Terms of Use

By using Vivaty's services, including downloading the Platform Software and Developer's Kit (as defined in the Developer License Agreement), if applicable, or uploading or sharing content (the “Services”), you agree to the following terms and conditions, and any policies, guidelines or amendments thereto that may be presented to you from time to time (collectively, the “Terms of Service”). We may update the Terms of Service without notice to you, and you are responsible for checking the most current version of the Terms of Service available at www.Vivaty.com. If you are dissatisfied with any modifications, your ONLY remedy is to terminate your use of the Services. READ THESE TERMS CAREFULLY BEFORE YOUR USE OF THE SERVICES. IF YOU DO NOT AGREE WITH THESE TERMS, YOU MAY NOT SUBSCRIBE TO THE SERVICES, NOR MAY YOU ACCESS OR OTHERWISE USE THE SERVICES.

1. Use of Services. You may not use the Services unless you are at least 13 years of age. In consideration of your use of the Services, you represent that you are at least 13 and are of legal age to form a binding contract and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. If you are under 18, you need to get your parent's or legal guardian's permission before using the Services. In order to access certain services, you may be required to provide current, accurate identification, contact, and other information as part of the registration process and/or to continue use of the Services offered by Vivaty Inc. and its subsidiaries or affiliated companies (“Vivaty”). If you provide any information that is untrue, inaccurate, not current or incomplete, or we have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we have the right to refuse any and all current or future use of the Services (or any part thereof) by you. You are responsible for maintaining the confidentiality of your Vivaty account password, and are responsible for all activities that occur under your account, whether or not authorized by you. You agree to immediately notify Vivaty of any unauthorized use of your password or account or any other breach of security. Vivaty cannot and will not be liable for any loss or damage arising from your failure to comply with this Section 1. Vivaty reserves the right to refuse service to anyone at any time without notice for any reason. The services are not available to persons who have been suspended or removed from the system by Vivaty for any reason.

2. Appropriate Conduct. You understand that all information, data, text, photographs, graphics, messages or other materials (“Content”), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. You understand that by using the Services, you may be exposed to Content that is offensive, indecent or objectionable. You agree that you are responsible for your own conduct and Content while using the Services and for any consequences thereof.

You agree to use the Services and, if applicable, developer extensions to the Platform Software using the Developer's Kit, only for purposes that are legal, proper and in accordance with these Terms of Service and any applicable policies or guidelines. By way of example, and not as a limitation, you agree that when using the Services, you will not:
• defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others;
• upload, post, email or transmit or otherwise make available any inappropriate, defamatory, infringing, obscene, harmful, tortious, vulgar, libelous, hateful, or racially, ethnically or otherwise objectionable or unlawful Content;
• upload, post, email or transmit or otherwise make available any Content that infringes any patent, trademark, copyright, trade secret or other proprietary right of any party, unless you are the owner of such rights or have the permission of the owner to post such Content;
• upload, post, email or transmit or otherwise make available messages that promote pyramid schemes, chain letters or disruptive commercial messages or advertisements, or anything else prohibited by law, these Terms of Service or any applicable policies or guidelines.
• download any file posted by another that you know, or reasonably should know, cannot be legally distributed in such manner;
• impersonate another person or entity, including, but not limited to, an official of Vivaty, or falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material;
• restrict or inhibit any other user from using and enjoying the Services;
• use the Services for any illegal or unauthorized purpose;
• remove any copyright, trademark or other proprietary rights notices contained in or on the Services;
• interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services;
• use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Services or collect information about users for any unauthorized purpose;
• submit Content that falsely expresses or implies that such Content is sponsored or endorsed by Vivaty;
• create user accounts by automated means or under false or fraudulent pretenses;
• promote or provide instructional information about illegal activities or promote physical harm or injury against any group or individual;
• transmit any viruses, worms, defects, Trojan horses, or any items of a destructive nature; or
• if you are a developer: create extensions, enhancements or derivative works of the Platform Software and developer's Kit for any of the foregoing prohibited activities.

While Vivaty prohibits such conduct and Content in connection with Vivaty, you understand and agree that Vivaty may or may not pre-screen Content and shall have the right (but not the obligation) in its sole discretion to pre-screen, refuse or move any Content submitted to Vivaty. You also understand and agree that you nonetheless may be exposed to such conduct and/or Content and that you use Vivaty at your own risk.

3. Privacy Policy. For information about our data protection practices, please see our Privacy Policy at http://www.Vivaty.com/privacy.php. By using Vivaty, you acknowledge and agree that Vivaty may access, preserve, and disclose your account information and any Content associated with that account as provided in the Privacy Policy and if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) satisfy any applicable law, regulation, legal process or governmental request, (b) enforce these Terms of Service, including investigation of potential violations hereof, (c) detect, prevent, or otherwise address fraud, security or technical issues (including, without limitation, the filtering of spam), (d) respond to user support requests, or (e) protect the rights, property or safety of Vivaty, its users and the public. Vivaty will not be responsible or liable for the exercise or non- exercise of its rights under the Terms of Service.

You understand that the technical processing and transmission of the Services, including your Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.

4. Proprietary Rights.

(a) Vivaty's Rights. You acknowledge and agree that Vivaty and any necessary software used in connection with the Services (“Software”) contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that Content contained in sponsor advertisements or information presented to you through the Services or advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly authorized by Vivaty or advertisers, or as provided in the End User License Agreement, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Services or the Software, in whole or in part.

(b) Your Rights. Vivaty claims no ownership or control over any Content submitted, posted or displayed by you on or through the Vivaty. You or a third party licensor, as appropriate, retain all patent, trademark and copyright to any Content you submit, post or display on or through the Vivaty and you are responsible for protecting those rights, as appropriate. By submitting, posting or displaying Content through Vivaty, you grant Vivaty and its end users a worldwide, royalty-free, non-exclusive, perpetual license to exercise the rights in the Content, as stated below:

• to reproduce the Content;
• to create and reproduce derivative works of the Content;
• to display publicly and distribute copies of the Content;
• to display publicly and distribute copies of derivative works of the content.

Furthermore, for the avoidance of doubt, Vivaty reserves, and you grant Vivaty, the right to syndicate Content submitted, posted or displayed by you on or through Vivaty's network and use that Content in connection with any of the services offered by Vivaty. Notwithstanding the above, you may not aggregate the Content obtained from Vivaty for redistribution, and may not use or distribute Content obtained from Vivaty in an online 3D community application or service without Vivaty's prior authorization.

You retain the right to make the Content available under different license terms or to stop distributing the Content through Vivaty at any time; provided, however that any such election will not serve to withdraw the license granted under these Terms of Service. In order to stop distributing the Content through Vivaty, you must terminate these Terms of Service as set forth in Section 9, or utilize the content removal function provided within the service, in which case the content removal will be effective within two (2) days.

(c) Rights to Derivative Works. If you are a developer, you own any extensions, enhancements or other derivative works created by you and Vivaty does not claim any ownership rights to such derivative works. Vivaty continues to own the rights to any underlying works, and your extensions, enhancements or other derivative works continue to be subject to Vivaty's rights in the underlying works.

5. Policies Regarding Copyright, Trademarks, and Brand Features. It is our policy to respond to notices of alleged infringement that comply with the United States' Digital Millennium Copyright Act or other applicable law. Any use of Vivaty's trade names, trademarks, service marks, logos, domain names, and other distinctive brand features must be in compliance with these Terms of Service and in compliance with Vivaty's then current Brand Feature use guidelines.

By submitting Content to Vivaty, you authorize Vivaty to use your trademarks, service marks, trade names, proprietary logos, domain names and any other source or business identifiers in connection with Vivaty's authorized distribution of the Content.

6. General Practices Regarding Use and Storage. You agree that Vivaty has no responsibility or liability for the deletion or failure to store any Content and other communications maintained or transmitted by the Services. You acknowledge that Vivaty has set no fixed upper limit on the number of transmissions you may send or receive through the Services or the amount of storage space used; however, we retain the right, at our sole discretion, to create limits at any time with or without notice.

7. No Resale of Service. You agree not to reproduce, duplicate, copy, sell, trade, or resell any portion of the Services, use of the Services, or access to the Services.

8. Modifications to Service. Vivaty reserves the right at any time to modify or discontinue, temporarily or permanently, the Vivaty service (or any part thereof) with or without notice. You agree that Vivaty shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Services.

9. Termination. You may cancel your use of the Services and/or terminate these Terms of Service with or without cause at any time by providing notice to Vivaty at privacy@Vivaty.com provided, however, that a terminated account may continue to exist for up to two business days before such cancellation takes effect. Vivaty may at any time and for any reason, including a period of account inactivity, terminate your access to the Services, terminate these Terms of Service, or suspend or terminate your account. In the event of termination, your account will be disabled and you may not be granted access to your account or any files or other content contained in your account. Vivaty will not be liable to you or any third party for any termination of your access to the Services. Except as set forth above or unless Vivaty has previously canceled or terminated your use of the Services (in which case subsequent notice by Vivaty shall not be required), if you have provided an alternate email address, Vivaty will notify you via email of any such termination or cancellation, which shall be effective immediately upon Vivaty's delivery of such notice. The licenses granted in Section 4(b) and the provisions of Sections 12 through 21 of these Terms of Service (including the section regarding limitation of liability), shall survive expiration or termination.

10. Advertisements. Many of the Services are supported by advertising revenue and may display advertisements and promotions. The manner, mode and extent of advertising by Vivaty on its services are subject to change. You agree that Vivaty shall not be responsible or liable for any loss or damage of any sort incurred by you as a result of any such dealings or as the result of the presence of such advertisers on the Services.

11. Links. The Services may provide, or third parties may provide, links to other World Wide Web sites or resources. Because Vivaty has no control over such sites and resources, you acknowledge and agree that Vivaty is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that Vivaty shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.

12. Indemnity. You agree to defend, indemnify and hold harmless Vivaty and its subsidiaries, affiliates, directors, officers, agents, employees, advertisers or partners, from and against any third party claim arising from or in any way related to your use of the Services, violation of these Terms of Service or any other actions connected with use of the Services, including any liability or expense arising from all claims, liabilities, losses, expenses, damages (actual and consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature, including any claim that Content (or any part thereof) which you upload, post or distribute infringes any copyright, trademark, trade name or patent right of a third party, defames or invades any right of publicity or privacy, or otherwise infringes any other proprietary right. In such a case, Vivaty will provide you with written notice of such claim, suit or action.

13. Disclaimer of Warranties. YOU EXPRESSLY UNDERSTAND AND AGREE THAT: YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. Vivaty EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

Vivaty MAKES NO WARRANTY THAT (i) THE SERVICES WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS, OR (V) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.

ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM Vivaty OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE.

Vivaty DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY PRODUCTS OR SERVICES OFFERED OR PROVIDED BY OR ON BEHALF OF THIRD PARTIES ON OR THROUGH THE SERVICES. Vivaty IS NOT A PARTY TO, AND DOES NOT MONITOR, ANY TRANSACTION BETWEEN USERS AND THIRD PARTY PROVIDERS OF PRODUCTS OR SERVICES.

14. Limitation of Liability. YOU EXPRESSLY UNDERSTAND AND AGREE THAT Vivaty SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF Vivaty HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY USING THE SERVICES; OR (v) ANY OTHER MATTER RELATING TO THE SERVICES.

15. Exclusions and Limitations. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 13 AND 14 MAY NOT APPLY TO YOU.

16. Third Parties. You agree that, except as otherwise expressly provided in these Terms of Service, there shall be no third party beneficiaries to these Terms of Service. Your dealings with any other entities promoted on or through the Services, including your posting of Content and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such other entity. You agree that Vivaty shall not be responsible or liable for any loss or damage of any kind incurred as the result of any such dealings or as the result of the promotion of such other entities as part of the Services.

17. Notice. You agree that Vivaty may provide you with notices, including those regarding changes to the Terms of Service, by email, regular mail, or postings on the Services. Notices and communication to Vivaty can be sent to: privacy@Vivaty.com

18. General Information.
Entire Agreement. These Terms of Service constitute the entire agreement between you and Vivaty and govern your use of the Services, superceding any prior agreements between you and Vivaty. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other services, affiliate services, third-party content or third-party software.

Choice of Law and Forum. These Terms of Service and the relationship between you and Vivaty shall be governed by the laws of the State of California without regard to its conflict of law provisions. You and Vivaty agree to submit to the personal and exclusive jurisdiction of the courts located within the county of San Mateo, California.

19. Waiver and Severability of Terms. The failure of Vivaty to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision. If any provision of these Terms of Service 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 Service shall remain in full force and effect.

20. International Use. Vivaty provides the Services from its offices in the United States of America. Vivaty does not represent that the Services are appropriate or available for use in other locations. Persons who choose to access or use the Services from other locations do so on their own initiative, and are responsible for compliance with local laws, if and to the extent local laws are applicable. You agree to comply with all local rules regarding online conduct and acceptable Content. Without limiting the generality of the foregoing, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.

21. Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred.

The section headings in these Terms of Service are for convenience only and have no legal or contractual effect.