Last Modified: March 5, 2021
IMPORTANT – PLEASE READ CAREFULLY – THESE TERMS CREATE A LEGALLY BINDING AGREEMENT WHICH GOVERNS YOUR USE OF THE SITE AND SERVICE. BY CREATING AN ACCOUNT (AS DEFINED BELOW) OR BY ACCESSING OR USING THE SITE AND SERVICE, YOU ACCEPT AND AGREE TO BE BOUND, WITHOUT LIMITATION OR QUALIFICATION, BY THESE TERMS. IF YOU DO NOT ACCEPT ANY OF THESE TERMS, YOU ARE PROHIBITED FROM USING THE SITE AND SERVICE.
- Basic Rules and Rights We Are Granting .
Rights to Use the Site and Service . Subject to your agreement and continuing compliance with these Terms and any other relevant Cyvatar policies, Cyvatar grants you a non-exclusive, non-transferable, revocable limited right and license to access and use the Site and Service.
- Accounts and Access . You must register for a membership account through the Service (an “Account”). You may only register for one Account. An “Account Holder” means the person or entity in whose name an Account is registered. By signing up for an Account, you represent that you have the authority to enter into these Terms to use the Service.
- Use of the Site and Service : The following restrictions apply to the use of the Site and Service:
- You shall not engage in any act that Cyvatar deems to be in conflict with the spirit or intent of the Site or Service or these Terms, including any associated exhibit therein, including but not limited to circumventing or manipulating these Terms;
- You may not use the Site or Service in connection with any violation of any applicable law or regulation, or do anything that promotes the violation of any applicable law or regulation;
- You accept full responsibility for any unauthorized use of the Site or Service by individuals or entities not authorized to use any of your Accounts.
- You shall not create an Account using a false identity or false information, or on behalf of someone other than yourself;
- Without first obtaining the written permission of Cyvatar, you shall not register for an Account or in any way use the Site or Service if Cyvatar has removed, suspended, or otherwise terminated any Account registered by you, or on behalf of you or if Cyvatar has notified you that you may not use the Site or Service;
- You shall not use your Account to advertise, solicit or transmit any chain letters, junk email or repetitive messages to anyone;
- You shall not use your Account or any aspect of the Site or Service, including any information derived from the Site or Service, to offer any products that are considered to be competitive with Cyvatar’s product offerings, including the Service;
- You shall not use the Site or Service to engage in any illegal conduct;
- You shall not rent, lease, sell, trade, gift, bequeath or otherwise transfer your Account to anyone without Cyvatar’s written permission;
- You shall not reproduce, distribute or publicly display any content you access through the Site or Service unless such content is clearly marked as “public” and you have been given the right to view such content; and
- You shall not do anything with any content you access through the Site or Service that has been marked with restrictions or other instructions that is counter to such restrictions or other instructions.
- Account Information and Management .
- Login Information . During the Account creation process, you will be required to select a username and password (“Login Information”). The following rules govern the security of your Login Information:
- you shall not share the Account or the Login Information, nor let anyone else access your Account or do anything else that might jeopardize the security of your Account;
- In the event you become aware of, or reasonably suspect, any breach of security, including without limitation any loss, theft or unauthorized disclosure of the Login Information, you must immediately notify Cyvatar and change the password on your Account;
- You are solely responsible for maintaining the confidentiality of the Login Information and you will be responsible for all uses of the Login Information, whether or not authorized by you; and
- You are responsible for anything that happens through your Account.
- License and Account Limitations and Prohibitions .
- General Effects of Violations . Any use of the Site or Service in violation of these Terms is strictly prohibited, can result in the immediate revocation of your limited license granted by Section 1, and may subject you to liability for violations of law.
- Activity Prohibitions Regarding Use of Account . You agree that you will not, under any circumstances use your Account or otherwise to do or assist in any of the following activities:
- Modify or cause to be modified any files or content that are used to offer the Site and Service, without the express prior written consent of Cyvatar;
Disrupt, overburden, or aid or assist in the disruption or overburdening of (1) any computer or server used to offer or support the Site or Service (each a “Server”) or (2) the use or enjoyment of the Site or Service by any other person;
- Institute, assist or become involved in any type of attack, including without limitation distribution of a virus, denial of service attacks upon the Site or Service, or other attempts to disrupt the Site or Service or any other person’s use or enjoyment of the Site or Service;
- Gain, or attempt to gain, unauthorized access to the Site or Service, Accounts, Servers or networks connected to the Site or Service by any means (including, but not limited to, circumventing or modifying, or encouraging or assisting any other person to circumvent or modify, any security, technology, device or software that is part of the Site or Service);
- Post any content that is abusive, threatening, incites or promotes terrorism, promotes the production or use of weapons that cause substantial harm, obscene, defamatory, libelous or racially, sexually, religiously or otherwise objectionable or offensive;
- Post any content that contains what we reasonably deem to be excessive violence or offensive subject matter or that contains a link to such content;
- Harass, abuse, harm, bully, intimidate or advocate, threaten or incite harassment, bullying, intimidation, abuse or harm of another person or group of persons, including Cyvatar employees or customer service representatives;
- Post, distribute or make available through the Site and Service any material or information that infringes any copyright, trademark, patent, trade secret, right of privacy, right of publicity or other right of any person or entity or impersonates any other person;
- Transmit unauthorized communications through the Site or Service, including junk mail, chain letters, spam and any materials that promote malware, spyware and downloadable items;
- Interfere or attempt to interfere with the proper functioning of the Site or Service or connect to or use the Site or Service in any way not expressly permitted by these Terms;
- Intercept, examine or otherwise observe any proprietary communications protocol used by a client, a Server or the Site or Service, whether through the use of a network analyzer, packet sniffer or other device;
- Make any automated use of the Site or Service or take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure, as we determine in our sole discretion;
- Bypass any robot exclusion headers or other measures we take to restrict access to the Site or Service or use any software, technology or device to send content or messages, scrape, spider or crawl the Site or Service, or harvest or manipulate data from, through, or relating to the Site or Service, or otherwise use the Site or Service to create or offer a competitive product;
- Use, facilitate, create or maintain any unauthorized connection to the Site or Service, including without limitation (1) any connection to any unauthorized server that emulates, or attempts to emulate, any part of the Site or Service or (2) any connection using programs, tools or software not expressly approved in writing by Cyvatar; or
- Upload or transmit (or attempt to upload or to transmit), without Cyvatar’s express written permission, any material that acts as a passive or active information collection or transmission mechanism, including, without limitation clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies or other similar devices (sometimes referred to as “spyware,” “passive collection mechanisms” or “pcms”).
Suspension and Termination of Account and Service :
FAILURE TO COMPLY . WITHOUT LIMITING ANY OTHER REMEDIES, WE MAY, WITH OR WITHOUT NOTICE TO YOU, LIMIT, SUSPEND, TERMINATE, MODIFY OR DELETE YOUR ACCOUNT OR YOUR ACCESS TO THE SITE AND/OR SERVICE OR PORTIONS THEREOF IF, IN OUR SOLE DISCRETION, YOU FAIL TO COMPLY WITH ANY OF THESE TERMS, YOUR RIGHTS TO RECEIVE SERVICE ARE EXPIRED OR BECOME TERMINATED OR YOUR ACCOUNT IS USED FOR ACTUAL OR SUSPECTED ILLEGAL ACTIVITY OR IMPROPER USE OF THE SITE OR SERVICE. CYVATAR SHALL BE UNDER NO OBLIGATION TO COMPENSATE YOU FOR ANY LOSSES OR ADVERSE RESULTS THAT ARE DUE TO THE SUSPENSION, TERMINATION, MODIFICATION, OR DELETION OF YOUR OR ANY ACCOUNT.
IP INFRINGEMENT .
WITHOUT LIMITING ANY OTHER REMEDIES, WE MAY LIMIT, SUSPEND OR TERMINATE THE SITE OR SERVICE AND ACCOUNTS OR PORTIONS THEREOF, PROHIBIT ACCESS TO OUR SITES AND THEIR CONTENT, SERVICE AND TOOLS, DELAY OR REMOVE ANY CONTENT AND TAKE TECHNICAL AND LEGAL STEPS TO PREVENT USERS FROM ACCESSING THE SITE OR SERVICE IF WE BELIEVE THAT SUCH USERS ARE CREATING RISK OR POSSIBLE LEGAL LIABILITIES, INFRINGING THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES OR ACTING INCONSISTENTLY WITH THE LETTER OR SPIRIT OF OUR TERMS OR POLICIES.
REPEAT INFRINGERS . IN APPROPRIATE CIRCUMSTANCES IT IS OUR POLICY TO SUSPEND OR TERMINATE ACCOUNTS OF USERS WHO ARE REPEAT INFRINGERS OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
- Right to Cease Service . Cyvatar reserves the right to stop offering the Site and/or Service or part of the Site and/or Service at any time if Cyvatar believes that the continued offering of the Site and/or Service or part of the Site and/or Service will or may cause harm to Cyvatar or you or may result in any violation of applicable law by either Cyvatar or you. If Cyvatar elects to stop offering and/or support the Site and/or Service or part of the Site and/or Service, the license granted hereunder to you to use the Site and/or Service or a part thereof will automatically terminate.
- Termination of Account . Termination of your Account can include disabling your access to the Site and/or Service or any part thereof. You agree that if your Account is terminated, Cyvatar will not be obligated to preserve, provide you access to, or provide copies of any content submitted to the Site and/or Service relating to your Account.
- Cancellation of Account . You may cancel your Account at any time by sending an email to [email address] and including the words “Cancel Account” in the subject line.
Intellectual Property Ownership in the Site and Service and Certain Materials Used to Provide the Site and Service . For purposes of the Terms: “Intellectual Property” means all (a) patents, patent disclosures and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works (including computer programs), mask works, and rights in data and databases, (d) trade secrets, know-how and other confidential information, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Ownership in Cyvatar Site and Service . Cyvatar and, if applicable, its licensors are, and shall remain, the sole and exclusive owners of all right, title and interest in and to the Cyvatar the Site and Service, including all Intellectual Property Rights therein and thereto.
- Declining Requests . Cyvatar reserves the right, At Cyvatar ’s sole reasonable judgement, Cyvatar may refuse to accept any request to provide the Service or may terminate the Service prior to its completion at any time if Cyvatar believes that providing such Service will cause Cyvatar or you to violate any applicable law. You agree that Cyvatar shall have no liability of any kind to you or to any third party arising from such refusal or termination.
- Disclaimer; Limitations; Waivers on Liability; Indemnification .
Disclaimer of Warranties.
- SERVICE PROVIDED “AS IS” . YOU EXPRESSLY AGREE THAT USE OF THE SITE AND SERVICE IS AT YOUR SOLE RISK AND IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (EXCEPT ONLY TO THE EXTENT PROHIBITED UNDER APPLICABLE LAW WITH ANY LEGALLY REQUIRED WARRANTY PERIOD THE SHORTER OF THIRTY (30) CALENDAR DAYS FROM FIRST USE OR THE MINIMUM PERIOD REQUIRED).
- NO WARRANTY OF ERROR-FREE OPERATION . WITHOUT LIMITING THE FOREGOING, NEITHER CYVATAR.AI NOR ITS AFFILIATES OR SUBSIDIARIES, OR ANY OF THEIR DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, THIRD-PARTY CONTENT PROVIDERS, DISTRIBUTORS, LICENSEES OR LICENSORS (COLLECTIVELY, “CYVATAR.AI PARTIES”) WARRANT THAT THE SITE OR SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.
- NO WARRANTY REGARDING ACCESS TO INFORMATION OR CONTENT . CYVATAR DOES NOT GUARANTEE THAT ANY INDIVIDUAL OR ACCOUNT HOLDER WILL ALWAYS BE PREVENTED FROM VIEWING INFORMATION OR CONTENT]. CYVATAR DOES NOT WARRANT THAT ALL CONTENT OR INFORMATION POSTED BY AN ACCOUNT HOLDER WILL REMAIN AVAILABLE AT ALL TIMES OR WILL NEVER BE DELETED, CORRUPTED OR OTHERWISE UNAVAILABLE.
- Limitations; Waivers of Liability .
- DISCLAIMER OF INDIRECT DAMAGES . YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY ANY APPLICABLE LAW, THE DISCLAIMERS OF LIABILITY CONTAINED HEREIN APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR INABILITY TO USE, THE SITE OR SERVICE UNDER ANY CAUSE OR ACTION WHATSOEVER OF ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE) AND THAT THE CYVATAR.AI PARTIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION OR LOSS OF DATA), IN ANY WAY WHATSOEVER ARISING OUT OR IN ANY WAY CONNECTED WITH (i) THE USE OF THE DELIVERABLES AND ANY INFORMATION INCORPORATED IN OR RELATED TO SUCH DELIVERABLES, OR (ii) THE USE OF, OR INABILITY TO USE, THE SITE OR SERVICE.
- NOT RESPONSIBLE FOR THIRD PARTY CONDUCT . YOU FURTHER SPECIFICALLY ACKNOWLEDGE THAT THE CYVATAR.AI PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE CYVATAR.AI PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER ACCOUNT HOLDERS OR USERS OF THE SERVICE AND OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF THE SERVICE AND EXTERNAL SITES AND OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
- MONETARY LIMITATION OF LIABILITY . UNDER NO CIRCUMSTANCES WILL THE CYVATAR.AI PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID CYVATAR.AI IN THE ONE HUNDRED EIGHTY (180) CALENDAR DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM.
- EXCLUSIVE REMEDY. YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH \CYVATAR IS TO STOP USING THE SITE AND/OR SERVICE AND TO CANCEL YOUR ACCOUNT.
- INTELLECTUAL PROPERTY MATTERS . CYVATAR.AI PROVIDES NO WARRANTY OF ANY KIND THAT ANY DELIVERABLE WILL NOT INFRINGE, OR BE SUBJECT TO A CLAIM OF INFRINGING, THE TRADEMARK OR OTHER RIGHTS OF ANOTHER PARTY. IT IS SOLELY YOUR RESPONSIBILITY TO OBTAIN THE ADVICE OF AN ATTORNEY REGARDING WHETHER ANY SUCH DELIVERABLE IS LEGALLY AVAILABLE FOR YOUR USE AND DOES NOT INFRINGE THE RIGHTS OF ANOTHER PARTY.
- DISCLAIMER MAY NOT BE APPLICABLE . SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THE SECTION MAY NOT APPLY TO YOU.
- Indemnification . You agree to defend, indemnify, save, and hold the Cyvatar harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Site or Service, any violation by you of these Terms or any breach of the representations, warranties and covenants made by you herein. Cyvatar reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Cyvatar and you agree to cooperate with Cyvatar’s defense of these claims. Cyvatar will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it. You agree that the provisions in this paragraph will survive any termination of your Account.
- General Provisions .
- Assignment . Cyvatar may assign any of its rights or delegate any of its obligations under these Terms, in whole or in part, to any person or entity at any time without your consent. You may not assign or delegate any rights or obligations under the Terms without the prior written consent of Cyvatar; any purported assignment or delegation in violation of this Section 9.3 is void.
- Supplemental Policies . Cyvatar may publish additional policies related to specific services such as forums, contests, loyalty programs and other features and services. You acknowledge that we may email such additional policies to you at the email address you have provided us for use in conjunction with the Site or Service. Your use, if any, of such services is subject to such specific policies and these Terms.
530 Technology Drive
Suite 100 Irvine, California
Attn: Notices Administrator
- Equitable Remedies . You acknowledge that the rights granted and obligations made under these Terms to Cyvatar are of a unique and irreplaceable nature, the loss of which shall irreparably harm Cyvatar and which cannot be replaced by monetary damages alone, so that Cyvatar shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief, or to enjoin or restrain the operation of the Site or Service, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Site or Service or any content or other material used or displayed through the Site or Service.