This WeLens Terms of Service and Software License (“Service Terms”) is provided to You (“Customer,” “You,” or “Your”) in connection with the WeLens LensPass™ virtual reality service, the VR Kit virtual reality hardware package, the welens.com website, and associated software that We license (individually and collectively, the “Service”). These Service Terms comprise the entire agreement between Customer and WeLens, Inc. (“WeLens,” “Us,” “Our,” or “We”) with respect to the Service. If You are acquiring Service on behalf of a business, You represent that You are authorized to accept these Service Terms on its behalf. We may amend these Service Terms from time to time, in which case the new Service Terms will supersede prior versions. We will notify You of material changes via email and direct You to the latest version. Upon notice of a material modification of these Service Terms, except for such modifications required by law, You may notify us within two weeks of Our providing You notice of the amended Service Terms that You are requesting to terminate Your access to the Service affected by the change in terms. We will then either notify You that (a) Your Service will continue under the prior Service Terms or (b) Your ongoing access to the affected Service will be terminated and any prepaid fees will be prorated and returned to You. If You do not notify use within two weeks or if You continue using the Service after We have provided notice of any changes to these Service Terms, You will be deemed to have accepted the revised Service Terms.
Service includes one or more of the following, as applicable: (a) The LensPass Service. The LensPass Service consists of the ability to: upload Your virtual reality (VR) content to Our cloud servers (“Customer Content”); download, install and utilize (a) Our Android app (the “LensPass App”) which allows for the administration, management, and remote controlling of VR Content on mobile VR hardware devices (“VR Devices”) and (b) Our VR player application (“LensPlayer”) which allows for playing VR Content (defined below) across one or multiple VR Devices based on the pricing Plan You selected. (Collectively, the LensPass App and the LensPlayer are referred to as “Applications”); utilize Our web dashboard, located on www.welens.com (the “Site”) after You log into Your account to manage, schedule and play Customer Content and/or Third-Party Content (defined below), access device usage data, and activate and deactivate VR Devices by assigning or un-assigning a configuration of content and settings in the Account Dashboard of the Site (each such activated VR Device is an “Active Device”); allow other Service users to view information about and/or download and play Customer Content if You list that content publicly and/or enable public download and viewing of that Customer Content; and download and play on Active Devices (a) Customer Content and (b) VR content from other customers of WeLens only where those customers have elected to share their VR content with third parties (“Third-Party Content”). Customer Content and Third-Party Content are collectively referred to herein as “VR Content”. LensPass Service Exclusions: The LensPass Service does not include VR Devices or other hardware of any kind. We offer a separate VR hardware rental and purchase service, the VR Kit, described below. We do not support any products running Apple’s iOS operating system. To use the Applications, You must have an Android powered mobile device that is compatible with the mobile service. The LensPass Service expressly excludes and We do not support, except as expressly stated in these Service Terms with respect to the VR Kit, issues with VR Devices and other hardware devices of any kind and/or product support for 3rd party software applications. We do not warrant that the Applications will work with Your mobile devices and/or other hardware. LensPass Pricing Plans and Trial Accounts: WeLens offers different LensPass Service and pricing plans (LenssPass plans and VR Kit plans are referred to as “Plans”), and the features available will vary based on the Plan selected. See here for more details: http://www.welens.com/lenspass/pricing. Any new features that We choose to add to the LensPass Service are also subject to these Service Terms. However, the availability of some new features may require the payment of additional fees and/or consent to additional terms, and WeLens will determine at Our sole discretion whether access to any other such new features will require an additional fee. WeLens may offer free trial accounts where You may use the Service free of charge for a specified time period. Upon expiration of this time period, Your access to the Service will be terminated unless You choose to pay the applicable subscription fee and become a subscriber. You understand that only a single free trial account will be granted for a given email address. The provision, maintenance and termination of Free Trial accounts are within the sole discretion of WeLens and WeLens has no obligation or liability related to the provision, maintenance and termination of free trial accounts. (b) The VR Kit Device Package. The “VR Kit” device package includes: (i) one or more VR Devices (defined above in the LensPass Service description) that You may select to purchase or rent from one or more options currently available from Us; see here for current options: www.welens.com/vr-kits; and (ii) the LensPass App pre-installed on the VR Devices that You rent or purchase. From time to time We may make available additional features, software, and services as part of the VR Kit, which shall be deemed part of the VR Kit and subject to these Service Terms. VR Kit Exclusions: WeLens is not affiliated with Samsung, Oculus, Google, or any other companies that manufacture hardware, software, products, or services included in the VR Kit. You acknowledge that You are responsible for compliance with any terms applicable to these third-party products and services and shall defend, indemnify, and hold Us harmless for any failure to comply with any such terms. VR Kit Pricing Plans: WeLens offers different VR Kit Plans, and the features available will vary based on the Plan selected. See here for more details: www.welens.com/vr-kits/pricing. Any new features that We choose to add to the VR Kit Service are also subject to these Service Terms. However, the availability of some new features may require the payment of additional fees and/or consent to additional terms, and WeLens will determine at Our sole discretion whether access to any other such new features will require an additional fee.
You agree to use the Services (including VR Devices, the VR Kit, Applications, and VR Content) safely and with care. You assume all liability in the event of costs arising from malfunction or failure of the VR Devices or personal injury relating to the Service. It is Your responsibility to comply with all applicable laws, safety precautions, and regulations relating to Your use of the Services, including the VR Devices. YOU EXPRESSLY ACKNOWLEDGE THAT “VIRTUAL REALITY” DEVICES AND/OR CONTENT MAY CAUSE PERSONAL INJURY INCLUDING DEATH IN CERTAIN CASES AND AS BETWEEN WELENS AND YOU, YOU SHALL BE SOLELY RESPONSIBLE FOR ENSURING APPROPRIATE WARNING NOTICES ARE PROVIDED TO EVERY END USER OF THE VR CONTENT AND/OR SERVICE MADE AVAILABLE HEREUNDER BY YOU. You acknowledge and agree, to the maximum extent permitted by law, to (i) assume full risk and financial responsibility for the use of Our Services and (ii) indemnify and hold WeLens Parties (defined below) harmless and release Us from any and all liability for any injury which may be suffered by You or anyone You allow to use the Services. You should carefully review the Indemnification, Disclaimer of Warranties, Limitation of Liability, and Binding Arbitration and Class Action Waiver sections, below, before agreeing to these Service Terms.
Subject to compliance with all of the terms herein, Customer is permitted a non-exclusive, limited, non-transferable, and revocable license, during the term, to use the applicable Service only for Customer’s personal and internal business purposes on Customer’s technology, including up to the number of Active Devices paid for under the applicable Plan, and not for any other commercial use, including resale or transfer to others. For the avoidance of doubt, Customer may not sell, lease, or rent access to or use of the Service, but Customer may allow its direct customers to view Customer Content and Third-Party Content on Active Devices where Customer is utilizing the Services to enable such viewing. Customer acknowledges that any Third-Party Content is offered on a pass through license from the applicable WeLens’ customer who uploaded that Third-Party Content and any use by Customer is strictly “AS IS” and at Customer’s risk. Third-Party Content may be subject to additional use restrictions set forth on the Site where such Third-Party Content is available, and Customer agrees to abide by all such restrictions. The following additional terms and conditions apply with respect to any Applications that WeLens provides to You designed for use on an Android-powered mobile device (an “Android App”): You acknowledge that these Service Terms are between You and WeLens only, and not with Google, Inc. (“Google”). Your use of the Android App must comply with Google’s then-current Play Store Terms of Service. Google is only a provider of the Play Store where You obtained the Android App. WeLens, and not Google, is solely responsible for the Android App. Google has no obligation or liability to You with respect to the Android App or these Service Terms. You acknowledge and agree that Google is a third-party beneficiary to the Service Terms as they relate to the Android App. WeLens reserves the right to terminate Customer’s use of the Service for breach in accordance with these Service Terms, if WeLens determines, in Our sole business judgment, that the Service is being used (a) fraudulently, (b) maliciously, (c) unreasonably, (d) in excess of the number of devices included in the Plan purchased by Customer, or (e) in violation of these Terms of Service. All rights, title and interest in and to the Service and its components, including all related intellectual property rights, will remain with and belong exclusively to WeLens and Our third-party vendors, except as expressly provided herein with respect to the purchase of VR Kits.
Customer shall not: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service (including rented VR Kits, Applications and any Third-Party Content or WeLens Content) available to any third party, other than as expressly permitted by these Service Terms; (b) use the Service to process data on behalf of any third party, (c) modify, adapt or hack the Service to falsely imply any sponsorship or association with WeLens, or otherwise attempt to gain unauthorized access to the Service or Our related systems or networks; (d) use the Service in any unlawful manner, including but not limited to violation of any persons privacy rights, infringing any person’s intellectual property rights, or sending spam or otherwise duplicative or unsolicited messages in violation of applicable law, (e) use the Service in any manner that interferes with or disrupts the integrity or performance of the Service and its components; (f) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any software making up the Service; (g) use the Service to knowingly post, upload, link to, send or store any content that is unlawful, racist, hateful, obscene, discriminatory, or contains any viruses, malware, Trojan horses, time bombs, or any other similar harmful software; (h) attempt to use any method to gain unauthorized access to any paid features of the Site; (i) unless otherwise explicitly agreed to in writing by WeLens, use the Site or any content obtained from it to develop, as a component of, any information, storage and retrieval system, database, information base, or similar resource (in any media now existing or hereafter developed), that is offered for commercial distribution of any kind, including through sale, license, lease, rental, subscription, or any other commercial distribution mechanism; (j) use automated scripts to collect information from or otherwise interact with the Site or the Service, except as provided below with respect to operators of public search engines; (k) deep-link to the Site for any purpose (other than WeLens’ home page), unless expressly authorized in writing by WeLens; (l) impersonate any other user of the Service; or (m) try to use, or use the Service in violation of these Service Terms. Notwithstanding the foregoing, WeLens grants the operators of public search engines permission to use spiders to copy materials from the Site for the sole purpose of creating publicly available searchable indices of the materials, but not caches or archives of such materials. WeLens reserves the right to revoke these exceptions either generally or in specific cases. You agree not to collect or harvest any personally identifiable information, including profile names, from the Site, nor to use the communication systems provided by the Site for any commercial solicitation purposes. You agree not to upload, post, email, transmit, or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any form of solicitation. You agree not to solicit, for commercial purposes, any users of the Site or the Service with respect to their Customer Content. Other than VR Content, Customer may not use, download, or copy any information, data, text, photographs, graphics, video, or other materials provided with the Services (“WeLens Content”) unless: (1) Customer uses the Content solely for personal, informational and non-commercial purposes; (2) WeLens’s existing trademarks and/or copyright symbol and statement appears on each downloaded or copied page; and (3) no modifications are made to any WeLens Content. The rights granted to Customer in connection with the Service constitute a license and not a transfer of title. WeLens reserves the right to revoke the authorization to view, download and print the WeLens Content available through the Service at any time, and any such use shall be discontinued immediately upon notice from WeLens. Except as expressly provided herein, Customer may not use, download, upload, copy, print, display, perform, reproduce, publish, license, post, transmit or distribute any WeLens Content from the Service in whole or in part without the prior written permission of WeLens. Any rights not expressly granted herein are reserved by WeLens. Additionally, with respect the Applications, You may not: (i) modify, disassemble, decompile or reverse engineer the Applications, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Applications to any third-party or use the Applications to provide time sharing or similar services for any third-party; (iii) make any copies of the Applications; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Applications, features that prevent or restrict use or copying of any content accessible through the Applications, or features that enforce limitations on use of the Applications; or (v) delete the copyright and other proprietary rights notices on the Applications. You acknowledge that We may from time to time issue upgraded versions of the Applications, and may automatically electronically upgrade the version of the Applications that You are using, including on Your mobile device. You consent to such automatic upgrading on Your mobile device, and agree that these Service Terms will apply to all such upgrades. The foregoing license grant is not a sale of the Applications or any copy thereof, and WeLens and Our third-party licensors or suppliers retain all right, title, and interest in and to the Applications (and any copy of the Applications). Standard carrier data charges and internet access charges may apply to Your use of the Applications.
Unless stated otherwise in writing by WeLens (which may include email), all fees and charges are nonrefundable except as stated expressly in these Service Terms. LensPass Cancellation: As stated above, You may cancel Your subscription to the LensPass Service by visiting the Account Billing page in on the Site https://www.welens.com/account/billing and clicking on Cancel Subscription; provided, however, You must cancel Your subscription at least 3 business days prior to the expiration of the then current subscription period in order to prevent the next renewal. At any time within 24 hours from the initial purchase of the Services (and not any renewal term), Customer may cancel the LensPass Services with immediate effect, receive a refund, and cancel any future payments effective immediately, by emailing firstname.lastname@example.org but may not receive a refund of payments previously made. VR Kit Cancellation: As stated above, You may cancel an order for the VR Kit at any time for any reason until 5 business days before Your order start date (and before We ship Your order), unless another cancellation deadline is stated by Us in the invoice.
In order to use the LensPass Service, You are required to register for which You will pay a subscription fee for use of the Service following the expiration or termination of any free trial accounts. The subscription fee, following the expiration or termination of any free trial accounts, must be prepaid in order to use the Service. If You add users to Your account, You must contractually bind each of such user to these Service Terms and, as between You and WeLens, You will be solely liable for any breach of these Service Terms by Your users. By adding any user to Your account, You represent and warrant that: You have obtained all necessary authorizations, consents, and licenses from such user to bind it to these Service Terms. You are at all times fully responsible and liable for all acts and omissions by Your users and You agree to indemnify WeLens for all claims and losses related to any such acts and/or omissions. To be eligible to use the Service, You must meet the following criteria and represent and warrant that You: (1) are 18 years of age or older; (2) are a resident of the United States; (3) are not currently restricted from the Service, or not otherwise prohibited from having a WeLens account, (4) are not using the Service in ways that compete with WeLens or misrepresent WeLens or the Service; (5) have full power and authority to enter into these Service Terms and doing so will not violate any other agreement to which You are a party; (6) will not violate any rights of WeLens, including intellectual property rights such as copyright or trademark rights; and (7) agree to provide at Your cost all equipment, software, and internet access necessary to use the Service, including but not limited to VR Devices (unless You separately purchase or lease them from Us as part of a VR Kit). Customer must provide complete and accurate identification, contact, and other information required as part of the registration process. Customer must notify WeLens immediately upon learning of any unauthorized disclosure or use of Customer’s password or other account information. WeLens has no liability for any unauthorized use of the Services under Customer’s account. You are responsible for all information, data, text, messages or other materials that You post or otherwise transmit via the Service, including but not limited to Customer Content. You are responsible for maintaining the confidentiality of Your login and account, and are fully responsible for any and all activities that occur under or in connection with Your login or account. You agree and acknowledge that Your login may only be used by one (1) person, and that You will not share a single login among multiple people. You agree that You will not sell, trade or otherwise transfer Your login or account to another party and that You will not, unless otherwise specifically agreed to in writing by WeLens, charge anyone for access to any portion of the Service, or any information therein. You agree that You are responsible for anything that happens through Your account, including the acts or omissions of Your users.
The Service may not always be available due to system maintenance, Internet service disruptions, or other reasons that are both within and beyond Our control. The Service may be subject to additional requirements, limitations, and restrictions depending on the Plan purchase by Customer. Interruptions in the Service shall not serve as a basis to terminate Your subscription or demand a full or partial refund of any prepaid fees.
Although the Service includes hosting of Customer Content, Customer agrees that WeLens shall not be liable under any circumstances for any loss, disclosure, alteration or corruption of any Customer Content or other data and/or information uploaded to the Service, and that Customer shall at all times be responsible for maintaining copies of Customer Content separate from the Service. If You rent a VR Kit, We are not responsible for any data of Yours that is contained on the VR Devices that You return to Us and You are responsible for ensuring that any such data is deleted.
WeLens retains all rights, title and interest in and to all patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”) related to the Service. The rights granted to You to use the Service under these Service Terms do not convey any additional rights in the Service, or ownership of any Intellectual Property Rights associated therewith. As between You and WeLens, You own the Customer Content and other information You provide to WeLens by uploading through the Service. You hereby grant WeLens and, if You select to share Your Customer Content, Our other customers, a nonexclusive, worldwide, perpetual, unlimited fully paid up and royalty-free right to us to use copy, prepare derivative works of, distribute, publish, make available, publicly perform, remove, retain, add, process, analyze, or otherwise exploit the Customer Content and other information for the purpose of providing the Service to You, and to Our other customers if You elect to make Your Customer Content available to Our other customers (You may select or modify this option in the account dashboard of the Site). By providing Customer Content and any other information to Us or to third-parties, including Our other customers, through the Service, You represent and warrant that You are (a) entitled and authorized to submit and license the Customer Content and other information as stated herein and that (b) the Customer Content and information are accurate, not confidential, and not in violation of any contractual restrictions or other third party rights. You may not upload, post or otherwise make available through the Service any material protected by copyright, trademark, or any other proprietary right without first having obtained all rights, permissions and consents necessary (a) to make such content available on or through the Service, and (b) to grant WeLens the full rights to use the content as set forth in these Service Terms, including to pass on all such rights to Our customers where You elect to make Your Customer Content available to other customers. The burden of determining whether any content is protected by any such right is on You. WeLens shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Service or otherwise use any suggestions, enhancement requests, recommendations or other feedback (“Feedback”) We receive from You. You understand and agree, however, that WeLens is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and You have no right to compel such use, display, reproduction, or distribution. WeLens is the copyright owner or licensee of the Service, Applications and WeLens Content, unless otherwise indicated. If Customer makes use of the Service, Applications or Content, other than as expressly provided herein, Customer may violate copyright and other laws of the United States, other countries, as well as applicable state laws and may be subject to liability for such unauthorized use. LensPass, WeLens, and WeLens’ other product and service names, and logos used or displayed on the Service are registered or unregistered trademarks of WeLens (collectively, “Marks”), and You may only use such Marks to identify Yourself as a customer and user of the Service; provided You do not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent WeLens, Our services or products.
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under US copyright law. If You believe in good faith that content or material on this website infringes a copyright owned by You, You (or Your agent) may send WeLens’s DMCA agent a notice requesting that the material be removed, or access to it blocked. This request should be sent to: email@example.com; or, alternatively to: WeLens, Inc., Attn: James Levy, DMCA Registered Agent, 209 Homer Ave., Palo Alto, CA 94301. The notice must include the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed; (c) identification of the material that is claimed to be infringing or the subject of infringing activity; (d) the name, address, telephone number, and email address of the complaining party; (e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is 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 us a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. Notices and counter-notices with respect to the website should be sent to the address above.
Customer agrees to indemnify, defend, and hold harmless WeLens (and Our affiliated and parent companies and their service providers and their respective officers, directors, employees and agents) (hereinafter collectively, the “WeLens Parties”) from and against any and all losses, costs, obligations, liabilities, damages, actions, suits, causes of action, claims, demands, liens, encumbrances, security interests, settlements, judgments, and other expenses, (including but not limited to cost of defense, settlement, and attorneys' fees) of whatever type or nature, including, but not limited to, damage or destruction to property, injury (including death) to any person or persons, which are asserted against, incurred, imposed upon or suffered by WeLens by reason of, or arising from: (a) Customer's breach of these Service Terms; (b) Customer's actual or alleged infringement of any patent, copyright, trademark, trade secret or other property or contract right of any other person; (c) Customer's actual or alleged failure to promptly pay sums due WeLens or third parties; (d) Customer's failure to comply with applicable laws, regulations or ordinances; (e) use of the Services (including any VR Devices) in any manner that is illegal, causes injury, or is not in accordance with these Service Terms; (f) any illegal content uploaded to or otherwise used by Customer in connection with the Service; (g) any injury to Customer or its users of the Service (including VR Devices); (h) any use of the Customer Content by Customer, WeLens, the customers of WeLens (if You make Your Customer Content available through the Service for third party use) and/or Your use of any Third-Party Content or (i) the acts or omissions of Customer (or its officers, directors, employees or agents if Customer is a legal entity). Customer shall remain liable for any act or omission of its users of the Service.
CUSTOMER EXPRESSLY AGREES THAT USE OF THE SERVICE (INCLUDING, BUT NOT LIMITED TO, THE VR DEVICES, APPLICATIONS AND ANY AND ALL CONTENT MADE AVAILABLE ON OR THROUGH THE SERVICE BY WELENS OR ITS OTHER CUSTOMERS, INCLUDING THIRD-PARTY CONTENT AND WELENS CONTENT) IS AT CUSTOMER'S SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. WELENS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WELENS MAKES NO WARRANTY OF ANY KIND WITH REGARD TO ANY THIRD-PARTY SOFTWARE USED IN ITS PROVISION OF THE SERVICES. WELENS MAKES NO WARRANTY THAT THE SERVICE WILL MEET CUSTOMER'S REQUIREMENTS, OR THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES WELENS MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICE. CUSTOMER UNDERSTANDS AND AGREES THAT ANY SOFTWARE AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT CUSTOMER'S OWN DISCRETION AND RISK AND THAT CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER'S COMPUTER/MOBILE DEVICE/SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM WELENS OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO EACH CUSTOMER. WITHOUT LIMITING THE GENERALITY OF THE ABOVE, CUSTOMER EXPRESSLY AGREES THAT “VIRTUAL REALITY” DEVICES AND/OR CONTENT MAY CAUSE PERSONAL INJURY IN CERTAIN CASES AND AS STATED IN SECTION 3 CUSTOMER ASSUMES ALL RISK. AS BETWEEN WELENS AND CUSTOMER, CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR ENSURING APPROPRIATE WARNING NOTICES ARE PROVIDED TO EVERY END USER OF THE VR CONTENT AND/OR SERVICE MADE AVAILABLE HEREUNDER BY CUSTOMER.
THE WELENS PARTIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES RESULTING FROM THE USE OF OR THE INABILITY TO USE THE SERVICE OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES OR RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SERVICE OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF CUSTOMER'S TRANSMISSIONS OR DATA, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLE, EVEN IF ALL OF THE WELENS PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO EACH CUSTOMER. The WeLens Parties shall not be liable in any way for damages arising from any Application or other product or service supplied to Customer by WeLens. Notwithstanding any language to the contrary, the WeLens Parties’ maximum liability to Customer arising from or related to these Service Terms shall be limited to the sums paid by Customer to WeLens under these Service Terms during the twelve (12) months prior to the time the cause of action arose.
The Parties agree that any claim or dispute between them or against any agent, employee, successor, or assign of the other, whether related to this agreement or otherwise, and any claim or dispute related to this agreement or the relationship or duties contemplated under this contract, including the validity of this arbitration clause, shall be resolved by binding arbitration by the American Arbitration Association, under the Arbitration Rules then in effect. Any award of the arbitrator(s) may be entered as a judgment in any court of competent jurisdiction. Any controversy shall be arbitrated in San Francisco, California. Information may be obtained and claims may be filed at any office of the American Arbitration Association or at Corporate Headquarters, 335 Madison Avenue, Floor 10, New York, New York 10017-4605. Telephone: 212-716-5800, Fax: 212-716-5905, Website: www.adr.org. This agreement shall be interpreted under the Federal Arbitration Act. Judgment on the award rendered by the arbitrator(s) shall be binding on the parties and may be entered in any court having jurisdiction. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to Customer’s use of the Service or these Service Terms must be filed within one (1) year after such claim or cause of action arose or was reasonable discovered, whichever is later, or be forever barred. In the event of any Litigation, both parties expressly and irremovably consent to the exclusive venue and personal jurisdiction in San Francisco, CA. In the event of any Litigation arising from, related to or in connection with these Service Terms or the Service, the prevailing party thereof shall be entitled to recover its reasonable expenses, including (without limitation) attorneys’ fees and the costs of arbitration. Any proceedings to resolve or litigate any Litigation in any forum will be conducted solely on an individual basis. Customer will not seek to have any Litigation heard as a class action, private attorney general action, or in any other proceeding in which either party acts or proposes to act in a representative capacity.
These Service Terms shall be governed by and construed in accordance with the laws of the State of California, excluding its conflict of law provisions.
Customer acknowledges and agrees that a breach or threatened breach by Customer of any of its obligations under Sections 3 (Assumption of Risk to Use Virtual Reality Services), 4 (License to Use the Services), 5 (Restrictions), and 12 (Intellectual Property Rights; License to Customer Content) would cause WeLens irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, WeLens will be entitled to equitable relief, including in a restraining order, an injunction, specific performance and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
No waiver by the WeLens Parties of any term or condition set forth in these Service Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the WeLens Parties to assert a right or provision under these Service Terms shall not constitute a waiver of such right or provision. If any provision of these Service Terms is held by a court, arbitrator, or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of these Service Terms will continue in full force and effect.
WELENS RESERVES THE RIGHT TO CEASE PROVIDING THE SERVICE FOR ANY REASON AT ANY TIME AND, AS CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, REFUND THE FEES PAID FOR THE APPLICABLE SERVICES FOR THE TIME PERIOD, IF ANY, AFTER TERMINATION OF THE SERVICE UNTIL THE END OF THE THEN CURRENT SUBSCRIPTION PERIOD. IF CUSTOMER BREACHES THE TERMS NO REFUND WILL BE PROVIDED. OTHER THAN PROVIDING A PRO-RATA REFUND WHEN WELENS TERMINATES FOR ITS CONVENIENCE, IF APPLICABLE, WELENS WILL NOT BE LIABLE TO CUSTOMER OR ANY THIRD-PARTY FOR TERMINATION OF THE SERVICE FOR ANY REASON. CUSTOMER ACKNOWLEDGES AND AGREES THAT UPON TERMINATION WELENS MAY IMMEDIATELY DEACTIVATE OR DELETE CUSTOMER’S USER ACCOUNT AND ALL RELATED INFORMATION AND FILES IN CUSTOMER’S USER ACCOUNT AND/OR BAR ANY FURTHER ACCESS TO THE SERVICES. ADDITIONALLY, CUSTOMER SHALL IMMEDIATELY DELETE ANY AND ALL COPIES OF APPLICATIONS AND WELENS AND THIRD-PARTY CONTENT AND CUSTOMER AGREES TO TAKE SUCH ADDITIONAL STEPS TO CONFIRM COMPLIANCE WITH THE FOREGOING, UPON REQUEST FROM WELENS.
You grant WeLens the right to reference Your name and/or trade or service marks as a customer of WeLens in Our marketing materials and Site.
If You are a U.S. federal government end user, this Service is a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, this Service is licensed to You with only those rights as provided under the terms and conditions of these Service Terms.
Your use of Service, including Our software, is subject to export and re-export control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the United States Department of Commerce and sanctions programs maintained by the Treasury Department's Office of Foreign Assets Control. You shall not — directly or indirectly — sell, export, re-export, transfer, divert, or otherwise dispose of any Service or software to any end-user without obtaining the required authorizations from the appropriate government authorities. You also warrant that You are not prohibited from receiving US origin products, including services or software.
The Service, Applications, or WeLens Content may contain hyperlinks to websites that are not controlled by WeLens. WeLens is not responsible for and does not endorse or accept any responsibility over the contents or use of these websites, including, without limitation, the accuracy of any information, data, opinions, advice or statements made on these websites.
No right granted to Customer under these Service Terms are enforceable by third parties and no third party is an intended beneficiary of any rights and obligations of the Customer under these Service Terms.
Sections 1, 3, 5, 6, 12, 14-20, 22, 26, 28, and 29 and terms which by their nature survive shall survive any termination or expiration of these Service Terms.
The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement. This Agreement shall not be interpreted against the drafting party. The word “including” means “including but not limited to.”
These Service Terms constitute the entire agreement between the parties with respect to the subject matter hereof, all previous understandings whether oral or written having been merged herein. No representations or warranties have been made other than those expressly set forth herein. Without limiting the foregoing, the parties have not relied on any oral statements that are not included in the Service Terms. Except as otherwise provided in these Service Terms, the Service Terms may not be changed, modified, renewed, extended, or discharged or any covenant or provision hereof waived except by an agreement in writing signed by both parties. These Service Terms supersede prior versions of these Service Terms.