Last Updated and Effective Upon the Following Date: October 11, 2022
1. DESCRIPTION OF SERVICE; ACCEPTANCE OF TERMS
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.]
3. LICENSE TO USE THE APP; UPDATES TO THE APP; APP ACCESS
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.
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
4.4 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.
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
10. INTELLECTUAL PROPERTY RIGHTS
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:
Virtual Arts Inc.
|Attn: Richard Sloan
34300 Woodward Ave, Suite 200, Birmingham, MI 480009 USA
Phone: (512) 827-8683
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:
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 email@example.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.
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 firstname.lastname@example.org. 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.
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.
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.”
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 email@example.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.