Last Updated and Effective Upon the Following Date: October 11, 2022
1. DESCRIPTION OF SERVICE; ACCEPTANCE OF TERMS
Welcome to DanceFight, a social video application owned and operated by Virtual Arts Inc. (“Company”, “us” or “we”), which lets you (“you”, “your” or “User”) express yourself through dance, challenge friends and community members to dance battles and allows community feedback and support for dancers (together with all products and services offered therein, the “App”). These DanceFight Terms of Use (the “Terms of Use”) and all other terms and conditions, policies and/or documents incorporated by reference into these Terms of Use, including, without limitation, the DanceFight Privacy Policy (available at https://dancefightapp.com/privacy the “Privacy Policy”) constitute a legally binding agreement between Company and each User.
PLEASE READ THEE TERMS OF USE CAREFULLY. BY CLICKING “ACCEPT,” CREATING AN ACCOUNT, AND/OR ACCESSING OR OTHERWISE USING THE APP, YOU AGREE TO THESE TERMS OF USE, AND YOU ARE DEEMED TO HAVE ACCEPTED AND EXECUTED, AND ARE BOUND BY, THE TERMS OF THESE TERMS OF USE. If at any time you do not accept the terms and conditions set forth in these Terms of Use, you must immediately stop using the App.
Notice regarding arbitration and dispute resolution: YOU AND COMPANY AGREE THAT ANY FUTURE DISPUTES BETWEEN YOU AND COMPANY WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, UNLESS YOU OPT-OUT IN ACCORDANCE WITH SECTION 14.6. UNLES YOU OPT-OUT OF ARBITRATION, YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING, AND YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS. IF YOU WISH TO OPT OUT OF ARBITRATION, FOLLOW THE OPT-OUT PROCEDURE SPECIFIED IN SECTION 14.6 BELOW.]
2. MODIFICATION OF TERMS. Company may change or amend these Terms of Use at any time in its sole discretion. If Company makes a material change or amendment to these Terms of Use, it will notify Users of the applicable change or modification by posting the applicable change or amendment within the App at least thirty (30) days in advance of the effective date of the change or amendment. If you are a registered User of the App, we will notify you of material changes to these Terms of Use by email at least thirty (30) days before the effective date of the changes. It is therefore very important that you make sure we have a current email address for you on file so that you will receive notice of any material changes. In addition, you may be required to affirmatively accept the new Terms of Use the first time you visit the App and log in to your member account after the new Terms of Use take effect. IF ANY OF THESE TERMS OF USE OR ANY FUTURE CHANGES ARE UNACCEPTABLE TO YOU, DO NOT CREATE A USER ACCOUNT OR USE OR CONTINUE TO USE THE APP. YOUR CONTINUED USE OF THE APP FOLLOWING THE EFFECTIVE DATE OF ANY CHANGE OR AMENDMENT TO THESE TERMS OF USE SHALL CONSTITUTE YOUR ACCEPTANCE AND AGREEMENT TO THE APPLICABLE CHANGE OR AMENDMENT. Company may offer other services or features from time to time that are governed by different terms of service and not specifically referenced in these Terms of Use. Unless explicitly stated otherwise, the applicable services or features shall be subject to these Terms of Use.
3. LICENSE TO USE THE APP; UPDATES TO THE APP; APP ACCESS
3.1 License to Use the App. Company grants you a limited, non-exclusive, non-transferable, non-assignable, non-sublicenseable license to access and make use of the App solely as provided herein, subject to these Terms of Use, and not for redistribution of any kind (the “License”), including, without limitation, a license to download and install a copy of the App on a mobile device that you exclusively control, and to run the App on the applicable device solely for your own personal, entertainment use. This License does not include any resale or other use of (A) the App, (B) any Registration Data (defined below), (C) any other content, materials, information, text, data, copyrights, trademarks, logos, designs, insignia, images, photos, sound recordings, compositions, screenshots, videos, posts, identifying marks, App pages, software, and other original works of authorship and/or intellectual property uploaded to, or incorporated into, the App by Company (collectively, “App Content”), which App Content is and shall remain the sole and exclusive property of Company (or the applicable third party owner from whom Company has licensed such App Content for use within the App, as applicable), or (D) any content, materials, information, text, data, copyrights, trademarks, logos, designs, insignia, images, photos, sound recordings, compositions, screenshots, videos, and other intellectual property that any other User submits or uploads to the App (collectively, “User Content”), which User Content is and shall remain the sole and exclusive property of the applicable User (subject to the licenses granted to Company in these Terms of Use). The App, App Content, and any User Content belonging to another User may not be used, modified, reproduced, duplicated, copied, published, distributed, downloaded, sold, resold, transformed, redesigned, reconfigured, retransmitted, or otherwise exploited by you for any purpose without express prior written consent of Company (or the applicable User with respect to such User’s User Content). Violation of this Section 3 may result in infringement of intellectual property and contractual rights of Company, other Users of the App, or other third parties, which is prohibited by law and could result in substantial civil and criminal penalties. Except as expressly set forth above, these Terms of Use do not grant to you any express, implied or other license or right in and to any intellectual property belonging to Company, any other User or any other third party. This License terminates automatically upon any unauthorized use of the App and Company will take appropriate investigative and legal action for any illegal or unauthorized use of the App.
3.2 Updates to the App. Company may in the future update the App to change the material, product and service offerings, App Content, and/or App features at any time (an “Update”). Company shall not be liable to any User in any way as a result of any temporary suspension of the App arising from or in connection with an Update. Furthermore, Company is under no obligation to implement an Update of the App. The terms of the License granted to you pursuant to this Section 3 shall apply in full to any Update. Additionally, you agree to promptly download and install any Update that Company makes available through the iTunes App Store or Google Play store or through any other mobile application store or otherwise, as applicable.
3.3 App Access. You acknowledge and agree that the availability of the App may be dependent on third party websites or mobile applications from which you download the App, e.g., the Apple App Store or Google Play Store (each a “Third Party App Store”). You acknowledge that these Terms of Use are between you and Company and not with the applicable Third Party App Store. Each Third Party App Store may have its own terms and conditions to which you must agree before downloading the App from it. You agree to comply with, and your license to use the App is conditioned upon, your compliance with the applicable Third Party App Store terms and conditions. To the extent that other terms and conditions from the applicable Third Party App Store are less restrictive than, or otherwise conflict with, these Terms of Use, the more restrictive or conflicting terms and conditions in these Terms of Use will apply. In addition, your access to the App may be interfered with by numerous factors outside of Company’s control including, but not limited to, telecommunications and/or wireless network service disruptions, computer or mobile device viruses and bugs, tampering, unauthorized intervention, fraud, technical failures, and server, equipment or software defects. Company is not responsible and will have no liability for any failures of the internet or any data or telecommunications equipment, system or network used in connection with the App.
4. USER ACCOUNTS; REGISTRATION
4.1 Creation of a User Account. In order to access and utilize the App, each User will need to register and create a unique User profile account (each, a “User Account”). You agree to create only one (1) unique User Account and that you shall be the sole authorized user of your User Account. You may create a User Account directly through the App, or through a third party social media service, as described below. As part of the User Account creation/registration process, Users will be asked to submit certain information such as the User’s name, email, address, phone number, date of birth, User public profile name, and/or picture, and to create a User Account login password (collectively, “Registration Data”). You agree that all Registration Data you provide to Company will be true, accurate, current and complete. Company may from time to time modify or add to the Registration Data information fields required as part of the User Account creation/registration process, and you agree to promptly complete any such additional or modified information fields when requested by Company. When creating your user account, you agree (i) not to knowingly use the name or email of any other person without authorization, and (ii) not to use a User public profile name that is profane, offensive or otherwise inappropriate
4.2 Registration Through Third Party Social Media Services. You may also be able to log in to the App through a third party social media service that you belong to, such as Snapchat. By logging in to App through these social media services, you grant us permission to access and use the information that you post or store on the applicable social media service, in accordance with the privacy policy of that service and the privacy settings that are applicable to your account, and to store the user name and password you use to log-in to the applicable social media service. For more details on how you can manage the information provided to us by these social media services please review the privacy settings applicable to your account with the applicable social media service.
4.3 Responsibility for Your User Account. Company will have the right to use your Registration Data in accordance with the Privacy Policy. You agree (i) to keep your Registration Data true, accurate, current and complete at all times (and will promptly update your Registration Data as necessary from time to time), (ii) to restrict access by any other person or entity to your User Account, password or other login information, (iii) to not allow any third party to use your login information, Registration Data or Account, and (iv) to notify Company of any breach of security relating to your Registration Data that you become aware of by promptly sending Company an e-mail to feedback@dancefightapp.com. You agree that you will be liable for all activities that occur under your User Account, even if the applicable activities were not committed by you. Company is not responsible for any loss or damage as a result of someone else using your User Account, Registration Data or password with or without your knowledge. You acknowledge and agree that certain Registration Data (such as your User public profile name and/or picture) that you provide in connection with the User Account creation/registration process will be publicly viewable by all other Users of the App.
4.4 Premium Services. Company may offer one or more premium services or features within the App that require payment, including by subscription (each service or feature, a “Premium Service”). Company will provide the terms and conditions, including pricing, payment and cancellation terms, that are applicable to the applicable Premium Service at the time Company offers any applicable paid Premium Service to you. Each applicable Premium Service may offer additional content, features and/or functionality that are not otherwise available for free via the App.
5. PRIVACY. Your privacy is very important to us. To understand our practices, please review our Privacy Policy at: https://dancefightapp.com/privacy, which is incorporated by reference into these Terms of Use and also applies to your use of the App. By agreeing to these Terms of Use, you agree to be bound by the terms of the Privacy Policy and agree that we may use information collected from you in accordance with its terms.
6. ELIGIBILITY
6.1 Age Requirements. The App is available only to persons who are thirteen (13) years or older. BY ACCESSING AND USING THE APP, INCLUDING, BUT NOT LIMITED TO, CREATING A USER ACCOUNT, YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST THIRTEEN (13) YEARS OLD. IN ADDITION, IF YOU ARE 13 YEARS OR OLDER BUT UNDER THE AGE OF MAJORITY IN THE JURISDICTION WHERE YOU ARE LOCATED, (a) YOU REPRESENT AND WARRANT THAT YOU HAVE OBTAINED PERMISSION FROM YOUR PARENT OR LEGAL GUARDIAN PRIOR TO ACCESSING AND USING THE APP, (b) THAT THE CONSENT FROM YOUR PARENT OR LEGAL GUARDIAN WAS GIVEN PRIOR TO INITIATING ANY TRANSACTION IN CONNECTION WITH YOUR ACCESS AND USE OF THE APP, AND (c) YOUR PARENT OR GUARDIAN HAS AGREED TO THESE TERMS OF USE AND YOUR USE OF THE APP.
6.2 Affirmative Representations Regarding Your Use of the App. You represent and warrant that (A) you have the right, authority and capacity to enter into, and to be bound by, these Terms of Use, (B) you will abide by the terms and conditions of these Terms of Use, (C) your use of the App does not violate any applicable law or regulation; and (D) you are of sufficient legal age or otherwise have legal capacity to legally enter into these Terms of Use.
6.3 Eligibility Requirements Concerning Your Use of the ADR Service. Per legal requirements, the Company has contracted with a third-party company (hereinafter “Pex”) to provide and manage a dispute resolution service that settles copyright disputes between you and a rightsholder concerning your content uploaded to the App (hereinafter “ADR Service”).
You will not file any frivolous claims, make any misleading or untrue statements, or attempt to circumvent or otherwise use the ADR Service in a way that in Pex’s judgment in its sole discretion was not intended, and if you do so, Pex or the Company may prevent you from using the ADR Service indefinitely.
7. RULES GOVERNING USER CONTENT. You are entirely responsible for the content of, and any harm resulting from, any User Content that you post on or through the App. When you create or make available any User Content on or through the App, you represent and warrant that:
8. PUBLIC AREAS; CONDUCT WITH OTHER USERS; PROHIBITED USES
8.1 Public Areas. The App contains User public profiles, chat and other User-to-User messaging functions, and may in the future contain additional communication facilities that allow Users to communicate with other Users (collectively, “Public Areas”). You may only use these Public Areas to send and receive messages and material that are relevant and proper to the applicable forum. You further acknowledge and agree that submissions made to Public Areas may be publicly available to other Users, or the public generally, and that you will be publicly identified by your User Account public profile name when communicating in Public Areas, and Company will not be responsible for the action of any Users with respect to any information or materials posted in Public Areas.
8.2 Interactions with Other Users. All Users shall be solely responsible for all interactions with other Users of the App. In your interactions with other Users, you agree to conduct yourself in accordance with our Community Guidelines located at https://dancefightapp.com/guidelines/. In addition, while using the App, you agree that you shall not under any circumstances harass, disparage or make mischief against any other User of the App. You hereby acknowledge and agree that Company does not actively monitor or police the Public Areas or specific interactions between Users of the App (and has no obligation to do so) and you hereby disclaim and hold Company harmless from and against any and all liability resulting from a User’s interaction with, or conduct towards, any other User.
8.3 Prohibited Uses. Without limiting the foregoing, while using the App you may not:
9. OUR MANAGEMENT OF THE APP; USER MISCONDUCT
9.1 Our Right to Manage the App. We reserve the right, but do not undertake the obligation to: (A) monitor or review your use of the App for violations of these Terms of Use and for compliance with our policies; (B) report to law enforcement authorities and/or take legal action against anyone who violates these Terms of Use; (C) refuse, restrict access to or the availability of, or remove, delete, edit or disable (to the extent technologically feasible) any User Content or any portion thereof; (D) manage the App in a manner designed to protect our, our members, and third parties’ rights and property or to facilitate the proper functioning of the App; and/or (E) terminate or block you your use of the App for violating these Terms of Use. Company reserves the right, in its sole discretion, to limit, suspend or terminate your access to the App if you file any claim against Company or any claim that involves the App. Company also reserves the right, at its sole discretion, to seek and obtain any other remedies available to it pursuant to any applicable laws and regulations or at equity as a result of your breach of these Terms of Use or any other act or omission by you that gives rise to a claim by Company. If Company limits, suspends or terminates your right to use the App, you are prohibited from accessing or using the App through any other third party, or registering and creating a new User Account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party, unless and until Company lifts any such suspension or termination in by written notice to you. In the event your right to use the App terminated, limited, or suspended, these Terms of Use will remain in effect and be enforceable against you.
9.2. Our Right to Terminate Users. WITHOUT LIMITING ANY OTHER PROVISION OF THESE TERMS OF Use OR ANY REMEDY WE MAY HAVE UNDER LAW OR IN EQUITY, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION, AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE App TO ANY PERSON FOR ANY REASON OR FOR NO REASON AT ALL, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT CONTAINED IN THESE TERMS OF Use, OR OF ANY APPLICABLE LAW OR REGULATION.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 Company’s Rights. Company retains all right, title and interest in and to the App, including, without limitation, (A) all text, graphics, typefaces, formatting, graphs, designs, editorial content, HTML, look and feel, software, and data, (B) all business processes, procedures, methods, and techniques used in the App, (C) all other materials and content uploaded or incorporated into the App, including, without limitation, all App Content (but excluding (i) User Content, which is owned by the applicable User, but which Company has a license to use pursuant to these Terms of Use, and (ii) certain App Content licensed by Company from a third party owner for use within the App, which is owned by the applicable third party owner, subject to the license granted by the applicable third party owner to Company), and (D) all associated trade secret rights and other intellectual property and proprietary rights recognized anywhere in the world (collectively, “App IP”). App IP is protected in all forms, media and technologies now known or hereinafter developed. Company also owns the coordination, selection, arrangement and enhancement of the App IP as a Collective Work under the United States Copyright Act, as amended. The App IP is protected by the domestic and international laws of copyright, patents, and other proprietary rights and laws. The service marks and trademarks of Company, including without limitation the trademark “DanceFight,” and all Company logos are service marks and trademarks owned by Company. Any other trademarks, service marks, logos and/or trade names appearing via the App are the property of their respective owners. You may not copy or use any of these marks, logos or trade names without the express prior written consent of Company or the applicable owner.
10.2 Your Rights and Non-Exclusive License to Company. You retain all right, title and interest in and to any original User Content that you upload onto the App; provided, that you hereby grant to Company a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, transferrable, assignable, sublicensable (through multiple tiers) license to exercise all copyright, publicity rights, and any other rights you have in your User Content, in any media now known or not currently known in order to operate, perform, promote, advertise, market, and improve upon the App. By using the App, you acknowledge and agree that Company may publicly distribute any and all of your User Content and may package and adapt your User Content for sale and thereafter monetization, including any dances you perform using the App, for any lawful purpose, including for Company’s own marketing purposes. If you do not want Company to use your User Content for these purposes, you should not post User Content to the App.
11. STORAGE OF USER CONTENT. You acknowledge and agree that Company may establish general practices and limits concerning use of the App, including without limitation the maximum number of days that User Content posted to the App will be retained by or made available through the App and the maximum disk space that will be allotted on Company’s servers on your behalf. You agree that Company has no responsibility or liability for the blocking, deletion or failure to store any User Content maintained or transmitted by the App. You further acknowledge that Company reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice to you.
12. DIGITAL MILLENNIUM COPYRIGHT ACT POLICY. We respect the rights of content creators. We ask you to be responsible in making sure that any User Content you post on or through the App does not infringe on any copyrights or other intellectual property rights.
12.1 DMCA Notifications.
(A) If you believe that material available on or through the App infringes one or more of your copyrights, please send a notification (a “DMCA Notification”) including all of the information described below to our DMCA Agent by mail or email using the contact information provided below.
(B) We will in our discretion remove or disable access to the content complained of, and in appropriate circumstances, terminate the account and/or access rights of repeat infringers.
(C) In addition, we will send a copy of the DMCA Notification to the affected user, who may submit a counter notification as described in Section 12.3 below (a “DMCA Counter Notification”) that could result in our restoring content removed in response to a DMCA Notification.
(D) You may send a DMCA Notification to our DMCA Agent at:
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Virtual Arts Inc. |
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| Attn: Richard Sloan
34300 Woodward Ave, Suite 200, Birmingham, MI 480009 USA Phone: (512) 827-8683 Email: copyright@dancefightapp.com |
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12.2 DMCA Notification Requirements. All DMCA Notifications must include the following:
A copy of your DMCA Notification will be sent to the person who uploaded the material addressed in the DMCA Notification.
Please be advised that under Section 512(f) of the Digital Millennium Copyright Act you may be held liable for damages and attorneys’ fees if you make material misrepresentations in a DMCA Notification.
12.3 DMCA Counter Notifications from Users. If you, the User, receive a DMCA Notification because your content is claimed to infringe a copyright, but you believe in good faith that your content is not infringing or that you have authorization to use the material, you may respond to the DMCA Notification by sending a DMCA Counter Notification to our DMCA Agent (whose contact information is provided above) that includes:
If you submit a DMCA Counter Notification, a copy of the DMCA Counter Notification, including your name and contact information, will be sent to the copyright owner or person who provided the DMCA notification.
Please note that sending a DMCA Counter Notification may not result in your content being restored to the App if the copyright owner chooses to file suit against you within ten (10) business days of receiving the applicable DMCA Counter Notification.
13. Intellectual Property Infringement Policy. If you believe that content available on or through the App infringes one or more of your copyrights, please review and follow the instructions set forth under our DMCA Policy in Section 12 above.
If you believe that content available on the App infringes your trademark, right of publicity, or other intellectual property right, please send a notification to our Intellectual Property Rights Agent as follows:
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The notification should include the following information:
Further, by providing us with the above information, you acknowledge and agree that your information and a copy of your notification may be provided to the user responsible for uploading the file you claim is infringing, other third parties for review and processing.
14. LEGAL DISPUTES AND ARBITRATION AGREEMENT
Please Read This Following Clause Carefully – It May Significantly Affect Your Legal Rights, Including Your Right to File a Lawsuit in Court
14.1 Initial Dispute Resolution. Company is available by email at feedback@dancefightapp.com to address any concerns you may have regarding your use of the App. Most concerns may be quickly resolved in this manner. Each of you and Company agree to use best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.
14.2 Agreement to Binding Arbitration. If we do not reach an agreed upon solution within a period of thirty (30) days from the time informal dispute resolution is pursued pursuant to Section 14.1 above, then either party may initiate binding arbitration. All claims arising out of or relating to these Terms of Use (including their formation, performance and breach), the parties’ relationship with each other and/or your use of the App shall be finally settled by binding arbitration administered by JAMS, in accordance with the JAMS Streamlined Arbitration Rules and Procedures, excluding any rules or procedures governing or permitting class actions. Each party will have the right to use legal counsel in connection with arbitration at its own expense. The parties shall select a single neutral arbitrator in accordance with the JAMS Streamlined Arbitration Rules and Procedures. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms of Use, including, but not limited to, any claim that all or any part of these Terms of Use is void or voidable. You or we may elect to appear at the arbitration by phone or, if you and we both agree, to conduct it online, in lieu of appearing live. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be in writing and provide a statement of the essential findings and conclusions, shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The interpretation and enforcement of these Terms of Use shall be subject to the Federal Arbitration Act.
The JAMS rules governing the arbitration may be accessed at https://www.jamsadr.com/adr-rules-procedures. If you initiate arbitration, to the extent the filing fee for the arbitration exceeds Two Hundred and Fifty U.S. Dollars ($250.00), Company will pay the additional cost. If Company is required to pay the additional cost of the filing fees, you should submit a request for payment of fees to JAMS along with your form for initiating the arbitration, and Company will make arrangements to pay all necessary fees directly to JAMS. Company will also be responsible for paying all other arbitration costs arising in connection with the arbitration, other than costs incurred by you for legal counsel, travel and other out-of-pocket costs and expenses not constituting fees or amounts payable to JAMS. You will not be required to pay fees and costs incurred by Company if you do not prevail in arbitration. Company will also pay JAMS to reimburse you for any portion of the $250 filing fee that is more than what you would otherwise have to pay to file suit in a court of law.
The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that the right to discovery may be more limited in arbitration than in court.
14.3 Class Action and Class Arbitration Waiver. You and Company each further agree that any arbitration shall be conducted in our respective individual capacities only and not as a class action or other representative action, and you and Company each expressly waive our respective right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above in Section 14.2 shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
14.4 Exception – Small Claims Court Claims. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
14.5 Exception – California Private Attorneys General Act (PAGA) Action. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief in a court of law for a claim arising under California’s Private Attorneys General Act.
14.6 30 Day Right to Opt-Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in Sections 14.2 and 14.3 by sending written notice of your decision to opt-out by emailing Company at feedback@dancefightapp.com. The notice must be sent within thirty (30) days of registering to use the App, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those sections. If you opt-out of these arbitration provisions, Company also will not be bound by them.
14.7 Exclusive Venue for Litigation. To the extent that the arbitration provisions set forth in Section 14.2 do not apply, of if you want to pursue any legal remedies to which you would otherwise be entitled but that are not available to you pursuant to this Section 14, the parties agree that any litigation between them shall be filed exclusively in state or federal courts located in Oakland County, Michigan (except for small claims court actions which may be brought in the county where you reside). The parties expressly consent to exclusive jurisdiction in Oakland County, Michigan for any litigation other than small claims court actions. In the event of litigation relating to these Terms of Use or the App, the parties agree to waive, to the maximum extent permitted by law, any right to a jury trial.
15. THIRD-PARTY CONTENT
The App may include third-party content or links (such as hyperlinks) to third party websites, products or services (including external websites or services that are framed by the App as well as any advertisements displayed in connection therewith) that are not owned or controlled by Company (collectively, “Third Party Content”). Inclusion of any Third Party Content on the App does not constitute or indicate Company’s endorsement thereof and Company shall not be responsible for any Third Party Content transmitted through the App. You may be subject to additional terms and conditions of use, guidelines or rules applicable to any Third Party Content that you access through the App (“Third Party Terms”). You acknowledge and agree that Company will not and cannot censor or edit any Third Party Content and that you shall assume the sole responsibility for and risk associated with your use of Third Party Content, including compliance with the Third Party Terms associated therewith. Accordingly, Company encourages you to be aware when you leave the App and to read the Third Party Terms associated with any Third Party Content. By using the App, you expressly relieve Company from any and all liability arising from your use of any Third Party Content, including any loss or damage incurred as a result of any dealings between you and any third parties, or as the result of the presence of such Third Party Content on the App or the failure of such Third Party Content to function as intended.
16. TRANSACTIONS AND PAYMENT
The App may allow Users to engage in certain economic transactions (e.g., the purchase of a subscription to a creator) using a credit card, debit card, third-party online payment service such as PayPal, through a mobile device (such as Apple Pay or Google Pay), or other acceptable payment mechanism (“Payment Method”). When you provide information related to a Payment Method to Company, you represent that you are the owner or authorized user of the applicable Payment Method. You agree to provide current, complete, and accurate billing information in connection with your User Account and any Payment Method. You agree that Company and/or a third party may charge your Payment Method for any amounts (including any taxes and late fees, as applicable) as may be accrued by or in connection with your User Account as a result of certain purchases that you agree to make through the App. Failure to comply with this provision (including without limitation falsification of any information relating to your User Account or Payment Method) may, at Company’s option, result in immediate suspension or termination of your right to use the App. If your Payment Method expires you will remain responsible for any uncollected amounts.
The above referenced transactions may take place through an existing payment mechanism via a third-party service provider, in which case applicable payment terms and conditions will be those of the applicable third party service provider, including any related privacy policy (“Third Party Payment Terms”). In completing any applicable payment transactions (e.g., the purchase of certain music artist merchandise), you agree to be bound by and accept the Third-Party Payment Terms.
17. TERMINATION; REMOVAL OF USER CONTENT. If you do not agree to the terms in these Terms of Use, your sole remedy is to not use the App, and the rights granted to you in these Terms of Use shall be terminated. To remove any User Content that you may have posted onto the App, please send an email to feedback@dancefightapp.com setting forth the User Account email address you used to post such User Content and explicitly stating your desire to remove such User Content from the App. Subject to the requirements of applicable law, Company will use commercially reasonable efforts to remove the applicable User Content from the App within five (5) business days from the receipt of your email notice; provided, however, that the license granted to Company hereunder with respect to the applicable User Content shall remain in full force and effect until such time as the applicable User Content is removed from the App. Company’s failure to remove the applicable User Content from the App within the time period set forth above shall not constitute a breach by Company of these Terms of Use. All provisions in these Terms of Use which by their nature should be reasonably understood to survive termination, shall continue in full force and effect upon any termination of these Terms of Use.
18. WARRANTY DISCLAIMER; LIMITATION OF LIABILITY
18.1 Disclaimer of Warranties
(A) YOUR USE OF THE APP IS ENTIRELY AT YOUR OWN RISK. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE APP IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY (OR THE APPLICABLE THIRD PARTY OWNER FROM WHOM COMPANY HAS LICENSED applicable APP CONTENT FOR USE WITHIN THE APP, AS APPLICABLE) MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE APP CONTENT OR USER CONTENT PROVIDED THROUGH THE APP OR THIRD PARTY CONTENT INCLUDED IN, OR LINKED TO, THE APP AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE APP, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN.
(B) TO THE EXTENT PERMITTED BY APPLICABLE LAW, COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY WEBSITE, PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE APP OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING AND COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. WITHOUT LIMITING THE FOREGOING, NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS WARRANT THAT ACCESS TO THE APP WILL BE UNINTERRUPTED OR THAT THE APP WILL BE ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE APP, OR AS TO THE TIMELINESS, ACCURACY, RELIABILITY, COMPLETENESS OR CONTENT OF ANY INFORMATION OR MATERIALS PROVIDED THROUGH OR IN CONNECTION WITH THE USE OF THE APP. NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS WARRANT THAT THE APP IS FREE FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS. COMPANY AND ITS AFFILIATES AND LICENSORS CANNOT AND DO NOT GUARANTEE THAT ANY PERSONAL INFORMATION SUPPLIED BY YOU WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED OR USED BY OTHERS.
18.2 Limited Liability.
(a) YOU ACKNOWLEDGE AND AGREE THAT COMPANY IS ONLY WILLING TO PROVIDE THE APP IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND THIRD PARTIES. THEREFORE, to the extent permitted by applicable law, YOU AGREE NOT TO HOLD COMPANY, ITS AFFILIATES, ITS LICENSORS, ITS PARTNERS IN PROMOTIONS, SWEEPSTAKES OR CONTESTS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS LIABLE FOR ANY DAMAGE, SUITS, CLAIMS, AND/OR CONTROVERSIES (COLLECTIVELY, “LIABILITIES”) THAT HAVE ARISEN OR MAY ARISE, WHETHER KNOWN OR UNKNOWN, RELATING TO YOUR OR ANY OTHER PARTY’S USE OF OR INABILITY TO USE THE APP, INCLUDING WITHOUT LIMITATION ANY LIABILITIES ARISING IN CONNECTION WITH THE CONDUCT, ACT OR OMISSION OF ANY USER, ANY SERVICE PROVIDED BY COMPANY OR ITS AFFILIATES OR LICENSORS AND ANY DESTRUCTION OF YOUR INFORMATION. NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE APP AND YOU HEREBY RELEASE COMPANY AND ITS AFFILIATES OR LICENSORS FROM ANY LIABILITY RELATED THERETO.
(B) TO THE EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL COMPANY, ITS AFFILIATES, ITS LICENSORS (INCLUDING, WITHOUT LIMITATION, ANY APPLICABLE THIRD PARTY OWNER FROM WHOM COMPANY HAS LICENSED APP CONTENT FOR USE WITHIN THE APP, AS APPLICABLE), OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE APP, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT COMPANY OR ITS PARTNERS IN PROMOTIONS, SWEEPSTAKES OR CONTESTS, AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS IS LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED ONE HUNDRED ($100) DOLLARS.
(C) TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE § 1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
19. INDEMNIFICATION. You hereby agree to indemnify, defend and hold harmless, Company and its directors, officers, employees, affiliates, content partners, vendors, third party licensors, distributors, advertisers, and other contracting parties, together with their respective director, officers, employees, successors, assigns, consultants and other agents, from and against any and all losses, liabilities, damages, costs or expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim, action, or proceeding brought by a third party based on: (A) any breach of any representation, warranty, covenant or obligation of yours under these Terms of Use; (B) any Registration Data or User Content submitted or uploaded by you onto the App; (C) your violation of any applicable law or regulation; or (D) your violation of any third party right, including, but not limited to, any intellectual property right. Company shall promptly notify you of any such claim, and you shall assume control of the defense of such claim upon Company’s request. Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to your indemnification. You will not, in any event, settle any claim or matter without the written consent of Company. You will not be required to indemnify and hold Company or any other indemnified party harmless from and against any applicable claims or demands to the extent resulting from Company’s own negligent conduct.
20. NOTICE TO NEW JERSEY USERS. Notwithstanding any terms set forth in these Terms of Use, if any of the provisions set forth in Sections 14, 18, or 19 are held unenforceable, void or inapplicable under New Jersey law, then any applicable provision shall not apply to you but the rest of these Terms of Use shall remain binding on you and Company. In addition, for New Jersey residents, the limitation on liability is inapplicable where attorneys’ fees, court costs, or other damages are mandated by statute. Notwithstanding any provision in these Terms of Use, nothing in these Terms of Use is intended to, nor shall it be deemed or construed to, limit any rights available to you under the Truth-in-Consumer Contract, Warranty and Notice Act.
21. NOTICE TO CALIFORNIA USERS. Under California Civil Code Section 1789.3, users located in California are entitled to the following consumer rights notice: If a user has a question or complaint regarding the App, please send an email to feedback@dancefightapp.com. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at +1 (916) 445-1254 or +1 (800) 952-5210.
22. GOVERNING LAW. These Terms of Use and the relationship between you and Company shall be governed by and construed under the internal laws of the State of Michigan without regard to its conflict of law provisions.
23. NOTICE. Except as explicitly stated otherwise, any notices to Company shall be sent by certified mail, return receipt requested, to Virtual Arts Inc., 34300 Woodward Ave, Suite 200, Birmingham, MI, USA or via electronic mail to feedback@dancefightapp.com, including any questions you may have about the terms and conditions of use set forth in these Terms of Use
24. WAIVER. The failure of Company to exercise or enforce any right or provision of these Terms of Use shall not constitute a waiver of such right or provision.
25. SEVERABILITY. If any provision of these Terms of Use is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Use remain in full force and effect.
26. ASSIGNMENT. Company may assign these Terms of Use, in whole or in part, at any time without notice to you. You may not assign these Terms of Use or transfer any rights to use the App without the prior written consent of Company. These Terms of Use will inure to the benefit of Company, its successors and assigns.
27. THIRD PARTY BENEFICIARIES. You acknowledge and agree that any third-party owner of App Content, which has licensed such App Content to Company for use in connection with the App shall be an intended beneficiary of these Terms of Use and shall have the right to enforce these Terms of Use against you.
28. INDEPENDENT CONTRACTORS. Nothing in these Terms of Use shall be deemed to create an agency, partnership, joint venture, employer-employee or franchisor-franchisee relationship of any kind between us and any user.
29. NO MODIFICATIONS BY OUR EMPLOYEES. If any of our employees offers to modify the terms of these Terms of Use, he or she is not acting as an agent for us or speaking on our behalf. You may not rely, and should not act in reliance on, any statement or communication from our employees or anyone else purporting to act on our behalf.
30. CONTACT INFORMATION. If you have any questions about these Terms of Use or your account, please contact us at feedback@dancefightapp.com.