ListVR iOS Mobile Application End User License Agreement
[Effective Date/Last Updated: 03/01/2018] (Application ver. 1.0)
Welcome to the iOS mobile application of Constellation Media LLC dba ListVR (”ListVR,” “we,” or “our”). We provide users the opportunity to showcase available real estate in a space that provides a 360-virtual tour of the real property. This iOS Mobile Application End User License Agreement (”Agreement”) is a binding agreement between you (”End User,” “you” or “your”) and ListVR. This Agreement governs your use of the ListVR Mobile Application, available through Apple, Inc.’s (“Apple”) iTunes online store (including all related documentation, the “ListVR App”). The ListVR App is licensed, not sold, to you. ListVR reserves all rights in and to the ListVR not expressly granted to you under this Agreement.
BY CLICKING THE “AGREE” BUTTON, YOU (A) REPRESENT THAT YOU ARE OF LEGAL AGE AND HAVE THE AUTHORITY TO AGREE TO THE TERMS OF THIS AGREEMENT; (B) THAT YOU HAVE READ AND UNDERSTAND AND UNCONDITIONALLY AGREE TO BE LEGALLY BOUND BY THE TERMS OF THIS AGREEMENT; (C) AND THAT THE TERMS OF THIS AGREEMENT WILL APPLY EACH TIME YOU ACCESS OUR IOS APP. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT INSTALL AND DO NOT USE THE IOS APP, AND DELETE IT IMMEDIATELY FROM YOUR MOBILE DEVICE.
This Agreement is between you and ListVR only, and not Apple. ListVR, not Apple, is solely responsible for this Agreement and its content. While Apple is not a party to this Agreement, Apple has the right to enforce this Agreement against you as a third-party beneficiary relating to your use of the ListVR App.
Representations. By accessing or using the ListVR App you warrant and represent that a) you are 18 years of age or older; (b) if registering for a business entity, that you possess the legal authority to enter into this Agreement and form a binding agreement under applicable law on behalf of said business entity; (c) all information provided by you as part of the registration process or continued use of the Content and Services (as defend in Section 11) is accurate, current and complete and remains up-to-date. If you are unable to fulfill all of these requirements, you must immediately stop all use and terminate your access and use to the ListVR App and associated Content and Services.
Account Security. You are responsible for safeguarding the password that you use to access the Content and Services and for all activity that occurs under your account. You may not share your account information (other than with an authorized ListVR representative) with another person or use another user’s account. You are solely responsible for protecting any confidential or personal information sent from or stored on any Mobile Device (as defined in Section 3) as a result of your use of the Content and Services (as defined in Section 11). You agree to immediately change your password and notify ListVR of any suspected or unauthorized access associated with your use of the Content and Services or any other breach of security.
Subject to the terms of this Agreement, ListVR grants you a limited, non-exclusive, royalty-free, and nontransferable, revocable license to:
download, install, and use the ListVR App for your personal, non-commercial use on an iPhone, iPad, or similar device manufactured by Apple that is owned or otherwise controlled by you (”Mobile Device”) strictly in accordance with the ListVR App’s documentation and Apple’s Media Services Terms and Conditions, as available on its website at https://www.apple.com/legal/internet-services/itunes/us/terms.html.
Licensee shall not:
copy the ListVR App, except as expressly permitted by this license;
modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the ListVR App;
reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the ListVR App or any part thereof;
remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the ListVR App, including any copy thereof;
use meta tags or code or other devices containing any reference to ListVR’s Content and Services (or any existing trademark, trade name, logo or slogan of ListVR), to any person or entity or website or mobile application for any purpose
rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the ListVR App, or any features or functionality of the ListVR App, to any third party for any reason, including by making the ListVR App available on a network where it is capable of being accessed by more than one device at any time;
remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the ListVR App;
use “bots,” “spiders,” “crawlers,” website search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine,” probe, scan, test the vulnerability of any system or network or breach or otherwise circumvent the intended functionality of the Content and Services;
forge headers or otherwise manipulates identifiers in order to disguise the origin of any information transmitted to or through our Content and Services (either directly or indirectly through use of third party software);
collect, stores or solicit information about other users or members for commercial or unlawful purposes or engage in commercial activity such as contests, sweepstakes, and the like, without ListVR’s prior consent;
misrepresent yourself, your age, or your affiliation with any person or entity, impersonates any person or entity, makes false or misleading statements;
interfere with, or inhibit any other user from using our Content or Services, including stalking, intimidation, harassment, incitement of (or attempted) violence to or toward any user or Member; or
that otherwise violates any term of this Agreement in any manner.
Proprietary Intellectual Property Rights.
You acknowledge and agree that the ListVR App is provided under license, and not sold, to you. You do not acquire any ownership interest in the ListVR App under this Agreement, or any other rights thereto other than to use the ListVR App in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. ListVR and its licensors and service providers reserve and shall retain its/their entire right, title, and interest in and to the ListVR App, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
Third Party Materials.
The ListVR App may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials”). You acknowledge and agree that ListVR is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. ListVR does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.
Plans. Certain features of the ListVR App require a subscription plan to access. The ListVR App allows you to make In-App purchases to Services on a subscription plan basis, including a monthly or annual plan (collectively “Paid Subscriptions”).
ListVR currently offers three annual and three-monthly subscription plans, based on the number of listings purchased for the annual or monthly subscription period. Each plan provides a set rate for a specified number of active listings per month or annually. All In-App purchases will be processed directly through iTunes and are subject to the terms regarding subscriptions, as set forth in Apple’s Media Services Terms and Conditions (https://www.apple.com/legal/internet-services/itunes/us/terms.html) (the “Apple T&C”). You should periodically review the Apple T&C to ensure you are in compliance with said agreement.
Paid Subscriptions automatically renew until cancelled in the Manage Subscriptions section of your account settings. You will receive notification of any increase in the Paid Subscription rate prior to the start of the renewal period. If you do not consent to the new Paid Subscription rate, you must cancel your Paid Subscription prior to the start of the renewal Paid Subscription period. You will be charged no more than 24 hours prior to the start of the latest Paid Subscription period.
Any notice requesting changes to a Paid Subscription plan, i.e. number of listing for change from monthly to annual, must be requested at least fifteen (15) days prior to the start of the next renewal of the Paid Subscription to take effect at the next renewal period of the Paid Subscription Plan. Any requested change to a monthly subscription plan made with less than fifteen (15) days’ notice shall take effect the month following the current renewal period. For example, if the current renewal period starts in February, the changes to your monthly subscription plan will become effective in the March renewal period. Any changes requested to an annual paid subscription that fails to comply with the referenced time requirements will not apply until the annual subscription renewal the year after the current renewal period.
Free Trial. We offer a fourteen (14) day free trial upon signing up for a Paid Subscription plan. If you decide to unsubscribe from a Paid Subscription before we start charging your payment method, you must cancel the subscription before the free trial ends.
Changes; Promotions. Prices for any Paid Subscription plan may change at any time and ListVR does not provide price protection or refunds in the event of a price reduction or promotional offering. In the event of a Paid Subscription plan increase, you will be notified by email and/or In-App regarding the new subscription rate for your plan. Renewal of your subscription plan indicates your consent to the rate increase in your Paid Subscription plan.
Subscription Cancellation: You may cancel your subscription at any time online by following the instructions on the “change/cancel membership” or similar page on your “Account Settings” page. You may also cancel your subscription by sending us written notice of cancellation to 06801, or by email notice to email@example.com.
Fees Non-refundable; Non-transferrable: All subscription fees paid are non-refundable, in whole or in part, even if the Services are suspended or cancelled prior to the end of your annual or monthly plan. If you cancel your subscription, you will enjoy membership benefits until the end of the last month you made your subscription payment. In no event will you be eligible for a refund of any portion of the subscription fees paid for the then-current membership. Subscription Plans are non-transferrable.
License Grant for End User Content.
Ownership. You retain all ownership of the User Content that you upload and use in association with our ListVR App, to create a virtual tour of real estate through our Content and Services. “User Content” means all text, files, images, photos, or other materials.
Warranties of Ownership. By uploading User Content to our ListVR App and Content and Services, you agree that: (i) you own the User Content or have the necessary licenses and permissions to use and share the User Content and (ii) the rights necessary to grant the licenses in this Agreement. If you incorporate any Intellectual Property or material owned by a third party into your User Content, you do so at your own risk. “Intellectual Property Rights” means patent, trademark, copyright, service mark, trade dress, unfair competition, right of privacy, right of publicity, moral rights, unfair and any other proprietary rights.
License. To operate and provide the Content and Services we require certain licenses from you to your User Content. When you use our ListVR App and Content and Services to create a virtual tour of any real estate space, you grant us an irrevocable, unrestricted, non-exclusive, worldwide, royalty-free, fully-paid up, sub-licensable, and transferrable license to host, use, publicly display, exhibit, distribute, broadcast, rebroadcast, transmit, retransmit, modify (for example, to better showcase your user content or promote the Services), publicly perform, reproduce, and translate the content as needed in response to user driven actions on or through any media, technology or device now known or hereafter developed.
Content. User Content uploaded or transmitted through the ListVR App, and our Content and Services, will be stored for an indefinite period of time on ListVR’s servers. You are responsible for ensuring that any files uploaded to our servers is free of corruption and contain no viruses or malicious software. Files (if any) describing available goods and/or services may be submitted in .jpg, .png or .gif format. Before submitting any User Content, you agree to ensure the accuracy, completeness, timeliness and any restrictions or legal requirements in describing the goods and/or services you offer in the requisite jurisdiction. You further warrant and represent that any User Content you upload or use in association with the ListVR App will not breach any applicable law and will not damage user computer systems, software or hardware devices or contain any malicious or contaminated files, software or content. For more information regarding restricted conduct see Section 3, above.
Virtual Tour Intellectual Property of ListVR. ListVR has expended significant resources in developing our ListVR App. You understand and agree that in order to protect our intellectual property rights in our software, any virtual tour created by your uploading, accessing, and using our ListVR App and Content and Services shall become the intellectual property of ListVR. You shall retain ownership of all User Content used to create the virtual tour on our ListVR App. The virtual tour may only be viewed, modified or otherwise used on our ListVR App and Content and Services. You agree that you will not remove, download, or transfer any virtual tour created through your access or use of our ListVR App, including from our Content and Services. You grant ListVR the irrevocable, unrestricted, non-exclusive, worldwide, royalty-free, fully-paid up, sub-licensable, and transferrable license to host, use, publicly display, exhibit, distribute, broadcast, rebroadcast, transmit, retransmit, modify (for example, to better showcase your user content or promote the Services), publicly perform, reproduce, and translate the virtual tour for promotional purposes in perpetuity.
Removal. In our sole discretion, ListVR may or may not monitor any User Content you upload and post, accept or reject your User Content or delete your User Content, with or without notice, that includes, without limitation, when, in our determination, you may have violated the terms of this Agreement or any applicable laws or regulations. ListVR will not be liable for any use or disclosure of your User Content to anyone, including, without limitation, users and visitors of ListVR’s Content and Services, or intellectual property owners providing a notice of claimed infringement
You understand that ListVR does not control and is not responsible for Member Content made available through the ListVR App and that by using our Content and Services you may be exposed to Member Content that is offensive, indecent, inaccurate, misleading or otherwise objectionable. Your sole remedy is to stop viewing the Member Content. If you believe in good faith another user is violating the terms of this Agreement you may email us regarding such conduct at firstname.lastname@example.org.
Collection and Use of Your Information.
Content and Services.
The Content and Services are based in the state of Connecticut in the United States and provided for access and use only by persons located in the United States. We make no representations or warranties that the information, products or services available through the ListVR App is appropriate for use or access in any location outside the United States you acknowledge that you may not be able to access all or some of the Content and Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Content and Services from outside the United States, you are responsible for compliance with both United States law and regulations and local laws. We reserve the right to limit the availability of the ListVR App, or any portion thereof, to any person, geographic area, or jurisdiction, at any time and in our sole discretion, without notice.
ListVR Copyright Policy.
ListVR takes the intellectual property rights of others seriously and expects you to do the same when using our Content and Services. We will respond to notices of copyright infringement that comply with the requirements of the Digital Millennium Copyright Act (“DMCA”) (17 U.S.C. § 512).
If you believe in good faith that User Content available through our Content and Services infringes one or more of your copyrights, you may provide us written notice (“Take Down Notice”) and include the following information:
A physical or electronic signature of the owner or a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
Identification of the copyrighted work claimed to have been infringed (including a hyperlink to said work(s), if available), or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that website;
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 the service provider to locate the material (including a hyperlink to said work(s));
Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an email;
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, his/her/its agent, or the law; and
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.
If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send Harvest a counter-notice.
Any Take-Down Notice or counter-notice (collectively “Notice”) must meet the then-current statutory requirements imposed by the DMCA; see https://www.copyright.gov/title17/92appb.html for details. Any Notice regarding our Content and Services must be sent to: Attn: Joseph Campbell, Constellation Media LLC dba ListVR, 23 Francis J Clark Circle, Unit 1A, Bethel, Connecticut 06801; or by email at email@example.com. Consult your legal advisor before filing a notice or counter-notice as there are penalties for false claims under the DMCA.
Push Notifications; Location-Based Features, Notices & Mobile Services.
We may provide you with emails, text messages, push notifications, alerts and other messages (collectively “Communications”) related to our ListVR App and/or our Content and Services. These Communications may be transactional or member communications relating to our ListVR App and/or Content and Services, such as administrative notices and service announcements or changes, or communications containing commercial offers, or promotions. After downloading the ListVR App, you may be asked to accept or deny push notifications/alerts. If you deny, you will not receive any push notifications/alerts. If you accept, push notifications/alerts will be automatically sent to you. If you no longer wish to receive push notifications/alerts from the ListVR App, you may opt out by changing the notification settings on your Mobile Device. With respect to all other Communications., you can unsubscribe or opt out by either following the specific instructions included in such Communications, or by emailing us with your request at firstname.lastname@example.org.
If you change or deactivate your mobile telephone number, you agree to update your ListVR account information to ensure that your messages are not sent to the person that acquires your old number. Notices may not be received if you violate this Agreement by accessing our Content and Services in an unauthorized manner. You agree that you are deemed to have received any and all notices that would have been delivered had you accessed our Content and Services in an authorized manner.
Communications made through email or any private messaging system via our Content and Services will not constitute legal notice to ListVR or any of our managers, employees, agents or representatives in any situation where notice to ListVR is required by contract or any law or regulation.
Sending Message Through Our Services.
We may allow you to send messages (“Messages”) to other users through the ListVR App. Sending Messages is a privilege, not a right, and ListVR may terminate such privileges of any user at any time and for any reason, without any liability to such user. If a user of the ListVR App sends you an objectionable Message, please notify us by sending an e-mail to email@example.com. You agree that ListVR may, but has no obligation to, monitor Messages for compliance with this Agreement, and therefore, Messages should not be considered confidential or proprietary. You hereby grant us an assignable, sublicensable, irrevocable license to reproduce and transmit your Messages in connection with facilitating transmission to the intended recipient through the ListVR App and for such other purpose as ListVR may deem appropriate in its sole discretion.
ListVR may from time to time in its sole discretion develop and provide ListVR App updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that ListVR has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the internet either:
the ListVR App will automatically download and install all available Updates; or
You may receive notice of or be prompted to download and install available Updates.
You shall promptly download and install all Updates and acknowledge and agree that the ListVR App or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the ListVR App and be subject to all terms and conditions of this Agreement.
Term and Termination.
Term. The term of Agreement commences when you install the ListVR App and acknowledge your acceptance of the terms of this Agreement and will continue in effect until terminated by you or ListVR as set forth in this Section 17.
Termination by You. You may terminate this Agreement by deleting the ListVR App and all copies thereof from your Mobile Device.
ListVR Termination. ListVR may terminate this Agreement at any time without notice if it ceases to support the ListVR App, which ListVR may do in its sole discretion. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.
Termination of Your Rights. Upon termination:
(i) all rights granted to you under this Agreement will also terminate; and
(ii) You must cease all use of the ListVR App and delete all copies of the ListVR App from your Mobile Device and account.
Survival of Terms. Termination will not limit any of ListVR’s rights or remedies at law or in equity. Upon termination of this Agreement, all provisions regarding licenses you granted; our Intellectual Proprietary Rights, your indemnification obligations; our warranty disclaimers, limitations of liabilities, and limitations on statute of limitations stated in this Agreement will survive termination of this Agreement.
Disclaimer of Warranties.
THE LISTVR APP IS PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LISTVR, 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 LISTVR APP, 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, LISTVR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LISTVR APP 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, THAT ANY INFORMATION PROVIDED WITH THE LISTVR APP WILL BE ACCURATE OR ERROR FREE, OR IN ANY LANGUAGE OTHER THAN ENGLISH, ON IN A LANGUAGE THAT YOU UNDERSTAND.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. TO THE EXTENT ANY WARRANTY OF LIMITATION OF LIABILITY EXISTS UNDER LAW THAT CANNOT BE DISCLAIMED OR EXCLUDED, LISTVR, NOT APPLE, SHALL BE SOLELY RESPONSIBLE FOR SUCH LIABILITY.
Limitation of Liability.
YOUR SOLE REMEDY FOR DISSATISFACTION WITH ANY PORTION OF THE LISTVR APP IS TO STOP USING THE LISTVR APP. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LISTVR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE LISTVR APP OR THE CONTENT AND SERVICES FOR:
PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, PAYMENT, WARRANTIES, REPRESENTATIONS, ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY LISTVR OR ITS AFFILIATES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR USE OF THE LISTVR APP, ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY MATTERS, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.
DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE LISTVR APP OR THE EQUIVALENT OF ONE MONTH SUBSCRIPTION FEE UNDER YOUR CURRENT SUBSCRIPTION PLAN.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR LISTVR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF LISTVR’S, OR ITS AFFILIATES, ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF THE LISTVR APP, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF THE LISTVR APP OR OTHER CONTENT OWNED OR CONTROLLED BY LISTVR AND ITS AFFILIATES.
BY ACCESSING THE LISTVR APP, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF CALIFORNIA CODE § 1542, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: "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."
You agree to indemnify, defend, and hold harmless ListVR and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising from or relating to your use or misuse of the ListVR App or your breach of this Agreement, including but not limited to the content you submit or make available through this ListVR App. ListVR shall not be obligated to indemnify or defend you as regards any third-party claim arising out of or relating to your use of the ListVR App. To the extent ListVR is required to provide indemnification by applicable law, ListVR, not Apple, shall be solely responsible for the investigation, defense, settlement and discharge of any claim that ListVR’s ListVR App or your use of it infringes any third party intellectual property right.
The ListVR App may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the ListVR App to, or make the ListVR App accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the ListVR App available outside the US. You represent and warrant that (i) you are not located in a country that is subject to a United States Government embargo, or that has been designated by the United States Government as a “terrorist supporting” country; and (ii) you are not listed on any United States Government list of prohibited or restricted parties. By using the ListVR App, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
US Government Rights.
The ListVR App and related documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
UN Convention and International Sale of Goods.
Specifically excluded from application to this Agreement is that law known as the United Nations Convention on the International Sale of Goods.
Taxes and Third-Party Fees.
You are solely responsible for and must pay all applicable taxes, and any applicable third-party fee (such as telephone charges, mobile carrier fees, ISP charges, data plan charges, and third-party payment processing fees) that may result from your use of our Services.
Feedback and Suggestions.
If you submit feedback, comments, ideas or suggestions (collectively “Suggestions”) about our Content and Services, you acknowledge that such Suggestions are unsolicited and that we may, but have no obligation, to use your Suggestions. You further agree and acknowledge that any use of your Suggestions by us, for any purpose, will be without any liability to us, or payment of any kind to you.
The laws of the State of Connecticut, excluding its conflicts of law principles, govern this Agreement and your use of the ListVR App. Your use of the ListVR App may also be subject to other local, state, or federal laws.
Dispute Resolution. Customer service is important to us, so we ask that you first try to resolve your dispute by contacting us. If we cannot informally resolve your dispute, you agree that all disputes between you and ListVR arising out of or relating to this Agreement (including any alleged breach) will be resolved by binding arbitration, unless your claim may be brought in small claims court.
Arbitration. The American Arbitration Association will administrate the arbitration in the city of Bethel, in Fairfield County, in the State of Connecticut, pursuant to the Federal Arbitration Act. The arbitration will be conducted by one arbitrator, as agreed on by you and ListVR (and if you and ListVR cannot agree within twenty (20) days, appointed in accordance with the American Arbitration Associations’ Rules). The arbitration will be conducted in the English language, but any witness whose native language is not English may give testimony in the witness’ native language, with simultaneous translation into English at the expense of the party presenting the witness.
You understand that by using ListVR’s ListVR App and/or Content and Services, YOU GIVE UP YOUR RIGHT TO GO TO COURT, to assert or defend any claims between you and ListVR (except for matters brought in small claims court) BEFORE A JUDGE OR JURY. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction over the parties. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with this Agreement.
Exclusive Jurisdiction and Venue. To the extent the arbitration clause in this Section 27 is held unenforceable, YOU AGREE TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN Fairfield County, in the State of Connecticut. You waive any and all objections to the exercise of jurisdiction over you by such courts, arbitration or other judicial proceeding and to venue in such courts, arbitration or other judicial proceeding.
Small Claims Action: If your claim meets the requirements to file a small claims action, you agree to the sole jurisdiction and venue of any small claims court located in Fairfield County, in the State of Connecticut.
No Class Action: You agree to give up and hereby waive your right to participate in a class action or class proceeding, including class arbitration, limited attorney general action, or other representative action or proceeding.
Attorneys’ Fees. The prevailing party in any arbitration, legal action or other judicial proceeding shall be entitled to reasonable attorney fees.
Limitation of Time to File Claims.
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE LISTVR APP MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
Severability and No Waiver.
If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder.
ListVR may assign or delegate this Agreement, in whole or in part, to any person or entity at any time with or without your consent. You may not assign or delegate any rights or obligations under this Agreement without ListVR‘s prior written consent, and any unauthorized assignment and delegation by you is void.
Changes to this Agreement.
As ListVR grows, we might have to make changes to this Agreement from time-to-time, so we reserve the right, in our sole discretion, with or without notice, to amend, add, remove, or otherwise modify this Agreement at any time (a "Change"). Any change to this Agreement will be effective immediately upon posting and you will be required to review and accept any Change in these terms before you may use the ListVR App. Your continued use of the ListVR App after notification of any Change to these terms constitutes your acceptance of the Change and you will be legally bound by the updated terms of this Agreement. you may always review a copy of the most recent version of this Agreement, with any Change thereto, at www.listvr.io/eulaios. If you do not accept any Change to this Agreement, you may no longer use our ListVR App, and you must delete the ListVR App from your Mobile Device.
You may contact us at Constellation Media LLC dba ListVR, 23 Francis J Clark Circle, Unit 1A, Bethel, Connecticut 06801, or by e-mail at firstname.lastname@example.org.