior to the changes either by emailing the email address associated with your account or by posting a notice on www.vspatial.com or an associated website. You can review the most current version of the Agreement at any time by visiting this page. The revised Agreement will become effective on the date set forth in our notice, and if you use the Services after that date, your use will constitute acceptance of the revised Agreement. If any revision of this Agreement is not acceptable to you, your only remedy is to cancel your account and stop using the Services, which you may do by clicking here or otherwise through the process provided in the Service. [CANCELLATION PROCEDURE.]
1.3. By accessing or using the Services, you affirm that you are at least 18 years of age (or have reached the age of majority if that is not 18 years of age where you live). You represent that you are fully able and competent to enter into and comply with the terms and conditions of this Agreement. The Services are not directed to children under the age of 13. If you are under the age of 13, you are not permitted to access or use the Services. If We become aware that you are using the Services even though you are under the age of 13, we will deactivate your account.
2. Use of the Software and Services
2.1. You acknowledge that the Services and any software that may be made available by or on behalf of vSpatial in connection with the Services, including vSpatial’s mobile and desktop applications, (“Software”) contain proprietary and confidential information that is protected by applicable copyrights, trademarks, service marks, patents and/or other proprietary rights and laws. Subject to the terms and conditions of this Agreement, vSpatial only grants you a personal, non-exclusive, non-transferable, limited, non-sublicensable license to use the Software and Services to the extent reasonably required to use the Software and Services and only for the duration that you are entitled to use the Software and Services. You may use the Services only as permitted in this Agreement. You will not resell, reframe, distribute, use on a timeshare, outsourced, or service bureau basis, or otherwise directly commercialize the sale or lease of the Services.
2.2. You may access and use the Services only for lawful, authorized purposes and you shall not misuse the Services in any manner (as determined by vSpatial in its sole discretion). You shall comply with any codes of conduct, policies, storage limitations, or other notices vSpatial provides you or publishes in connection with the Services from time to time, but if any of those policies materially alter this Agreement, We will provide you with reasonable notice as required by Section 1.2 above. You shall promptly notify vSpatial if you learn of a security breach related to the Services.
2.3. You may not remove any proprietary notices or labels from any of the Services or Software. You may not alter, modify, redistribute, sell, auction, decompile, reverse engineer, disassemble or otherwise reduce any of the Services or Software to a human-readable form. You may not reproduce, distribute, or create any derivative works based on the Services or Software without expressly being authorized to do so in writing by vSpatial. Further, you may not rent, lease, grant a security interest in, or otherwise transfer any rights to the Services or Software. “vSpatial,” associated logos, and other names, logos, icons, and marks identifying vSpatial’s Services are trademarks or service marks of vSpatial (collectively, the “Trademarks”) and may not be used without the prior written permission of vSpatial. All other product names mentioned are used for identification purposes only and may be trademarks or service marks of their respective holders. Nothing should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark without the prior written permission of vSpatial.
2.4. You agree that from time to time, the Software may download and install upgrades, updates, and additional features from us in order to improve, enhance, and further develop the Software.
2.5. Any rights not expressly granted herein are reserved.
3. Privacy and Data Protection
3.1. “Content” means all visual, written, or audible communications, files, data documents, videos, recordings, or any other material displayed, posted, uploaded, stored, exchanged, or transmitted on or through your use of the Services or otherwise provided on website or online space related to the Services. You retain ownership of any intellectual property rights that you hold in the Content. We will not monitor Content, except: (i) as needed to provide, support, or improve provision of the Services; (ii) investigate potential or suspected fraud; (iii) where instructed or permitted by you; or (iv) as otherwise required by law or to exercise or protect Our legal rights.
3.3. You are solely responsible for your Content and your use of the Services. We are not liable to you for any loss or damages arising from any Content. We do not endorse and have no control over the Content used in connection with the Services. We cannot guarantee the accuracy of any Content provided by you or by other users.
3.4. You are solely responsible for your computer(s), your vSpatial account, and any transmissions you make when using the Services. Your use of the Services is subject to the terms and conditions of this Agreement and all applicable laws, rules, and regulations, including local, state, national, and international laws, rules, and regulations. When using the Services, you shall not: (i) post, distribute, or otherwise make available or transmit any software or other computer files that contain a virus, trojan horse, worm, or other harmful or destructive component; (ii) use the Services for any illegal purposes; (iii) delete from the Services or Software, documentation or any vSpatial website used in connection with the Services, any legal notices, disclaimers, or proprietary notices such as copyright or trademark notices, or modify any logos that you do not own or have express permission to modify; (iv) use the Services under false pretenses to attempt to gain unauthorized access to computer systems or devices that you do not have permission to access or otherwise interfere or disrupt any other networks connected to the Service; (v) use the Services to infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy or use the Services to share copyrighted material that you do not own or have permission to share or distribute; or (vi) distribute any unlawful, harassing, libelous, defamatory, racist, indecent, abusive, violent, threatening, intimidating, harmful, vulgar, obscene, offensive or otherwise objectionable material of any kind or nature. If We reasonably determine you have breached this Agreement We may take action without liability to remedy the violation (e.g., removing violating Content, or restricting, suspending, or terminating your access to the Services). We will make commercially reasonable efforts to notify you before taking such actions so that you can remedy the issue. However, we reserve the right to act immediately if We reasonably believe that allowing your use of the Services would expose Us to civil, regulatory, or criminal liability. You agree to indemnify, defend, and hold harmless Us from any and all third party claims, liability, damages, and/or costs (including, but not limited to, attorneys’ fees) arising from our reasonable determination that you have violated this Agreement.
3.5. The Services require you to use an email address to create a username and choose a password for access to your vSpatial account. vSpatial does not send emails asking for a user’s vSpatial username and/or password or any other username or password. To keep the Services secure, you should keep all usernames and passwords confidential. Access to, and use of, password-protected and/or secure aspects of the Services are restricted to authorized users only. You shall not access or use someone elses’s vSpatial account at any time and unauthorized individuals attempting to use any of the Services may be subject to prosecution. You agree to carefully safeguard all of your passwords. vSpatial does not maintain a database of user passwords so you are solely responsible if you do not maintain the confidentiality of your passwords and account information. Furthermore, you are solely responsible for any and all activity that occurs under your account. vSpatial is not liable for any loss incurred by you resulting from another’s use of your password or account, either with or without your knowledge. However, you may be held liable for losses incurred by vSpatial or another party due to another’s use of your password or account, either with or without your knowledge. You agree to immediately notify vSpatial of any unauthorized use of your account or any other suspected breach of security known to you, including if you believe that your password and/or account information has been stolen or otherwise compromised.
4. Beta Services
4.1. We may offer you the opportunity to use and evaluate a “beta” version of the Services (“Beta Services”) to get your evaluation and feedback. Beta Services may contain bugs, errors, and other problems and you accept the Beta Services “As-Is.” We give you no warranty of any kind and are not responsible for any sort of problems or issues related to your use of Beta Services. You may be required to provide feedback to use Beta Services. We make no representations, promises, or guarantees that the Beta Services will ever be generally released. We may suspend or terminate access to the Beta Service and delete any Content or data on the Beta Service without any liability to you.
4.2. If you send Us feedback or suggestions regarding the Beta Services, you grant Us an unlimited, world-wide irrevocable, perpetual, free license to use any such feedback or suggestions for any purpose without any obligation to you.
5. Payment Terms and Fees
5.1. In the event that you use a Service that is made available for a fee, you will be required to select a payment plan and provide accurate information regarding your credit card or other payment instrument. You will promptly update your account information with any changes in your payment information. You agree to pay vSpatial in accordance with the terms set forth on the Site and this Agreement, and you authorize vSpatial or Our third-party processors to bill your payment instrument in advance on a periodic basis in accordance with such terms.
5.2. If you dispute any charges you must notify vSpatial within 60 days after the date vSpatial invoices you. All amounts paid are non-refundable and we reserve the right to change our prices in the future. If We increase our prices for your Services, we will provide notice of the change on the Site and email you at least 30 days before the change is to take effect. Your continued use of the Services after the price change goes into effect constitutes your agreement to pay the changed amount. vSpatial may choose to bill you through an invoice, in which case, full payment for invoices issued must be received by the date specified in the invoice.
5.3. Past due fees are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection.
5.4. You shall be responsible for all taxes associated with Services other than U.S. taxes based on vSpatial’s net income.
5.5. vSpatial may participate in account updater services or recurring billing programs supported by your payment card provider that you are enrolled in. As part of this program, your payment card provider may notify Us of a change to your payment card number and/or expiration date. In accordance with the program requirements, in the event that We are notified of an update to your payment car number and/or expiration date, vSpatial will automatically update your payment profile on your behalf. We make no guarantees that we will request or receive your updated payment card information. You acknowledge and agree that it is your sole responsibility to modify and maintain your account settings, including but not limited to: (i) setting your renewal options; and (ii) ensuring your associated payment method(s) are current and valid. Further, you acknowledge and agree that failure to do so may result in interruption or loss of the Services, and vSpatial shall not be liable to you or any third party regarding the same.
5.6. Your right and license to access, use, execute, and deploy any of vSpatial’s free Services are not guaranteed for any period of time and vSpatial reserves the right, in its sole and absolute discretion, to restrict, limit, or terminate the use of free versions of any of the Services.
6. Term and Termination
6.1. This Agreement will continue in effect unless and until your account or this Agreement is terminated as described herein. Service plans that are paid monthly will automatically renew for additional months, and Service plans that are paid annually will automatically renew for additional years. For information about deactivating your account, email email@example.com.
6.2. We reserve the right to deactivate and delete your account (or your access to the Services) and terminate this Agreement at any time for any reason, or no reason, with or without notice. Upon any termination of this Agreement, We will have no obligation to maintain or provide you your Content and vSpatial shall not be liable to you or any third party for termination of the Services, your use of the Services, or deletion of your Content.
6.4. All accrued rights to payment and the terms of Section 5, all disclaimers and limitations of warranties and damages, and confidentiality commitments set forth in this Agreement or otherwise existing at law shall survive any termination, expiration, or rescission of this Agreement.
7. Warranty Disclaimer
7.1. To the extent allowed by applicable law, you agree to use the Services at your own risk. You agree that We and our affiliates will not be responsible for any harm to any device, any loss of data, or any other harm that results from your use of the Services. We, including our affiliates, do not guarantee that your use of the Services will be uninterrupted or error-free. To the extent allowed by applicable law, the Services and any related software and/or sites are provided “as-is” and “as available” for your use without warranties or conditions, either express, implied, or statutory.
7.2. Except as expressly stated in this Section 7, to the extent allowed by applicable law, we, including our affiliates, (i) expressly disclaim all warranties and conditions of any kind, express, implied, or statutory, including without limitation any warranty, condition, or implied term as to merchantability, fitness for a particular purpose or non-infringment, and (ii) make no warranty or representation regarding the services, any information, materials, goods, or services obtained through the services or the sites, or that the services will meet any of your requirements, or be uninterrupted, timely, secure, or error free. The Services are not designed or licensed for use in environments requiring fail-safe controls.
7.3. You acknowledge that there are important safety and health warnings and instructions that you should read and follow before using virtual reality products, including the Services. These are available from the manufacturer or supplier of the head mounted display and mobile phone or other peripherals that you are utilizing to take part in a virtual reality experience and/or from the app store from which the app was obtained, for example, from the Oculus Store at www.oculus.com/warnings/. By using the Services you represent and understand these warnings and instructions. These warnings and instructions may be updated and revised, so please review them periodically. You represent and warrant that you will read all safety and health warnings and instructions provided by third parties in connection with the use of their hardware, software, and equipment before using our Software and/or Services.
8. Limitation of Liability
8.1. You agree that vSpatial (which includes, collectively, its affiliates, officers, directors, employees, agents, suppliers, and licensors) will not be liable for any indirect, incidental, exemplary, special, or consequential damages, loss or corruption of data, loss of revenues, profits, goodwill or anticipated sales or savings, procurements of substitute goods and/or services, or interruption to business or wasted administrative time. These exclusions apply regardless of the theory of liability, or whether related to your use or inability to use the Services, or otherwise. If you are a California resident, you waive California Civil Code Section 1542, which says: a general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor. These exclusions apply even if vSpatial has been advised of the possibility of such damages. To the extent allowed by law, the maximum liability of vSpatial (which includes, collectively, its affiliates, officers, directors, employees, agents, suppliers, and licensors) to you shall not exceed the greater of: (i) the fees paid by you to vSpatial or any approved source during the 12 months before the last event that gave rise to your claim; or (ii) US 100.00. This limitation of liability applies whether the claims are contract, tort (including negligence), or otherwise. This limitation of liability is in the aggregate and not per incident.
8.2. In the event that applicable law limits the above limitations of liability, the maximum amount of limitations allowed under applicable law shall be applied. All disclaimers, limitations of warranties and damages and confidentiality commitments set forth in this agreement or otherwise existing at law: (i) are of the essence of the agreement of the parties, and (ii) survive any termination, expiration, or rescission of this Agreement.
9.1. You agree to indemnify, defend, and hold vSpatial and its affiliates, officers, directors, employees, agents, suppliers, and licensors (the “Indemnified Parties”) harmless from and against any and all liabilities, claims, and costs, including reasonable attorneys’ fees, incurred by the Indemnified Parties in connection with any third party demand, claims, action, suit, or loss arising as a result of: (i) any breach of this Agreement by you; (ii) any fraud or manipulation by you; (iii) any third party claim, action, or allegation of infringement based on information, data, files, or other content submitted by you. You shall not enter into any settlement agreement which assigns liability or admits liability by vSpatial without Our consent. We reserve the right to assume the exclusive defense of any that is subject to indemnification under this Section 9.1. In such case, you agree to cooperate with any reasonable requests assisting Our defense of such matters.
10. Representations and Warranties
10.1. You represent and warrant to vSpatial that: (i) you have full power and authority to enter into this Agreement; (ii) you own all your Content or have obtained all permissions, releases, rights, or licenses required to engage in your activities (and allow vSpatial to perform its obligations) in connection with the Services without obtaining any further releases or consents; and (iii) your Content and your other activities in connection with the Services, and vSpatial’s exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does your Content contain any matter that is unlawful or illegal.
10.2. You agree not to:
10.2.1. Upload, post, transmit, or otherwise make available any of your Content that is unlawful or illegal, including without limitation Content that is libelous, or invasive of another’s privacy;
10.2.2. Use the Services to harm minors in any way;
10.2.3. Impersonate any person or entity, including, but not limited to, vSpatial affiliates, officers, directors, employees, agents, suppliers, and licensors, or falsely state or otherwise misrepresent your affiliation with a person or entity;
10.2.4. Manipulate identifiers in order to disguise the origin of any of your Content;
10.2.5. Upload, post, transmit, or otherwise make available any of your Content that you do not have the right to make available under any law or under any contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
10.2.6. Upload, post, transmit, or otherwise make available any of your Content in a manner that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
10.2.7. Sublicense, resell, rent, lease, or assign the Services or their use, or offer the Services on a time share basis to any third party;
10.2.8. Use the Services to upload, post, transmit, or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
10.2.9. Use the Services to upload, post, transmit, or otherwise make available any software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware;
10.2.10. Interfere with or disrupt the Service or servers or networks connected to the Services, or disobey requirements, procedures, policies, or regulations of networks connected to the Services, including using any device or software;
10.2.11. Modify, adapt, or hack the Service, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks.
10.2.12. Intentionally or unintentionally violate any applicable local, state, national, or international law in connection with your use of the Services, including, but not limited to, any data, privacy, or export control laws, or regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange, or the NASDAQ, and any regulations having the force of law;
10.2.13. Use the Services to provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act;
10.2.14. Use the Services to engage in any unlawful or illegal activities; and/or
10.2.15. Collect or store personal data about other users in connection with any of the prohibited conduct and activities set forth above.
10.3. You acknowledge that vSpatial and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or remove any of your Content that is available via the Services. If, for instance, you make available files that do not belong to you and make these files available publicly, we can delete those files. We may also review your Content where we deem appropriate, including for violations of this Agreement or in response to a user complaint. Without limiting the foregoing, vSpatial and its designees shall have the right (but not the obligation) to remove any of your Content that violates this Agreement or is otherwise objectionable. You must evaluate and bear all risks associated with the use of your Content.
11.1. This Agreement shall be binding upon and inure to the benefit of parties and their permitted assigns. You may not assign this Agreement without the prior written consent of vSpatial, except, if you are a legal business entity, you may assign this Agreement in connection with a merger, re-organzation, or acquisition of all or a substantial portion of your assets by another company, but only upon 30-days written notice to vSpatial. vSpatial may assign or transfer this Agreement, in whole or in party, without restriction.
11.2. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extend necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
11.3. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement. vSpatial may amend the terms of this Agreement at any time by: (i) posting revised terms on or accessible through vSpatial’s website(s) and providing you with reasonable notice of such changes, and/or (ii) sending information regarding the amended terms to the email address you have provided to vSpatial upon registration. You are responsible for regularly reviewing Our website(s) to obtain timely notice of any such amendments. You manifest intent to accept any amended terms if you continue to use the Services after such amended terms have been posted or sent to you. If you do not agree with any such amended terms you must notify vSpatial within 30 days after such amended terms have been posted. Otherwise, all waivers and modifications to this Agreement must be in writing and signed by both parties.
11.4. Except for payment obligations, neither party will be responsible for failure of performance due to causes beyond its reasonable control. Such causes include (without limitation) accidents, severe weather events, acts of God, labor disputes, actions of any government agency, epidemic, pandemic, shortage of materials, acts of terrorism, or the stability or availability of the Internet or connectivity outside of the control of a party.
11.5. vSpatial reserves the right to use your name and logo as a reference for marketing or promotional purposes on the Site and in other communication with existing or potential vSpatial customers. For example, we might list your company on one of our webpages under lists of vSpatial customers. We don’t want to list customers who don’t want to be listed, so you may send an email to firstname.lastname@example.org stating that you do not wish to be used as a reference.
11.6. If you send Us feedback or suggestions regarding the Services, you grant Us an unlimited, world-wide irrevocable, perpetual, free license to use any such feedback or suggestions for any purpose without any obligation to you.
11.7. Failure to enforce any right under this Agreement will not waive that right.
11.8. Except as otherwise set forth herein, We may provide you with notice via email, regular mail and/or postings on Our website. Notices to vSpatial should be sent to vSpatial, Inc., Office of General Counsel, 560 S 100 W, Suite 2, Provo, UT 84601, unless this Agreement specifically allows another means of notice.
11.9. The Agreement and the relationship between the parties shall be governed by the laws of the State of Utah without regard to its conflict of law.
11.10. If you are living person, you agree that your account is non-transferrable and your rights to the content within your account terminate upon your death.
11.11. You and vSpatial are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties and you do not have any authority of any kind to bind vSpatial in any capacity whatsoever.
11.12. Sometimes when you use the Services, you may also use a service or purchase goods which are provided by another person or company. Your use of these other services or goods may be subject to separate terms between you and the company or person concerned, and you agree that We shall have no liability or obligation relating to those services or goods.
11.13. The Software and associated documentation are “commercial items,” as defined at Federal Acquisition Regulation (“FAR”) (48 C.F.R) 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.211. Consistent with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software) and Defense Federal Acquisition Regulation Supplement (“DFAR”) 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which this Agreement may be incorporated, Government end users will acquire the Software and associated documentation with only those rights set forth in this Agreement. Any license provisions that are inconsistent with federal procurement regulations are not enforceable against the U.S. Government.
11.14. The Services and Software are subject to local and extraterritorial export control laws and regulations. You shall comply with such laws and regulations governing use, export, re-export, and transfer of the Services and Software and will obtain all required local and extraterritorial authorizations, permits, or licenses. You will not use the Services from an embargoed country. You warrant that you are not on any U.S. Government denied party list. The export obligations under this Section shall survive the termination of this Agreement.
11.15. This Agreement has been written in the English language, and the parties agree that the English version will govern.