Date Last Revised: September 1, 2023
Subject to these Terms of Use (the "Terms"), Talespin Reality Labs, Inc., whose offices are at 6080 Center Dr. Suite 600, Los Angeles, CA 90045, and its affiliates (hereinafter “Talespin” or “we” or “us”) provides you with access to its Products. “Products” means our hosted services, websites, widgets and embedded content, mobile device applications and applications provided through headsets, APIs, connected devices or other consumer electronic devices.
IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE ANY OF THE PRODUCTS OR ANY INFORMATION ON OR RELATED TO THE PRODUCTS. BY AGREEING TO AN ORDER FORM OR COVER AGREEMENT THAT REFERENCES THESE TERMS,CLICKING TO AGREE TO THESE TERMS OR USING OR ACCESSING, OR CONTINUING TO USE, ANY OF THE PRODUCTS, YOU AGREE TO ABIDE BY EACH OF THE TERMS SET FORTH BELOW AS TO YOUR USE OF ALL OF THE PRODUCTS.
If you or your entity (under which you have an account) have entered into a signed agreement with Talespin, the terms and conditions of such signed agreement shall take precedence and control in the event of any conflict with the terms of these Terms; provided that any additional terms set forth in these Terms shall apply.
If you are entering into these Terms on behalf of a company, business or other legal entity, you represent that you have the authority to bind such entity to these Terms, in which case the term “you" or “Customer” shall refer to such entity. If you do not have such authority, or if you do not agree with these Terms, you must not accept these Terms and may not use any of the Products. As a company, business or other legal entity, you agree to these Terms on behalf of your entity and all users under your account, whether internal or external, and you are responsible for such users and their compliance with these Terms. You are responsible for ensuring that all of your users, whether internal or external, understand these Terms and agree to abide by these Terms. Any breach of these Terms by any of your users will be deemed a breach by you.
If you are an account administrator for a company, business or other legal entity, you agree that you have all necessary rights to provide us with any personal data, if any, of your authorized users under your account.
The effective date of these Terms as to your use of the Products is the date that you first accept or agree to these Terms.
Terms for users:
THESE TERMS CONTAIN A BINDING ARBITRATION PROVISION. YOU AGREE THAT, EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED BELOW, ALL DISPUTES BETWEEN YOU AND TALESPIN WILL BE RESOLVED THROUGH BINDING INDIVIDUAL ARBITRATION, AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION, CLASS ARBITRATION, OR REPRESENTATIVE ACTION. PLEASE READ THE SECTION TITLED “DISPUTE RESOLUTION BY BINDING ARBITRATION” BELOW TO LEARN MORE.
Using any of these Products indicates your unconditional agreement to these Terms, including our Privacy Policy, as updated from time to time. If you are under 18, you must obtain the consent of your parent or guardian to access our Products and your parent or legal guardian agrees to these Terms on your behalf. If you are under 16 years old, you are not permitted to register as a user or otherwise provide us any personal information. These Terms (including the Privacy Policy and any additional terms incorporated by reference) constitute the entire agreement between you and us, and supersede all other written or oral agreements.
1. PURPOSE AND USE
A. We grant you a non-exclusive, non-assignable, non-sublicensable limited license to use our Products and Property Content solely for your internal business use only to obtain trainings and to provide trainings to authorized or named users under your account during your subscription term or trial term, as applicable as set forth in each Cover Agreement (though, you may have certain rights to assign and sublicense to Approved Third Parties (as defined herein) if those rights are provided in your signed agreement with us, if any – see your agreement for details which may supercede these limitations). “Property Content” means our Products and all content they contain, including but not limited to any video, music, text, images, graphics, sounds, information, curriculum, speaking modules, dialogue, URLs, technology, documentation and interactive features included with or available through our Products, learning flow and sequences, derivative works or enhancements, and all intellectual property rights to the same, including all copyrights, patents, trademarks, service marks, trade names and trade dress. We retain all right, title and interest in and to the Property Content.
B. We may from time to time give you the ability to embed certain elements contained in the Products or Property Content into third party platforms pursuant to the license terms contained herein or supplemental terms. If you do so, you may not modify, build upon or block any portion or functionality of the Property Content, including links back to our Products. We have sole control over which elements, if any, may be embedded. You also agree that we have the right
to serve ads and collect information through such embed. In addition, you will post your own terms and privacy policy consistent with applicable law, your use of our content, these Terms and our Privacy Policy.
C. If you use our content creator tool Product to create your own content, such created content is also considered “User Content” under these Terms. You must ensure that you have adequate rights to any aspects or portions of the User Content that you create and that you do not create any User Content that you do not have the rights to create. You will retain ownership of the User Content that you create provided that you will only use such User Content in conjunction with the Products. For the avoidance of doubt, your User Content does not include any of our Property Content.
D. You are responsible for your use of the Products (including the use by any approved third parties). Our goal is to create a positive, useful, and safe user experience. To promote this goal, we prohibit certain conduct that may be harmful to other users or to us. When you use the Products, you shall not:
i. violate any law or regulation;
ii. violate, infringe, or misappropriate other people’s intellectual property, privacy, publicity, or other legal rights;
iii. post or share anything that is illegal, abusive, harassing, harmful to reputation, pornographic, indecent, profane, obscene, hateful, racist, discriminatory or otherwise objectionable;
iv. send unsolicited or unauthorized advertising or commercial communications, such as spam;
v. use any means to spider, harvest, scrape, crawl, or participate in the use of software, including spyware, to collect data from the Products or any Web pages contained in the Products, other than in compliance with any applicable separate written license agreement or supplemental terms from us, if any;
vi. transmit any viruses or other computer instructions or technological means whose purpose is to disrupt, damage, or interfere with the use of computers or related systems;
vii. stalk, harass, or harm another individual;
viii. impersonate any person or entity or perform any other similar fraudulent activity, such as phishing;
ix. attempt to circumvent any technological measure implemented by us or any of our providers or any other third party (including another user) to protect the Products;
x. attempt to decipher, decompile, disassemble, or reverse engineer any of the software or other underlying code used to provide the Products; or
xi. advocate, encourage, or assist any third party in doing any of the foregoing.
E. Except as expressly set forth in these Terms, you shall not, directly or indirectly, in whole or in part: (a) copy any of the Products, except for downloading the mobile app from an authorized distribution channel, such as the Oculus website, Apple App Store or Google Play, onto your mobile device as authorized under the license granted herein; (b) cause or permit any reverse engineering, decompilation, modification, translation or disassembly of any of the Products (or any component thereof, including without limitation associated imagery and technology); (c) sell, rent, sublicense, distribute, disclose, publish, assign or otherwise transfer any rights in the Products (except as otherwise provided in your signed agreement with Talespin, if any); (d) modify, or create derivative works based upon, the Products (or any component thereof, including without limitation associated imagery and technology); (e) permit any third party to benefit from the use or functionality of the Products via a timesharing, service bureau or similar arrangement, other than your authorized users; (f) take any action or omit to act in any way that would interfere with or disrupt the integrity or performance of the Products, or adversely affects Talespin’s right, title or interest in or to the Products; (g) host any digital copy of any Property Content (or any component thereof, including without limitation associated imagery and technology) in any place other than the Products; or (h) redistribute any digital copy of any Property Content (or any component thereof, including without limitation associated imagery and technology) for any purpose. You acknowledge that the software code and technology underlying the Products is Talespin’s confidential and proprietary information and shall not be used or disclosed to any third party.
F. Subject to the terms hereof, Talespin will provide Customer with technical support services during Talespin’s normal business hours (“Support Services”) in accordance with Talespin’s current support terms and Talespin’s Service Level Agreement made available at https://www.talespin.com/service-level-agreement (“SLA”).
G. Talespin may provide consulting professional services, training and implementation services as described in a Cover Agreement and associated mutually agreed upon statement of work, and you shall pay Talespin the applicable fees in such Cover Agreement. During the course of providing such services, Talespin may provide a report and recommendations and/or custom modules, virtual humans, environments and the like to use with the Products ("Deliverables"). Except as otherwise specified in the statement of work, you are granted a personal, non-sublicensable, nonexclusive, nontransferable, limited license, to use the Deliverables for your internal business purposes in connection with your authorized use of the Products. The Deliverables will be deemed accepted upon receipt, except as otherwise stated in a statement of work. If a statement of work provides that a Deliverable will incorporate any of your User Content, you retain all such ownership in and to such User Content and Talespin is licensed to use such User Content solely on your behalf as set forth in Section 2 below. If you request we create a digital twin that uses the name or likeness of an individual, the name or likeness that you provide to us will be considered your User Content.
2. USER CONTENT AND FEEDBACK
A. “User Content” means text, trademarks, logos, materials or other content that you provide to us or make available through the Products and that we may convert to voice in the Products or otherwise use in the Products. When you provide or otherwise make available any such User Content, whether through the Products or during the course of performance of professional services, you grant us a universal, royalty-free, non-exclusive, fully sublicensable and transferable right to host, store, use, reproduce, modify, distribute, create derivative works based upon, translate, communicate, publicly display, publicly perform, transmit the User Content solely for purposes of providing you with the Products and services. You represent that User Content you provide is original with you, does not and will not (when used by Talespin consistent with the above license) violate or infringe upon the rights of any third parties, including, without limitation, any intellectual property rights and rights of publicity and/or privacy. If any User Content is incorporated into any custom modules created hereunder, Talespin retains ownership of the custom modules subject to your ownership of the User Content incorporated therein.
B. “Feedback” means any suggestions or ideas regarding the Products that you may submit or provide to us in any manner. You agree and understand that Talespin is not obligated to use any Feedback and you have no right to compel such use. You understand and acknowledge that Talespin has wide access to ideas, stories, designs, and other materials, and that new ideas are constantly being submitted to it or being developed by Talespin’s own employees. Many ideas or stories may be competitive with, similar or identical to your Feedback in structure, purpose, function, theme, idea, plot, format or other respects. You acknowledge and agree that you will not be entitled to any compensation as a result of Talespin’s use of any such similar or identical material. Finally, you acknowledge that, with respect to any claim you may have relating to or arising out of Talespin’s actual or alleged exploitation or use of any Feedback, the damage, if any, thereby caused will not be irreparable or otherwise sufficient to entitle you to injunctive or other equitable relief and your rights and remedies in any such event shall be strictly limited to the right to recover damages, if any, in an action at law consistent with the terms set forth in the sections entitled “DISPUTE RESOLUTION BY BINDING ARBITRATION”.
3. REGISTRATION AND ACCOUNTS; PRIVACY
If you register in connection with your usage, you may be asked to create a user name and password. You are responsible for the activity that occurs under your account, and for maintaining the confidentiality of your account, including for any single sign on services that we provide or that you use from a third party to login to your account. You agree not to provide any false personal information or to create an account for anyone other than yourself and your authorized users. You agree to contact us at support@talespin.com immediately if you become aware of any breach of security or unauthorized use of your account. The foregoing shall also apply in the case of your assignment or sub-license of the Products to third parties (“Approved Third Parties”), if permitted under your signed Agreement with Talespin and you agree to be bound and responsible for such use by third party transferees and to use best efforts to ensure that such Approved Third Parties abide by these Terms.
4. COPYRIGHT POLICY
Talespin respects the intellectual property of others, and we ask our Users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify Talespin of your infringement claim in accordance with the procedure set forth below. Talespin will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to Talespin’s Copyright Agent below. To be effective, the notification must be in writing and contain the following information:
I. your name, address, telephone number, and e-mail address;
ii. a description of the copyrighted work that you claim has been infringed;
iii. the exact URL or if no URL exists, a description of each place where alleged infringing material is located;
iv. a statement by you that you have a good faith belief that the disputed use has not been authorized by you, your agent, or the law;
v. your electronic or physical signature or the electronic or physical signature of the person authorized to act on your behalf; and
vi. a statement by you that the information in your notice is accurate, and a statement made under penalty of perjury that you are the copyright owner or authorized to act on the copyright owner's behalf.
Talespin’s Copyright Agent’s address is:
Talespin Reality Labs, Inc.
Attn: Copyright Agent
6080 Center Dr. Suite 600,
Los Angeles, CA 90045
Email: legal@talespin.company
We will review any notices of copyright infringement and take appropriate action. Inquiries that do not follow this procedure may not receive a response. Repeat Infringer Policy: In accordance with the DMCA and other applicable law, Talespin has adopted a policy of terminating, in appropriate circumstances and at Talespin's sole discretion, Users who are deemed to be repeat infringers. Talespin may also at its sole discretion limit access to the Products and/or terminate the memberships of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
5. THIRD PARTY INDEMNITY
A. Subject to the terms of Section 5.C. below, we agree to indemnify and hold harmless you from and against any and all “Losses” (as defined below) that may arise in connection with (i) Talespin’s gross negligence or willful misconduct or (ii) any of the Products infringing on a third party’s intellectual property or proprietary rights, excluding claims arising out of any User Content, your embedding any of the Products into third party platforms or your combination of the Products with materials provided by third parties. Talespin is not obligated to indemnity you hereunder during any free trial periods.
B. Subject to the terms of Section 5. C. below, you agree to indemnify and hold harmless the“Talespin Parties” (as defined below) from and against any and all “Losses” (as defined below)that may arise in connection with: (i) your (or Approved Third Parties’) gross negligence or willful misconduct; (ii) User Content provided by you (or Approved Third Parties) infringing on a third party’s intellectual property or proprietary rights; or (iii) any actual or alleged violation or breach by you (or Approved Third Parties) of these Terms. “Talespin Parties” means Talespin and its officers, directors, employees, parents, partners, successors, agents, distribution partners, affiliates, subsidiaries and their related companies.
C. “Losses” means third party claims and resulting liabilities, losses, damages, obligations, costs and expenses (including reasonable attorneys’ fees and costs). The indemnities hereunder are subject to the following: The indemnified party must promptly notify the indemnifying party of the claim, allow the indemnifying party to control the defense of the claim and reasonably cooperate with the indemnifying party in defending the claim (at the indemnifying party’s expense).
6. LIMITED WARRANTY; WARRANTY DISCLAIMERS; LIMITATION OF LIABILITY; WAIVERS, WARNINGS
A. Talespin represents and warrants to you that the Products when used for their intended purpose and in accordance with Talespin's instructions and user documentation, will materially conform to Talespin's user documentation for the subscription term in the Cover Agreement. Your sole and exclusive remedy, and Talespin's sole and exclusive liability for any breach of this warranty will be, at Talespin's sole discretion, to either fix the Products to remedy the defect or refund a pro-rated portion of the applicable fees paid by you for the Products for the unused remainder of the current subscription term, in each case on condition that you promptly notify Talespin in writing of any alleged breach of this warranty. This warranty is null and void to the extent the Products: (i) fail to conform with this warranty as a result of its use with any third party hardware or software; (ii) is used for an unintended purpose, is used other than in accordance with its documentation, or is otherwise in breach of this Agreement, or (iii) fail due to your User Content or your misconfigurations of the Services. EXCEPT AS EXPRESSLY PROVIDED HEREUNDER, THE PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DO NOT MAKE ANY OTHER COMMITMENTS ABOUT ANY CONTENT WITHIN OUR PRODUCTS, ANY SPECIFIC FUNCTIONS OR THE RELIABILITY, ACCURACY, SECURITY, TIMELINESS, NON-INFRINGEMENT, OR AVAILABILITY OF OUR PRODUCTS OR ANY ASSOCIATED CONTENT TO MEET YOUR NEEDS. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM THE WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR THOSE ARISING OUT OF A COURSE OF DEALING OR USAGE OF TRADE, AND ALL OTHER IMPLIED WARRANTIES.
B. TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER YOU NOR THE TALESPIN PARTIES WILL BE RESPONSIBLE FOR LOST PROFITS, REVENUES OR DATA, FINANCIAL LOSSES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES. TO THE FULLEST EXTENT PERMITTED BY LAW, THE TOTAL LIABILITY OF
THE TALESPIN PARTIES AND YOU FOR ANY DAMAGES AND/OR CLAIMS UNDER THESE TERMS, INCLUDING FOR ANY IMPLIED WARRANTIES, IS LIMITED TO THE GREATER OF ONE THOUSAND DOLLARS AND THE AMOUNT THAT YOU PAID US TO USE THE PRODUCTS IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE ACT OR OMISSION FIRST GIVING RISE TO THE CLAIM (OR, IF WE CHOOSE, TO SUPPLY YOU WITH THE PRODUCTS AGAIN). THE FOREGOING WAIVERS AND LIMITATIONS OF LIABILITY SHALL NOT APPLY TO YOUR PAYMENT OR INDEMNITY OBLIGATIONS OR A BREACH OF THE LICENSES GRANTED OR RESTRICTIONS IN SECTION 1 HEREUNDER.
C. YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF, RELATING TO, OR IN ANY WAY CONNECTED WITH ANY OF OUR PRODUCTS OR THESE TERMS MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED. THIS
PROVISION IS NOT APPLICABLE IN NEW JERSEY.
D. TO REDUCE THE RISK OF PERSONAL INJURY, DISCOMFORT OR PROPERTY DAMAGE, YOU SHALL ENSURE THAT, BEFORE USING ANY OF THE PRODUCTS, ALL USERS OF THE PRODUCTS READ CAREFULLY ALL HEALTH AND SAFETY WARNINGS PROVIDED TO YOU.
7. CONFIDENTIALITY
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical, product or financial information or data relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Confidential Information of Talespin includes non-public information regarding features, functionality and performance of the Products. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except in performance of its obligations under this Agreement or as otherwise permitted herein) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public other than by breach of this Agreement, or (b) was rightfully in its possession or known by it without a confidentiality obligation prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without confidentiality restrictions by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party as evidenced by its internal files. If a Receiving Party is required by law or a governmental agency to disclose the Disclosing Party’s Confidential Information, unless prohibited or requested by law or governmental agency, the Receiving Party must provide reasonable notice to the Disclosing Party of such required disclosure so as to permit the Disclosing Party a reasonable period of time to seek a protective order or limit the amount of Confidential Information to be disclosed.
8. ELECTRONIC COMMUNICATIONS AND FEES
A. By using the Products, you consent to receiving electronic communications from Talespin. These electronic communications may include notices about applicable Products fees and charges related to the Products and transactional or other information concerning or related to the Products. These electronic communications are part of your relationship with Talespin and you receive them as part of your use of the Products. You agree that any notices, agreements, disclosures or other communications that Talespin sends you electronically will satisfy any legal communication requirements, including that such communications be in writing.
B. The Products will be provided according to the plan level and subscriptions you select. Unless otherwise specified on a Cover Agreement, fees will be billed to the credit card or other payment account you provide in accordance with the billing terms in effect at the time a fee or charge is due and payable. All payments under this Agreement shall be made in advance within thirty (30) days of invoice date in currently available funds or as otherwise set forth in a Cover Agreement. You acknowledge and agree that Talespin will automatically charge your credit card or other payment account on record with Talespin in connection with your use of the Products in arrears or in advance, as set forth on the payment page or applicable Cover Agreement.
You will pay Talespin the then applicable fees described in the Cover Agreement for the Products, capacity overages for the Products in accordance with the terms therein. At any time during the subscription term, Customer you may submit and agree on a Cover Agreement with Talespin to increase the capacity and, upon Talespin’s acceptance of such Cover Agreement, you shall pay the fees for such increase, pro-rated for the remainder of your then-current subscription term, and such Cover Agreement shall renew concurrently with your then-current subscription term for a period equal to your initial subscription term.
Your subscriptions will automatically-renew for the same term as the initial term, subject to the terms of Section 9 below. You represent and warrant to Talespin that all of your payment information is true and that you are authorized to use the payment instrument. You will promptly
update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. If payment is not received or cannot be charged to your credit card or other payment account for any reason in advance and you do not make the payment within ten (10) days of Talespin’s request, Talespin reserves the right to either suspend or terminate your access to the Products and terminate these Terms. All fees are non-refundable, except as expressly stated otherwise in these Terms.
C. All payments shall be made in the currency of, and within the borders of the United States. You will pay all applicable taxes, duties, withholdings, backup withholding and the like; when Talespin has the legal obligation to pay or collect such taxes, the appropriate amount shall be paid by you directly to Talespin. If all or any part of any payment owed to Talespin under these Terms is withheld, based upon a claim that such withholding is required pursuant to the tax laws of any country or its political subdivisions and/or any tax treaty between the U.S. and any such country, such payment shall be increased by the amount necessary to result in a net payment to Talespin of the amounts otherwise payable under these Terms. You will reimburse Talespin any pre-approved and agreed upon costs. Talespin may change its fees and payment terms at its discretion; provided however, that such changes will not take effect for you until the start of the next payment period. Talespin will provide written notice to you for any changes to the fees that affect the Products purchased by you. Your continued use of the Products after the price change becomes effective constitutes your agreement to pay the changed amount.
9. TERM AND TERMINATION
A. Subject to earlier termination as provided below, the term of these Terms will commence on your acceptance of these Terms and will continue for as long as the Products are being provided to you under these Terms. The term of your subscription and any Products purchased shall continue for the subscription term set forth in the Cover Agreement and shall automatically renew for successive terms equal in duration to the initial subscription term, or as otherwise specified on the order form or cover agreement, unless you cancel your subscription in writing thirty (30) days in advance of the renewal date (subject to applicable law).
B. Subject to earlier termination as provided below, each party may terminate these Terms upon thirty (30) days' notice (or two (2) days in the case of nonpayment), if the other party breaches any of the terms or conditions of these Terms and does not cure the breach within such time period. You acknowledge that Talespin reserves the right to terminate accounts that are inactive for an extended period of time and the right to modify or discontinue, temporarily or permanently, the Products (or any part thereof). All of User Content on the Products (if any) may be permanently deleted by Talespin upon any termination of your account in its sole discretion.
C. All sections of these Terms which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
D. Upon the termination of these Terms for any reason: (i) the licenses granted under these Terms in respect of the Products shall immediately terminate and you and your users shall cease use of the Products and you shall delete any software modules or APIs; (ii) Talespin will cease providing any support; (iii) you shall pay to Talespin the full amount of any outstanding fees due hereunder; and (iv) within fourteen (14) calendar days of such termination, you shall destroy or return all Talespin Confidential Information in your possession or control, and will not make or retain any copies of such information in any form.
10. AMENDMENTS AND CHANGES
We reserve the right, at our sole discretion, to change or modify portions of these Terms at anytime. If we do this, we will post the changes on certain portions of the Products and will indicate at the top of this page the date these terms were last revised. We may also notify you, either through the Products interface, or in an email notification or through other reasonable means to registered users and/or the administrator for an account. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Products or changes made for legal reasons will be effective immediately. Your continued use of the Products after the date any such changes become effective constitutes your acceptance of the new Terms.
11. MOBILE USERS AND HEADSET USERS
A. With respect to the mobile versions of the Products, you will only use the Products (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) or a product that runs on the Android operating system; and (ii) as permitted by, and in compliance with, applicable “Usage Rules” set forth in the Apple App Store Terms of Use or the Google Play Terms. We reserve all rights in the Products not expressly granted to you by these Terms. With regard to your use of the iOS version of the Products, you acknowledge and agree that (i) these Terms are an agreement between you and Talespin only, and not Apple, and (ii) Talespin, not Apple, is solely responsible for the Products and content thereof. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Products. In the event of any failure of the Products to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Products to you and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Products. As between Talespin and Apple, any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Talespin, subject to the these Terms. You and Talespin acknowledge that, as between Talespin and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the Products or your possession and use of the Products, including, but not limited to: (i) product
liability claims; (ii) any claim that the Products fails to conform to any applicable legal or regulatory requirement; and, (iii) claims arising under consumer protection or similar legislation. You and Talespin acknowledge that, in the event of any third party claim that the Products, or your possession and use of the Products, infringes that third party’s intellectual property rights, as between Talespin and Apple, Talespin, not Apple, will be solely responsible for the
investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required by, and subject to, these Terms. You and Talespin acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms as they relate to your license of the Products, and that, upon your acceptance of the Terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as they relate to your license of the Products against you as a third party beneficiary thereof.
B. If we provide you with any Oculus Quest headsets (“Facebook Products”) for use in conjunction with our Products, you acknowledge and agree to the following terms: (i) the enterprise software as developed by Facebook (“Enterprise Software”) is provided by Facebook under the terms of the Facebook Enterprise Use Agreement (“EUA”) at https://business.oculus.com/legal/enterprise-use-agreement and you agree to abide by the terms of the EUA; (ii) Facebook will not provide any warranty or support for the Facebook Products; (iii) you acknowledge and agree that you may experience interruptions in service when using the Facebook Products and may be required to reset or install updates to the Facebook Products from time to time; (iv) you acknowledge and agree that Talespin and not
Facebook is the owner of the Facebook Products, and that any data provisions included in the EUA will not be applicable to you; (v) you will not disclose your use of the Facebook Products to any third party; (vi) you will not transfer or resell any license to Enterprise Software to another party, (vii) you will abide by and provide all content-specific warnings to all of your users under your account that may use the Facebook Products; (viii) you will keep the Facebook Products clean and in good working order; and (ix) you will follow all health and safety warnings provided by Facebook with or in connection with the use of the Enterprise Software and Facebook Products. The provision of the Facebook Products is a bailment and you are responsible for returning such Facebook Products to Talespin on the earlier of Talespin’s request or at the
expiration or termination of your subscription.
12. NOTICE FOR CALIFORNIA USERS
If you are a California resident, you may have these Terms mailed to you electronically by sending a letter to info@talespin.company with your email address and a request for the Terms and any linked terms. In addition, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the CaliforniaDepartment of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento,California 95834, or by telephone at 1-800-952-5210 in order to resolve a complaint regarding the Products or to receive further information regarding use of the Products.
13. PUBLICITY
Customer grants Talespin a non-exclusive, royalty-free, fully-paid up license to use and reproduce Customer’s trademarks, tradenames and logos in Talespin’s marketing materials and website(s) and to indicate that Customer is a Talespin customer. Talespin will abide by any written trademark usage guidelines provided by Customer. All goodwill arising out of the use of Customer’s trademarks, tradenames and logos shall inure to Customer’s benefit.
14. MISCELLANEOUS
A. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions.
A.1 Disputes with a Domestic Customer. If Customer is located and headquartered in the United States of America, each Customer and Talespin irrevocably and unconditionally consent to the exclusive jurisdiction of the federal and state courts located in the Los Angeles County, California for all proceedings arising out of this contract or related to the parties’ relationship, and Customer and Talespin agree to only institute such proceedings in those courts. Customer and Talespin also waive any objection to venue in those courts based on improper venue. Customer and Talespin agree that a final judgment (subject to appeals) in any such proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in another lawful manner.
A.2 Disputes with a Customer outside of the US. If Customer is located and headquartered outside of the United States of America, then any action related to this Agreement will be governed by California law. Any dispute between Customer and Talespin that is not resolved through negotiation will be resolved exclusively by final and binding arbitration conducted in accordance with the then-current Comprehensive Arbitration Rules and Procedures of the Judicial Arbitration and Mediation Services (“JAMS”). The arbitration will be conducted by a single arbitrator selected by agreement of Customer and Talespin or, if the Customer and Talespin cannot agree, an arbitrator appointed in accordance with the JAMS rules who shall be experienced in the type of dispute at issue. Customer and Talespin, their representatives, the arbitrator, and other participants shall keep confidential the existence, content, and result of the arbitration. Any demand for arbitration and any counterclaim must specify in reasonable detail the facts and legal grounds forming the basis for the claimant’s claims and include a statement of the total amount of damages claimed, if any, and any other remedy sought by the claimant. The arbitration will be conducted in the English language; the location of such arbitration shall be in San Francisco, California. Each party will bear its own costs in the arbitration. The arbitrator will have full power and authority to determine issues of arbitrability and to interpret or construe the provisions of the agreement documents and to fashion appropriate remedies (including temporary, preliminary, interim, or permanent injunctive relief); provided that the arbitrator will not have any right or authority: (i) in excess of the authority that a court having jurisdiction over the parties and the dispute would have absent this arbitration agreement; or (ii) to award damages in excess of the types and limitation of damages found in the Agreement. Judgment upon the award may be entered in any court of competent jurisdiction. Notwithstanding the agreement to arbitrate, each party may apply at any time to a court of competent jurisdiction for appropriate injunctive relief or for other interim or conservatory measures, and by doing so will not breach or waive the agreement to arbitrate or impair the powers of the arbitrator.
B. Except as provided in these Terms, these Terms constitute the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous written or oral agreements between the parties with respect to the subject matter hereof.
C. These terms do not create any rights in favor of any third party, except as otherwise expressly specified hereunder. You shall not assign or transfer these Terms to any third party without our prior written consent, except you may assign or transfer these Terms to a successor in interest by way of merger or acquisition of all or substantially all of its assets or stock if the successor agrees to these Terms and you provide us with prior written notice of the same. Our failure to take action to enforce our rights does not mean that we give up those rights or cannot take such action in the future.
D. If a provision in these Terms is found to be illegal or unenforceable, that provision shall be removed from these Terms and the remaining provisions of these Terms shall remain in force. If you access the Products from locations outside of the U.S. you do so on your own initiative and at your own risk, and you are solely responsible for compliance with local laws, if and to the extent local laws are applicable.
E. At any time and for any reason or no reason we may add, remove or modify functionality.
F. When using our Products, you agree to comply with all applicable laws and regulations.
G. You agree to fully cooperate with us to investigate any suspected or actual activity that is in breach of these Terms.
H. Our Products may link or contain links to other websites maintained by our licensors, affiliates and/or third parties. We do not operate, control or necessarily endorse the content found on these third-party websites. You assume sole responsibility for your use of third-party links and any content posted on third-party websites.
I. Authorized users of the Products under a corporate account of certain organizations that license use of certain Products from us (“Customer Organizations”) may have data related to their usage, including personal identifiable information (“PII”) that we otherwise keep confidential, downloaded, parsed and retained by such Customer Organizations. Such use and retention of such data is determined by the applicable Customer Organization and is not on behalf of Talespin and you agree to fully hold us harmless, to the greatest extent permitted under applicable law, from any loss, liability or other recourse with respect to such use and retention of your data, including any PII, to the extent that it is obtained, utilized, stored or otherwise manipulated by a Customer Organization to which you are attached and through which your usage of the Products, in part or in total, is arranged or obtained,
J. If you have a question, concern or complaint about these Terms, you can contact us at Office of General Counsel, Talespin Reality Labs, Inc., 6080 Center Dr. Suite 600, Los Angeles, CA 90045.
