PLAYA VISTA PRODUCTS
This Agreement governs your access and use of software products offered by Playa Vista Products (“PVP”) and related updates, upgrades and features as well as online and mobile services, features, content and websites offered by PVP (collectively “PVP Services”). This Agreement is between you and PVP as listed in Section 13B below.
BY USING PVP SERVICES, YOU AGREE TO THESE TERMS. IF YOU DO NOT AGREE, DO NOT INSTALL OR USE THE PVP SERVICES. FOR RESIDENTS OF CERTAIN COUNTRIES, YOU AGREE TO THE ARBITRATION AGREEMENT AND CLASS ACTION WAIVER DESCRIBED IN SECTION 15 TO RESOLVE ANY DISPUTES WITH PVP.
The PVP Services are licensed to you, not sold. PVP grants you a personal, limited, non-transferable, revocable and non-exclusive license to use the PVP Services to which you have access for your non-commercial use, subject to your compliance with this Agreement. You may not access, copy, modify or distribute any PVP Service, Content or Entitlements (as those terms are defined below), unless expressly authorized by PVP or permitted by law. You may not reverse engineer or attempt to extract or otherwise use source code or other data from PVP Services, unless expressly authorized by PVP or permitted by law. PVP or its licensors own and reserve all other rights, including all right, title and interest in the PVP Services and associated intellectual property rights.
2. Content and Entitlements
The PVP Services include Content and Entitlements. Content is the software, technology, text, forum posts, chat posts, profiles, widgets, messages, links, emails, music, sound, graphics, pictures, video, code, and all audio visual or other material appearing on or emanating to or from PVP Services, as well as the design and appearance of our websites. All Content is either owned by PVP or its licensors, or is licensed to PVP and its licensors.
Entitlements are rights that PVP licenses to you to access or use the online or off-line elements of PVP Services. Examples of Entitlements include access to digital or unlock-able Content additional or enhanced functionality and subscriptions.
You will provide at your own expense the equipment, Internet connection and charges required to access and use PVP Services.
3. Availability of PVP Services and Updates
We do not guarantee that any PVP Service, Content or Entitlement will be available at all times, in all locations, or at any given time or that we will continue to offer a particular PVP Service, Content or Entitlements for any particular length of time. PVP does not guarantee that PVP Services can be accessed on all devices, by means of a specific Internet or connection provider, or in all geographic locations.
From time to time, PVP may update, change or modify a PVP Service, Content or Entitlements, without notice to you. These updates and modifications may be required in order to continue to use PVP Services.
4. Rules of Conduct
When you access or use a PVP Service, you agree that you will not:
- Violate any law, rule or regulation.
- Interfere with or disrupt any PVP Service or any server or network used to support or provide a PVP Service, including any hacking or cracking into a PVP Service.
- Use any software or program that damages, interferes with or disrupts a PVP Service or another’s computer or property, such as denial of service attacks, spamming, hacking, or uploading computer viruses, worms, Trojan horses, cancelbots, spyware, corrupted files and time bombs.
- Modify any file or any other part of the PVP Service that PVP does not specifically authorize you to modify.
- Use or distribute counterfeit software or PVP Content.
- Attempt to use a PVP Service on or through any service that is not controlled or authorized by PVP.
- Use a PVP Service in a country in which PVP is prohibited from offering such services under applicable export control laws.
- Promote, encourage or take part in any prohibited activity described above.
If you violate these rules and fail to remedy this violation after a warning, PVP may take action against you. In case of severe violations, PVP may take these actions without issuing a prior warning. Some examples of severe violations include, but are not limited to: promoting, encouraging or engaging in hacking, or threatening illegal activities. When practical, PVP will notify you of the action it will take in response to violations of these rules or breach of this Agreement.
Specific PVP Services may post additional rules that apply to your conduct on those services.
If you encounter another user who is violating any of these rules, please report this activity to PVP using the “Contact us” feature in the PVP Service.
5. Termination and Other Sanctions
This Agreement is effective until terminated by you or PVP.
PVP may terminate any PVP Service at any time by giving at least thirty days’ notice within the affected PVP Service, or on the service updates page of PVP’s website (playavistaproducts.com). After service termination, no software updates will be applied to our mobile apps and we can’t guarantee our mobile apps will continue to be available for download via iCloud (or other applicable cloud services). Any apps available via iCloud after online service termination may be removed from iCloud without further notice to you.
Sections 5-10 of this Agreement survive termination of this Agreement.
6. Use of Data
When you use the “Contact us” feature in a PVP Service, PVP may store your email address in order to be able to respond to you.
7. Warranties; Limitation of Liability
IF YOU LIVE IN THE EUROPEAN ECONOMIC AREA (EEA) OR SWITZERLAND, THE PVP SERVICES WILL BE PROVIDED WITH REASONABLE CARE AND SKILL AND NO OTHER PROMISES OR WARRANTIES ABOUT THE PVP SERVICES ARE MADE. IF YOU LIVE OUTSIDE THE EEA AND SWITZERLAND, PVP SERVICES ARE LICENSED AND PROVIDED “AS IS.” YOU USE THEM AT YOUR OWN RISK. TO THE FULL EXTENT PERMITTED UNDER APPLICABLE LAW, PVP GIVES NO EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR PRACTICE. PVP DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE PRODUCT OR PVP SERVICE; THAT THE PVP SERVICE WILL MEET YOUR REQUIREMENTS; THAT OPERATION OF THE PVP SERVICE WILL BE UNINTERRUPTED OR FREE FROM ERRORS, BUGS, CORRUPTION, LOSS, INTERFERENCE, HACKING OR VIRUSES, OR THAT PVP SERVICES WILL INTEROPERATE OR BE COMPATIBLE WITH ANY OTHER SOFTWARE.
IF YOU LIVE IN THE EEA OR SWITZERLAND, PVP AND ITS EMPLOYEES, LICENSORS AND BUSINESS PARTNERS WILL NOT BE LIABLE TO YOU FOR ANY LOSSES OR DAMAGES ARISING FROM YOUR ACTIONS OR BREACH OF THIS AGREEMENT, OR WHICH ARISE AS A RESULT OF A THIRD PARTY’S (OR ANY OTHER) ACTS OR OMISSIONS BEYOND OUR CONTROL. IF YOU LIVE OUTSIDE THE EEA AND SWITZERLAND, TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, PVP AND ITS EMPLOYEES, LICENSORS AND BUSINESS PARTNERS SHALL NOT BE LIABLE TO YOU FOR ANY LOSSES THAT WERE NOT CAUSED BY PVP’S BREACH OF THIS AGREEMENT, OR INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES. THE TYPES OF EXCLUDED DAMAGES INCLUDE, FOR EXAMPLE, FINANCIAL LOSS (SUCH AS LOSS INCOME OR PROFITS), COST OF SUBSTITUTE GOODS OR SERVICES, BUSINESS INTERRUPTION OR STOPPAGE, LOSS OF DATA, LOSS OF GOODWILL, AND COMPUTER FAILURE OR MALFUNCTION. THIS LIMITATION APPLIES TO ANY CLAIM ARISING OUT OF OR RELATED TO THIS LICENSE OR PVP SERVICE, WHETHER BASED IN CONTRACT, TORT, STATUTE, STRICT LIABILITY OR OTHERWISE. IT ALSO APPLIES EVEN IF PVP KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF SUCH DAMAGE. YOU MAY RECOVER ONLY DIRECT DAMAGES IN ANY AMOUNT NO GREATER THAN WHAT YOU ACTUALLY PAID FOR THE APPLICABLE PVP SERVICE. PVP DOES NOT LIMIT ITS LIABILITY FOR FRAUD, GROSS NEGLIGENCE, WILFUL MISCONDUCT, OR FOR DEATH OR PERSONAL INJURY. SOME JURISDICTIONS DO NOT ALLOW THE ABOVE EXCLUSIONS AND LIMITATIONS, SO SOME OR ALL OF THEM MAY NOT APPLY TO YOU.
8. General Terms
A. Entire Agreement
This Agreement, together with any other PVP terms that govern your use of PVP Services, constitutes the entire agreement between you and PVP. The Agreement may not be amended or modified unless made in writing and signed by PVP. The failure of PVP to exercise any right under this Agreement shall not constitute a waiver of the right or any other right. If any part of this Agreement is held to be unenforceable, all other parts of this Agreement shall continue in full force and effect.
B. Governing Law
This Agreement is between you and Playa Vista Products, LLC in California, USA. The laws of the State of California, excluding its conflicts-of-law rules, govern this Agreement and your use of PVP Services. You expressly agree that for claims and disputes not subject to the arbitration agreement below, exclusive jurisdiction for any claim or action arising out of or relating to this Agreement or PVP Services shall be the federal or state courts that govern Los Angeles County, California, and you expressly consent to the exercise of personal jurisdiction of such courts.
The UN Convention on Contracts for the International Sale of Goods (Vienna, 1980) shall not apply to this Agreement or to any dispute arising out of or relating to this Agreement.
You agree to follow U.S. and other export control laws and agree not to transfer a PVP Service to a foreign national, or national destination, that is prohibited by such laws. You also acknowledge you are not a person with whom PVP is prohibited from doing business under these export control laws.
9. Changes to this Agreement
PVP may modify this Agreement from time to time, so please review it frequently. For PVP users who accepted a version of this Agreement prior to modification, the revisions will become effective 30 days after posting at playavistaproducts.com. Your continued use of PVP Services means you accept the changes.
10. Dispute Resolutions by Binding Arbitration
THIS SECTION APPLIES TO ALL CONSUMERS AND PEOPLE WHO ACCEPTED THE TERMS OF THIS AGREEMENT. IT EXCLUDES RESIDENTS OF QUEBEC, RUSSIA, SWITZERLAND, BRAZIL, MEXICO, THE MEMBER STATES OF THE EEA, AND THE REPUBLIC OF KOREA. BY ACCEPTING THE TERMS OF THIS AGREEMENT, YOU AND PVP EXPRESSLY WAIVE THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION.
This Section offers a streamlined way to resolve disputes between us if they arise. Most of your concerns can be resolved quickly and satisfactorily via the “Contact us” feature in the app. If PVP cannot resolve your concern, you and PVP agree to be bound by the procedure set forth in this Section to resolve any and all disputes between us.
This Section is an agreement between you and PVP, and applies to our respective agents, employees, subsidiaries, predecessors, successors, beneficiaries and assigns. This agreement to arbitrate evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this Section. This Section shall be interpreted broadly and shall survive termination of this Agreement.
A. Claims Covered by Arbitration
All disputes, claims or controversies arising out of or relating to this Agreement, any PVP Service and its marketing, or the relationship between you and PVP (“Disputes”) shall be determined exclusively by binding arbitration. This includes claims that accrued before you entered into this Agreement. The only Disputes not covered by this Section are claims (i) regarding the infringement, protection or validity of your, PVP’s or PVP’s licensors’ trade secrets or copyright, trademark or patent rights; (ii) if you reside in Australia, to enforce a statutory consumer right under Australia consumer law; and (iii) brought in small claims court.
B. Informal Negotiations
You and PVP shall first attempt to resolve any Dispute informally for at least 30 days before initiating arbitration. The informal negotiations commence upon receipt of written notice from one person to the other (“Notice of Dispute”). The Notice of Dispute must: (a) include the full name and contact information of the complaining party; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought. PVP will send its Notice of Dispute to your billing or email address. You will send your Notice of Dispute to: email@example.com.
C. Binding Arbitration
If you and PVP cannot resolve a Dispute informally, you or PVP may elect to have the Dispute finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. The arbitration shall be administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Rules and, where appropriate, limited by the AAA Consumer Rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator shall make a decision in writing, and shall provide a statement of reasons if requested by either party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. You and PVP may litigate in court to compel arbitration, to stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
YOU AND PVP AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. The arbitrator shall not consolidate another person’s claims with your claims, and shall not preside over any type of representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If this specific subsection is found to be unenforceable, then the entirety of this agreement to arbitrate shall be null and void.
Arbitration shall be initiated in the County of Los Angeles, State of California, United States of America, and you and PVP agree to submit to the personal jurisdiction of that court, in order to compel arbitration, to stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
F. Changes to this Arbitration Agreement
PVP will not enforce material changes to this agreement to arbitrate unless you expressly agree to the changes.