These Terms of Service (the “Agreement”) are an agreement between Virtually Anywhere Interactive, LLC (“VAI” or “us” or “our”) and you (“User” or “you” or “your”). This Agreement sets forth the general terms and conditions of your use of the products and virtual tour services made available and hosted (if applicable) by VAI (collectively, the “Services”). By using the Services, you agree to be bound by this Agreement. If you do not agree to abide by the terms of this Agreement, you are not authorized to use or access the Services.
1. Services and Account Eligibility. VAI will provide the Services to you, provided you have paid for such Services and you are otherwise in compliance with this Agreement. By registering for or using the Services, you represent and warrant that: If you use the Services on behalf of another party you agree that you are authorized to bind such other party to this Agreement and to act on such other party’s behalf with respect to any actions you take in connection with the Services.
2 Billing and Payment Information. Unless otherwise agreed to by the parties in an order, you shall be obligated to pay all invoices net thirty (30) days from the date of invoice. VAI shall have the right to invoice the remaining balance of project after principle photography and programming have been completed, even if you have not yet submitted your Content. You represent that all information that you provided is accurate and complete and that you will update such information with VAI should any of it change. You are responsible for any applicable sales, use, revenue, excise or other taxes imposed by any taxing authority. All fees are non-refundable when paid unless otherwise stated.
3. VAI Content. Except for User Content (as defined below) and in accordance with United States Copyright Law, all content available through the Services, including designs, text, graphics, images, video, information, software, audio and other files, and their selection and arrangement, and all software used to provide the Services (collectively, “VAI Content”), are the proprietary property of VAI or VAI’s licensors. VAI Content may not be modified, copied, distributed, framed, reproduced, republished, downloaded, scraped, displayed, posted, transmitted, sold or exploited for any purpose in any form or by any means, in whole or in part, other than as expressly permitted in this Agreement. VAI grants you a limited, non-exclusive right to use VAI Content as part of the Services during the term of this Agreement. You may not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any VAI Content. Any use of VAI Content, other than as specifically authorized herein, is prohibited and will automatically terminate your rights to use the Services and any VAI Content. All rights to use VAI Content that are not expressly granted in this Agreement are reserved by VAI and VAI’s licensors.
4. User Content. You may provide access to information, text, photos, videos and other content on or through the Services (collectively, “User Content”). User Content includes any content posted by you hosted (if applicable) through the Services (“User Websites”). You are solely responsible for any and all User Content and any transactions or other activities conducted on or through User Websites. By posting or distributing User Content on or through the Services, you represent and warrant to VAI that (i) you have all the necessary rights to post or distribute such User Content, and (ii) your posting or distribution of such User Content does not infringe or violate the rights of any third party.
Solely for purposes of providing the Services, you hereby grant to VAI a non-exclusive, royalty-free, worldwide right and license to: (i) use, reproduce, publicly perform, publicly display, modify, translate, excerpt (in whole or in part), publish and distribute User Content; and (ii) make archival or back-up copies of User Content and User Websites. Except for the rights expressly granted herein, VAI does not acquire any right, title or interest in or to the User Content, all of which shall remain solely with you, or the original owner. VAI exercises no control over, and accepts no responsibility for, User Content or the content of any information passing through VAI’s computers, network hubs and points of presence or the Internet. VAI does not monitor User Content. However, you acknowledge and agree that VAI may, but is not obligated to, immediately take any corrective action in VAI’s sole discretion, including without limitation removal of all or a portion of the User Content or User Websites, and suspend or terminate any and all Services without refund if you violate the terms of this Agreement. You hereby agree that VAI shall have no liability due to any corrective action that VAI may take.
5. Compatibility with the Services. You agree to cooperate fully with VAI in connection with VAI’s provision of the Services. It is solely your responsibility to provide any equipment or software that may be necessary for your use of the Services. To the extent that the performance of any of our obligations under this Agreement may depend upon your performance of your obligations, VAI is not responsible for any delays due to your failure to timely perform your obligations. You are solely responsible for ensuring that all User Content and User Websites are compatible with the hardware and software used by VAI to provide the Services, which may be changed by VAI from time to time in our sole discretion. You are solely responsible for backing-up all User Content, including but not limited to, any User Websites. VAI does not warrant that we back-up any User Content, and you agree to accept the risk of loss of any and all User Content. Your use of the Services is at your sole risk. VAI’s backup service runs once a week and overwrites any of our previous backups. VAI does not maintain backups of dedicated accounts. VAI is not responsible for files and/or data residing on your account.
6. Account Security and VAI Systems. Users are responsible for all actions taken under their account, including all security required. The Services, including all related equipment, networks and network devices are provided only for authorized customer use. VAI may, but is not obligated to, monitor our systems, including without limitation, to ensure that use is authorized, to facilitate protection against unauthorized access, and to verify security procedures, survivability, and operational security. During monitoring, information may be examined, recorded, copied and used for authorized purposes. By using the Services, you consent to monitoring for these purposes. Any account found connecting to a third party network or system without authorization from the third party is subject to suspension. Access to networks or systems outside of your direct control requires the express written consent of the third party. VAI may, at our discretion, request documentation to prove that your access to a third party network or system is authorized. Any account that is found to be compromised may be disabled and/or terminated. If you do not clean up your account after being notified by VAI of an ongoing issue, we reserve the right to keep your account disabled.
7. Term and Termination. The term of this Agreement shall be for a period of one (1) year. You may terminate this Agreement at any time with or without cause upon written notice to VAI, provided that you shall not receive any refund for fees previously paid. VAI may terminate your access to the Services immediately without notice in the event that you violate this Agreement. In such event, VAI shall not refund to you any fees paid in advance of such termination.
8. Warranty Disclaimer and Limitation of Liability. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE BASIS.” EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, VAI AND OUR AFFILIATES, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS DISCLAIM ALL WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, FOR THE SERVICES PROVIDED HEREUNDER. VAI AND OUR AFFILIATES, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES (I) THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR COMPLETELY SECURE; (II) AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES; OR (III) AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION PROVIDED THROUGH THE SERVICES. VAI AND OUR AFFILIATES, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS ARE NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM USERS OR STORED BY USERS ON OR THROUGH THE SERVICES. THE TERMS OF THIS SECTION SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT.
IN NO EVENT WILL VAI ITS DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING FROM YOUR USE OF THE SERVICES, OR ANY USER CONTENT, USER WEBSITES OR OTHER MATERIALS ACCESSED OR DOWNLOADED THROUGH THE SERVICES, EVEN IF VAI IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, VAI’S LIABILITY TO YOU, OR ANY PARTY CLAIMING THROUGH YOU, FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, IS LIMITED TO THE AMOUNT PAID UNDER THIS AGREEMENT. THIS IS AN AGGREGATE LIMIT. THE EXISTENCE OF MORE THAN ONE CLAIM HEREUNDER WILL NOT INCREASE THIS LIMIT.
9. Indemnification. You agree to indemnify, defend and hold harmless VAI, our affiliates, and their respective officers, directors, employees and agents (each an “Indemnified Party” and, collectively, the “Indemnified Parties”) from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorney’s fees) threatened, asserted, or filed by a third party against any of the Indemnified Parties arising out of or relating to (i) your use of the Services, (ii) any breach or violation by you of this Agreement; (iii) any claim that User Content violates third party intellectual property rights; or (iv) any acts or omissions by you. The terms of this section shall survive any termination of this Agreement.
10. Arbitration. By using the Services, you hereby submit to the exclusive jurisdiction of the American Arbitration Association (“AAA”) in connection with any dispute relating to, concerning or arising out of this Agreement. The parties shall split cost of arbitration evenly. The arbitration will be conducted before a single arbitrator chosen by VAI and will be held at the AAA location chosen by VAI in Texas. The Federal Arbitration Act, and not any state arbitration law, governs all arbitration under this paragraph. All decisions rendered by the arbitrator will be binding and final. The arbitrator’s award is final and binding on all parties. If you initiate litigation or any other proceeding against VAI in violation of this paragraph, you agree to pay VAI’s reasonable costs and attorneys’ fees incurred in connection with our enforcement of this paragraph.
11. Miscellaneous. You may not assign your rights or delegate any of your duties under this Agreement without the prior written consent of VAI, and any attempted assignment or delegation without such consent will be void. If one or more provisions of this Agreement are held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions will not be affected or impaired thereby. Nothing in this Agreement or in the understanding of the parties confers upon the parties the status of agency, partnership, or other form of joint enterprise between the parties. VAI may subcontract any work, obligations or other performance required of VAI under this Agreement without your consent. VAI will not be liable for delays, damages or failures in performance because of causes beyond its reasonable control, including, but not limited to, acts of a government in its sovereign capacity, acts of war, terrorism, acts of a public enemy, fires, earthquakes, acts of God, labor disputes, strikes, work slow-downs or other labor-related activity.