Last revised on April 21, 2016
TheVRPerformance.com , is the premier service for persons interested in Virtual Reality (“VR”) or Augmented Reality (“AR”) to experience and learn about them, to exchange Media Content, meet each other online, and to download, stream and experience performances in this media. We provide an interactive way for likeminded Users to communicate, explore Visual Reality and Augmented Reality worlds, express and participate in each other’s fantasies, entertain themselves, chat with each other and/or explore potential business relationships on our Sites TheVRPerformance.com is owned and operated by Illuminant, Inc., which owns and operates TheVRPerformance.com (including VR Performance Mobile) (collectively, “We”, “Us”, our “Service”or this “Site)
This Agreement is an electronic contract that establishes the legally binding terms you must accept if you use this Web site.
CONDITIONS OF ACCEPTANCE
“VR” means Virtual Reality
“AR” means Augmented Reality
“Visitor”: For purposes of this Agreement, a “Visitor” is defined as someone accessing or browsing the Site, and one who downloads or streams any of the content on the Site available for free, but who is not paying for downloading, streaming, purchasing or otherwise using any of the VR or AR content on the Site;
A ”Purchaser” is defined as anyone who actually pays money for some access to any Media Content on the Site. The term “Purchaser” therefore includes someone purchasing any viewing interest whether it be for a short term license, a long term license, whether it be for only streaming, whether it be for only pay per view, or whether it be for the actual purchase of all rights in any particular Media Content. The term “Purchase” is deemed to include those renting, paying per view, purchasing a license, as well as actually purchasing Media Content. The actual rights of a particular purchaser will therefore be determined by the particular Media Delivery Package (MDP) which that Purchaser has paid for on the Site. Unless otherwise specifically allowed by a particular MDP, a Purchaser is only allowed to use the Media Content for private, individual use and may not copy, duplicate, broadcast , rebroadcast, transmit or sell the Media Content to others.
A “Producer” is defined as someone who has actually uploaded or is actually uploading Media Content to the Site, whether it is available for others to view for free, or whether the Media Content uploaded is only available for purchase or license. A Producer may or may not actually be the “Performer” which is defined as a person appearing in the Media Content.
A “Performer” is defined as a person appearing in any Media Content uploaded to the Site. A Performer may or may not be a Producer.
“Media Content” is defined as digital or media content of any type, whether a still photograph, a two or three dimensional image or film, a VR or AR program or game, a recording, media clip, a digital file or any other type of uploadable file accessible or capable of being accessed and sensed by another person.
A “User” includes anyone using, accessing or browsing the Site, including actually downloading, streaming, or otherwise using any of the information, VR or AR content on the Site whether it is available for free or not. The term “User” or “Users” includes Visitors, Purchasers, Producers, and Performers.
“Media Delivery Package” (MDP): A Media Delivery Package is a specific license package which spells out the rights that a Purchaser has when downloading or streaming a particular Media Content file. A Producer or Performer who wishes to charge Purchasers to access or download a particular Media Content file must select one or more specific Media Delivery Packages (MDPs) which define what rights that Purchaser will have. Different Media Delivery Packages give Purchasers different rights. For instance, one MDP may allow a short term license, another MDP may allow a long term license. Another MDP may constitute a pay per view. Another a sale to a Purchaser. Different MDP’s will require different payment amounts by the purchaser. The amount to be paid by the Purchaser to access or use a particular Media Content file will be set by the Producer of that Media Content. The Site reserves the right to modify the detailed terms and intellectual property rights granted by these Media Delivery Packages at any time, although once a Media Delivery Package has been paid for and put into effect its terms cannot be modified. A Media Delivery Package will be deemed to be in effect on the date and time when the content to be delivered under a particular MDP is available for streaming or download by the Purchaser of that Media Content. The contract terms of a particular Media Delivery Package will include the total amount to be paid by a Purchaser for a set type and term of delivery, the percentage of the fee paid or the amount of the fee that will be paid to the Site, the amount paid to the Producer or Performer, and the length of time that the Media Content will be available to the Purchaser. All Purchasers who purchase any Media Delivery Packages are prohibited from using the Media Content purchased for any commercial purpose or to re-broadcast the Media Content without the express written permission of the Site, and the Producer.
Mandatory Free License for Media Content Downloaded to Users Without Charge: A Producer or Performer who uploads any “Media Content” to the Site, unless specifically designating such Media Content as requiring a Media Delivery Package to be paid before viewing it, grants a license to the Site and any User on the Site, to download, stream or view and listen to, any such Media Content so long as the Producer or Performer leaves the Media Content on the Site. This license to a User DOES NOT allow the User to use the content on the site for any commercial purpose or to re-broadcast the Media Content without the express written permission of the Site, and the Producer.
A Producer may change the amount charged for a particular Media Delivery Package (MDP) and modify the amount charged on the Site by agreeing with the Site to another MDP package. It may take up to 72 hours for any change in MDP terms to become effective.
THE SITE WILL HAVE NO LIABILITY OF ANY NATURE FOR ANY BREACHES OF THE TERMS OF ANY MEDIA DELIVERY PACKAGE BETWEEN A PURCHASER AND ANY PRODUCER OR PERFORMER.
A Producer or Performer who charges for any Media Delivery Package for downloading, streaming, or otherwise viewing any “Media Content” they have uploaded to the Site, agrees that any such content uploaded to the Site will remain available on the site for at least one year (365 days) from the date of first uploading that Media Content onto the Site.
If a Purchaser pays a MDP for a license for a Pay Per View or streaming for a certain period, the Producer/Performer agrees to make that content available to the Purchaser for the agreed upon time period between the parties.
If a Producer agrees to keep certain Media Content exclusively on the Site for more than one (1) year the Site may offer a discount or increase the amount of money that will be paid to the Producer under a particular MDP.
The Site will in no circumstance be liable for any damages of any kind, including consequential damages, for any technical problems or failures to deliver Media Content purchased. A Purchaser’s sole remedy will be the return of the amount paid to the Purchaser and the Site for the Media Content that was not delivered due to any fault of the Site. The Producer’s sole remedy will be the return of any administrative fee charged to them by the Site for any Media Content or Media Clip that was not delivered due to any fault of the Site.
In order to receive payment from the Site for any Media Development Package (MDP) paid for by a Purchaser, it is the responsibility of a Producer to set up a payment account with the Site. Such a payment account will require the Producer provide financial information to the Site sufficient to allow the Site to transmit payment in U.S. dollars to the Producer by electronic payment. Typical information that will have to be provided to the Site by a Producer may include routing numbers and account numbers of bank accounts, merchant or credit card numbers, addresses and names etc. The amount of financial information required may change from time to time and the Site may alter payment methods to be used to provide a necessary and efficient distribution of fees to the Site and to the Producers. If a Producer does not provide accurate or complete payment information, and the money paid by a Purchaser cannot be distributed according to the Media Distribution Plan set up by the Producer,of 100% all payments for that Media Content will go to the Site.
The Site reserves all rights to any Media Content generated or produced by Illuminant, Inc. TheVRPerformance.com itself, or by any contractor, subcontractor or employee hired by either to produce any such Media Content. The price and terms of the license or purchase of such content produced by Illuminant, Inc., TheVRPerformance.com , or any agent will be subject to the Site’s sole discretion.
The Site will act only as a financial intermediary for any Payment Processing for Media Delivery Package transactions on the Site, taking an administrative fee based upon a percentage of the total license fee as agreed upon between the Producer and the Site for each MDP, and forwarding the remainder of the MDP fee to the Producer. The Site may suggest the cost of such license between the parties, but any such license charges will be determined by the Producer of each individual Media Clip uploaded onto the Site. In addition, the rules applicable to any VR or AR purchased will depend on the rules set by the particular MDP chosen by a Producer for each Media Clip. The Site will not be responsible for any violations of MDP license restrictions by any party.
No Refunds: It is understood and agreed between you and the Site, that there will be no refunds granted for any payments made by you or anyone on your behalf for any Media Clip you purchase.
Copyright: It is the responsibility of each Producer or Performer to copyright and protect the intellectual property in any Media Content they upload to the Site. The Site is not responsible for any theft, copyright infringement or trademark infringement by any Producer who uploads any Media Content or any Purchaser who accesses any Media Content on the Site uploaded by any Producer or Performer.
If a Purchaser or Producer violates the terms of a Media Delivery Package or the copyright rights of any person or entity holding such copyright rights, they may forfeit their rights to use this website, and/or be liable for any damages caused by such violations.
WARNING FOR MINORS AND THOSE THAT MAY BE SUBJECT TO HARM BY VIRTUAL REALITY OR AUGMENTED REALITY.
Some Virtual Reality and Augmented Reality experiences or content may be disturbing or addictive to some persons. Do not use or experience the Virtual Reality or Augmented Reality content on this site if you may be prone to mental or physical disease that may appear or be made worse by the use of VR or AR. If you are unsure, ask your Doctor if it is okay for you to go on this site, and under what conditions and limitations you should use it. By using this site you are Assuming the Risk for any damages you may suffer, including but not limited to mental, physical, emotional, general and special damages. I also understand that VR and AR concerns visual, auditory and sensory input that is not real, and waive any damages claimed to myself or any Avatar or Property which I may utilize or purchase in any virtual reality or augmented reality interactions. Also, some of the material on this server may be violent, adult oriented and/or sexually explicit, and related to material of an adult nature which is unsuitable for minors under 18 years of age. You may only access this website if the following statements are true:
I do not have, and am not prone, to mental or physical diseases which could appear or become worse by the use of VR or AR. If I am unsure of my suitability to use VR or AR, I have consulted with my Doctor as to my suitability to use this website. I agree I am Assuming the Risk for any damages I may suffer, including but not limited to mental, physical, emotional, general and special damages, as a result of using this Site, or any of the Media Content on it.
I do not find images of nude adults, adults engaged in sexual acts, or other sexual material to be offensive or objectionable.
I am at least 18 years of age and have the legal right to possess adult material in my community.
I understand the standards and laws of the community, site and computer to which I am transporting this material, and agree that I am solely responsible for my own actions.
If I use these services in violation of the above agreement, or in violation of the laws in my community, I understand I may be in violation of local and/or federal laws and am solely responsible for my actions.
By logging on, I will have released and discharged the providers, owners and creators of this site from any and all liability which might arise from my use of the site.
Bookmarking to a page on this server/site whereby this warning page is by-passed shall constitute an implicit acceptance of the foregoing terms set forth here.
Adults Only: Our Service is for persons 18 years or older and who have attained the age of majority and legal consent in the jurisdiction of their residence ONLY. We will not knowingly permit anyone who does not meet these criteria to use our Service. By using our websites and/or using the Service, you represent and warrant that you are at least 18 years old and otherwise have the right, authority and capacity to accept these Terms and abide by all of the terms and conditions set forth herein. You also represent and warrant that you will not allow any minor to gain access to this Site or our Service. You agree to take all precautions and implement all parental control protections necessary on your computer or other electronic device used to access this Site and our Service to prevent any minor from gaining access to this Site and our Service. Further, you hereby agree to inform us immediately should you become aware of a minor using the Service, and agree to provide us sufficient information that we can block that minor’s access to our websites and/or Service.
You further agree that we shall not be responsible or liable for any misrepresentations or concealment regarding a User’s, Purchaser’s or Producer’s age, or for the unauthorized use of our websites or our Service by a minor. In addition, you agree that we will not be held responsible in any way, for any damages or losses, including legal or court proceedings against you, that you may suffer damages from as a result of any misrepresentations regarding a user’s, Purchaser’s or Producer’s age, or for the unauthorized use of this Site or our Service by a minor.
WE DO NOT TOLERATE ANY UPLOADING OF PICTURES OR OTHER DEPICTIONS OF ANYONE UNDER THE AGE OF 18. YOU AGREE THAT YOU WILL NOT UPLOAD ANY PICTURES OR OTHER DEPICTIONS OF ANYONE UNDER THE AGE OF 18.
WE RESERVE THE RIGHT TO MODIFY THESE TERMS AT ANY TIME. ANY UPDATED VERSION SUPERSEDES AND REPLACES ANY PRIOR VERSIONS UPON POSTING AND THE PRIOR VERSION IS OF NO FURTHER FORCE AND EFFECT UNLESS WE SPECIFICALLY STATE OTHERWISE. WE WILL INDICATE THE LAST UPDATE DATE AT THE BEGINNING OF THESE TERMS. YOU AGREE TO NOTE THAT LAST UPDATE DATE OF THE REVISION YOU READ AND AGREE TO PERIODICALLY CHECK THESE TERMS FOR CHANGES. IF THE LAST UPDATE DATE HAS BEEN CHANGED, THEN YOU WILL KNOW WE HAVE MADE CHANGES TO THESE TERMS AND THAT YOU MUST REVIEW THE TERMS TO DETERMINE HOW YOUR RIGHTS AND RESPONSIBILITIES UNDER THE TERMS HAVE CHANGED.
YOUR CONTINUED USE OF THIS SITE FOLLOWING THE POSTING OF CHANGES TO THESE TERMS WILL MEAN YOU ACCEPT THOSE CHANGES. YOU MAY ALSO BE REQUIRED AT TIMES TO AFFIRMATIVELY AGREE TO THE CHANGES IN THESE TERMS.
YOU MAY NOT USE THIS SITE OR OUR SERVICE IF YOU HAVE EVER BEEN CONVICTED OF A SEXUAL OFFENSE, OR ARE REQUIRED TO REGISTER AS A SEX OFFENDER WITH ANY GOVERNMENTAL ENTITY OR AGENCY, OR ARE CURRENTLY UNDER INDICTMENT FOR ANY OFFENSE OF A SEXUAL NATURE.
Access to and use of TheVRPerformance.com ’s websites is by permission only, and only for applicants who accept this Agreement. TheVRPerformance.com may grant or withhold approval in its sole discretion. TheVRPerformance.com or Illuminant, Inc. may in the course of business, approve you for access to different portions of the website, and may issue you a user identification (the “User ID”) and a password (the “Password) that will authorize your access to various TheVRPerformance.com websites. You should immediately change the password issued to you for your own security.
You acknowledge and agree that TheVRPerformance.com may be part of an online community that includes other websites owned by the Company or its affiliates. Therefore, profiles on the Website may be viewable on other such websites and paying subscribers or Users of one website may at our option be able to communicate with other paying subscribers on other websites. We may share some content for advertising purposes between the Site and other Affiliated Websites owned by Illuminant. By posting or uploading Media Content on the Site, you agree that the Site may use screen shots or short (less than 15 second) media clips of your Media Content for advertising purposes on other Affiliated Websites owned by Illuminant. By accessing the Website or using the Service, you agree and consent to have this Agreement and all notices provided to you in electronic form.
If you withdraw your consent to accept this Agreement, or your agreement to the terms, conditions and notices contained or referenced herein, or your consent to have this Agreement and all notices provided to you in electronic form, then you must immediately cease using this website.
Information and services that are provided on this Site and Service in a language other than English are only provided as a convenience to you when available. All Services to be provided, all obligations of VR Performance, and all communication between the parties with respect to this Agreement will be conducted in the English language. Web pages which are translated from English to other languages may contain errors, inaccuracies, and/or omissions. If for any reason the translated text from English to another language is incorrect, or misleading, the English text shall be deemed as the official version. NO TRANSLATIONS INTO ENGLISH OR FROM ENGLISH TO ANOTHER LANGUAGE ARE WARRANTED OR GUARANTEED TO BE ACCURATE. YOU YOURSELF ARE RESPONSIBLE FOR DETERMINING IF ANY TRANSLATIONS ARE ACCURATE.
In your use of Site, you agree to abide by the following rules and also to act responsibly at all times in a manner demonstrating the exercise of good judgment. For example (this is not an all inclusive list), you agree not to:
Violate any applicable law or regulation,
Infringe the rights of any third party, including, without limitation, copyright, trademark, trade dress, or any other intellectual property, privacy, publicity or contractual rights,
Use the information available on our websites for any unauthorized or unlawful purpose,
Post or submit any Media Content that is libelous, defamatory or slanderous, contains or depicts pornographic, sexually explicit, beastiality, or vulgar content,
Post any Media Content that denigrates any ethnic, racial, sexual or religious group by stereotypical depiction or otherwise, including by promoting racism, bigotry, hatred or physical harm of any kind against any group,
Post any Media Content that exploits images or the likeness of individuals under 18 years of age, including in a sexual or violent manner, or solicits personal information from anyone under the age of 18, or harms minors in any way,
Post any Media Content that encourages or otherwise depicts or glamorizes drug use (including alcohol and cigarettes) or any illegal acts,
Post any Media Content that makes use of offensive language or images or is otherwise patently offensive to the online community,
Post any Media Content that harasses or advocates harassment of another person, involves the transmission of “junk mail”, “chain letters” or unsolicited mass mailing orSpam,
Post any Media Content that promotes an illegal or unauthorized copy of another person’s copyrighted work,
Post any Media Content that characterizes violence as acceptable, glamorous or desirable,
Post any Media Content that constitutes an illegal act (including, without limitation, prostitution and/or solicitation) or provides instructional information about illegal activities such as making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses,
Post any Media Content that solicits passwords or personal identifying information for commercial or unlawful purposes from other Users,
Post any Media Content that provides or promotes inaccurate, misleading or false information,
Post any Media Content that engages in commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, and pyramid schemes, or
Interfere with or damage any of our websites or our Service, including, but not limited to, through the use of viruses, cancel bots, trojan horses, harmful code, flood pings, denial of service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology, including methods that in any way reproduce or circumvent the layout, visibility or the means of navigating on our websites, our Service or its contents,
Use our Service when you do not have permission from affected third parties to transmit, distribute, post or submit any information concerning any other person, company or entity, including, including but not limited to, photographs of third persons, locations, songs, contact information or account information or numbers for credit card, debit card, calling cards.
Use our Service to obtain the contact information of any other user without their prior consent,
Use our Service to distribute unsolicited commercial email (“Spam”) or advertisements,
“Bully”, “harass”, or violate any restraining order issued by any court of competent jurisdiction, against any other user of our Service,
Use the Service if you have ever been convicted of any sexual offense or if you currently have such sexual offense charges pending against you,
Use the Service for any illegal purposes in the real world, including, but not limited to, conspiracy to commit a crime, conspiracy to commit a civil wrong, the sale of illegal drugs, stolen goods, human trafficking, slavery, prostitution or solicitation,
Collect or store any information about any other user other than in the course of the permitted use of our Service,
Impersonate any person or entity,
Remove any copyright, trademark or other proprietary rights notices on any website page in the Service,
Infringe on any the intellectual property rights of our Site or any third parties in any manner,
Modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Service or our Site or any software used on or for the Site or our Service,
Post, upload or transmit false, misleading or illegal information or content to the Service (use of an alias for your name and an anonymous email address while using the service is allowed),
Make false statements, attempt to use, or use, personal, financial or other information that you are not authorized to use,
Upload, post, email, transmit or otherwise make available any content that you are not legally permitted to make available to the Service under any law or in connection with any contractual or fiduciary relationship (including, without limitation, inside information and information subject to confidentiality obligations),
Disrupt the flow of dialogue, cause a screen to “scroll” faster than other Users of the Site are able to read to type, or otherwise engage in behavior that negatively affects the ability of other Users to communicate or interact with us or others on our Site,
Collect or store personal data about other Users without their consent, or upload, post, email or transmit any other user’s or User’s private information or data without their consent, or
Assist any third party in doing any of the foregoing.
The foregoing is a partial list of the kind of content that is illegal or prohibited on our Site. We reserve the right to investigate and take appropriate legal action in our sole discretion against anyone who violates this Section or any other provision of these Terms, including, without limitation, removing the offending communication from the Service, terminating the violator’s access to the Site and contacting and disclosing information to the relevant authorities.
YOUR INTERACTIONS WITH OTHER USERS OF THE SERVICE
You are solely responsible for the consequences of your interactions with our websites and other Users of our Service, including, but not limited to, all content of the materials you post on our websites in your messages to other Users of the Service. You agree to take reasonable precautions in all of your interactions with other Users of the Service, including if you decide to meet offline or in person. In addition. Do not provide your personal or financial information (for example, your credit card, debit card or bank account information) to other Users of our Site. You real personal contact information such as your name, phone number or address at your own risk. That information may be misused. Always use caution and common sense when communicating with any stranger.
OUR LIMITATIONS OF LIABILITY:
You agree that we will not be responsible for any damage or harm to you or anyone else resulting from your use of the Site, the viewing of any Virtual Reality or Augmented Reality, or the downloading, streaming or viewing of any of the Media Content on our Site, or your interactions with other Users, Producers or Performers on our Site. You understand and acknowledge that we do not pre-approve any of our Users including but not limited to Producers or Performers, nor do we in any way inquire into the backgrounds of anyone using our site, including but not limited to the Producers or Performers who upload on our Site, nor do we attempt to verify their statements. We make no representations or warranties as to the conduct of any users, Producers or Performers of our site. WE DO NOT PERFORM CRIMINAL OR ANY OTHER FORM OF BACKGROUND CHECKS ON OUR USERS OR PRODUCERS OR PERFORMERS. It is your responsibility to thoroughly investigate the background, financial status, criminal background, character and all other aspects of a person that might affect whether or not you want to interact with that User, Producer or Performer on our Service. We reserve the right, but have no obligation, to monitor any and all of our Service’s website interactions between you and other Users of our Service. We also have the right, but no obligation, to take any action in good faith to restrict access to or the availability of any material that we or another user of our Service may consider to be illegal, pornographic, contain beastiality, obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable. Email and chat messages sent between you and other Users of the Service that are not readily accessible to the general public may be reviewed by us for compliance with these Terms, but will be treated by us as private to the maximum extent required by applicable law.
In no event will we be liable for any damages whatsoever, whether direct, indirect, general, special, compensatory, consequential, punitive, and/or incidental, arising out of, or relating to, your conduct or the conduct of anyone else in connection with the use of our Service or our Site, including without limitation, bodily injury, emotional distress, and/or any other damages resulting from viewing media content, contacts, communications or meetings with other Users, Producers or Performers of the Service or persons you meet through the Service or the Site, either directly or indirectly. We are not responsible for, and cannot control, the use by others of any information, which you provide to them. You should always use caution in selecting what information, particularly what personal information, you provide to others through our Site. We cannot and do not assume any responsibility for the content of messages sent by other Users of the Service. You agree that we are not responsible for the accuracy of information communicated to you on the Service. You agree to release us, any parent companies, subsidiaries, affiliated entities and ours and their shareholders, officers, directors, employees, attorneys, agents, successors and assigns from any and all liability in connection with any of our websites or and our Service and the contents of any communications you may receive from other Users related in any way to the our websites or our Service.
We reserve the right to investigate and take appropriate legal action in our sole discretion against anyone who violates these Terms, including without limitation, removing the offending communication from the Service with or without notice, terminating the violator’s access to the Site and contacting and disclosing information to the relevant authorities, however, you agree that we are under no obligation to do so.. We may also be required to release information about you pursuant to Court order or other legal process; EVEN THOUGH WE RESERVE THE RIGHT TO CONDUCT ANY CRIMINAL BACKGROUND CHECK OR OTHER INVESTIGATIONS (SUCH AS SEX OFFENDER REGISTER SEARCHES), AT ANY TIME AND USING AVAILABLE PUBLIC RECORDS, IT IS AGREED THAT OUR SERVICE HAS NO OBLIGATION TO DO SO.
You understand and agree that the Company may delete any Media Content or messages you post on any of our websites, in whole or in part, that in the sole judgment of the Company violates this Agreement or may harm the reputation of the Website or the Company.
Under this agreement, we have the right to restrict the number of emails which any User may send to other Users in any 24-hour period to a number which we deem appropriate in our sole discretion. We do not make any guarantees as to availability of operation, or ability to handle band with or traffic on our Service.
We reserve the right, but have no obligation, to monitor or mediate or attempt to settle disputes between you and other Users. You agree to release us, our parent companies, subsidiaries and affiliated entities and ours and their shareholders, officers, directors, employees, attorneys, agents, successors and assigns from all claims, demands, damages, losses, liabilities of every kind, known and unknown, direct and contingent, disclosed and undisclosed, arising out of or in any way related to such attempts to settle disputes. If you are a California resident and settle with someone as a result of our assistance, you agree that you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
CATEGORIES OF SERVICES
Users of the Service are categorized as either “Visitors”, “Purchasers”, Performers or “Producers” of the Service. We may add, delete or change features, services, categories or pricing on the Site from time to time at our sole discretion with or without notice. Producers and Performers are not charged by us for uploading content, but they may subscribe to Media Delivery Packages on different terms in order to receive payment when someone downloads or streams Media Content they have placed on the Site. For a menu of our services, and a description of our current Media Delivery Packages (MDP), please see [Link this page.]
Users, Purchasers, Performers and Producers using our Service or the Site may be required to set up a “Profile” in order to access the Service or our Site and to be able to use, upload, stream, license, purchase or download Media Content. A Purchaser may pay via credit card, or debit card, or any other method we may accept as payment of an account, in accordance with our pricing policy for different Media Delivery Packages as posted on our website. The Site may also offer subscription credits for Purchasers at various points and times. If so, each subscription package will the subscriber/Purchaser to a specific number of credits. You may use credits to pay for certain features of our Service or our Site. All prices for Media Delivery Packages (MDP) are quoted in the currency in which they are displayed or, where no currency is displayed, all amounts are in United States dollars. In addition to paying the posted price for an MDP, you are responsible for paying all applicable taxes, exchange rate fees, credit card fees, or debit transaction fees in connection with your purchase of an MDP, subscription or credits. We reserve the right to change our pricing policy or the method or manner in which we charge for our Service at any time at our sole discretion without further notice. Once we have confirmed receipt of your payment, you as a Purchaser, will have access to the Media Delivery Packages you have paid, and we will credit your account according to the subscription package or Media Delivery Package you selected. If we receive payment for an incorrect amount or non-specified currency payments, we reserve the right to credit your account with a pro-rated number of credits based on the funds received, converted to the specified currency at a reasonable market exchange rate at the time of processing. Accounts may not be transferred from one user of the Service to another user.
You understand and agree that it is a condition of your use of this Site and the Service, that all of the information you provide to us when you are signing up and providing your Profile is correct, current, accurate and complete. If you provide any misleading or false billing information to us, your have no right to use this Site and your purchases, subscriptions, and credits are void.
TERMINATION OF YOUR ACCOUNT SUBSCRIPTION AND PRODUCERSHIP
This Agreement will remain in full force and effect while you use the Service and/or the Site.
If you have a subscription, you may change or cancel any subscription at any time, for any reason, by following the instructions on the “change/cancel ”subscription” or similar page on your “Account Settings” page. You may change or cancel your subscription at any time online by following the instructions on the “Subscription” page on your “Account Settings” page. If you cancel your subscription via the Website, we may ask you to provide a reason for your cancellation. If you cancel your subscription, the Company requires a reasonable amount of time to process the action. If you cancel a subscription, your subscription benefits and credits will expire immediately, however you will still be required and agree to pay whatever amount of money is still owed on the subscription you cancelled. In no event will you be eligible for a refund of any portion of the subscription fees paid for the then-current subscription commitment. In other words, If you paid for your subscription using a multi-payment option, you MUST CONTINUE TO MAKE ALL PAYMENTS even if you cancel your subscription prior to the end of your then existing subscription commitment period.
Canceling a subscription does not automatically delete your uploaded Media Content. If you are a subscriber and you cancel your subscription, unless you elect to “hide” your uploaded Media Content, or otherwise delete any “profile”, you will continue to be posted in the Service and others may view your uploaded Media Content. If you are a subscriber, and if you “hide” your profile, other Users will not be able to view your Media Content until you “unhide” it, but your subscription and exclusivity commitments to keep certain content available for purchase will continue. If you cancel your subscription AND delete your profile, , your profile will be removed, and other Users will not be able to view your profile. You can hide your profile or cancel your subscriptions and remove them at any time by following the instructions contained on the “Profile” and “Account Settings” page on the Website. You cannot delete content you have agreed will remain on the site for a specified period of time. Only content available for use by Users for free can be deleted at any time.
The Company may terminate or suspend your subscription and/or Media Content on the Site at any time without notice if the Company, based upon its own discretion, has a reasonable suspicion, that you have breached this Agreement. Upon such termination or suspension, you will not be entitled to any refund of fees paid or unused subscription fees in any. If applicable, all unpaid subscription amounts and other fees you owe will immediately be due. The Company is not required to disclose, and may be prohibited by law from disclosing, the reason for the termination or suspension of your account.
After your subscription is terminated for any reason, all terms of this Agreement survive such termination, and continue in full force and effect, except for any terms that by their nature expire or are fully satisfied.
We will bill you for purchases or pay you as a Producer through an online account (your “Billing Account”) for use of the Site. You agree to pay us all charges at the prices then in effect for any downloads, licenses, purchases, subscriptions or credits purchased, and any purchased use of the Service by you or other persons (including your agents) using your Billing Account, and you authorize us to charge your chosen payment provider (your “Payment Method”) for the Service. You agree to make payment using that selected Payment Method. We reserve the right to correct any errors or mistakes that the Payment Method makes even if it has already requested or received payment. You are also responsible for any additional fees or charges you incur to access the Sote through an Internet access provider or other third party service, including but not limited to telephone and internet charges. No “Charge Backs” for Credit Cards are allowed.
The Site, upon agreement by the User, may keep the credit card information on file to allow faster payment processing for future purchases.
CURRENT INFORMATION REQUIRED
Although you may use an alias for your name and an annonymous email address on the websites and sites where you post information accessible to other Users, Purchasers, Producers, Performers or Subscribers, you must provide current, complete and accurate information for your own billing account payment method. You must promptly update all billing information to keep your billing or merchant account current, complete and accurate. Any change in billing address, credit card number, or credit card expiration date etc must be promptly reported to TheVRPerformance.com if they change. If you cancel your credit card, debit card, or payment method (e.g., for loss or theft) or if you become aware of a potential breach of security, such as the unauthorized disclosure or use of your user name or password please update your information or change your password immediately. Changes to such information can be made at “account settings”. If you fail to provide us any of the foregoing information, you agree that we may continue charging you for any use of the service under your billing account.
The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method (the “Payment Method Provider”). If we do not receive payment from your Payment Method Provider, you agree to pay all amounts due on your Billing Account upon demand.
AUTOMATIC RENEWAL AND CANCELATION
If the Site offers a subscription service, and you sign up for it, you agree that your subscription with us will be automatically extended for successive renewal periods of the same duration as the original subscription period selected, at the price you agreed to when subscribing, unless you cancel at least 7 days prior to the end of your subscription period. To change or cancel your subscription at any time, please go to account settings.
If you cancel a subscription, you may use your subscription until the end of your then-current subscription term. Your subscription will not be renewed after your then-current term expires. You will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. Please note that if your credit card is rejected and your auto-renew fails, your subscription, and any may uploaded Media Content may be automatically be cancelled effective immediately, and you will be required to re-subscribe to the service at the future current rate. If you have agreed to keep Media Content uploaded for a particular period of time on the Site, then any cancellation of a subscription will not result in the cancellation of any uploads by you unless mutually agreed upon between you and the Site.
REAFFIRMATION OF AUTHORIZATIONS
Modifications to Service. The Company and the Site reserves the right at any time to modify or discontinue, temporarily or permanently, the Website or the Site (or any part of it) with or without notice. You agree that We shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Site. To protect the integrity of the Website or the Service, the Company reserves the right at any time in its sole discretion for any reason to block Users from certain IP addresses from accessing the Website or Service.
You understand and agree that we are not required to, and may under certain circumstances, even be prohibited from disclosing to you the reason for termination of your access to our Service or the Site. You acknowledge and agree that any termination of your access to our Service or Site may be effected without prior notice, and acknowledge and agree that we may immediately deactivate or delete any of your accounts and all related information and files in such accounts and/or bar any further access to such files or our Service or Site in our sole discretion. Further, you acknowledge and agree that we will not be liable to you or any third party for any costs or damages of any kind for or resulting from, any termination of your access to our Service or Site. You may terminate your access to the Service or Site at any time through our Site or by sending us written or email notice of termination. You will not be entitled to any refund of unused credits or subscription fees upon your own termination of your access to our Service for any reason whatsoever.
CREDIT CARD CHARGEBACK POLICY
We protect our business and credit card processors, banks and other institutions providing related services to us from fraudulent credit card chargebacks. A credit card chargeback is when the holder of a credit card disputes a charge with a credit card processor, bank or other institution and the charge is charged back to the business. The chargeback is fraudulent if the credit card holder disputes a charge for a legitimate charge for services the holder has purchased. You understand and agree that in the event you attempt to create a fraudulent credit card chargeback, we will work with the relevant credit card processor, bank or other institution and law enforcement authorities to investigate the matter. Our assistance may include providing details to our processors about the profiles, card authentication and communications with or related to you on our Service or other Users. Engaging in activities aimed at reversing a legitimate charge is illegal. You understand and acknowledge that you can be prosecuted for such activity and we reserve the right to reclaim any fees and costs we incur in responding to fraudulently filed chargebacks.
If you initiate a chargeback or otherwise reverse a payment made with your Payment Method, we may in our sole discretion terminate your account immediately. If we successfully dispute the reversal, and the reversed funds are returned, you are not entitled to a refund or to have your account or subscription reinstated.
Our customer service representatives are available to answer questions you may have about your Service, how to use our service, and to enhance your experience using our Service and its features. You agree you will not be abusive, obscene, profane, offensive, sexist, threatening, harassing, racially offensive, or otherwise behave inappropriately when communicating with any of our customer service representatives. If we determine, in our sole discretion, that your behavior towards any of our representatives is at any time inappropriate, we reserve the right to discontinue communications with you, whether by phone, email or text, and to immediately terminate your access to our Site and our Service. You will not be entitled to any refund of unused credits or subscription fees in the event of such an event.
You acknowledge and agree that we and other sites we operate (or our agents) may communicate with you via email (electronic) communications that include messages about the Site, our Service and your account with us, as well as services offered by our other sites and by third parties. We intend to communicate with you as part of our Service and Site. You agree and consent that any notice, agreements, and other communications we send to you electronically will satisfy any legal requirements, including without limitation, that such communications be in writing. You may opt out of receiving these notifications from us by clicking this [Link].
By submitting any content to our Site which is available to be viewed for free, you automatically grant, and you represent and warrant that you have the right to grant, to us, and our licensees, parent companies, subsidiaries, affiliates and successors, an unlimited, worldwide, non-exclusive, royalty-free irrevocable, transferable right and license to download, store on various servers for back up purposes and for later downloading to viewers, use, reproduce, display, broadcast, publish, quote, re-post, reproduce, bundle, distribute, transmit, arrange, sub-license, loan, lease, rent, share, assign and modify such content or incorporate into other works such content, and to grant and to authorize sub-licenses and other transfers of the foregoing, until you notify us to remove such content from our site.
By submitting any content to our Site which is available to be viewed upon payment of a fee, you automatically grant, and you represent and warrant that you have the right to grant, to us, and our licensees, parent companies, subsidiaries, affiliates and successors, an unlimited, worldwide, non-exclusive, royalty-free irrevocable, transferable right and license to download, store on various servers for back up purposes and for later downloading to viewers, use, reproduce, display, broadcast, publish, quote, re-post, reproduce, bundle, distribute, transmit, arrange, sub-license, loan, lease, rent, share, assign and modify such content or incorporate into other works such content, and to grant and to authorize sub-licenses and other transfers of the foregoing in accordance with any Media Delivery Package (MDP) fees and limitations you have chosen from the available MDP choices on our site.
Through the Site you decide if any particular Media Content is to be free or paid content. In the case of paid content, the Producer decides what fee to charge, (although the Site may list suggested prices). All payments, whether pay per view or recurrent charges made by a Viewer shall be made through the Site, in accordance with any Media Delivery Package (MDP) fees and limitations you have chosen from the available MDP choices on our site. We will then charge the Purchaser and we will then effect the split payments between the Site and the Producer.
By uploading any Media Content to the Site which will require a Purchaser to pay money to view, a Producer or Performer agrees that the Media Content uploaded will remain exclusively on the Site and available for purchase for at least one year. The amount of the administrative fee charged by the Site will be determined by the amount of time that the Producer or Performer agrees to keep the Media Content exclusively uploaded on the Site. The longer a Producer or Performer agrees to keep any content uploaded, the greater percentage of the amount paid by a particular Purchaser that will be paid to that Producer or Performer. The exact amounts paid to the Producer or Performer and the amount of administrative fees paid to the Site can be reviewed and accessed on the Upload tab of the Site.
It is agreed between the Site and the Producer/Performer that in the event the Producer or Performer violate this exclusivity agreement, that it will be difficult to determine the exact damages that the Site will suffer as a result of this loss of exclusivity. Therefore the parties agree that in the event that a Producer or Performer violate these exclusivity provisions, that the Producer or Performer violating these exclusivity provisions will pay the following sums to the Site within 30 days of violating the exclusivity provisions: $3,000.00 for every year of promised exclusivity which is not provided by the Producer/Performer. For example, if a Producer or Performer agreed to upload exclusive Media Content for five (5) years on the Site, but then the Producer/Performer violated the exclusivity agreement after 3 years, then the Producer/Performer would owe the Site for two (2) years of lost exclusivity which would be calculated as $1,500 X 2 = $3,000.00.
We have no obligation to post or to allow you to continue to post any content that you or anyone else submits. We do not and cannot review every message or item of material posted or sent by Users of the Service. We are not responsible for any content of these messages or materials. We reserve the right, but are not obligated, to monitor, delete, move, remove, block, refuse to post or transmit, or edit messages or materials, including, without limitation, advertisements, profiles, public postings, emails, and messages, that we, in our sole discretion, deem to violate these Terms or any applicable content guidelines, or to be otherwise unacceptable. You understand and agree that you shall remain solely responsible for the content of your profiles, public postings, messages and other materials you may upload to the Service or Users of the Service. You also understand and agree that we cannot guarantee, and assume no responsibility for verifying, the accuracy of the information provided by other Users of the Service.
In your use of our Service, you may access content from third parties (“Third Party Content”), either via our Service or through links to third party web sites. We do not control Third Party Content and make no representations or warranties about it. We do not investigate, perform background checks, endorse or accept any responsibility for any Third Party Content. You acknowledge and agree that by using our Service, you may be exposed to Third Party Content that is false, offensive, indecent, inaccurate, incomplete or otherwise objectionable. Third Party Content is subject to the privacy and security policies of those third parties, which may differ substantially from our privacy and security policies. You acknowledge and agree that Third Party Content is the sole responsibility of the authors or sites displaying such Third Party Content and under no circumstances will we be liable in any way for any Third Party Content, including, without limitation, any inaccuracies, errors or omissions in any Third Party Content or any losses, liabilities or damages of any kind arising out of or incurred as a result of the use of any Third Party Content posted, stored or transmitted via our Service. You agree that you must evaluate, and bear all risks associated with clicking on Third Party Content, including, without limitation, profiles of other Users of our Service.
You acknowledge and agree that all content and materials available on our Site not uploaded or posted by you are protected by either our rights, or the rights of our licensors or the rights of other third parties, of publicity, copyright, trademarks, service marks, patents, trade secrets, trade dress, or other proprietary rights and laws. You may not use any of the marks, logos, domains and trademarks that you may find on our Site, unless you have our written permission. Except for information which is in the public domain or for which you have been given express written permission by us, you agree not to sell, license, loan, rent, modify, distribute, copy, reproduce, transmit, publicly display, broadcast, publicly perform, publish, adapt, edit or create derivative works from materials or content available on our Site.
If you download or print a copy of any content from our site for your personal use, you must retain all copyright and other proprietary notices contained on such content.
USE OF CONTENT
You agree not to systematically retrieve data or other content or any materials from our Site to create or compile, directly or indirectly, a collection, compilation, database, directory or the like, whether by manual methods, through the use of “bots” or otherwise. You agree not to use any of our trademarks or logos as metatags on other web sites. You agree not to display any of our Site in a frame (or any of our content via in-line links) without our express written permission. Our permission may be requested by contacting us at Copyrightlegal@TheVRPerformance.com . You may, however, establish ordinary links to the homepage of our Site without our written permission.
Whenever applicable, you may be asked to select a username and password when completing the registration process. You agree that you will not choose a name that may represent you as someone else or that may otherwise violate some third party’s rights. We may refuse to grant you a Username/Nickname that impersonates someone else, is protected by trademark or proprietary law, or is vulgar or otherwise offensive, as determined by us in our sole discretion. Your username and password are not transferable and may not be assigned.
You are solely and fully responsible for maintaining the confidentiality of your username and password, and you are solely and fully responsible for all activities that occur under your username and password. You agree to: (a) immediately notify us of any unauthorized use of your username and password or any other breach of security and (b) ensure that you log off from your account at the end of each session. We will not be liable for any loss or damage arising from your failure to comply with these or any other terms on this website.
We cannot guarantee Service at all times or under all circumstances. We reserve the right at any time to modify or discontinue, temporarily or permanently, any portion of our Service with or without prior notice. You acknowledge and agree that we will not be liable to you or to any third party for any modification or discontinuance of our Service.
BLOCKING OF IP ADDRESSES
In order to protect the integrity of the Service, we reserve the right at any time, in our sole discretion, to block Users from certain IP addresses from accessing our Site.
REPRESENTATIONS AND WARRANTIES BY YOU:
You hereby represent and warrant to us that: (a) you have the full power and authority to enter into and perform under these Terms; (b) your use of our Site will not infringe or violate the copyright, trademark, right of publicity or any other legal right of any third party; (c) you will comply with all applicable laws and regulations in using our Service and in engaging in all other activities arising from, relating to or connected with these Terms, including, without limitation, contacting other Users of our Service; (d) you have never been convicted of a sexual offense and that you have no such charges currently pending against you; (e) you own or otherwise have all rights necessary to license the content you submit and that the posting and use of your content by us will not infringe or violate the rights of any third party and (f) you are over the age of 18 or over the age of majority in the jurisdiction you reside.
YOU AGREE THAT:
IF YOU USE OUR SERVICE, YOU DO SO AT YOUR OWN AND SOLE RISK. OUR SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
WE DO NOT WARRANT THAT (A) OUR SERVICE WILL MEET YOUR REQUIREMENTS; (B) OUR SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (C) ANY INFORMATION THAT YOU MAY OBTAIN ON OUR SERVICE WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OR RELIABILITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH OUR SERVICE WILL MEET YOUR EXPECTATIONS; (E) ANY INFORMATION YOU PROVIDE OR WE COLLECT WILL NOT BE DISCLOSED PURSUANT TO LAW OR LEGAL PROCESS TO LEGALLY ENTITLED THIRD PARTIES; (F) ANY PROFILE ON OUR SITE IS ACCURATE, UP TO DATE OR AUTHENTIC; (G) ANY MATERIAL OR FILES THAT YOU DOWNLOAD FROM OUR INTERNET SITE WILL BE FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER CODE THAT MAY HAVE DAMAGING AFFECTS ON YOUR OR ANY OTHER PERSON’S COMPUTERS OR OTHER EQUIPMENT; (H) THIRD PARTIES WILL NOT USE YOUR CONFIDENTIAL INFORMATION IN AN UNAUTHORIZED MANNER; OR (I) ANY ERRORS IN ANY DATA OR SOFTWARE WILL BE CORRECTED.
WE ARE NOT RESPONSIBLE FOR ANY PROBLEMS OR TECHNICAL MALFUNCTION OF ANY TELEPHONE NETWORK OR LINES, COMPUTER ONLINE SYSTEMS, SERVERS OR PROVIDERS, COMPUTER EQUIPMENT, SOFTWARE, FAILURE OF EMAIL/CHAT OR PLAYERS ON ACCOUNT OF TECHNICAL PROBLEMS OR TRAFFIC CONGESTION ON THE INTERNET OR AT ANY WEBSITE OR COMBINATION THEREOF, INCLUDING INJURY OR DAMAGE TO USERS OR TO ANY OTHER PERSON’S COMPUTER RELATED TO OR RESULTING FROM PARTICIPATING OR DOWNLOADING MATERIALS IN CONNECTION WITH OUR SITE AND/OR IN CONNECTION WITH THE SERVICE.
UNDER NO CIRCUMSTANCES WILL WE OR ANY OF OUR AFFILIATES, ADVERTISERS, PROMOTERS OR DISTRIBUTION PARTNERS BE RESPONSIBLE FOR ANY LOSS OR DAMAGE, INCLUDING PERSONAL INJURY OR DEATH, RESULTING FROM ANYONE’S USE OF OUR SITE OR THE SERVICE, ANY CONTENT POSTED ON OUR SITE OR TRANSMITTED TO USERS, ANY PRODUCTS OR SERVICE PROVIDED BY THIRD PARTIES OR ANY CONDUCT OR INTERACTIONS BETWEEN USERS OF OUR SITE, WHETHER ONLINE OR OFFLINE.
IF YOU ACCESS TO OR TRANSMIT ANY CONTENT THROUGH THE USE OF OUR SERVICE, YOU DO SO AT YOUR OWN DISCRETION AND YOUR SOLE RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY LOSS, DAMAGE, PERSONAL INJURY, OR DEATH IN CONNECTION WITH SUCH ACTIONS. WE ARE NOT RESPONSIBLE FOR ANY INCORRECT OR INACCURATE CONTENT POSTED ON OUR SITE OR IN CONNECTION WITH THE SERVICE, WHETHER CAUSED BY USERS OF OUR SITE OR BY ANY OF THE EQUIPMENT OR PROGRAMMING ASSOCIATED WITH OR UTILIZED IN THE SERVICE.
WE ARE NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF OUR SITE OR THE SERVICE. WE ASSUME NO RESPONSIBILITY FOR ANY ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, USER COMMUNICATIONS.
NO DATA, INFORMATION OR ADVICE OBTAINED BY YOU IN ORAL OR WRITTEN FORM FROM US OR THROUGH OR FROM OUR SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
In addition to the preceding paragraph and other provisions of this Agreement, any advice that may be posted on the Website or through the Service is for informational and entertainment purposes only and is not intended to replace or substitute for any professional financial, medical, legal, or other advice. The Company makes no representations or warranties and expressly disclaims any and all liability concerning any treatment, action by, or effect on any person following the information offered or provided within or through the Website or Service. If you have specific concerns or a situation arises in which you require professional or medical advice, you should consult with an appropriately trained and qualified specialist.
YOU AGREE THAT WE WILL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM, RELATING TO OR CONNECTED WITH: (A) THE USE OR INABILITY TO USE OUR SERVICE; (B) THE COST OF REPLACEMENT OF ANY GOODS, SERVICES OR INFORMATION PURCHASED OR OBTAINED AS A RESULT OF ANY INFORMATION OBTAINED FROM OR TRANSACTIONS ENTERED INTO THROUGH OR FROM OUR SERVICE; (C) DISCLOSURE OF, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT; (D) STATEMENTS, CONDUCT OR OMISSIONS OF ANY SERVICE PROVIDERS OR OTHER THIRD PARTY ON OUR SERVICE; (E) ACTIONS OR INACTIONS OF OTHER USERS OF OUR SITE OR OUR SERVICE OR ANY OTHER THIRD PARTIES FOR ANY REASON; OR (F) ANY OTHER MATTER ARISING FROM, RELATING TO OR CONNECTED WITH OUR SERVICE OR THESE TERMS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE LIMITATIONS OF DAMAGES MAY NOT APPLY TO YOU. THESE LIMITATIONS OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW AND SHALL SURVIVE TERMINATION OF THESE TERMS.
YOU ACKNOWLEDGE AND AGREE THAT THE DISCLAIMERS OF WARRANTIES AND THESE LIMITATIONS OF LIABILITY ARE AN AGREED UPON ALLOCATION OF RISK BETWEEN YOU AND US. YOU ACKNOWLEDGE AND AGREE THAT IF YOU DID NOT AGREE TO THESE LIMITATIONS OF LIABILITY WE WOULD NOT PROVIDE OUR SITE OR THE SERVICE OR THE MATERIALS OR CONTENT INCLUDED TO YOU. YOU ACKNOWLEDGE AND AGREE THAT SUCH PROVISIONS ARE REASONABLE AND FAIR.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE COMPANY’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO THE COMPANY FOR THE SERVICE DURING THE TERM OF USE BY YOU. YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE WEBSITE OR SERVICE OR THE TERMS OF THIS AGREEMENT MUST BE FILED WITHIN ONE YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED.
You agree to defend, indemnify and hold us, and our subsidiaries, parent companies, affiliates, and each of our and their directors, officers, managers, members, partners, attorneys, agents, other representatives, employees, successors, assigns and customers (each an “Indemnified Party” and collectively, the “Indemnified Parties”), harmless from any claim, demand, action, damage, loss, cost or expense, including without limitation, attorneys’ fees and costs, including court costs, investigation costs and settlement expenses, incurred in connection with any copyright infringement, trademark infringement, right of publicity violation, personal injury, or any other type of investigation, claim, action, suit or proceeding of any kind brought against any Indemnified Party arising out of your use of our Service, any alleged or actual infringement of the intellectual property rights by you of any party, any injury or damage to property or person by you, any act by you in connection with any user or member of this Service or any other third party, any business practices in which you engage or are alleged to engage, or alleging facts or circumstances that could constitute a breach by you of any provision of these Terms and/or any of the representations and warranties set forth above. If you are obligated to indemnify an Indemnified Party, we and the Indemnified Party will have the right, in our sole discretion, to choose our attorneys, experts and other advisers, conduct our own inquiry into the matter, control any investigation, action or proceeding and determine if and how we wish to settle it. You agree that you will advance costs and expenses to any Indemnified Party. You agree to cooperate with the Indemnified Parties in connection with any investigation, claim, action or proceeding covered by this Section.
The Digital Millennium Copyright Act of 1998, as amended (“DMCA”), provides for a way that copyright owners who believe that material appearing on the Internet infringes their rights under the United States copyright laws can notify a website owner and have the content removed from the offending website. Other laws may provide similar protection. We are not required to actively seek out infringing content on our websites. If you believe that your work has been copied, posted or otherwise made available through TheVRPerformance.com in a way that constitutes copyright infringement against you, please notify our DMCA Copyright Agent of your complaint and submit a written request that such content be removed or blocked, as set forth in the DMCA. Please consult the language of the DMCA for more information if you have any questions. To request removal of material that you believe constitutes a copyright violation against you, you must provide our DMCA Copyright Agent with the following information in writing, to the extent required by the DMCA: (a) an electronic or physical signature of the person authorized to act on behalf of the copyright owner that is allegedly infringed; (b) identification of the copyrighted work or works that you claim has been infringed; (c) identification of the material that is claimed to be infringing and to be removed, and information reasonably sufficient to permit us to locate the material on our Site; (d) information reasonably sufficient to permit us to contact you, the complaining party, such as your address, telephone number and e-mail address; (e) a written statement by you 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 by you, made under penalty of perjury, that the above information in your notice and complaint is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Please be aware that the foregoing information in your complaint may be forwarded to the person who provided the allegedly infringing content. Your written notice must meet ALL of the preceding requirements or it will not be effective. This written information must be submitted to our DMCA Copyright Agent as follows:
VR Performance Copyright Legal Department
c/o Illuminent, Inc.
420 McKinley, No. 111-616
Corona, CA 92879
Be aware that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
Once a complete written notice is received, we will review your notice and attempt to act as quickly as is reasonably possible under the circumstances.
If you, as the user, believe that your material has been mistakenly removed or disabled, you may submit a counter notice by notifying our DMCA Copyright Agent at the address provided above. Your counter notice must contain: (1) An electronic or physical signature of the user; (2) Identification of the material that was removed or disabled and the location at which it appeared before removal; (3) A statement under penalty of perjury that the user has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material: (4) The user’s name, address, and telephone number; and (5) a statement that the user consents to federal court jurisdiction and accepts service of process from the person who provided the original notification.
Pursuant to Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
Users who are repeat infringers will have their subscriptions and privileges of use terminated. No refunds will be given for terminated Users.
It is the policy of TheVRPerformance.com to terminate Services and Access to its websites of any User, Purchaser, Producer, subscriber or account holder who is deemed to be an infringer or repeat infringer of anyone’s third-party intellectual property rights. Appropriate circumstances may exist whenever in our sole opinion, there has been infringement, or:
a. When a a User, Purchaser, Producer, subscriber or account holder has been found by a court of competent jurisdiction to have infringed the copyrights of a third party on one or more occasions;
b. If a User, Purchaser, Producer, subscriber or account holder has entered into settlement agreement acknowledging wrongdoing to settle a claim or lawsuit of copyright infringement and later uses TheVRPerformance.com service to violate the terms of that agreement by engaging in copyright infringement or to otherwise engage in conduct that is found by a court of competent jurisdiction to constitute copyright infringement;
c. Where a valid, effective and uncontested DMCA (Digital Millenium Copyright Act) notice has been provided to TheVRPerformance.com which alleges all necessary facts under our DMCA policy necessary for us to terminate content posted by such User, Purchaser, Producer, subscriber or account holder and/or which is a violation by the Purchaser, Producer, subscriber or account holder of TheVRPerformance.com ’s Copyright Policy prohibiting infringing activity involving FantasyMeetings.com systems or servers, or
d. in other cases of more than one repeated abuse of access to TheVRPerformance.com ’s websites, including but not limited to commercial theft or piracy or attempts to obtain unlawful financial gain or to destroy the value of copyrighted works.
The exclusive means of resolving any dispute or claim arising out of or relating to this Agreement (including any alleged breach thereof), the Service, or the Website shall be BINDING ARBITRATION administered by the American Arbitration Association in San Diego County, California, United States. The one exception to the exclusivity of arbitration is that you have the right to bring an individual claim against the Company in a small-claims court in San Diego,California, United States. But whether you choose arbitration or small-claims court, you may not under any circumstances commence or maintain against the Company any class action, class arbitration, or other representative action or proceeding.
By using the Website or the Service in any manner, you agree to the above arbitration agreement. In doing so, YOU GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend any claims between you and the Company (except for matters that may be taken to small-claims court). YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING. Your rights will be determined by a NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY. You are entitled to a fair hearing before the arbitrator. The arbitrator can grant any relief that a court can, but you should note that arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. For details on the arbitration process, see our Arbitration Procedures.
Any proceeding to enforce this arbitration agreement, including any proceeding to confirm, modify, or vacate an arbitration award, may be commenced in any court of competent jurisdiction in San Diego County, California, United States. In the event that this arbitration agreement is for any reason held to be unenforceable, any litigation against the Company (except for small-claims court actions) may be commenced only in the federal or state courts located in San Diego County, California, United States. You hereby irrevocably consent to the jurisdiction of those courts for such purposes.
This Agreement, and any dispute between you and the Company, shall be governed by the laws of the state of California without regard to principles of conflicts of law, provided that this arbitration agreement shall be governed by the Rules of the American Arbitration Association.
For United States Residents:
This Agreement involves transactions between the parties in interstate commerce and shall be governed by California Law. Judgment upon any interim or final award shall be entered and confirmed in any court or tribunal of competent jurisdiction in San Diego County, California. The substantive law of the State of California (excluding its conflicts of law provisions) shall apply to all Disputes and the Agreement. If there is a difference between the Federal Arbitration Act and California Law, California Law controls.
DISCOVERY AND HEARING PROCEDURES
All parties have the right, at their own expense, to be represented by an attorney or spokesperson of their own choosing in an arbitration proceeding. Discovery shall be expeditiously completed within three (3) months of the time the parties are at issue. Each party shall produce relevant non-privileged documents requested by the other party. Discovery procedures available in court actions do not apply. The arbitrator shall grant oral and/or written discovery to preserve evidence or upon a showing of need. All discovery disputes shall be promptly submitted to and promptly resolved by the arbitrator. For a Dispute involving a United States resident, the Parties may elect to use any of the Expedited Procedures of the Commercial Dispute Resolution Procedures or Supplementary Procedures for Consumer-Related Disputes of the AAA.
EMERGENCY AND PROVISIONAL REMEDIES
Any party may seek a preliminary injunction or other provisional, injunctive, emergency or equitable relief (but not monetary relief) in a court of competent jurisdiction in San Diego County, California, if, in its sole judgment, such relief is necessary to preserve the status quo or to prevent irreparable harm. The parties shall, despite seeking relief under this section, participate in good faith in the arbitration.
The arbitrator will take reasonable steps to protect customer account information and other confidential or proprietary information. The arbitration will not be confidential unless you request that it remain confidential.
SURVIVAL AND SEVERABILITY
This Arbitration Agreement shall survive the termination of your service with VR Performance. If any portion of this Arbitration provision is deemed invalid or unenforceable, the remaining portions shall nevertheless remain in force.
You do not have the right to assign these Terms or this Agreement or any of your rights to our Service to anyone. TheVRPerformance.com has the right to assign any or all of its rights and obligations under this Agreement or to the Service to any third party. Provided such rights and obligations are assumed by such third party, TheVRPerformance.com shall be relieved of any and all liability under this Agreement and in such event you hereby agree to release TheVRPerformance.com and its parents, subsidiaries or affiliated entities or its or their shareholders, officers, directors, employees, agents, successors or assigns of all liability, claims, charges, damages and causes of action.
Software and content provided through our Site and our Service is subject to United States export controls. The United States Department of Commerce prohibits export or diversion of software and certain content to specified countries and persons. No software or content from the Services may be downloaded or otherwise exported or re-exported (a) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria, or any other country to which the U.S. has embargoed goods; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading or using any such software or content, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list and that you will not license or otherwise permit anyone in any such country or on any such list to receive software or content that is subject to export control.
THIS IS OUR ENTIRE AGREEMENT WITH YOU
Please Contact Us with any questions regarding this agreement.
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