SWEET ESCAPE VR EULA
Last updated: June 20, 2018
This Sweet Escape VR EULA (the “Terms”) govern the relationship between Reality Smash, Inc. (hereinafter, “Reality Smash,” “us,” or “we”) and you regarding your use of the Sweet Escape VR game, including all updates and upgrades to such game and documentation for the game provided by Reality Smash to you (collectively, the “Game”).
IMPORTANT – PLEASE READ CAREFULLY – THESE TERMS CREATE A LEGALLY BINDING AGREEMENT WHICH GOVERNS YOUR USE OF THE GAME. BY DOWNLOADING OR USING THE GAME, YOU ACCEPT AND AGREE TO BE BOUND, WITHOUT LIMITATION OR QUALIFICATION, BY THESE TERMS. IF YOU DO NOT ACCEPT ANY OF THESE TERMS, YOU ARE PROHIBITED FROM USING THE GAME.
1. Right, License and Restrictions.
1.1. License Grant For Game. Subject to your agreement to, and continuing compliance with, these Terms and any other relevant Reality Smash policies, Reality Smash grants you a non-exclusive, non-transferable, revocable limited right and license to install, access and use one copy of the Game solely for your personal, non-commercial use. As used in these Terms, a “User” means someone who has been granted the right to use the Game.
1.2. License Restrictions. You are prohibited from and agree not to reverse engineer, de-compile, modify, create derivative works of, reproduce, publicly display, distribute, sell, lease, rent, loan, sub-license or transfer any of the Game. You agree not to grant any security interest in any of the Game.
1.3. Minimum Age Requirement. An individual must be at least 13 years of age to use the Game.
1.4. Account Access and Gaming Platform; Responsibilities. You acknowledge that in order to use the Game, you must create an account (“Account”) with the “Steam” digital game distribution platform (“Steam Platform”). Currently, the “Steam” platform is the only digital game distribution platform that the Game is designed to work on. Steam Platform may have its own terms that you must agree to be bound by when setting up an Account and/or using the Steam Platform. Reality Smash makes no representations or warranties regarding Steam Platform and grants no rights in or to use Steam Platform and all such rights must be obtained separately from the licensor of rights to use Steam Platform. You are wholly responsible for the cost of all internet connection fees, along with all equipment, servicing, or repair costs necessary to use the Game.
1.5. Use of the Game: The following restrictions apply to the use of the Account and Game:
- You accept full responsibility for any unauthorized use of the Game by parties not authorized to use any of your Accounts. Additionally, you are solely responsible for any use of Game under your Account (including any unauthorized use and use of your credit card or other payment instrument (e.g. PayPal) incurred by parties using your Account);
- You shall not create an Account using a false identity or false information, or on behalf of someone other than yourself;
- Without first obtaining the written permission of Reality Smash, you shall not register for or use an Account to use the Game or in any way use the Game if Reality Smash has taken steps to prohibit your use of the Account to use the Game or otherwise removed, suspended, or otherwise terminated your rights to use the Game;
- You shall not use your Account to advertise, solicit or transmit any commercial advertisements, including chain letters, junk email or repetitive messages to anyone else playing the Game; and
- You shall not use the Game to engage in any illegal conduct;
1.6. General Limitations and Prohibitions.
- General Effects of Violations. Any use of the Game in violation of these Terms is strictly prohibited, can result in the immediate revocation of your limited license granted by Section 1, and may subject you to liability for violations of law. Reality Smash is permitted to list or restrict use of the Game for anyone who Reality Smash reasonably believes has or will violate any applicable law when using the Game
Activity Prohibitions. You agree that you will not, under any circumstances:
Engage in any act that Reality Smash deems to be in conflict with the spirit or intent of the Game, including but not limited to circumventing or manipulating these Terms;
- Bypass or circumvent any technical measures designed to ensure that only licensed copies of the Game are used;
- Use the Game in connection with any violation of any applicable law or regulation, or do anything that promotes the violation of any applicable law or regulation by anyone;
- Be compensated for playing or using the Game such as offering “leveling” –type services;
- Sell rights to others to use your Account or other access rights as necessary to play the Game;
Remove or alter any proprietary rights notices for, on or within any of the Game;
Modify or cause to be modified any files or content that are within or used to offer the Game, without the express prior written consent of Reality Smash;
Disrupt, overburden, or aid or assist in the disruption or overburdening of (1) any computer or server used to offer or support the Game (each a “Server”) or (2) the use or enjoyment of the Game by any other person;
Institute, assist or become involved in any type of attack, including without limitation distribution of a virus, denial of service attacks upon the Game, or other attempts to disrupt the Game or any other person’s use or enjoyment of the Game;
Gain, or attempt to gain, unauthorized access to the Game, Accounts, Servers or networks connected to the Game by any means (including, but not limited to, circumventing or modifying, or encouraging or assisting any other person to circumvent or modify, any security, technology, device or software that is part of the Game);
Post any information that is abusive, threatening, obscene, defamatory, libelous or racially, sexually, religiously or otherwise objectionable or offensive;
Post any information that contains nudity, excessive violence or offensive subject matter or that contains a link to such content;
Harass, abuse, harm, or advocate or incite harassment, abuse or harm of another person or group of persons, including Reality Smash employees or customer service representatives;
- Post, distribute or make available through the Game any material or information that infringes any copyright, trademark, patent, trade secret, right of privacy, right of publicity or other right of any person or entity or impersonates any other person;
- Transmit unauthorized communications through the Game, including junk mail, chain letters, spam and any materials that promote malware, spyware and downloadable items;
- Interfere or attempt to interfere with the proper functioning of the Game or connect to or use the Game in any way not expressly permitted by these Terms;
Intercept, examine or otherwise observe any proprietary communications protocol used by a client, a Server or the Game, whether through the use of a network analyzer, packet sniffer or other device;
Make any automated use of the Game or take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure, as we determine in our sole discretion;
Bypass any robot exclusion headers or other measures we take to restrict access to the Game or use any software, technology or device to send content or messages, scrape, spider or crawl the Game, or harvest or manipulate data from, through, or relating to the Game;
Use, facilitate, create or maintain any unauthorized connection to the Game, including without limitation (1) any connection to any unauthorized server that emulates, or attempts to emulate, any part of the Game or (2) any connection using programs, tools or software not expressly approved in writing by Reality Smash;
Copy, modify or distribute rights or content from any Reality Smash site, including but not limited to content that contains or is protected by Reality Smash’s copyrights or trademarks or use any method to copy or distribute the content of the Game, except as specifically allowed in these Terms;
Solicit or attempt to solicit personal information from other Users, other than from Users with whom you have an existing business relationship and only in connection with a bona fide business purpose for which the Game is intended;
Exploit the Games in any way or form;
Collect, harvest or post anyone’s private information, including personally identifiable information (whether in text, image, video, or other form), identification documents or financial information through the Game; and/or
Upload or transmit (or attempt to upload or to transmit), without Reality Smash’s express written permission, any material that acts as a passive or active information collection or transmission mechanism, including, without limitation clear graphics interchange formats (“gifs”), 1x1 pixels, web bugs, cookies or other similar devices (sometimes referred to as “spyware,” “passive collection mechanisms” or “pcms”).
1.7. Suspension and Termination of Account, Plan and Game:
FAILURE TO COMPLY. WITHOUT LIMITING ANY OTHER REMEDIES, WE MAY, WITH OR WITHOUT NOTICE TO YOU, LIMIT, SUSPEND, TERMINATE, MODIFY OR DELETE YOUR RIGHTS TO USE OR ACCESS THE GAME OR PORTIONS THEREOF IF, IN OUR SOLE DISCRETION, YOU FAIL TO COMPLY WITH ANY OF THESE TERMS OR YOUR ACCOUNT IS USED FOR ACTUAL OR SUSPECTED ILLEGAL ACTIVITY OR IMPROPER USE OF THE GAME. REALITY SMASH SHALL BE UNDER NO OBLIGATION TO COMPENSATE YOU FOR ANY LOSSES OR ADVERSE RESULTS THAT ARE DUE TO THE SUSPENSION, TERMINATION, MODIFICATION, OR DELETION OF YOUR ACCOUNT OR RIGHT TO USE THE GAME.
WITHOUT LIMITING ANY OTHER REMEDIES, WE MAY LIMIT, SUSPEND OR TERMINATE THE GAME AND ACCOUNTS OR PORTIONS THEREOF, PROHIBIT ACCESS TO OUR SITES AND THEIR CONTENT, GAMES AND TOOLS, DELAY OR REMOVE ANY CONTENT AND TAKE TECHNICAL AND LEGAL STEPS TO PREVENT USERS FROM ACCESSING THE GAME IF WE BELIEVE THAT YOU ARE CREATING RISK OR POSSIBLE LEGAL LIABILITIES, INFRINGING THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES OR ACTING INCONSISTENTLY WITH THE LETTER OR SPIRIT OF OUR TERMS OR POLICIES.
REPEAT INFRINGERS. IN APPROPRIATE CIRCUMSTANCES IT IS OUR POLICY TO SUSPEND OR TERMINATE THE RIGHTS OF USERS TO USE OR ACCESS THE GAME WHO ARE REPEAT INFRINGERS OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
Right to Cease Game. Reality Smash reserves the right to stop offering and/or supporting the Game or part of the Game at any time, at which point the license granted hereunder to you to use the Game or a part thereof will automatically terminate. Reality Smash shall not be required to provide refunds, benefits or other compensation to users in connection with such cessation of the Game or any part thereof. Reality Smash reserves the right to temporarily suspend operation, accessibility or availability of the Game at any time in order for Reality Smash to investigate, address or mitigate any potential hacks, infringement, errors or other activities that will or may cause harm to Reality Smash, you, Other Users or anyone else.
Termination of Rights. Reality Smash may terminate your rights under these Terms if you breach any of these Terms or must terminate such rights in order to comply with applicable law. You agree that if your rights to use the Game are terminated, Reality Smash will not be obligated to preserve, provide you access to, or provide copies of any content submitted to us relating to the Game. You also may terminate your rights under these Terms by discontinuing use of the Game and deleting all copies of the Game in your possession or under your control.
1.8. Intellectual Property Ownership in the Game. The Game, and all of its components and contents, (including without limitation any computer code, template content, pre-populated content, concepts, artwork, animations, sounds, musical compositions, audio-visual effects and text contained within) are owned by Reality Smash or its licensors, and all such material is protected by United States and international patent, copyright, trademark, trade secret, and other intellectual property laws. All rights granted to you to use the Game are by license only and no ownership rights in any of the Game are transferred or assigned under these Terms.
2. Posted Content.
2.1. Posted Content: “Posted Content” means any communications, videos, images, sounds, and all the material, data, and information that you upload, post, publish or transmit through the Game, including without limitation any comments you may make about content uploaded or transmitted by Other Users. We may provide you with templates, pre-populated communications, or other content through the Game (“Template Content”) that you may distribute, use or modify as part of using our Game to communicate with Other Users in a manner consistent with the intended use of the Game. You acknowledge that your use of any Template Content does not relieve you of any responsibilities or obligations under this Agreement. By transmitting or submitting any Posted Content while using the Game, you affirm, represent and warrant that such transmission or submission: (a) is accurate and not confidential; (b) is not in violation of any applicable law, contractual restrictions or other third party rights, and that you have permission from any third party whose personal information or intellectual property is comprised in the Posted Content; (c) will not, when Reality Smash exercises rights in Posted Content granted under Terms, result in any infringement of the intellectual property rights of any third party or violate or misappropriate any rights of publicity or privacy for any third party; and (d) is free of viruses, adware, spyware, worms or other malicious code. You further represent and warrant that you have all rights necessary to transmit Posted Content to Reality Smash and to grant the rights in Posted Content granted to Reality Smash under these Terms.
2.2. Licenses to Posted Content: You hereby grant Reality Smash a perpetual and irrevocable (other than as provided below), worldwide, fully paid-up and royalty free, non-exclusive, assignable, unlimited license and right to copy, reproduce, fix, adapt, modify, improve, translate, reformat, create derivative works of, manufacture, introduce into circulation, publish, distribute, sublicense, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, display, perform, enter into computer memory, and use and practice, in any way now known or in the future discovered, your Posted Content as well as all modified and derivative works thereof. Reality Smash will only exercise the rights granted in this Section 2.2 to offer or to facilitate the offering of Games. To the extent permitted by applicable laws, you hereby waive any moral rights or any of your rights of publicity or privacy you may have in any Posted Content. Reality Smash will cease any further public display or distribution of any Posted Content if you use the features of the Game that permit you to indicate that certain Posted Content is to no longer be displayed or distributed to Other Users except Reality Smash retains the right to display or distribute any Posted Content as necessary for Reality Smash to fulfill its legal duties or in connection with bringing or defending any legal claims or actions that may arise now or in the future.
2.3. Game Play Screening.
Consent to Monitoring. By entering into these Terms, you hereby provide your irrevocable consent to our monitoring and recording of your use of the Game. You acknowledge and agree that you have no expectation of privacy vis a vis us or any of our service providers who provide services to us or you as part of the Game concerning the transmission of any information, including without limitation chat, text or voice communications.
Options Regarding Posted Content. Reality Smash may reject, refuse to post or delete any or all Posted Content for any or no reason, including, but not limited to the reason that, in the sole judgment of Reality Smash, the contents or posting or other use of such Posted Content in connection with the Game violates these Terms.
2.4. User Interactions and Legal Problems; Releases. You hereby release us, and our officers, directors, agents, subsidiaries, joint ventures and employees, 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 any dispute that arises between you and one or more Other Users. If you are a California resident, you acknowledge that you are aware of, and hereby waive your rights under the provisions of California Civil Code Section 1542, which provides: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
3. Payment Terms For Games.
YOU AGREE TO PAY ALL AMOUNTS OWED FOR OBTAINING THE RIGHT TO OBTAIN RIGHTS TO USE THE GAME. YOU ACKNOWLEDGE THAT REALITY SMASH IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON.
4. Third Party Advertising.
4.2. Links to Third Party Sites and Dealings with Advertisers. Reality Smash may provide links on the Game to third party websites or vendors who may invite you to participate in a promotional offer in return for receiving a benefit. Any charges or obligations you incur in your dealings with these third parties are your responsibility. Reality Smash makes no representation or warranty regarding any content, goods, or services provided by any third party even if linked from our Game, and we will not be liable for any claim relating to any third party content, goods, or services. The linked sites are not under the control of Reality Smash and may collect data or solicit personal information from you. Reality Smash is not responsible for their content, business practices or privacy policies, or for the collection, use or disclosure of any information those sites may collect. Further, the inclusion of any link does not imply endorsement by Reality Smash of these linked sites.
5. Copyright Notices; Complaints. It is Reality Smash’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act (the “DMCA”). For more information, please go to Reality Smash’s “Copyright Page” at sweetescapevr.com to review our DMCA procedures. Reality Smash reserves the right to terminate without notice any user’s access to the Game if that user is determined by Reality Smash to be a “repeat infringer.” In addition, Reality Smash accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials.
6. Updates to the Game. You understand that the Game undergoes frequent changes. Reality Smash may require that you accept or only use updates to the Game in order to continue using the Game. You agree to only use updated versions of the Game specified by Reality Smash if requested by Reality Smash. You acknowledge and agree that Reality Smash may update the Game without notifying you and you consent to Reality Smash automatically installing updates of the Game for your use.
7. Disclaimer; Limitations; Waivers on Liability; Indemnification.
7.1. Disclaimer of Warranties.
GAME PROVIDED “AS IS”. YOU EXPRESSLY AGREE THAT USE OF THE GAME IS AT YOUR SOLE RISK AND THE GAME IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
NO WARRANTY OF ERROR-FREE OPERATION. WITHOUT LIMITING THE FOREGOING, NEITHER REALITY SMASH NOR ITS AFFILIATES OR SUBSIDIARIES, OR ANY OF THEIR DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, THIRD-PARTY CONTENT PROVIDERS, DISTRIBUTORS, LICENSEES OR LICENSORS (COLLECTIVELY, “REALITY SMASH PARTIES”) WARRANT THAT THE GAME WILL BE UNINTERRUPTED OR ERROR-FREE. Reality Smash parties will not be responsible for incorrect or inaccurate information provideD IN RESPONSE TO YOUR REQUESTS. YOU ACKNOWLEDGE THAT USING THE GAME MAY REQUIRE THE USE OF CERTAIN EQUIPMENT AND SERVICES AND YOU ARE SOLELY RESPONSIBLE FOR OBTAINING SUCH EQUIPMENT AND SERVICES ENTIRELY AT YOUR COST. REALITY SMASH DOES NOT MAKE ANY REPRESENTAITONS OR WARRANTIES ABOUT ANY EQUIPMENT AND/OR SERVICES YOU OBTAIN AND/OR ARE NECESSARY FOR USE OF THE GAME.
NO WARRANTY REGARDING ACCESS TO GAME, ACCOUNTS AND CONTENT. REALITY SMASH DOES NOT WARRANT THAT ALL CONTENT OR INFORMATION POSTED BY A USER WILL REMAIN AVAILABLE AT ALL TIMES OR WILL NEVER BE DELETED, CORRUPTED OR OTHERWISE UNAVAILABLE. REALITY SMASH DOES NOT WARRANT THAT THE GAME, ACCOUNT HOLDER INFORMATION OR ANY INFORMATION POSTED BY AN ACCOUNT HOLDER WILL BE KEPT FROM ANY PARTICULAR INDIVIDUAL OR ENTITY WHO EITHER HACKS OR ENGAGES IN UNAUTHORIZED ACCESS TO SUCH CONTENT OR INFORMATION OR IS MISTAKENLY GRANTED ACCESS BY REALITY SMASH OR THROUGH THE GAME.
7.2. Limitations; Waivers of Liability.
DISCLAIMER OF INDIRECT DAMAGES. YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY ANY APPLICABLE LAW, THE DISCLAIMERS OF LIABILITY CONTAINED HEREIN APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR INABILITY TO USE, THE GAME UNDER ANY CAUSE OR ACTION WHATSOEVER OF ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE) AND THAT THE REALITY SMASH PARTIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE GAME.
NOT RESPONSIBLE FOR POSTED CONTENT. YOU SPECIFICALLY ACKNOWLEDGE THAT THE REALITY SMASH PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE REALITY SMASH PARTIES LIABLE, FOR THEIR RECEIPT, STORAGE, AND DISCLOSURE TO THIRD PARTIES OF POSTED CONTENT WHICH IS OF A SENSITIVE OR CONFIDENTIAL NATURE, INCLUDING IF SUCH POSTED CONTENT IS EXPOSED OR DISCLOSED THROUGH BREACH OF REALITY SMASH’S SYSTEMS BY A THIRD PARTY, AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
NOT RESPONSIBLE FOR THIRD PARTY CONDUCT AND PRODUCTS. YOU FURTHER SPECIFICALLY ACKNOWLEDGE THAT THE REALITY SMASH PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE REALITY SMASH PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER USERS OF THE GAME, OPERATORS OF EXTERNAL SITES AND MERCHANTS WHOSE PRODUCTS AND GAMES ARE PURCHASED ON YOUR BEHALF AS PART OF THE GAME, AND THAT THE RISK OF THE GAME, USE OF THE STEAM PLATFORM AND OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. REALITY SMASH SHALL NOT BE RESPONSIBLE FOR ANY returns, refunds, or guarantees on behalf of the products or services you MAY BE purchasing OR THAT ARE PURCHASED ON YOUR BEHALF AS PART OF USE OF THE GAME.
MONETARY LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES WILL THE REALITY SMASH PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID REALITY SMASH IN THE ONE HUNDRED EIGHTY (180) CALENDAR DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM
FAILURE TO PAY. YOU ACKNOWLEDGE AND AGREE THAT IF YOU HAVE NOT PAID REALITY SMASH ANY AMOUNTS IN THE ONE HUNDRED EIGHTY (180) CALENDAR DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH REALITY SMASH IS TO STOP USING THE GAME.
DISCLAIMER MAY NOT BE APPLICABLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THE SECTION MAY NOT APPLY TO YOU.
7.3. Indemnification. You agree to defend, indemnify, save, and hold the Reality Smash Parties harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Game, any violation by you of these Terms, or any breach of the representations, warranties and covenants made by you herein. Reality Smash reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Reality Smash and you agree to cooperate with Reality Smash’s defense of these claims. Reality Smash will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it. You agree that the provisions in this Section 7.3 will survive any termination of Terms, your Account or of the Game.
8. Dispute Resolution.
8.1. General. If a dispute arises between you and Reality Smash, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and Reality Smash agree that we will resolve any claim or controversy at law or equity that arises out of this Agreement or our services (a “Claim”) in accordance with one of the subsections below or as we and you otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution by going to our customer support. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation. Other than those matters listed in Section 2, you and Reality Smash agree to seek resolution of the dispute only through arbitration of that dispute in accordance with the terms of this Section 8, and not litigate any dispute in court. Arbitration means that the dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.
8.2. Exclusions from Arbitration. YOU AND REALITY SMASH AGREE THAT ANY CLAIM FILED BY YOU OR BY REALITY SMASH IN SMALL CLAIMS COURT OR BY REALITY SMASH RELATED TO PROTECTION OF REALITY SMASH’S OR ANY REALITY SMASH LICENSOR’S INTELLECTUAL PROPERTY ARE NOT SUBJECT TO THE ARBITRATION TERMS CONTAINED IN THIS SECTION 8.
8.3. RIGHT TO OPT OUT OF BINDING ARBITRATION AND CLASS ACTION WAIVER WITHIN 30 DAYS. IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER IN THIS SECTION 8, YOU MUST NOTIFY REALITY SMASH IN WRITING WITHIN THIRTY (30) DAYS OF THE DATE THAT YOU FIRST ACCEPT THIS AGREEMENT. YOUR WRITTEN NOTIFICATION MUST BE MAILED TO REALITY SMASH TERMS ADMINISTRATOR, REALITY SMASH, INC., 15550 ROCKFIELD BLVD., STE D, IRVINE, CA 92618 AND MUST INCLUDE: (1) YOUR NAME, (2) YOUR ADDRESS, AND (3) A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH REALITY SMASH THROUGH ARBITRATION.
8.4. Class Action Waiver. ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION, UNLESS BOTH YOU AND REALITY SMASH SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION.
8.5. Initiation of Arbitration Proceeding; Selection of Arbitrator. If you or Reality Smash elect to resolve your dispute through arbitration, the party initiating the arbitration proceeding must initiate it with the American Arbitration Association (“AAA”). The terms of this Section 8 will govern in the event they conflict with the arbitration rules identified below.
8.6. Arbitration Procedures. Because the software and/or service provided to you by Reality Smash concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, applicable federal or state law may also apply to the substance of any disputes. For claims of less than $75,000, the AAA’s Consumer Arbitration Rules shall apply; for claims over $75,000, the AAA’s Commercial Arbitration Rules and relevant fee schedules for non-class action proceedings shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. Further, if your claims do not exceed $75,000 and you provided notice to, and negotiated in good faith with, Reality Smash as described above, and if the arbitrator finds that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorneys’ fees and costs as determined by the arbitrator, in addition to any rights to recover the same under controlling state or federal law afforded to Reality Smash or you. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be binding and final, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement
8.7. Location of Arbitration. You or Reality Smash may initiate arbitration in either Orange County, California or the county in which you reside. If you initiate arbitration in the county of your residence, Reality Smash may transfer the arbitration to Orange County, California provided that Reality Smash agrees to pay any additional fees or costs you incur as a result of the change in location, as determined by the arbitrator.
8.8. Severability. If any clause within this Section 8 (other than the Class Action Waiver clause of Section 4) is found to be illegal or unenforceable, that clause will be severed from this Section 8 and the remainder of this Section 8 will be given full force and effect. If the Class Action Waiver (Section 8.4) clause is found to be illegal or unenforceable, this entire Section 8, except for this Section 8.8, will be unenforceable and the dispute will be decided by a court and IN THAT INSTANCE, YOU AND REALITY SMASH EACH WAIVE AND AGREE TO WAIVE ANY RIGHT TO TRIAL BY JURY, TO THE EXTENT ALLOWED BY LAW.
8.9. Survival. This Section 8 shall survive any termination of the Terms.
9. General Provisions.
9.3. Assignment. Reality Smash may assign any of its rights or delegate any of its obligations under these Terms, in whole or in part, to any person or entity at any time without your consent. You may not assign or delegate any rights or obligations under the Terms without the prior written consent of Reality Smash; any purported assignment or delegation in violation of this Section 3 is void.
9.4. Supplemental Policies. Reality Smash may publish additional policies related to specific services such as forums, contests, or loyalty programs. Your use, if any, of such services is subject to such specific policies and these Terms.
Reality Smash, Inc.
555 Anton Blvd., Ste 150
Costa Mesa, CA 92626
Attn: Dylan Watkins, CEO
9.8. Equitable Remedies. You acknowledge that the rights granted and obligations made under these Terms to Reality Smash are of a unique and irreplaceable nature, the loss of which shall irreparably harm Reality Smash and which cannot be replaced by monetary damages alone, so that Reality Smash shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief, or to enjoin or restrain the operation of the Game, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Game or any content or other material used or displayed through the Game and agree to limit your claims to claims for monetary damages, limited by Section 2.
9.9. Force Majeure. Reality Smash shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of Reality Smash, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond Reality Smash’s control, such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, shortages of transportation facilities, fuel, energy, labor or materials.