LAST REVISED: April 25, 2019
Welcome to Acoustigram — the app that allows you to create, collect, share and experience audio in specific locations around the world from Lab of Misfits AR, Inc. (“ Lab of Misfits AR,” “we,” “us” or “our”). These Terms of Service (“Terms”) apply to your access and use of the mobile application (the “App”), website (“Site”), and other online products and services (collectively, the “Service”) of Lab of Misfits AR, Inc.
Accepting these Terms
BY DOWNLOADING THE APP OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE TO BE BOUND BY ALL OF THE TERMS BELOW. Please read all of the terms before you use the Service. If a term does not make sense to you, please let us know. If you don’t agree to all of the terms below, you may not use the Service.
We reserve the right to change these Terms from time to time. For example, we may need to change these Terms if we come out with a new feature. If we make changes, we will notify you by revising the date at the top of the policy and, in some cases, we will provide you with additional notice (such as adding a statement to our homepage or sending you an email notification). We encourage you to review these Terms periodically to stay informed about our practices. Whenever we make changes to these Terms, they are effective when the revised Terms are posted unless we notify you otherwise. If you continue to use the Service after the revised Terms have been posted, then you will be deemed to have accepted the changes to these Terms.
Description of the Service
Acoustigram is your destination for immersive short-stories that bring locations to life and offer a deeper experience with the city around you.
Collection of Information
Information You Provide to Us
We collect information you directly give us. For example, we collect information about you when you sign up for our Service, create a Acoustigram profile, give feedback about the Service or otherwise communicate with us. The types of information we may collect include your email address, your mobile phone number and any other information you choose to provide. When you request that the App find your Friends, we also collect certain information from your contacts on your mobile device, such as your contacts names and phone numbers, so you can send private ‘invitation to join’ notifications to people you know. Contacts and phone numbers in our database are hashed so we do not have access to identifiable information. When sending a user verification code and sending the first ‘invitation to join’ to a contact, we do not hash the phone number in order to deliver an SMS notification but we delete it directly after the action. For information as to how to restrict the use of contact information, please see the “Your Choices” section below. We may also collect information about you from other users of the Service (for example, we may collect and hash your contact details from another user if such details are stored on the user’s mobile device). If you choose not to provide certain information, we may not be able to provide the Service to you or certain features of the Service may be unavailable or work differently.
Information We Collect Automatically When You Use the Service
When you access or use our Service, we automatically collect certain information about you.
This information includes:
Log Information: We log information about your use of the Service, including the type of device you use, access times, location information, app and mobile web pages viewed within the App. We anonymise this information by hashing it and use the data purely for analytic and product improvement purposes.
Device Information: We collect anonymised information about the mobile device you use to access our Service. Our third party service may collect data including the hardware model, operating system and version, unique device identifiers and mobile network information. We use this anonymised information from third party services for analytic and product improvement purposes.
Location Information: We collect information about the location of your device each time you access or use the Service. For more details, please see “Your Choices” below.
Use of Information
We do not use any cookies or tracking technologies, apart from GPS tracking which we use only in order to deliver content to you in location . We may use information about you for various purposes, including to:
Provide, deliver, maintain, test and improve our Service;
Send you technical notices, updates, confirmations, security alerts and support and administrative messages; Respond to your comments, questions and requests and provide customer service; Communicate with you about products, services, offers, promotions, rewards and events offered by Lab of Misfits AR and others, and provide news and information we think will be of interest to you; Monitor and analyze trends, usage and activities in connection with our Service and improve and personalize the Service; Detect, investigate and prevent any suspected breaches of our Terms of Service; and Link or combine with information we get from others to help understand your needs and provide you with better service; and Connect you with other users in your contacts.
Storage of Information
We take reasonable measures to protect information about you from loss, theft, misuse and unauthorized access, disclosure, alteration and destruction, but we cannot guarantee that our system is infallible. Lab of Misfits AR is based in the United States, and the information we collect is governed by U.S. law. By accessing or using the Service or otherwise providing information to us, you consent to the processing and transfer of information in and to the U.S. and other countries.
Sharing of Information
With vendors, consultants and other service providers who need access to such information to carry out work on our behalf; In response to a request for information if we believe disclosure is in accordance with any applicable law, regulation or legal process, or as otherwise required by any applicable law, rule or regulation;
If we believe your actions are inconsistent with the spirit or language of our user agreements or policies, or to protect the rights, property and safety of Lab of Misfits AR or others;
In connection with, or during negotiations of, any merger, sale of Lab of Misfits AR’s assets, financing or acquisition of all or a portion of our business to another company; and With your consent or at your direction, including if we notify you through the Service that the information you provide will be shared in a particular manner and you provide such information.
We may also share aggregated or anonymized information that does not directly identify you.
Lab of Misfits AR participates in the U.S.-EU Safe Harbor and U.S.-Swiss Safe Harbor programs, and it adheres to the U.S.-EU Safe Harbor and U.S.-Swiss Safe Harbor Privacy Principles regarding the collection, use, and retention of personal information from European Union member countries and Switzerland. Lab of Misfits AR has certified that it adheres to the Safe Harbor Privacy Principles of notice, choice, onward transfer, security, data integrity, access, and enforcement. For more information about the Safe Harbor program, visit the Department of Commerce’s Safe Harbor page. If you have concerns about our compliance with the Safe Harbor program, you should contact us at email@example.com. If you are unable to resolve your concern or dispute with us, you may submit complaints to JAMS for mediation pursuant to the JAMS International Mediation Rules.
We may allow third parties to provide analytics services to us. These entities may collect information about your use of the Service, device information, location information, profile, time spent on Acoustigram, and conversion information. This information may be used by us and others to, among other things, analyze and track data, determine the popularity of certain content and better understand our users activity.
Lab of Misfits AR takes reasonable measures to help protect information about you from loss, theft, misuse and unauthorized access, disclosure, alteration and destruction.
Most web browsers are set to accept cookies by default. If you prefer, you can usually choose to set your web browser to remove or reject browser cookies. Removing or rejecting browser cookies does not necessarily affect third party flash cookies used in connection with our website.
Push Notifications and Alerts
With your consent, we may send push notifications or alerts to your mobile device. You can deactivate these messages at any time by changing the notification settings on your mobile device.
If you have given your email address via our website, you may receive promotional communications from Acoustigram. To opt out, follow the instructions in those communications. If you opt out, we may still send you non-promotional communications, such as those about your account or our ongoing business relations.
When you first launch the App, you will be asked to consent to our use of location information. We require this location information in order for the Service to function as designed. If you consent to our collection of location information, you may subsequently stop the collection of this location information at any time by pausing location tracking from within the application’s settings menu, or by changing the location preferences on your mobile device. However, if you stop the collection of this location information, you will not receive the benefit of the Service. If you consent to our collection of location information and you do not subsequently stop the collection of this location information, the Service will continue to collect this location information. If you consent to our collection of location information, subsequently stop the collection of this location information and later consent to the collection of this location information, the Service will resume the collection of location information. You may also stop our collection of location information by following the standard uninstall process to remove the App from your device.
Your California Privacy Rights
California law permits residents of California to request certain details about how their information is shared with third parties for direct marketing purposes. If you are a California resident and would like to make such a request, please contact us at firstname.lastname@example.org. However, please note that under the law, services such as the Service that permit California residents to opt into or opt out of this type of sharing are not required to provide such information upon receiving a request, but rather may respond by notifying the user of his or her right to prevent the disclosure. To opt out of having information about you shared with third parties for direct marketing purposes, please email us at email@example.com.
ACOUSTIGRAM TERMS OF SERVICE
Welcome to Acoustigram!
This Agreement applies to all Users of the Service. If you do not agree with any part of this Agreement, you must not use the Service. Your continued use of the Service will constitute your acceptance of this Agreement. Any new features or tools which are added to the current Service shall also be subject to this Agreement. You can review the most recent version of this Agreement at any time here. We reserve the right to update, change, or replace any part of this Agreement by posting updates and/or changes. It is your responsibility to check the Service periodically for changes. Your continued use of the Service following the posting of any changes constitutes acceptance of those changes.
Throughout this Agreement, we may use certain words or phrases, and it is important that you understand the meaning of them. The list is not all-encompassing, and no definition should be considered binding to the point that it renders this Agreement nonsensical:
a. “Agreement” means these Terms of Service.
b. “Lab of Misfits”, “we”, “us”, or “our” refers to our company; our App; our Service; or a combination of all or some of the preceding definitions, depending on the context of the word.
d. “Service” refers to the services that we provide through our App and any component of the App.
e. “User” refers to all visitors of the Service, including but not limited to visitors, browsers, vendors, advertisers, and/or contributors of content on our Service.
f. “User Content” refers to any content, including user comments, photos, links, communications, and other material submitted by a User to his or her personal profile, another User’s profile, or any other section of the Service where Users are allowed to submit content.
g. “You” refers to you, the person who is entering into this Agreement with Lab of Misfits.
In order to use our Service, you must meet a number of conditions, including but not limited to:
You must not be in violation of any embargoes, export controls, or other laws of the United States or other countries having jurisdiction over this Agreement, us, and you. For example, if the Office of Foreign Assets Control prohibits conducting financial transactions with nationals, residents, or banks of your country, you must not use our Service.
You must be the minimum age required to enter into a contract in the area in which you reside, and, in any event, must not be less than 18 years of age.
You must not sign up or use the Services on behalf of a natural person or entity other than yourself.
You must provide us with personal information, payment information, and other information that we deem necessary to provide you with our Service.
4. Rules of Use
All of the content in the Service is made available only for your personal, lawful use. Use of the Service by a competitor company or other non-consumer third party is prohibited.
You may not use our Service for any unlawful purpose and agree that it is solely your responsibility to ensure that the use of the Service is lawful in the jurisdiction in which you are located. In addition to other prohibitions as set forth in the Agreement, you must not:
Use the Service to solicit others to perform or participate in any unlawful acts.
Use the Service to violate any international, federal, provincial, or state regulations, rules, laws, or local ordinances.
Use the Service to infringe upon or violate our intellectual property rights or the intellectual property rights of others.
Use the Service to harass, abuse, insult, harm, defame, slander, disparage, intimidate, bully, or discriminate, or threaten any of the above, based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; or to use hateful speech against any other person or User for any reason.
Use the Service to submit false or misleading information.
Use the Service to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Service or of any related website, other websites, or the Internet.
Use the Service to collect, track, and/or publish the personal information of others.
Use the Service to spam, phish, pharm, pretext, spider, crawl, or scrape.
Use the Service for any obscene or immoral purpose.
Use the Service to interfere with or circumvent the security features of the Service or any related website, other websites, or the Internet.
We reserve the right to terminate your use of the Service or any related website for violating any of the prohibited uses.
We reserve the right to limit functionality of your account (temporarily or permanently) due to technical, security, legal, or other reasons, including, but not limited to:
ability to log into your account;
ability to edit existing content.
5. Description of the Service.
Through the App, you can connect with other App Users within a 300 foot radius. You create an Acoustigram profile by selecting a photo to represent you in Augmented Reality (“AR”) and then completing a public bio that anyone with the app can access to read. Your profile floats around you in AR and once connected with another user the app allows you to private message each other and stay connected. You are responsible for your use of the App. Lab of Misfits is not responsible for anything you may encounter while using the App (including, but not limited to, physical hazards, traffic, and other people). Accordingly, you must exercise due care when using the App — always be fully aware of your surroundings at all times while using the Service.
6. Modifications to the Services
We reserve the right at any time to modify or discontinue the Service (or any part or content thereof) in its entirety as well as with regard to any individual User without notice at any time. We the right to reclaim and repurpose any username or URL on the Service.
We shall not be liable to you or to any third-party for any modification, suspension, or discontinuance of the Service.
7. Account Creation
In order to access certain features of the Service, you must become a User by creating an account (“User Account”). 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.
You should not reveal your username or password to any other person. We will never ask you to reveal your password. If you forget your password, you can request to have a new password sent to your registered e-mail address. You agree to indemnify and us and our employees, contractors, officers, directors, shareholders, agents, representatives, vendors, and content providers harmless for any improper or illegal use of any of your User Account. This includes illegal or improper use by someone to whom you have given permission to use your User Account or whom you have negligently allowed to access your User Account.
You may only possess one (1) User Account. We reserve the right to suspend or terminate your User Account and your access to the Service if you create more than one (1) User Account, if any information provided during the registration process or thereafter proves to be inaccurate, fraudulent, not current, incomplete, or otherwise in violation of this Agreement, or if any activity that occurs with respect to your User Account violates this Agreement.
8. User Content
You are solely responsible for any User Content submitted by you. You understand that all your communications via any component of the Service are public, and you have no expectation of privacy regarding such communications. You are responsible for complying with all laws applicable to your User Content. You agree not to submit to the Service, or transmit to other users of the Service, any defamatory, inaccurate, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, racially offensive, or illegal material, or any material that infringes or violates another party's rights (including, but not limited to, intellectual property rights, or rights of privacy or publicity). You will not provide inaccurate, misleading or false information to us or to any other User of the Service. If information provided to us, or another user of the Service, subsequently becomes inaccurate, misleading or false, you will promptly notify us of such change.
We may, in our sole discretion and without notice, review and delete any User Content, but are under no obligation to do so. We have no responsibility for the conduct of any user in the Service, including any User Content submitted in the Service. We assume no responsibility for monitoring the Service for inappropriate content or conduct. Your use of the Service is at your own risk.
You represent and warrant that you have all necessary rights in and to any User Content that you submit within the Service, that such User Content does not infringe any proprietary or other rights of third parties, that all such content is accurate and will not cause injury to any person or entity, and that you will indemnify us and our employees, contractors, officers, directors, shareholders, agents, representatives, vendors, and content providers for all claims resulting from your submitted and posted content. If any such materials incorporate the name, voice, likeness and/or image of any individual, you represent and warrant that you have the right to grant us permission to use any such name, voice, likeness and/or image of such individual appearing in the materials you post throughout the world in perpetuity.
You hereby grant us the sole and exclusive, irrevocable, sub-licensable, transferable, worldwide, royalty-free license to reproduce, modify, create derivative works from, publish, distribute, sell, transfer, transmit, publicly display, and use any User Content and to incorporate the same in other works in any form, media, or technology now known or later developed.
You further hereby grant to us the unconditional, irrevocable right to use and exploit your name, likeness and any other information or material included in any User Content and in connection with any User Content or your User Account, without any obligation to you. Except as prohibited by law, you waive any rights of attribution and/or any moral rights you may have in your User Content, regardless of whether your User Content is altered or changed in any manner.
You acknowledge and agree that all User Content whether publicly posted or privately transmitted to the Service is at your sole responsibility and risk. We disclaim any responsibility for the backup and/or retention of any User Content transmitted to the Service.
9. Your Interactions with Other Users
You are solely responsible for your interactions with other Users. You understand that we do not conduct criminal background checks or other screenings of our Users. We also do not verify the statements of our Users and make no representations or warranties as to the conduct of Users or their compatibility with any current or future User. We reserve the right to conduct any criminal background check or other screenings, at any time and using available public records.
We are not responsible for the conduct of any User. In no event shall we, our agents, affiliates, or partners be liable (directly or indirectly) for any losses or damages, whatsoever, whether direct, indirect, general, special, compensatory, consequential, and/or incidental, arising out of or relating to conduct of you or anyone else in connection with the use of the Service including, without limitation, death, bodily injury, emotional distress, and/or any other damages resulting from communications or meetings with other Users or persons you meet through the Service.
You agree to take all necessary precautions in all interactions with other Users in both online and in person settings. You understand that we make no guarantees, either express or implied, regarding your compatibility with Users or other persons you encounter while in use of the Service or as a result of using the Service.
You may not use any portion of the Service to collect information, including login names, about other users, and use of such information to send unsolicited e-mail or for any other purpose is strictly prohibited. You may not advertise any goods or services on any component of the Service, or otherwise exploit your participation on or through the Service for any commercial purpose.
10. Your Personal Information
11. License Restrictions
You agree that by using our Service, you are receiving a license to access, download, and use the Service in compliance with this Agreement, applicable laws, and any additional terms located within our Service which are hereby incorporated into this Agreement by reference. This license may be used by you only, and you are solely responsible and liable, and agree to indemnify us to the fullest extent, including attorneys’ fees and court costs, for any legal action or dispute that arises from the use of your license by someone other than you. You must not attempt to reverse engineer, redistribute, resell, or otherwise copy or manipulate our Service.
We may revoke our license to you at any time for any reason without notice or explanation, and we shall not, in any event, be liable to you for any losses suffered as a result of any unanticipated cancellation of our Service. We will generally attempt to notify you prior to cancelling your access to our Service unless you have breached this Agreement or any applicable law, though we are not obligated to do so.
12. Third-Party Services
At times, the Service may allow you to connect to or communicate with other apps, websites, or services owned, operated, or controlled by third-parties, including those linked to by other Users (“Third-Party Services”). Links to Third-Party Services are offered strictly for informational and convenience purposes and should not be construed as referrals or endorsements by us of the Third-Party Services. The Third-Party Services are developed and maintained by the respective third parties and are governed by their own terms of service and privacy policies. You should read the privacy policies and terms of service agreements of all Third-Party Services. We are not responsible for the content of Third-Party Services, nor do we make any warranties or representations with regard to the content, accuracy, opinions, warranties, products or services, privacy or security, intellectual property compliance, or links of such Third-Party Services.
13. Errors and Inaccuracies
We make every effort to provide complete, accurate, and up-to-date information on our Service. Unfortunately, it is not possible to ensure that any service is completely free of human or technological errors. Occasionally, our Services may contain typographical mistakes, inaccuracies, or omissions, some of which may relate to pricing and availability, and some information may not be complete or current. We reserve the right to correct any errors, inaccuracies, or omissions at any time and to change or update information at any time without prior notice.
We assume no obligation to update, amend, or clarify information in the Service or any Third-Party Service (as defined below), including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Service or on any Third-Party Service, should be taken to indicate that all information in the Service or on any Third-Party Service has been modified or updated.
14. Server Downtime
Our Service may become unavailable from time to time due to security reasons, legal reasons, technical updates, or other reasons. You agree that we are not obligated to inform you of such downtime—even if we are aware that it may occur—or to provide a reason for it, and that you release us from all liability relating to the unavailability of our Service.
15. Our Copyright
We rely on the uniqueness of its Service and content to distinguish itself from third party competitors. You agree not to copy, distribute, display, disseminate, or otherwise reproduce any of the information on the Service, including content licensed to us by third parties, without receiving our prior written permission.
Acoustigram, Ripple, Lab of Misfits, and Lab of Misfits AR are trademarks used by us to uniquely identify our Service and business. You agree not to use these phrases anywhere without our prior written consent. Additionally, you agree not to use our trade dress, or copy the look and feel of our Service or its design, without our prior written consent. You agree that this paragraph goes beyond the governing law on intellectual property law, and includes prohibitions on any competition that violates the provisions of this paragraph, including starting your own service, whether or not it competes directly or indirectly with us or our Service.
17. Revocation of Consent
We may revoke our consent for your use of our intellectual property, or any other permission granted to you under this Agreement, at any time. You agree that if we so request, you must take immediate action to remove any usage of our intellectual property that you may have engaged in, even if it would cause a loss to you.
18. Copyright & Trademark Infringement
We take copyright infringement very seriously, and we have registered a Copyright Agent with the United States Copyright Office, which limits our liability under the Digital Millennium Copyright Act. If you believe that your copyright has been infringed, please send us a message which contains:
The name of the party whose copyright has been infringed, if different from your name.
The name and description of the work that is being infringed.
The location on our App of the infringing copy.
A statement that you have a good faith belief that use of the copyrighted work described above is not authorized by the copyright owner (or by a third party who is legally entitled to do so on behalf of the copyright owner) and is not otherwise permitted by law.
A statement that you swear, under penalty of perjury, that the information contained in this notification is accurate and that you are the copyright owner or have an exclusive right in law to bring infringement proceedings with respect to its use.
You must sign this notification electronically and send it to our Copyright Agent at firstname.lastname@example.org.
Letters containing the foregoing may be mailed to:
Lab of Misfits AR, Inc.
130 West 11th Street
New York, NY 10011
Although U.S. law does not provide for a similar procedure for trademark infringement, we recommend that you send us similar information to that above in regard to any allegation of trademark infringement, and we will address it as soon as practicable.
19. Communications Decency Act and Constitutional Protection
Similar to the DMCA provisions above, United States law include Section 230 of the Communications Decency Act and the First Amendment to the Constitution of the United States, create a defense for us for the actions of third parties in regard to any defamatory content posted on our Service. Although we are not liable for defamatory words posted on our Service by our Users even if given notice, we do prohibit defamation under this Agreement and we may, if we believe the situation warrants it, take action against the offending User. Please notify us at email@example.com if any of our Users have posted anything that you believe is defamatory. Note that administrators and management should, ideally, be the first party you contact in response to any defamation by another User.
20. Representations & Warranties
WE MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE MERCHANTABILITY OF OUR SERVICE OR FITNESS FOR ANY PARTICULAR PURPOSE. YOU AGREE THAT YOU ARE RELEASING US FROM ANY LIABILITY THAT WE MAY OTHERWISE HAVE TO YOU IN RELATION TO OR ARISING FROM THIS AGREEMENT OR OUR SERVICES, FOR REASONS INCLUDING, BUT NOT LIMITED TO, FAILURE OF OUR SERVICE, NEGLIGENCE, OR ANY OTHER TORT. TO THE EXTENT THAT APPLICABLE LAW RESTRICTS THIS RELEASE OF LIABILITY, YOU AGREE THAT WE ARE ONLY LIABLE TO YOU FOR THE MINIMUM AMOUNT OF DAMAGES THAT THE LAW RESTRICTS OUR LIABILITY TO, IF SUCH A MINIMUM EXISTS.
YOU AGREE THAT WE ARE NOT RESPONSIBLE IN ANY WAY FOR DAMAGES CAUSED BY THIRD PARTIES WHO MAY USE OUR SERVICES, INCLUDING BUT NOT LIMITED TO PEOPLE WHO COMMIT INTELLECTUAL PROPERTY INFRINGEMENT, DEFAMATION, TORTIOUS INTERFERENCE WITH ECONOMIC RELATIONS, OR ANY OTHER ACTIONABLE CONDUCT TOWARDS YOU.
WE ARE NOT RESPONSIBLE FOR ANY ACTIONS BY AN ADMINISTRATOR, MANAGER, EMPLOYEE, OR OTHER USER WHICH MAY CAUSE HARM TO YOU, EVEN IF WE BECOME AWARE IN ADVANCE THAT SUCH ACTIONS MAY OR WILL OCCUR AND DO NOT NOTIFY YOU.
WE ARE NOT RESPONSIBLE FOR ANY ERRORS IN INFORMATION PROVIDED THROUGH OUR SERVICE OR ANY OTHER DAMAGE THAT MAY ARISE FROM SUCH CONTENT.
WE ARE NOT LIABLE FOR ANY FAILURE OF THE SERVICES PROVIDED BY OUR SERVICE OR A THIRD PARTY, INCLUDING ANY FAILURES OR DISRUPTIONS WHICH PREVENT ACCESS TO OUR SERVICE TEMPORARILY OR PERMANENTLY.
THE PROVISION OF OUR SERVICE TO YOU IS CONTINGENT ON YOUR AGREEMENT WITH THIS AND ALL OTHER SECTIONS OF THIS AGREEMENT. NOTHING IN THE PROVISIONS OF THIS “REPRESENTATIONS & WARRANTIES” SECTION SHALL BE CONSTRUED TO LIMIT THE GENERALITY OF THE FIRST PARAGRAPH OF THIS SECTION.
For Jurisdictions that do not allow us to limit our liability: Notwithstanding any provision of these Terms, if your jurisdiction has provisions specific to waiver or liability that conflict with the above then our liability is limited to the smallest extent possible by law. Specifically, in those jurisdictions not allowed, we do not disclaim liability for: (a) death or personal injury caused by its negligence or that of any of its officers, employees or agents; or (b) fraudulent misrepresentation; or (c) any liability which it is not lawful to exclude either now or in the future.
IF YOU ARE A RESIDENT OF A JURISDICTION THAT REQUIRES A SPECIFIC STATEMENT REGARDING RELEASE THEN THE FOLLOWING APPLIES. FOR EXAMPLE, CALIFORNIA RESIDENTS MUST, AS A CONDITION OF THIS AGREEMENT, WAIVE THE APPLICABILITY OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, “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.” YOU HEREBY WAIVE THIS SECTION OF THE CALIFORNIA CIVIL CODE. YOU HEREBY WAIVE ANY SIMILAR PROVISION IN LAW, REGULATION, OR CODE THAT HAS THE SAME INTENT OR EFFECT AS THE AFOREMENTIONED RELEASE.
Those who access or use the Service from other jurisdictions not in the United States do so at their own volition and are entirely responsible for compliance with all applicable United States, foreign, and local laws and regulations, including but not limited to export and import regulations. Your promise and agree to use the Service in strict compliance with any local, domestic, national, and/or territorial laws, rules, and regulation that are or may be applicable.
You agree to indemnify and hold harmless us and any of our affiliates, employees, officers, directors, agents, successors, and assigns for any claims by you or any third party which may arise from or relate to this Agreement or the provision of our Service to you, including any damages caused by your use of our Service, or the permitted use by others of your license and User Account. You also agree that you have a duty to defend us against such claims and we may require you to pay for an attorney(s) of our choice in such cases. You agree that this indemnity extends to requiring you to pay for our reasonable attorneys’ fees, court costs, and disbursements. In the event of a claim such as one described in this paragraph, we may elect to settle with the party/parties making the claim, and you shall be liable for the damages as though we had proceeded with a trial.
23. Choice of Law
This Agreement shall be governed by the laws in force in the State of New York. The offer and acceptance of this contract are deemed to have occurred in the State of New York.
24. Forum of Dispute
You agree that if a dispute is eligible to be heard in Small Claims Court but you would be entitled to an additional or alternative remedy in a higher court, such as injunctive relief, you will waive your right to that remedy and still bring the dispute within the Small Claims Court.
Notwithstanding anything to the contrary in this Agreement, either party may bring suit in court of competent jurisdiction in the State of New York, seeking an injunction or other equitable relief arising out of or relating to the infringement of a party’s or a third party’s intellectual property rights.
You agree that any cause of action arising out of or related to the service must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action shall be permanently barred.
If you bring a dispute in a manner other than in accordance with this section, you agree that we may move to have it dismissed, and that you will be responsible for our reasonable attorneys’ fees, court costs, and disbursements in doing so.
You agree that any Dispute that, for whatever reason, is deemed not subject to the jurisdiction requirements set forth above shall be subject to exclusive jurisdiction in the state or federal courts in New York County, New York.
25. Force Majeure
You agree that we are not responsible to you for anything that we may otherwise be responsible for, if it is the result of events beyond our control, including, but not limited to, acts of God, war, insurrection, riots, terrorism, crime, labor shortages (including lawful and unlawful strikes), embargoes, postal disruption, communication disruption, unavailability of payment processors, failure or shortage of infrastructure, shortage of materials, or any other event beyond our control.
In the event that a provision of this Agreement is found to be unlawful, conflicting with another provision of the Agreement, or otherwise unenforceable, the Agreement will remain in force as though it had been entered into without that unenforceable provision being included in it.
If two or more provisions of this Agreement are deemed to conflict with each other’s operation, we shall have the sole right to elect which provision remains in force.
We reserve all rights afforded to us under this Agreement as well as under the provisions of any applicable law. Our non-enforcement of any particular provision or provisions of this Agreement or any applicable law should not be construed as our waiver of the right to enforce that same provision under the same or different circumstances at any time in the future.
28. Termination & Cancellation
We may terminate your access to our Service at our discretion without explanation, though we will strive to provide a timely explanation in most cases. Under no circumstances, including termination or cancellation of our Service to you, will we be liable for any losses related to actions of other Users.
29. Assignment of Rights
You may not assign your rights and/or obligations under this Agreement to any other party without our prior written consent. We may assign our rights and/or obligations under this Agreement to any other party at our discretion.
30. Corporate Information
Lab of Misfits AR, Inc. is a corporation formed lawfully in the State of Delaware.
31. California Users and Residents
Pursuant to California Civil Code Section 1789.3, any questions about pricing, complaints, or inquiries about the Company must be addressed to our agent for notice and sent via certified mail to that agent. For our agent’s most current contact information, please send a request to firstname.lastname@example.org.
Lastly, California Users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.