Last Updated Date: May 12, 2015.
Xreal, LLC (“Xreal” or “we”) provides social games and related interactive features (the “ Xreal Services”), which we make available to our users as an application through third-party websites; via the Xreal websites, accessible at www.fortressfury.com, http://forum.fortressfury.com and https://xreal.helpshift.com/a/fortress-fury/ (collectively, the “Sites ”); and also as an application for mobile devices (the “Application”). These Terms govern your access to and use of the Sites, Xreal Services, Application and Collective Content (defined below), and constitute a binding legal agreement between you and Xreal.
PLEASE READ THESE TERMS, INCLUDING THE MANDATORY ARBITRATION CLAUSE, CAREFULLY BEFORE ACCESSING AND USING THE SERVICES, SITES, OR APPLICATION. BY ACCESSING OR USING OUR SERVICES, THE SITES, OR THE APPLICATION, YOU ACKNOWLEDGE AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT USE OUR SERVICES, SITES, OR APPLICTATION.
If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
Key Content-Related Terms
“Content” means text, graphics, images, music, software (excluding the Application), audio, video, information or other materials.
“Xreal Content” means Content that Xreal makes available through the Sites, Xreal Services or Application, including any Content licensed from a third party, but excluding User Content.
“Registered User” means a person who completes Xreal’s account registration process, as described under the “Account Registration” section below.
“User Content ” means Content that a Registered User posts, uploads, publishes, submits or transmits to be made available through the Sites, Xreal Services or Application.
“Collective Content” means, collectively, Xreal Content and User Content.
Certain areas of the Sites (and your access to or use of certain Xreal Services, Applications or Collective Content) may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms and terms and conditions posted for a specific area of the Sites, Xreal Services, Application or Collective Content, the latter terms and conditions will take precedence with respect to your use of or access to that area of the Sites, Xreal Services, Application or Collective Content, as applicable.
Modification to Terms
Xreal reserves the right, at its sole discretion, to modify these Terms, at any time and without prior notice. If we modify these Terms we will post the modification on the Sites or via the Application or provide you with notice of the modification. We will also update the “Last Updated Date” at the top of these Terms. By continuing to access or use the Sites, Xreal Services or Application after we have posted a modification on the Sites or via the Application or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Sites and Xreal Services and Application.
Eligibility
The Sites, Xreal Services and Application are intended solely for persons who are 13 or older. Any access to or use of the Sites, Xreal Services or Application by anyone under 13 is expressly prohibited. By accessing or using the Sites, Xreal Services or Application you represent and warrant that you are 13 or older. If you are under the age of 18, you may only use the Sites, Xreal Services and Application under the supervision of a parent or guardian who agrees to be bound by these Terms.
Account Registration
In order to access certain features of the Sites, Xreal Services, and Application and to post any User Content on the Sites or through the Xreal Services or Application you will be required to create an account (“Account”) in order to become a Registered User.
You may have the option (not all of our services offer you that option) to register to use the Xreal Services by logging into your account with certain third party social media or social networking sites (“SNS”) (including, but not limited to, Facebook) via the Sites or Application, as described herein. If you decide to register through an SNS, we will extract the personal information you have provided to the SNS (such as your name, birthday, gender, email address, SNS profile picture, list of SNS friends and other information you make publicly available via the SNS). The specific information that we extract may depend on the privacy settings you have with the SNS. You hereby consent to our access to and collection of such personal information about you.
You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. Xreal reserves the right to suspend or terminate your Account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password or transfer code obtained inside the game. You agree that you will not disclose your password or transfer code to any third party and that you will take sole responsibility for any activities or actions under your Account, whether or not you have authorized such activities or actions. You will immediately notify Xreal of any unauthorized use of your Account.
Game Currency and Virtual Goods
The Xreal Services may include a virtual, in-Xreal Services currency including, but not limited to Xreal “cash”, “coins”, “crystals” or “points” (“ Game Currency”). You may (i) earn a limited license to use Game Currency through gameplay within the Xreal Services or (ii) purchase a limited license to use Game Currency from Xreal for “real world” money if you are a legal adult in your country of residence. Xreal’s Game Currency is made available to you at the sole discretion of Xreal and may be discontinued at any time. The Xreal Services may also include virtual, digital items (“Virtual Goods”) that you may purchase or earn a limited license to use from Xreal within the Xreal Services with Game Currency. Regardless of the terminology used, Game Currency and Virtual Goods may never be redeemed for “real world” money, goods or other items of monetary value from Xreal or any other party, except as otherwise required by applicable law.
Your right to use any Virtual Goods and Game Currency that you obtain are limited to a non-exclusive, non-transferable, non-sublicenseable, revocable right to use such Virtual Goods and Game Currency solely within the Xreal Services for your personal and noncommercial use and for no other purpose. Except for the limited rights described herein, you have no property interest or right or title in or to any such Virtual Goods or Game Currency, which remain the exclusive property of Xreal. As stated above, the existence of a particular offer of Virtual Goods or Game Currency is not a commitment by Xreal to maintain or continue to make the Virtual Goods or Game Currency available in the future. The scope, variety and type of Virtual Goods and Game Currency that you may obtain can change at any time. Xreal has the absolute right to manage, regulate, control, modify or eliminate such Game Currency or Virtual Goods as it sees fit in its sole discretion, and Xreal will have no liability to you or anyone for the exercise of such rights.
Except where explicitly authorized within the Xreal Services, (i) transfers of Game Currency or Virtual Goods are strictly prohibited; (ii) outside of the Xreal Services, you may not buy or sell any Game Currency or Virtual Goods for “real world” money or otherwise exchange items for value; and (iii) Xreal does not recognize any such purported transfers of Game Currency or Virtual Goods, nor the purported sale, gift or trade in the “real world” of anything that appears in the Xreal Services. Any attempt to do any of the foregoing is in violation of these Terms and will result in an automatic termination of your rights to use the Game Currency or Virtual Goods and may result in termination of your Account, a lifetime ban from the Xreal Services and/or possible legal action. You agree that all sales of Virtual Goods and Game Currency are final. No refunds will be given, except in our sole and absolute discretion. All Virtual Goods and Game Currency are forfeited if your Account is terminated or suspended for any reason, in Xreal’s sole and absolute discretion, or if Xreal discontinues providing the Xreal Services.
Payment Terms
Certain aspects of the Xreal Services are, or may in the future be, provided for a fee or other charge. In the event you choose to use paid aspects of the Xreal Services, (e.g., if you decide to purchase a license to use Game Currency), you agree to the pricing, payment and billing policies applicable to such fees and charges, as posted in via the Xreal Services. When you make a purchase via the Xreal Services, Xreal or our third party payment processors may collect your billing information, including, but not limited to your credit card information and billing address. You authorize Xreal or its third party payment processors to charge your payment method for any purchases you make via the Xreal Services. All fees are non-refundable and non-transferable except as expressly provided in these Terms. All fees and applicable taxes, if any, are payable in United States dollars.
Privacy
See Xreal’s Privacy Policy at www.fortressfury.com/privacy for information and notices concerning Xreal’s collection and use of information about you and your use of the Xreal Services, Sites and Application.
Ownership
The Sites, Xreal Services, Application and Collective Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You acknowledge and agree that the Sites, Xreal Services, Application and Collective Content, including all associated intellectual property rights, are the exclusive property of Xreal and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Sites, Xreal Services, Application or Collective Content.
Licenses Granted by Xreal to Xreal Content and User Content
Subject to your compliance with these Terms, Xreal grants you a limited, non-exclusive, non-transferable license: (i) to view, download and print any Xreal Content solely for your personal and non-commercial purposes; and (ii) to view any User Content to which you are permitted access solely for your personal and non-commercial purposes. You have no right to sublicense the license rights granted in this section.
You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Sites, Xreal Services, Application or Collective Content, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Xreal or its licensors, except for the licenses and rights expressly granted in these Terms.
License granted by Registered User
We may, in our sole discretion, permit Registered Users to post, upload, publish, submit or transmit User Content. By making available any User Content on or through the Sites, Xreal Services or Application, you hereby grant to Xreal a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit such User Content in any media, including in connection with Xreal’s marketing and promotional activities. You further grant Xreal and Xreal’s sublicensees the right to use the name that you submit in connection with User Content, if they choose. Xreal does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any User Content.
You acknowledge and agree that you are solely responsible for all User Content that you make available through the Sites, Xreal Services or Application. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all User Content that you make available through the Sites, Xreal Services or Application or you have all rights, licenses, consents and releases that are necessary to grant to Xreal and to the rights in such User Content, as contemplated under these Terms; and (ii) neither the User Content nor your posting, uploading, publication, submission or transmittal of the User Content or Xreal’s use of the User Content (or any portion thereof) on, through or by means of the Sites, Xreal Services or Application will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
Content from Social Media and Networking Sites
As part of the functionality of the Sites, Xreal Services and Application, you may link your Account with online accounts you may have with third party SNS (each such account, an “SNS Account”) by either: (i) providing your SNS Account login information to Xreal through the Sites, Xreal Services or Application; or (ii) allowing Xreal to access your SNS Account, as is permitted under the applicable terms and conditions that govern your use of each SNS Account. You represent that you are entitled to disclose your SNS Account login information to Xreal and/or grant Xreal access to your SNS Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable SNS Account and without obligating Xreal to pay any fees or making Xreal subject to any usage limitations imposed by such SNS.
By granting Xreal access to any SNS Accounts, you understand that Xreal will access, make available and store (if applicable) any Content that you have provided to and stored in your SNS Account (“SNS Account Content”) so that it is available on and through the Sites, Xreal Services and Application via your Account. Unless otherwise specified in these Terms, all SNS Account Content, if any, will be considered to be User Content for all purposes of these Terms. Depending on the SNS Accounts you choose and subject to the privacy settings that you have set in such SNS Accounts, personally identifiable information that you post to your SNS Accounts will be available on and through your Account on the Sites, Xreal Services and Application. Please note that if a SNS Account or associated service becomes unavailable or Xreal’s access to such SNS Account is terminated by the SNS, then the SNS Account Content that was available from such SNS Account may no longer be available on and through the Sites, Xreal Services and Application. You have the ability to disable the connection between your Account and your SNS Accounts, at any time, by sending an email to [email protected] and ask your account to be deleted. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE SNS ASSOCIATED WTH YOUR SNS ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH SNS. Xreal makes no effort to review any SNS Account Content for any purpose, including but not limited to, for accuracy, legality or non-infringement and Xreal is not responsible for any SNS Account Content.
Application License
Subject to your compliance with these Terms, Xreal grants you a limited non-exclusive, non-transferable license to download and install a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal use. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (“ App Store Sourced Application”), you will use the App Store Sourced Application only: (i) on an Apple-branded product that runs iOS (Apple’s proprietary operating system software); and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Xreal reserves all rights in and to the Application not expressly granted to you under these Terms.
Accessing and Downloading the Application from iTunes
The following applies to any App Store Sourced Application:
● You acknowledge and agree that (i) these Terms are concluded between you and Xreal only, and not Apple, and (ii) Xreal, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
● You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support Xreal Services with respect to the App Store Sourced Application.
● In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Xreal and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Xreal.
● You and Xreal acknowledge that, as between Xreal and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
● You and Xreal acknowledge that, in the event of any third party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Xreal and Apple, Xreal, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
● You and Xreal acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App Store Sourced Application against you as a third party beneficiary thereof.
● Without limiting any other terms of these Terms, you must comply with all applicable third party terms of agreement when using the App Store Sourced Application.
Feedback
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Sites, Xreal Services or Application (“Feedback”). You may submit Feedback via our forums, accessible at forum. fortressfury.com. You acknowledge and agree that if you submit any Feedback to us, you hereby grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sub-licensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
General Prohibitions
You agree not to do any of the following:
● Post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances.
● Use, display, mirror or frame the Sites or Application, or any individual element within the Sites, Xreal Services or Application, Xreal’s name, any Xreal trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Xreal’s express written consent;
● Access, tamper with, or use non-public areas of the Sites or Application, Xreal’s computer systems, or the technical delivery systems of Xreal’s providers;
● Attempt to probe, scan, or test the vulnerability of any Xreal system or network or breach any security or authentication measures;
● Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Xreal or any of Xreal’s providers or any other third party (including another user) to protect the Sites, Xreal Services, Application or Collective Content;
● Attempt to access or search the Sites, Xreal Services, Application or Collective Content or download Collective Content from the Sites, Xreal Services or Application through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Xreal or other generally available third party web browsers;
● Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
● Use any meta tags or other hidden text or metadata utilizing a Xreal trademark, logo, URL or product name without Xreal’s express written consent;
● Use the Sites, Xreal Services, Application or Collective Content for any commercial purpose or the benefit of any third party or in any manner not permitted by these Terms;
● Forge any TCP/IP packet header or any part of the header information in any email or forum posting, or in any way use the Sites, Xreal Services, Application or Collective Content to send altered, deceptive or false source-identifying information;
● Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Sites, Xreal Services, Application or Collective Content;
● Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Sites, Xreal Services or Application;
● Collect or store any personally identifiable information from the Sites, Xreal Services or Application from other users of the Sites, Xreal Services or Application without their express permission;
● Impersonate or misrepresent your affiliation with any person or entity;
● Violate any applicable law or regulation
● Obtain Game Currency from the Sites or Application without a legal payment form;
● Obtain Game Currency from other third-party websites or applications;
● Purchase an existing account or username from another user; or
● Encourage or enable any other individual to do any of the foregoing.
Xreal will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Xreal may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that Xreal has no obligation to monitor your access to or use of the Sites, Xreal Services, Application or Collective Content or to review or edit any Collective Content, but has the right to do so for the purpose of operating the Sites, Xreal Services and Application, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Xreal reserves the right, at any time and without prior notice, to remove or disable access to any Collective Content that Xreal, at its sole discretion, considers to be in violation of these Terms or otherwise harmful to the Sites, Xreal Services or Application.
Rules for Using the Xreal Services
In addition to the General Prohibitions listed above, your playing of, and participation in, the Xreal Services is governed by specific rules (“ Rules”) maintained and enforced exclusively by Xreal. Your cooperation in understanding and complying with the Rules is essential to ensure that all users can enjoy their experience with the Xreal Services. According to the Rules, you must:
● respect the rights of other users to enjoy and play the games and features available as part of the Xreal Services. To this end, you may not defraud, harass, threaten, or cause distress and/or unwanted attention to other users. You will not report users maliciously, or cause them to be investigated without reason;
● not spam, flood, or make duplicate posts, post commercial solicitations or ads when engaging in any interaction with other users or any Xreal employees or agents, including customer service representatives, or otherwise disrupt the normal flow of dialogue, or use sexually explicit, harmful, threatening, abusive, defamatory, obscene, hateful, or racially or ethnically offensive language or link to any such language or content;
● not impersonate any employee or agent including customer service representatives, of Xreal or its affiliates;
● not post or communicate your own or any other user’s personal information (including name, address, or e-mail address) through the Xreal Services, Application or the Sites;
● not offer or perform Xreal Services via the Xreal Services for “real world” cash;
● not exchange or transfer – whether in or outside of the Xreal Services – any Game Currency or Virtual Goods available in the Xreal Services, except as permitted by the in-game play;
● not organize or be a user of any groups within the Xreal Services that are based on or espouse any racist, sexist, anti-religious, anti-ethnic, anti-gay or other discriminatory values;
● not exploit any errors in design features which have not been documented, and/or "bugs" to gain access to content or Game Currency that is otherwise not available to users, or to obtain a competitive advantage over other users or any other unintended benefit; or communicate the existence of any such errors or “bugs,” either directly or through public posting, to other users;
● not use any third-party program (such as a “bot”) in order to automate gameplay functions, including playing, interacting, or gathering Game Currency or Virtual Goods within the Xreal Services; and
● not cheat as part of in-Xreal Services play or engage in any other conduct that is disrespectful to other users or contrary to the “spirit” of the Xreal Services.
Sweepstakes and Contests
Xreal may operate sweepstakes, contests and similar promotions (collectively, “Promotions”) through the Xreal Services. You should carefully review the rules (e.g., the “Official Rules”) of each Promotion in which you participate through the Xreal Services, as they may contain additional important information about Xreal’s rights to and ownership of the submissions you make as part of the Promotions and as a result of your participation in such Promotions. To the extent that the terms and conditions of such Official Rules conflict with these Terms, the terms and conditions of such Official Rules will control.
Copyright Policy
Xreal respects copyright law and expects its users to do the same. It is Xreal’s policy to terminate in appropriate circumstances Registered Users or other account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see Xreal’s Copyright Policy atwww.fortressfury.com /dcma, for further information.
Links
The Sites, Xreal Services or Application may contain links to third-party websites or resources. You acknowledge and agree that Xreal is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Xreal of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the content, products, or services on or available from such websites or resources.
Termination and Account Cancellation
Xreal reserves the right, at its sole discretion, to modify, discontinue or terminate the Sites, Xreal Services or Application at any time and without prior notice. If you breach any of these Terms, Xreal will have the right to suspend or disable your Account or terminate these Terms, at its sole discretion and without prior notice to you. In addition, Xreal reserves the right to revoke your access to and use of the Sites, Xreal Services, Application and Collective Content at any time, with or without cause. In the event Xreal terminates these Terms for your breach, you will remain liable for all amounts due hereunder. You may cancel your Account at any time by sending an email to [email protected]
Disclaimers
THE SITES, XREAL SERVICES, APPLICATION AND COLLECTIVE CONTENT ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, XREAL EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. XREAL MAKES NO WARRANTY THAT THE SITES, XREAL SERVICES, APPLICATION OR COLLECTIVE CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. XREAL MAKES NO WARRANTY REGARDING THE QUALITY OF ANY PRODUCTS, XREAL SERVICES OR COLLECTIVE CONTENT PURCHASED OR OBTAINED THROUGH THE SITES, XREAL SERVICES OR APPLICATION OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SITES, XREAL SERVICES OR APPLICATION.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM XREAL OR THROUGH THE SITES, XREAL SERVICES, APPLICATION OR COLLECTIVE CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
THE XREAL SERVICES MAY ONLY BE USED ONLINE OR VIA A MOBILE DEVICE. YOU ARE SOLELY RESPONSIBLE FOR OBTAINING AND MAINTAINING ADEQUATE INTERNET CONNECTIONS AND MOBILE DEVICE PLANS AND PAYING FOR ANY RELATED CHARGES FOR USE OF THE XREAL SERVICES.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITES, XREAL SERVICES AND APPLICATION AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITES, XREAL SERVICES OR APPLICATION. YOU UNDERSTAND THAT XREAL DOES NOT SCREEN OR INQUIRE INTO THE BACKGROUND OF ANY USERS OF THE SITES, XREAL SERVICES OR APPLICATION, NOR DOES XREAL MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SITES, XREAL SERVICES OR APPLICATION. XREAL MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SITES, XREAL SERVICES OR APPLICATION OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE SITES, XREAL SERVICES OR APPLICATION. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE, XREAL SERVICES AND APPLICATION AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITES, XREAL SERVICES OR APPLICATION, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON.
Indemnity
You agree to defend, indemnify, and hold Xreal, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your access to or use of the Sites, Xreal Services, Application or Collective Content, or your violation of these Terms.
Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITES, XREAL SERVICES, APPLICATION AND COLLECTIVE CONTENT REMAINS WITH YOU. NEITHER XREAL NOR ANY OTHER PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITES, XREAL SERVICES, APPLICATION OR COLLECTIVE CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SITES, XREAL SERVICES, APPLICATION OR COLLECTIVE CONTENT, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SITES, XREAL SERVICES OR APPLICATION OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITES, XREAL SERVICES OR APPLICATION WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT XREAL HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL XREAL’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SITES, XREAL SERVICES, APPLICATION OR COLLECTIVE CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TO XREAL FOR USE OF THE SITES, XREAL SERVICES, APPLICATION OR COLLECTIVE CONTENT, IF YOU HAVE MADE ANY PAYMENTS TO XREAL AS PART OF YOUR USE OF THE XREAL SERVICES, OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT MADE ANY PAYMENTS TO XREAL AS PART OF YOUR USE OF THE XREAL SERVICES, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN XREAL AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
All trademarks, service marks, logos, trade names and any other proprietary designations of Xreal used herein are trademarks or registered trademarks of Xreal. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
Controlling Law and Jurisdiction
These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights will be the state and federal courts located in the Southern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
Export Control
You agree to comply fully with all U.S. and foreign export laws and regulations to ensure that neither the Application nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. By using the App Store Sourced Application, you represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
Entire Agreement
These Terms constitute the entire and exclusive understanding and agreement between Xreal and you regarding the Sites, Xreal Services, Application and Collective Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Xreal and you regarding the Sites, Xreal Services, Application and Collective Content.
You may not assign or transfer these Terms, by operation of law or otherwise, without Xreal’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Xreal may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given: (i) by Xreal via email (in each case to the address that you provide); (ii) by posting to the Sites; or (iii) via the Application. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
PLEASE READ THE FOLLOWING PARAGRAPH CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH XREAL AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM XREAL.
You and Xreal agree to arbitrate any dispute arising from these Terms or your use of the Site, except that you and Xreal are not required to arbitrate any dispute in which either party seeks equitable and other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. ARBITRATION PREVENTS YOU FROM SUING IN COURT OR FROM HAVING A JURY TRIAL.
You and Xreal agree that you will notify each other in writing of any dispute within thirty (30) days of when it arises. Notice to Xreal shall be sent to [email protected]. You and Xreal further agree: (a) to attempt informal resolution prior to any demand for arbitration; (b) that any arbitration will occur in Los Angeles County, California; (c) that arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of JAMS; and (d) that the state or federal courts in Los Angeles County, California have exclusive jurisdiction over any appeals of an arbitration award and over any suit between the parties not subject to arbitration. Other than class procedures and remedies discussed below, the arbitrator has the authority to grant any remedy that would otherwise be available in court. WHETHER THE DISPUTE IS HEARD IN ARBITRATION OR IN COURT, YOU AND XREAL WILL NOT COMMENCE AGAINST THE OTHER A CLASS ACTION, CLASS ARBITRATION OR OTHER REPRESENTATIVE ACTION OR PROCEEDING.
General
The failure of Xreal to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Xreal. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
Contacting Xreal
If you have any questions about these Terms or any Sites, Xreal Services, or Application, please contact Xreal at Xreal LLC, 604 Arizona Avenue, Santa Monica, CA 90401. Send email to [email protected].
