Nant Games
Terms of Use
Effective Date: October 10, 2023
1. Overview
1.1. These are the Terms and Conditions (“Terms”) governing Your use of the MythWalker game and the related websites which NANTgames operates. THESE TERMS AND CONDITIONS SET OUT THE RIGHTS AND OBLIGATIONS OF ALL USERS REGARDING THE USE OF THE SERVICE.
1.2. Your access to and use of the Service is conditioned on Your (or Your guardian’s, in the case that You are under the age of eighteen) acceptance of and compliance with these Terms and Conditions. These Terms and Conditions apply to all visitors, users and others who access or use the Service. By accessing or using the Service You agree to be bound by these Terms and Conditions. If You disagree with any part of these Terms and Conditions then You may not access the Service.
1.3. You must be at least thirteen (13) years old to use the Service. Use of the Service by anyone under the age of thirteen (13) (or under such other age as may apply under applicable Supplemental Terms) is unauthorized and unlicensed. In all cases, if You are under eighteen (18) years old, You may only use the Service with the approval of Your parents or guardian.
1.4. By agreeing to these Terms, you agree that your Personal Information may be transferred and stored in a country outside of your home country, including the United States of America (“USA”), to the extent permitted by applicable law. You further understand and agree that the data protection laws in the countries to which we transfer or where we store your Personal Information may not be the same as your home country.
2. Definitions
2.1. “Terms and Conditions” (also referred as “Terms”) mean these Terms and Conditions that form the entire agreement between You and the Company regarding the use of the Service.
2.2. “Country” refers to: The United States of America or Australia, as applicable to Your physical location when You are using the Application.
2.3. “Company” (referred to as either “the Company”, “We”, “Us” or “Our” in this Agreement) refers to NANTgames, Inc., and its affiliates.
2.4. “Digital Content” means avatars, “skins”, maps, nonplayer characters, items, characters, profiles, background materials, help text, stories, and other digital content including but not limited to, all text, illustrations, files, images, software, scripts, graphics, photos, sounds, music, videos, information, content, materials, products, services, URLs, technology, documentation, and interactive features included with or available through our Services and all intellectual property rights to the same, including, without limitation, all trademarks, service marks, trade names, and trade dress that may appear in our Services are owned by Us, our licensors, our affiliates, or identified third parties.
2.5. “Service” refers to the MythWalker augmented reality game, as well as related content, account services, social media interactions, and other opportunities to interact with NANTgames which are provided as part of Your experience in the MythWalker world. This includes all features and functionalities, the website, application, and user interfaces, as well as all content and software associated with the MythWalker game and universe.
2.6. “Application” means the software program provided by the Company downloaded by You on any electronic device, named MythWalker.
2.7. “Application Store” means the digital distribution service operated and developed by Apple Inc. (Apple App Store) or Google Inc. (Google Play Store) in which the Application has been downloaded.
2.8. “In-app Purchase” refers to the purchase of a product, item, service or Subscription made through the Application and subject to these Terms and Conditions and/or the Application Store’s own terms and conditions.
2.9. “Account” means a unique account created for You to access our Service or parts of our Service.
2.10. “Third-party Social Media Service” means any services or content (including data, information, products or services) provided by a third-party that may be displayed, included or made available by the Service.
2.11. “You” means the individual accessing or using the Service, or the company, or other legal entity on behalf of which such individual is accessing or using the Service, as applicable.
3. Changes to These Terms and Conditions
3.1. We reserve the right, at Our sole discretion, to modify or replace these Terms at any time. If a revision is material We will make reasonable efforts to provide at least 30 days’ notice prior to any new terms taking effect.
3.2. By continuing to access or use Our Service after those revisions become effective, You agree to be bound by the revised terms. If You do not agree to the new terms, in whole or in part, please stop using the website and the Service.
4. Location Information
MythWalker is an augmented reality game. By creating an account, agreeing to these Terms, or playing MythWalker, You agree that Company, and its service providers, may collect, use, and disclose Your precise geolocation information as part of Your use of the Services. Further, You agree to allow Company to disclose Your geolocation information to other players and third parties in the MythWalker community as part of providing the Services, or pursuant to an instruction by You.
5. Communications
By providing Your telephone number, You are providing express written consent to receive communications from Company (including its affiliates, agents, and service providers for the purposes of defined above) for any purpose, including but not limited to, marketing various benefits or services from both Company and companies we have joint marketing agreements with. Additionally, You agree to receive communications from Company regarding any service, and any information You may have obtained via Your use of the App. You agree that these communications include, but are not limited to, the use of an Automated Telephone Dialing System, prerecorded and/or artificial voice, SMS, MMS, text, fax, email, or other similar means - regardless of whether Your phone number is registered on a state or federal Do Not Call list. You agree that Company is not responsible for any charges to You regarding these communications. Standard voice and data rates may apply. Further, You understand that You do not need to provide this consent to call as a condition to receive any good or service, in which case You will not provide Your phone number.
6. User Obligations
6.1. When You create an account with Us, You must provide Us information that is accurate, complete, and current at all times. Failure to do so constitutes a breach of the Terms, which may result in immediate termination of Your account on Our Service.
6.2. You are responsible for maintaining the security of Your Account. Do not share Your Account details with others or allow others to access or use Your Account. We will treat all acts performed through Your Account as being performed by You. You therefore accept responsibility for all acts done using Your Account, whether or not authorized by You, including purchases made using any payment instrument, and You understand You may be held liable for losses incurred by us or any other user of the Service caused by someone else using Your Account.
6.3. You are responsible for safeguarding the password that You use to access the Service and for any activities or actions under Your password, whether Your password is with Our Service or a Third-Party Social Media Service. You agree not to disclose Your password to any third party. You must notify Us immediately upon becoming aware of any breach of security or unauthorized use of Your account.
6.4. You are solely responsible for Your physical safety, and the safety of others during gameplay using a mobile device. As MythWalker is an augmented reality game, You acknowledge and agree that there are physical risks associated with gameplay. You also acknowledge and agree that Company is not liable for any physical injury which may result from Your use of the Services while in gameplay on the Application.
6.5. You may not use as a username the name of another person or entity or that is not lawfully available for use, a name or trademark that is subject to any rights of another person or entity other than You without appropriate authorization, or a name that is otherwise offensive, vulgar or obscene.
6.6. Our Services are provided for Your personal, non-commercial use only. When using our Services, You agree to comply with all applicable federal, state, and local laws including, without limitation, trademark and copyright law. Except as expressly permitted in these Terms of Use or as we may otherwise permit, You may not use, reproduce, duplicate, distribute, create derivative works based upon, publicly display, publicly perform, publish, transmit, or otherwise exploit Service Content for any purpose whatsoever without obtaining prior written consent from us or, in the case third-party content, its applicable owner. In certain instances, we may suggest, ask, or otherwise permit You to download, install, and/or print Digital Content. In such a case, You may do so only in the manner authorized and for Your non-commercial use only. You acknowledge that You do not acquire any ownership rights by downloading, installing, or printing Digital Content.
6.7. Except as expressly permitted in these Terms of Use, You may not:
(a) remove, alter, cover, or distort any copyright, trademark, or other proprietary rights notice we include in or through our Services or Digital Content;
(b) circumvent, disable, or otherwise interfere with our security-related features including, without limitation, any features that prevent or restrict the use of or copying of any software or other Digital Content;
(c) use an automatic device (such as a robot or spider) or manual process to copy or “scrape” the Service or Digital Content for any purpose without our express written permission. Notwithstanding the foregoing, Company grants the operators of public search engines permission to use spiders to copy materials from the site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials. Company reserves the right to revoke these exceptions either generally or in specific cases;
(d) collect or harvest any personally identifiable information or non-personally identifiable information from our Services including, without limitation, user names, passwords, or email addresses;
(e) use the Service to stalk, harass, threaten, abuse, libel, defame, invade another’s privacy, or engage in otherwise objectionable conduct towards Company, other players and community members, or any natural persons;
(f) attempt to or interfere with the proper working of our Services or impair, overburden, or disable the same;
(g) decompile, reverse engineer, or disassemble any portion of our software or other Digital Content or our Services;
(h) use network-monitoring software to determine architecture of or extract usage data from our Services;
(i) encourage conduct that violates any local, state, or federal law, either civil or criminal, or to impersonate another user, person, or entity (e.g., using another person’s Account (as defined below); or
(j) engage in any conduct that restricts or inhibits any other user from using or enjoying our Services.
6.8. You agree to fully cooperate with us to investigate any suspected or actual activity that is in breach of these Terms of Use.
7. Events
7.1. Registration
(a) The term "Event(s)" means any in-person event, gathering, activity or the like which is directly organized, hosted, or managed by Company, and any Promotion (as defined below). By registering or, where required, purchasing tickets (including any optional add-on purchases of additional gameplay experiences and/or physical merchandise) for an Event, you represent and warrant that the information you provide is true and accurate. If you are registering or purchasing tickets on behalf of others, you represent and warrant you have all necessary rights and consents to register and provide this information for others.
(b) Subject to applicable law and the exceptions set forth in these Terms, no refunds or exchanges of Event tickets (including any add-on purchases) are permitted and tickets are non-transferable. Reasonably acceptable proof of identity, for example a driver’s license or passport, showing the same first and last name as those provided at time of prior registration, may be required to access an Event. Actual or attempted resale of tickets subjects them to revocation without refund. Tickets obtained from unauthorized sources may be invalid, lost, stolen, or counterfeit and may not be honored. Tickets cannot be replaced if lost, stolen or destroyed. Commercial use of tickets is prohibited without written approval from Company. Tickets are not redeemable for cash or credit. You agree to abide by any published ticket limits or restrictions, and orders exceeding or violating these restrictions are subject to cancellation without notice or refund. Events may have limited space and/or availability and Company does not guarantee your ability to purchase a ticket or attend an Event.
7.2. Event Conduct and Policies
(a) You shall at all times comply with all applicable laws and any rules and policies provided by Company or any other authorized party involved in creating or delivering the Event, including all health and safety policies and procedures and all reasonable instructions of the venue staff and Company representatives at the Event. As a condition of participation, you agree to comply with all policies on the Services, including, without limitation, any applicable Event website.
(b) Illicit drugs, controlled substances, contraband, weapons and illegal items are prohibited at Events. You agree and consent to reasonable security precautions and search on entry. To the fullest extent permitted by applicable law, you waive and release Company and any other party involved in creating or delivering the Event from any and all claims, demands, causes of action, damages, losses, expenses or liability which may arise out of, result from, or relate in any way to such security precautions and/or searches. If you elect not to consent to such security precautions and searches, you may be denied entry, or removed from, an Event without refund or other compensation.
(c) Company and its authorized third parties reserve the right to refuse admission to, or to remove from an Event without refund or compensation of any kind, any person that (a) does not comply with these Terms, (b) engages in disorderly conduct or willful misconduct,(c) engages in harassing, threatening, abusive or otherwise inappropriate behavior towards Company employees, event staff or other event attendees, or (d) Company or its authorized third parties believe will cause a negative effect on the Event, participants, spectators, and/or personnel.
(d) Any minor attending an Event must be accompanied by a Parent.
7.3. Assumption of Risks
(a) Unless prohibited by applicable law, you agree that by purchasing tickets to, participating in or attending an Event, you willingly, knowingly and voluntarily assume any and all risks occurring before, during or after the Event, including injury by any cause and damage, loss, or theft of property. You acknowledge that Events, and certain activities at Events, have inherent and unforeseen risks, including but not limited to (a) contact or collision with persons or objects, (b) obstacles (e.g., natural and man-made water, road and surface hazards), (c) equipment related hazards (e.g., broken, defective or inadequate equipment, unexpected equipment failure), (d) weather related hazards, (e) inadequate first aid and/or emergency measures, (f) judgment and/or behavior related problems (e.g., erratic or inappropriate participant, co-participant, or spectator behavior or errors in judgment by personnel at the Event), and (g) natural hazards (e.g., uneven or difficult terrain, wildlife and insects, contact with plants). You agree to take reasonable precautions before attending or participating in an Event and its activities, for example consulting with a personal physician and ensuring you are in good physical health, wearing appropriate attire, and bringing necessary or recommended supplies. You further understand and acknowledge it is your responsibility to inspect the Event grounds, facilities, equipment and areas to be used, and that by participating in the Event, you acknowledge the Event grounds, facilities, equipment, and areas to be used are safe, adequate, and acceptable for participation. If you believe or become aware of any unsafe conditions or unreasonable risks, you agree to immediately notify appropriate personnel and cease participation in the Event.
(b) To the extent permitted under applicable law, you hereby waive and release Company and any other party involved in creating or delivering the Event from any and all claims, demands, causes of action, damages, losses, expenses or liability which may arise out of, result from, or relate in any way to your attendance or participation in an Event, including for negligence, inherent and unforeseen risks, injury or damage to persons or property and the actions of third parties or Event participants and spectators.
7.4. Event Features and Cancellation
(a) Subject to applicable law, all schedules and any live or in-game experiences, activities, goods, services, perks, items, rewards and/or Content (collectively "Event Features") advertised in connection with an Event are not guaranteed and are subject to change and/or cancellation at any time prior to or during an Event without notice or compensation of any kind. Admittance to an Event does not guarantee any specific Event Features while at the Event.
(b) Event date, time and/or location are subject to change at any time, and Company will make a commercially reasonable effort to notify you in advance of any material changes. If an Event is canceled, suspended, or rescheduled and you are not able to attend, you will not be entitled to any compensation other than a refund of the ticket price at its face value with no further liability or compensation from Company or any other party. Any travel or accommodation costs incurred are entirely your responsibility.
8. Recordings, Video, and Use of Likeness
8.1. You consent to and approve of Company’s recording of your image, likeness, name, dialogue, biographic information, personal characteristics, and voice at Events and the royalty free use of this information subject to the same "Rights Granted by You" above. Company may publish the results of any competitions (including rankings and any winners), gameplay statistics, and pictures of participants in promotional and marketing materials and on social media in accordance with these Terms.
8.2. You consent to and approve of Company’s disclosure of your image, likeness, voice, video watching history, and related information to third parties as permitted under applicable law.
9. Beta Programs
9.1. Company may offer you early access to certain pre-release mobile application software (“Beta Software”) in order to allow you to test and provide feedback on Beta Software as part of Company’s beta testing program (“Beta Program”).
9.2. You acknowledge that any product features or content, game documentation, promotional materials and/or any other information that Company may provide to you in connection with the Beta Program (“Test Materials”), the Beta Software, as well as everything related to the Beta Program is the exclusive property of Company, is confidential, and should be treated as confidential until such time as Company releases it.
9.3. If Company offers you access to the Beta Software, then, subject to your compliance with these Terms, Company grants you a personal, non-exclusive, non-transferable, revocable, limited license to use the Beta Software solely for the purposes of testing and providing feedback on the Beta Software as part of the Beta Program.
9.4. Without limiting the foregoing and except as prohibited under applicable law, the following are prohibited and you may not:
· copy, modify, or create derivative works based on the Beta Software;
· give or sell the Beta Software to anyone;
· reverse engineer, decompile, disassemble, decrypt or otherwise attempt to derive the source code of the Beta Software;
· install the Beta Software on systems you don’t directly control or that you share with others;
· discuss the Beta Software with or demonstrate it to anyone outside of Company;
· blog, tweet, or otherwise publicly post information about the Beta Software;
· take screenshots, photos, videos, or audio recordings of the Beta Software unless Company has allowed you to do so in writing; or
· make Beta Feedback (as defined below) available to any third party, unless approved by Company in writing and in advance.
9.5. Company may collect your comments, suggestions, and feedback on the Software, and may also track your use of the Software through analytic tools. All such comments, suggestions, feedback, and analytic data (collectively, the “Beta Feedback”) is the exclusive property of Company.
9.6. You understand and agree that participation in the Beta Program is voluntary and does not create a legal partnership, agency, or employment relationship between you and Company, and you will not be compensated for your participation or any Beta Feedback.
9.7. Unless prohibited by applicable law, all Test Materials are provided to you "as is" without any explicit or implicit warranty of any kind. You understand that the Beta Software is in development and may contain errors, bugs, and other problems that could cause loss of data and/or system failure. You should install the Beta Software on non-production devices that are not business critical and have been backed up. To the extent permitted under applicable law, Company is not liable in any way for any damages you might incur as a result of your participation in the Beta Program.
9.8. You agree that any breach of your confidentiality obligation will result in irreparable harm to Company, the extent of which would be difficult to ascertain, and that monetary damages will not be an adequate remedy. Accordingly, you agree that in the event you breach your confidentiality obligation, Company will be entitled to injunctive or other equitable relief as the court deems appropriate, in addition to any other remedies which it may have available.
10. Sweepstakes, Contests, Raffles, Surveys And Similar Promotions
Periodically, Company and/or its partners may organize sweepstakes, contests, raffles, surveys, games, and similar promotions on the Services (each a “Promotion”). In addition to these Terms, Promotions will be subject to particular terms which we shall communicate to you at the time of these Promotions (“Promotional Terms”). By participating in any Promotion, you will become subject to those Promotional Terms. All Promotional Terms are incorporated into, may vary from, and shall supercede these Terms. Company urges you to read the Promotional Terms. Our Privacy Policy, in addition to these Terms and any Promotional Terms, governs any information you submit in connection with such Promotions.
11. Termination of Account
We may terminate or suspend Your Account immediately, without prior notice or liability, for any reason whatsoever, including without limitation if You breach these Terms and Conditions. The Company reserves the right to stop offering and/or supporting the Service at any time, at which point Your license to use the Service will be automatically terminated. In such event, the Company shall not be required to provide refunds, benefits or other compensation to users in connection with such discontinued Service.
12. Links to Other Websites
12.1. Our Service may contain links to third-party web sites or services that are not owned or controlled by the Company. The Company has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party web sites or services. You further acknowledge and agree that the Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such web sites or services.
12.2. We strongly advise You to read the terms and conditions and privacy policies of any third-party web sites or services that You visit.
12.3. THIRD-PARTY TERMS:
(a) IN CERTAIN INSTANCES, YOUR USE OF AN APPLICATION, OUR WEBSITE, OR OTHER SERVICES MAY BE SUBJECT TO YOUR AGREEMENT TO CERTAIN THIRD-PARTY TERMS. IN SUCH INSTANCES, WE WILL PROVIDE YOU NOTICE OF THIS IN THE OTHER APPLICABLE TERMS POSTED IN THE SERVICE. BY USING THE APPLICABLE SERVICE, YOU AGREE TO ALL SUCH THIRD-PARTY TERMS.
(b) Without limiting the foregoing, You acknowledge and agree that the availability of our Applications and related Services are dependent on the third party from whom You received the Application license (e.g., the Apple iTunes, Google Play, or other App stores (“App Store”)). You acknowledge that these Terms of Use are between You and Company and not with the App Store. Company, not the App Store, is solely responsible for its Services, including the Application, the content thereof, maintenance, support services, and warranty therefor, and for addressing any claims relating thereto (e.g., product liability, legal compliance, or intellectual property infringement). In order to use our Applications, You must have access to a wireless network, and You agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Services, including the applicable Application. You agree to comply with, and Your license to use the Application is conditioned upon Your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using our Services, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms of Use and will have the right to enforce them.
13. Payment and Delivery
13.1. In order to user our Service, You must supply certain information relevant to Your use of our Service including, without limitation, Your name, Your email, Your phone number, Your credit card number, the expiration date of Your credit card, Your billing address, and Your shipping information.
13.2. We cannot and do not guarantee the accuracy or completeness of any information, including prices, product images, specifications, availability, and services. We reserve the right to change or update information and to correct errors, inaccuracies, or omissions at any time without prior notice.
13.3. You represent and warrant that: (i) You have the legal right to use any credit or debit card(s) or other payment method(s) in connection with any Order; and that (ii) the information You supply to us is true, correct and complete.
13.4. All payments for Digital Content can be made through various payment methods we have available, such as Visa, MasterCard, Affinity Card, American Express cards or online payment methods (PayPal, for example).
13.5. Payment cards (credit cards or debit cards) are subject to validation checks and authorization by Your card issuer. If we do not receive the required authorization, We will not be liable for any delay or non-delivery of Your Order.
13.6. You agree to pay, in advance, all fees and applicable taxes incurred by You or anyone using an Account registered to You. All transactions are final and, except as expressly provided herein, the Company does not issue any refunds. The Company may revise the pricing for the content and services offered through the Service at any time.
13.7. ACKNOWLEDGE THAT THE COMPANY IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON, AND THAT YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED VIRTUAL CURRENCY WHEN AN ACCOUNT IS SUSPENDED OR TERMINATED, WHETHER SUCH SUSPENSION OR TERMINATION WAS VOLUNTARY OR INVOLUNTARY.
13.8. The Application may include In-app Purchases that allow You to buy products, services or Subscriptions. More information about how You may be able to manage In-app Purchases using Your Device may be set out in the Application Store’s own terms and conditions or in Your Device’s Help settings.
13.9. In-app Purchases can only be consumed within the Application. If You make an In-app Purchase, that In-app Purchase cannot be cancelled after You have initiated its download. In-app Purchases cannot be redeemed for cash or other consideration or otherwise transferred. If any In-app Purchase is not successfully downloaded or does not work once it has been successfully downloaded, we will, after becoming aware of the fault or being notified to the fault by You, investigate the reason for the fault. We will act reasonably in deciding whether to provide You with a replacement In-app Purchase or issue You with a patch to repair the fault. In no event will We charge You to replace or repair the In-app Purchase. In the unlikely event that we are unable to replace or repair the relevant In-app Purchase or are unable to do so within a reasonable period of time and without significant inconvenience to You, We will authorize the Application Store to refund You an amount up to the cost of the relevant In-app Purchase. Alternatively, if You wish to request a refund, You may do so by contacting the Application Store directly.
13.10. You acknowledge and agree that all billing and transaction processes are handled by the Application Store from where You downloaded the Application and are governed by that Application Store’s own terms and conditions. If You have any payment related issues with In-app Purchases, then You need to contact the Application Store directly.
13.11. The Company reserves the right to revise its prices at any time prior to accepting an Order. The prices quoted may be revised by the Company subsequent to accepting an Order in the event of any occurrence affecting delivery caused by government action, variation in customs duties, increased shipping charges, higher foreign exchange costs and any other matter beyond the control of the Company. In that event, You will have the right to cancel Your Order.
13.12. Order Cancellation and Order Cancellation Rights
(a) We reserve the right to refuse or cancel Your Order at any time for certain reasons including but not limited to:
(i) Availability of the made Order
(ii) Errors in the description or prices
(iii) Errors in Your Order
(b) We reserve the right to refuse or cancel Your Order if fraud or an unauthorized or illegal transaction is suspected.
13.13. Any Digital Contents You purchase can only be returned in accordance with these Terms and Conditions and Our Returns Policy. Our Returns Policy forms a part of these Terms and Conditions. Please read our Returns Policy to learn more about Your right to cancel Your Order.
13.14. Certain features of the Service, such as purchasing a license to view or use certain Content, require the payment of fees. All such fees must be paid in advance. All transactions are final and, except as expressly provided herein, the Company does not issue any refunds.
13.15. ALL PURCHASES AND REDEMPTIONS OF VIRTUAL CURRENCY MADE THROUGH THE SERVICE ARE FINAL AND NON-REFUNDABLE.
13.16. The Digital Contents on Our Service may be mispriced, described inaccurately, or unavailable, and We may experience delays in updating information regarding our Contents on the Service and in Our advertising on other websites.
14. Representations and Warranties
14.1. The Service is provided to You “AS IS” and “AS AVAILABLE” and with all faults and defects without warranty of any kind. To the maximum extent permitted under applicable law, the Company, on its own behalf and on behalf of its Affiliates and its and their respective licensors and service providers, expressly disclaims all warranties, whether express, implied, statutory or otherwise, with respect to the Service, including all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, and warranties that may arise out of course of dealing, course of performance, usage or trade practice. Without limitation to the foregoing, the Company provides no warranty or undertaking, and makes no representation of any kind that the Service will meet Your requirements, achieve any intended results, be compatible or work with any other software, applications, systems or services, operate without interruption, meet any performance or reliability standards or be error free or that any errors or defects can or will be corrected.
14.2. Without limiting the foregoing, neither the Company nor any of the company’s provider makes any representation or warranty of any kind, express or implied: (i) as to the operation or availability of the Service, or the information, content, and materials or products included thereon; (ii) that the Service will be uninterrupted or error-free; (iii) as to the accuracy, reliability, or currency of any information or content provided through the Service; or (iv) that the Service, its servers, the content, or e-mails sent from or on behalf of the Company are free of viruses, scripts, trojan horses, worms, malware, timebombs or other harmful components.
14.3. Some jurisdictions do not allow the exclusion of certain types of warranties or limitations on applicable statutory rights of a consumer, so some or all of the above exclusions and limitations may not apply to You. But in such a case the exclusions and limitations set forth in this section shall be applied to the greatest extent enforceable under applicable law.
15. Intellectual Property Rights
15.1. The Service and its original content (excluding Content provided by You or other users), features and functionality are and will remain the exclusive property of the Company and its third-party licensors. The Service is protected by copyright, trademark, and other laws of both the Country and foreign countries. You may not reproduce, distribute, rent, lease, sell, license, copy, modify, publicly perform or display, transfer, transmit, publish, edit, adapt, prepare derivative works based on, or otherwise use Digital Content except as expressly authorized by this Agreement. Our trademarks and trade dress may not be used in connection with any product or service without the prior written consent of the Company. The Company reserves all rights not expressly granted in this Agreement.
15.2. User Content
(a) We may now or in the future permit users to post, upload, transmit through, or otherwise make available through our Services (collectively, “submit”) messages, text, illustrations, data, files, images, graphics, photos, comments, sounds, music, videos, information, content, and/or other materials (“User Content”). Subject to the rights and license You grant herein, You retain all right, title, and interest in Your User Content. We do not guarantee any confidentiality with respect to User Content, even if it is not published through our Services. It is solely Your responsibility to monitor and protect any intellectual property rights that You may have in Your User Content, and we do not accept any responsibility for the same.
(b) You shall not submit any User Content protected by copyright, trademark, patent, trade secret, moral right, or other intellectual property or proprietary right without the express permission of the owner of the respective right. You are solely liable for any damage resulting from Your failure to obtain such permission or from any other harm resulting from User Content that You submit.
(c) You represent, warrant, and covenant that You will not submit any User Content that:
(i) violates or infringes in any way upon the rights of others, including, but not limited to, any copyright, trademark, patent, trade secret, moral right, or other intellectual property or proprietary right of any person or entity;
(ii) impersonates another or is unlawful, threatening, abusive, libelous, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane, pornographic, or otherwise objectionable, or otherwise violates any applicable law;
(iii) encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any law;
(iv) is an advertisement for goods or services or a solicitation of funds;
(v) includes personal information such as messages which identify phone numbers, social security numbers, account numbers, addresses, or employer references;
(vi) contains a formula, instruction, or advice that could cause harm or injury; or
(vii) is a chain letter of any kind.
(d) Moreover, any conduct by a user that in our sole discretion restricts or inhibits any other user from using or enjoying our Services will not be permitted.
(e) By submitting User Content to us, simultaneously with such posting You automatically grant, or represent or warrant that the owner has expressly granted to us (and, to the extent necessary to provide services to us, our licensors and licensees) a worldwide, royalty-free, perpetual, irrevocable, non-exclusive, fully sublicensable, and transferable right and license to use, reproduce, distribute, create derivative works based upon (including, without limitation, translations), publicly display, publicly perform, transmit, and publish the User Content (in whole or in part) as we, in our sole discretion, deem appropriate, including, without limitation, (1) in connection with our business, and (2) in connection with the businesses of our affiliates, licensees, assignees, successors, parents, subsidiaries, and their related companies. We may exercise this grant in any format, media, or technology now known or later developed for the full term of any copyright that may exist in such User Content. Furthermore, You also grant other users permission to access Your User Content and to use, reproduce, distribute, create derivative works based upon, publicly display, publicly perform, transmit, and publish Your User Content for personal, non-commercial use as permitted by the functionality of our Services and these Terms of Use. Notwithstanding the foregoing, You waive any and all claims You (or any copyright holder) may now or later have in any jurisdiction to so-called “moral rights” or rights of “droit moral” with respect to the User Content.
(f) By submitting User Content, You also grant us (and, to the extent necessary to provide services to us, our licensors and licensees) a worldwide, perpetual, irrevocable, fully sublicensable, and transferable right, but not the obligation, to use any and all names, identities, titles, likenesses, distinctive appearances, physical likenesses, images, portraits, pictures, photographs (whether still or moving), screen personas, voices, vocal styles, statements, gestures, mannerisms, personalities, performance characteristics, biographical data, signatures, and any other indicia or imitations of identity or likeness listed, provided, referenced, or otherwise contained in the User Content (all attributes, collectively, per person, a “Persona”), including, without limitation, Your name and geographical location, for purposes of advertising and trade, in any format, medium, or technology now known or later developed without further notice, approval, or compensation, unless prohibited by law. Our uses of Your Persona will be consistent with these terms, where it is applicable.
(g) Notwithstanding the generality of the foregoing, we reserve the right to display advertisements in connection with Your User Content and to use Your User Content for advertising, marketing, promotional, and other commercial purposes. You acknowledge and agree that Your User Content may be included on the websites and advertising networks of our distribution partners, marketing partners, accounts, and third-party service providers (including their downstream users).
(h) We have the right, but not the obligation, to monitor User Content. We have the right in our sole discretion and for any reason whatsoever to edit, refuse to post, remove, or disable access to any User Content.
15.3. Feedback
It is Company’s general policy not to accept, review, or consider any unsolicited ideas, products, works, materials, proposals, artwork, content, or the like (“Submissions”) from anyone other than our employees, agents, and our existing suppliers and contractors. The purpose of this policy is to avoid potential misunderstandings or disputes when Company’s products, services, technologies, advertising, promotions, or content might seem similar to submissions provided to Company. Please note that if, despite our request that You not send us Your Submissions, You submit them to us anyway, then regardless of what Your communication says, You unconditionally agree that: (A) Your Submissions, along with related intellectual property rights ,will immediately upon submission become the sole and exclusive property of Company, without compensation to You or any other person or party; (B) Company can use, reproduce, disclose, publish, and distribute the Submissions for any purpose whatsoever, without restriction and in any way; (C) there is no obligation for Company to review the Submissions; and (D) there is no obligation to keep any Submissions confidential. Company does, however, welcome feedback regarding Company’s existing products, services, and marketing strategies. Any feedback You provide at this site will be deemed non-confidential and not proprietary. Company will be free to use and redistribute such information on an unrestricted basis, without any compensation to You.
16. Copyright Policy
16.1. We respect the intellectual property rights of others and expect users to do the same. In appropriate circumstances and at our sole discretion, we may terminate and/or disable the Account of users suspected of infringing the copyrights (or other intellectual property rights) of others. Additionally, in appropriate circumstances and in our sole discretion, we may remove or disable access to material on any of our websites or hosted on our systems that may be infringing or the subject of infringing activity.
16.2. In accordance with the Digital Millennium Copyright Act of 1998, Title 17 of the United States Code, Section 512 (“DMCA”), we will respond promptly to claims of copyright infringement that are reported to the agent that we have designated to receive notifications of claims infringement (its “Designated Agent”). Our Designated Agent is:
[NAME AND ADDRESS]
Phone:
Email:
16.3. If You are a copyright owner (or authorized to act on behalf of the copyright owner) and believe that Your work’s copyright has been infringed, please report Your notice of infringement to us by providing our Designated Agent with a written notification of claimed infringement that includes substantially the following:
(a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
(c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
(d) information reasonably sufficient to permit us to contact You, such as an address, telephone number, and, if available, an electronic mail address at which You may be contacted.
(e) a statement that You have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(f) a statement that the information in the notification is accurate, and under penalty of perjury, that You are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
16.4. We will investigate notices of copyright infringement and take appropriate actions under the DMCA. Inquiries that do not follow this procedure may not receive a response.
17. Choice of Law and Venue
These Terms of Use shall be construed in accordance with the laws of the State of [STATE OF COMPANY HQ] without regard to its conflict of laws rules. Any legal or arbitration proceedings against Company that may arise out of, relate to, or be in any way connected with our Website or these Terms of Use shall be brought exclusively in [LOCATION]. Where such dispute is permitted to be heard via the courts, such dispute shall be heard in the state and federal courts applicable to [LOCATION], and You waive any jurisdictional, venue, or inconvenient forum objections to such courts.
18. Arbitration
PLEASE READ THIS SECTION CAREFULLY - IT AFFECTS YOUR LEGAL RIGHTS AND GOVERNS HOW YOU AND COMPANY CAN BRING CLAIMS AGAINST EACH OTHER. THIS SECTION WILL, WITH LIMITED EXCEPTION, REQUIRE YOU AND Company TO SUBMIT CLAIMS AGAINST EACH OTHER TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS. THIS MEANS THAT YOU WILL NOT BE ABLE TO BRING A CLASS, COLLECTIVE, OR REPRESENTATIVE LAWSUIT IN A COURT OF LAW BEFORE A JUDGE OR JURY CONCERNING ANY DISPUTE THAT MAY ARISE WHICH IS COVERED BY THE ARBITRATION AGREEMENT AND ARE INSTEAD AGREEING TO SUBMIT ANY SUCH DISPUTE SOLELY ON YOUR OWN BEHALF TO AN IMPARTIAL ARBITRATOR.
18.1. Agreement to Arbitrate
You and Company mutually agree to forego the delay and expense of using a court of law and choose instead to benefit from the speedy, economical, and impartial dispute resolution procedure of using binding arbitration for any “Covered Claims” (as defined below) that arise between You and Company, its related and affiliated companies, and/or any current or former employee, officer, or director of Company or any related or affiliated company. You and Company agree that this Arbitration and Class Action Waiver is governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq., and will survive even after these Terms and Conditions (‘Terms’) and any Services terminate. Any revision to or termination of the Terms that modify or terminate this Arbitration and Class Action Waiver shall not apply to a pending arbitration, to any claim that accrued prior to the modification or termination, or to any claim that the asserting party knew about prior to the modification or termination, except as may be required by applicable law.
18.2. Claims Subject to Arbitration
Other than the exceptions in the “Excluded Claims” Section below, the “Covered Claims” include any and all controversies, disputes, disagreements, and claims arising out of, or relating to, these Terms (including its enforcement, breach, performance, interpretation, validity, or termination), or Your access to and/or use of the Services, or the provision of content, services, and/or technology on or through the Site to the fullest extent allowed by law.
18.3. Excluded Claims, Jurisdiction, and Venue
(a) The Covered Claims do not include (and thus shall not require arbitration of) the following types of claims that will hereafter be referred to as “Excluded Claims”: (a) any claims that cannot be required to be arbitrated as a matter of law (including but not limited to claims by California residents under the California Private Attorney General Act of 2004 (“PAGA”), to the extent exclusion from arbitration is required by California law, and claims or charges that must be filed with a governmental administrative agency); (b) applications for provisional remedies, preliminary injunctions, and temporary restraining orders, including but not limited to those relating to actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; and (c) small claims actions demanding $10,000 or less brought on an individual basis and within a small claims court’s jurisdiction.
(b) Any Excluded Claims arising out of, or related to, these Terms shall be instituted exclusively in the in the state and federal courts located in the City of [LOCATION], which shall be the exclusive forum for such claims. You waive any and all objections to the exercise of jurisdiction over You by such courts and to venue in such courts.
(c) In the event You or Company choose to pursue arbitration of both Covered Claims and Excluded Claims and the other party objects, the Covered Claims must be arbitrated. In no event will Covered Claims be joined with Excluded Claims and litigated in court unless both parties agree to waive arbitration.
18.4. Class Action Waiver
Except as otherwise required under applicable law, You and Company agree to arbitrate any Covered Claims only on an individual basis and hereby waive any right to bring, participate in, or receive money or any other relief from any representative, class, or collective proceeding (“Class Action Waiver”).No party may bring a claim on behalf of other individuals, and no arbitrator hearing any claim under these Terms may: (a) without the consent of all parties, combine more than one individual’s claim or claims into a single case; (b) order, require, participate in, or facilitate production of class-wide contact information or notification of others of potential claims; or (c) arbitrate any form of a class, collective, or representative proceeding.
18.5. Arbitrability Determinations
If a party violates the agreement to arbitrate by commencing an action asserting a Covered Claim in a court of law, then the court (and not an arbitrator) shall have the authority to resolve any disputes about the interpretation, formation, existence, enforceability, validity, and scope of the this Arbitration and Class Action Waiver. If a party complies with the agreement to arbitrate and files for arbitration without filing a complaint in a court of law, then the arbitrator shall have the authority to resolve any disputes about the interpretation of this Arbitration and Class Action Waiver for purposes of discovery or the merits of the underlying claim, but shall have no authority to resolve any disputes about the formation, existence, enforceability, or validity of this Arbitration and Class Action Waiver, including the Class Action Waiver.
18.6. Arbitration Rules, Procedures, and Costs
To initiate arbitration, the party desiring to pursue a legal dispute must prepare a written demand setting forth the claim(s) and deliver the written demand within the applicable statute of limitations period by hand or first class mail to Company representatives at [ADDRESS]. You and Company agree that the arbitration shall be administered by the American Arbitration Association (“AAA”) before a single arbitrator mutually agreed upon by the parties, and if the parties cannot agree within thirty (30) days after names of potential arbitrators have been proposed, then by a single arbitrator who is chosen by AAA. Except to the extent that they are modified by the rules below, AAA Consumer Arbitration Rules that are in effect at the time of the filing of the demand will apply.
18.7. The parties agree that the applicable AAA rules are modified as follows:
(a) Any arbitrator must be neutral as to all parties. Standards for the recusal of an arbitrator shall be the same standards under which trial judges are recused under [STATE OF GOVERNING LAW] law.
(b) No party is entitled to its attorneys’ fees, except as may be awarded in a matter authorized by and consistent with applicable law.
(c) All discovery shall be subject to any and all objections available under FRCP 26(b). Each party shall avoid broad or widespread collection, search, and production of documents, including electronically stored information (“ESI”). If a compelling need is demonstrated by the requesting party, the production shall: (i) be narrowly tailored in scope; (ii) only come from sources that are reasonably accessible without undue burden or cost; and (iii) be produced in a searchable format, if possible without undue burden or cost, and which is usable by the receiving party and convenient and economical for the producing party. Where the costs and burdens of the requested discovery outweigh its likely benefit, considering the needs of the case, the amount in controversy, and the importance of the discovery in resolving the issues, the arbitrator shall deny such requests or order production on condition that the requesting party advance to the producing party the reasonable costs involved in making the production, subject to the allocation of costs in the final award.
(d) The arbitrator shall have the authority to award the same damages and other relief that would have been available in court pursuant to the law governing the Covered Claim(s).
(e) Either party shall have the right to file motions to dismiss and motions for summary judgment/adjudication.
(f) The arbitrator shall have the authority to issue an award or partial award without conducting a hearing on the grounds that there is no claim on which relief can be granted or that there is no genuine issue of material fact to resolve at a hearing.
(g) The Federal Rules of Evidence shall apply to all arbitration proceedings.
(h) For discovery purposes only, an arbitrator may consolidate claims filed by multiple individuals, each on their own behalf, in a single arbitration proceeding, or may conduct a joint hearing for efficiency purposes, so long as the arbitrator does not (a) certify (conditionally or otherwise) a collective, class, or representative action that includes individuals who have not themselves already submitted their own individual claims, or (b) authorize the issuance of notice of the arbitration to individuals on the grounds that the arbitrator or any party believes there are other individuals who are similarly situated to or share commonality with a party to the arbitration.
(i) The arbitrator must issue a decision in writing, setting forth in summary form the reasons for the arbitrator’s determination and the legal basis therefor.
(j) The arbitrator’s authority shall be limited to deciding the case submitted by the parties to the arbitration. Therefore, no decision by any arbitrator shall serve as precedent in other arbitrations except to preclude the same claim from being re-arbitrated between the same parties.
(k) The parties may settle any dispute on a mutual basis without involvement of the arbitrator.
(l) If You initiate arbitration, You will pay the first $250, and Company will pay all other filing, administrative, or hearing fees. If the Company initiates arbitration, Company will pay all filing, administrative, and hearing fees. Regardless of which party initiates arbitration, You will remain responsible for Your attorneys’ fees and costs unless the law governing the Covered Claim provides for an award of attorneys’ fees and costs and the arbitrator determines as part of the arbitration award that You may recover a certain amount of attorneys’ fees and costs.
18.8. Should any arbitration you intend initiate share common facts and issues of law with any other arbitration instituted involving Company, you agree to wait to initiate your arbitration until after the first arbitration initiated with common issues of facts and law is completed. Should such initial arbitration dispositively resolve the initial dispute in Company’s favor, you agree to abide by and be bound by such decision as it relates to the common issues of facts and law.
18.9. If any term or condition in this Arbitration and Class Action Waiver is determined to be unenforceable or in conflict with a mandatory provision of applicable law, it shall be construed to incorporate any mandatory provision, or the unenforceable or conflicting term or condition shall be automatically severed and the remainder of this Arbitration and Class Action Waiver shall not be affected. Provided, however, that if the Class Action Waiver is found to be unenforceable, then any claim brought on a class, collective, or representative action basis shall be adjudicated exclusively in the state and federal courts located in the City of [LOCATION], which shall be the exclusive forum for such claims. You waive any and all objections to the exercise of jurisdiction over You by such courts and to venue in such courts.
19. Export Controls
You may not use, export, import, or transfer our Services except as authorized by U.S. law, the laws of the jurisdiction in which You obtained the Services, and any other applicable laws. In particular, but without limitation, our Applications and other software may not be exported or re-exported: (A) into any United States embargoed countries or (B) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using our Services, You represent and warrant that (i) You are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use our Services for any purpose prohibited by U.S. law, including the development, design, manufacture, or production of missiles, nuclear, chemical, or biological weapons. You acknowledge and agree that the Services we provide are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer any of our Services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
20. Severability and Waiver
20.1. Severability
If any provision of these Terms is held to be unenforceable or invalid, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
20.2. Waiver
Except as provided herein, the failure to exercise a right or to require performance of an obligation under this Terms shall not effect a party’s ability to exercise such right or require such performance at any time thereafter nor shall be the waiver of a breach constitute a waiver of any subsequent breach.
21. Limitations of Liability
21.1. Notwithstanding any damages that You might incur, the entire liability of the Company and any of its suppliers under any provision of this Terms and Your exclusive remedy for all of the foregoing shall be limited to the amount actually paid by You through the Service or $100 if You haven’t purchased anything through the Service.
21.2. To the maximum extent permitted by applicable law, in no event shall the Company or its suppliers be liable for any special, incidental, indirect, or consequential damages whatsoever (including, but not limited to, damages for loss of profits, loss of data or other information, for business interruption, for personal injury, loss of privacy arising out of or in any way related to the use of or inability to use the Service, third-party software and/or third-party hardware used with the Service, or otherwise in connection with any provision of this Terms), even if the Company or any supplier has been advised of the possibility of such damages and even if the remedy fails of its essential purpose.
21.3. Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply. In these states, each party’s liability will be limited to the greatest extent permitted by law.
22. Indemnification
You agree to indemnify and hold harmless Company, and its officers, directors, employees, parents, partners, successors, agents, licensors, licensees, distribution partners, affiliates, subsidiaries, and their related companies (collectively, the “Company Parties”) from and against any and all claims, liabilities, losses, damages, obligations, costs, and expenses (including reasonable attorneys’ fees and costs) arising out of, related to, or that may arise in connection with: (i) Your use of our Services; (ii) User Content provided by You or through use of Your Account; (iii) any actual or alleged violation or breach by You of these Terms of Use; (iv) any actual or alleged breach of any representation, warranty, or covenant that You have made to us; or (v) Your acts or omissions. You agree to cooperate fully with us in the defense of any claim that is the subject of Your obligations hereunder.
23. Contact Us
If You have any questions about these Terms and Conditions, You can contact us by email at: support@mythwalker.com
