Effective Date: May 31, 2017

 

APPLE, INC. IS NOT A PARTICIPANT IN OR SPONSOR OF THIS SWEEPSTAKES.

GOOGLE, INC. IS NOT A PARTICIPANT IN OR A SPONSOR OF THIS SWEEPSTAKES.

PLEASE READ THIS AGREEMENT CAREFULLY.   IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE SERVICE AND PRODUCTS AND SERVICES AVAILABLE THROUGH THE SERVICE.

IMPORTANT NOTICE:  THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN SECTION 9.

Introduction

Welcome!  This Terms of Service (“Terms”) govern the Versus mobile application (the “App”), including your use of interactive features, widgets, plug-ins, applications, content, downloads and/or other online services that we own and control and that post a link to these Terms (collectively referred to herein as the “Service”), which are made available by Versus Systems Ltd. (“VERSUS”, “we” “our” or “us”).  By using the Service, you acknowledge and accept the Service’s Privacy Policy and consent to the collection and use of your data in accordance with the Privacy Policy.  The Service is used in conjunction with VERSUS enabled video games to assist with authenticating users of the Versus Systems Platform and for distributing coupons to individuals.

If You Want to Use This Service,

then carefully read these entire Terms (including all links to details), as they constitute a written agreement between you and us and they affect your legal rights and obligations.  Each time you access and/or use the Service (other than to simply read these Terms), you agree to be bound by and comply with these Terms and any Additional Terms (defined below) then posted.  Therefore, do not use the Service if you do not agree.

The business realities associated with operating the Service are such that, without the conditions that are set forth in these Terms -- such as your grants and waivers of rights, the limitations on our liability, your indemnity of us, and arbitration of certain disputes – VERSUS would not make the Service available to you.

In some instances, both these Terms and separate guidelines, rules, or terms of use or sale setting forth additional or different terms and/or conditions will apply to your use of the Service or to a service or product offered via the Service (in each such instance, and collectively “Additional Terms”).  To the extent there is a conflict between these Terms and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise. 

Linkable Table of Contents

It is important that you read and understand these entire Terms before using the Service.  This table of contents further highlights some key issues and points and you can click on the headings and “More” links to be taken to the full explanation.

1. Service Content, Ownership, Limited License and Rights of Others

We only grant you a limited revocable license to use the Service for your own non-commercial use subject to rules and limitations.  More

2. Service and Content Use Restrictions

Your use is subject to our rules.  More

3. Opening and Terminating Accounts and Identity Authentication

You may open, revise and close your accounts and other terms that apply when you use the Service to make purchases from Merchants.  More

4. Feedback You Submit

You grant us a broad license, which we may sublicense, to the content or feedback you submit, which you represent you have the right to allow us to use.  More

5. Notices, Questions and Customer Service

Click here to contact us for customer service or questions.  You agree that we may provide you notices, including notices of new terms and conditions, by posting notice on the home page of the Service or by other reasonable means, such as to the email you provided.  More

6. Links by You to the Service

You may link to our Service, subject to some basic rules. More

7. Linked-To Websites; Advertisements; Dealings with Third Parties

We are not responsible for third parties or their content, advertisements, apps or Services.  More

8. Wireless Features

Wireless carrier charges may apply to use of the Service via wireless networks or Devices.  More

9. Dispute Resolution

You agree to arbitrate most disputes and waive jury trial and class actions.  More

10. Disclaimer of Representations and Warranties

We disclaim most warranties and provide the Service “As Is”.  More

11. Limitations of our Liability

Our liability is greatly limited.  More

12. Updates to Terms

These Terms and Additional Terms posted on the Service at each time of use apply to that use, and the Terms may be prospectively updated as our Service evolves.  Posting of new terms on the Service is notice to you thereof.  More

13. General Provisions

You agree to various other terms and conditions, which you should read here.  More

14. Terms Applicable For Apple iOS and Microsoft Windows

There are some other things you should know if you are accessing or using our Service through an Apple or Windows Phone Device.  More

Full Details of Terms of Service

1. Service Content, Ownership, Limited License and Rights of Others

A. Content.  The Service contains a variety of: (i) materials and other items relating to VERSUS, VERSUS’ products and services, and similar items from our licensors and other third parties, including all layout, information, games, articles, reviews, posts, text, data, files, images, scripts, designs, graphics, button icons, instructions, illustrations, photographs, audio clips, music, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Service, and the compilation, assembly, and arrangement of the materials of the Service and any and all copyrightable material (including source and object code); (ii) trademarks, trade dress, logos, trade names, service marks, and/or trade identities of various parties, including those of VERSUS (collectively,  “Trademarks”); and (iii) other forms of intellectual property (all of the foregoing, collectively “Content”).  

B. Ownership.  The Service (including past, present and future versions) and the Content are owned or controlled by VERSUS and our licensors and certain other third parties.  All right, title, and interest in and to the Content available via the Service is the property of VERSUS or our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent, or other intellectual property and unfair competition rights and laws to the fullest extent possible.  VERSUS owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content on the Service.  

C. Limited License.  Subject to your strict compliance with these Terms and the Additional Terms, VERSUS grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to download (temporary storage only), display, view, use, play, and/or print one copy of the Content (excluding source and object code in raw form or otherwise, other than as made available to access and use to enable display and functionality) on a personal computer, mobile phone or other wireless device, or other Internet enabled device (each, a “Device”) for your personal, non-commercial use only.  The foregoing limited license: (i) does not give you any ownership of, or any other intellectual property interest in, any Content, and (ii) may be immediately suspended or terminated for any reason, in VERSUS’ sole discretion, and without advance notice or liability.  In some instances, we may permit you to have greater access to and use of Content, subject to certain Additional Terms.  

D. Rights of Others.  When using the Service, you must respect the intellectual property and other rights of VERSUS and others.  Your unauthorized use of Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability.

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2. Service and Content Use Restrictions

A. Service Use Restrictions.  You agree that you will not: (i) use the Service for any political or commercial purpose (including, without limitation, for purposes of advertising, soliciting funds, collecting product prices, and selling products); (ii) use any meta tags or any other “hidden text” utilizing any Trademarks; (iii) engage in any activities through or in connection with the Service that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party, or are otherwise objectionable to VERSUS; (iv) reverse engineer, decompile, disassemble, reverse assemble, or modify any Service source or object code or any software or other products, services, or processes accessible through any portion of the Service; (v) engage in any activity that interferes with a user’s access to the Service or the proper operation of the Service, or otherwise causes harm to the Service, VERSUS, or other users of the Service; (vi) interfere with or circumvent any security feature of the Service or any feature that restricts or enforces limitations on use of or access to the Service or the Content; (vii) harvest or otherwise collect or store any information (including personally identifiable information about other users of the Service, including email addresses, without the express consent of such users); (viii) attempt to gain unauthorized access to the Service, other computer systems or networks connected to the Service, through password mining or any other means; or (ix) otherwise violate these Terms or any Additional Terms.

B. Content Use Restrictions.  You also agree that, in using the Service: (i) you will not monitor, gather, copy, or distribute the Content (except as may be a result of standard search engine activity or use of a standard browser) on the Service by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (ii) you will not frame or utilize framing techniques to enclose any such Content (including any images, text, or page layout); (iii) you will keep intact all Trademark, copyright, and other intellectual property notices contained in such Content; (iv) you will not use such Content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands; (v) you will not make any modifications to such Content; (vi) you will not copy, modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate or transfer to any third party or on any third-party application or website, or otherwise use or exploit such Content in any way for any purpose except as specifically permitted by these Terms or any Additional Terms or with the prior written consent of an officer of VERSUS or, in the case of Content from a licensor, the owner of the Content; and (vii) you will not insert any code or product to manipulate such Content in any way that adversely affects any user experience. 

C. Availability of Service and Content.  VERSUS may immediately suspend or terminate the availability of the Service and Content (and any elements and features of them), in whole or in part, for any reason, in VERSUS’ sole discretion, and without advance notice or liability.  

D. Reservation of All Rights Not Granted as to Content and Service.  These Terms and any Additional Terms include only narrow, limited grants of rights to Content and to use and access the Service.  No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise.  All rights not expressly granted to you are reserved by VERSUS and its licensors and other third parties.  Any unauthorized use of any Content or the Service for any purpose is prohibited.

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3. Opening and Terminating Accounts; Identity Authentication; Payment Transactions Using the Service

A. Accounts.  In order to access or use some (or potentially all) of the features on the Service, you may be required to first register for an account through our online registration process.  The Service’s practices governing any resulting collection and use of your personal information are disclosed in the Privacy Policy.  If you register for any feature that requires a password and/or username, then you will select your own password at the time of registration (or we may send you an e-mail notification with a randomly generated initial password) and you agree that: (i) You will not use a username (or e-mail address) that is already being used by someone else, may impersonate another person, belongs to another person, violates the intellectual property or other right of any person or entity, or is offensive.  We may reject the use of any password, username, or e-mail address for any other reason in our sole discretion; (ii) You will provide true, accurate, current, and complete registration information about yourself in connection with the registration process and, as permitted, to maintain and update it continuously and promptly to keep it accurate, current, and complete; (iii) You are solely responsible for all activities that occur under your account, password, and username – whether or not you authorized the activity; (iv) You are solely responsible for maintaining the confidentiality of your password and for restricting access to your Device so that others may not access any password protected portion of the Service using your name, username, or password; (v) You will immediately notify us of any unauthorized use of your account, password, or username, or any other breach of security; and (vi) You will not sell, transfer, or assign your account or any account rights.  We will not be liable for any loss or damage (of any kind and under any legal theory) to you or any third party arising from your inability or failure for any reason to comply with any of the foregoing obligations.  If any information that you provide, or if we have reasonable grounds to suspect that any information that you provide, is false, inaccurate, outdated, incomplete, or violates these Terms, any Additional Terms, or any applicable law, then we may suspend or terminate your account.  We also reserve the more general and broad right to terminate your account or suspend or otherwise deny you access to it or its benefits – all in our sole discretion, for any reason, and without advance notice or liability.

B. Identity Authentication.  You authorize us, directly or through third parties, to make any inquiries we consider necessary to validate your identity.  This may include asking you for further information, requiring you to provide your date of birth, and other information that will allow us to reasonably identify you, requiring you to take steps to confirm ownership of your email address or financial instruments, ordering a credit report, or verifying your information against third party databases or through other sources.  We may also ask to see your driver’s license or other identifying documents at any time.  If you use certain services, federal law may require that we verify some of your information.  VERSUS reserves the right to close, suspend, or limit access to your account and/or the Service in the event we are unable to obtain or verify this information.  

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4. Feedback You Submit

A. General.  VERSUS may now or in the future offer users of the Service the opportunity to post, upload, display, publish, distribute, transmit or otherwise make available on or submit through the Service, messages, text, files, comments, responses, information, content, results, reviews, suggestions, personally identifiable information, or other information or materials and the ideas contained therein (collectively, “User-Generated Content”).  VERSUS may allow you to do this through contact us, email, and other communications functionality.  Subject to the rights and license you grant in these Terms, you retain whatever legally cognizable right, title, and interest that you have in your User-Generated Content and you remain ultimately responsible for it.

B. Non-Confidentiality of Your User-Generated Content.  Except as otherwise described in the Service’s posted Privacy Policy or any Additional Terms, you agree that: (a) your User-Generated Content will be treated as non-confidential – regardless of whether you mark them “confidential,” “proprietary,” or the like – and will not be returned; and (b) VERSUS does not assume any obligation of any kind to you or any third party with respect to your User-Generated Content.  Upon VERSUS’ request, you will furnish us with any documentation necessary to substantiate the rights to such content and to verify your compliance with these Terms or any Additional Terms.  You acknowledge that the Internet and mobile communications may be subject to breaches of security and that you are aware that submissions of User-Generated Content may not be secure, and you will consider this before submitting any User-Generated Content and do so at your own risk.  In your communications with VERSUS, please keep in mind that we do not seek any unsolicited ideas or materials for products or services, or even suggested improvements to products or services, including, without limitation, ideas, concepts, inventions, or designs for websites, services, products or otherwise (collectively, “Unsolicited Ideas and Materials”).  Any Unsolicited Ideas and Materials you post on or send to us via the Service are deemed User-Generated Content and licensed to us as set forth below.  In addition, VERSUS retains all of the rights held by members of the general public with regard to your Unsolicited Ideas and Materials.  VERSUS’ receipt of your Unsolicited Ideas and Materials is not an admission by VERSUS of their novelty, priority, or originality, and it does not impair VERSUS’ right to contest existing or future intellectual property rights relating to your Unsolicited Ideas and Materials. 

C. License to VERSUS of Your User-Generated Content.  Except as otherwise described in any applicable Additional Terms, which specifically govern the submission of your User-Generated Content), you hereby grant to VERSUS, and you agree to grant to VERSUS, the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your User-Generated Content (and derivative works thereof), for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same.  Without limitation, the granted rights include the right to: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format, and remove such User-Generated Content and combine same with other materials, and (b) use any ideas, concepts, know-how, or techniques contained in any User-Generated Content for any purposes whatsoever, including developing, producing, and marketing products and/or services.  In order to further effect the rights and license that you grant to VERSUS to your User-Generated Content, you also hereby grant to VERSUS, and agree to grant to VERSUS, the unconditional, perpetual, irrevocable right to use and exploit your name, persona, and likeness in connection with any User-Generated Content, without any obligation or remuneration to you.  Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any User-Generated Content, even if it is altered or changed in a manner not agreeable to you.  To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights.  You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section 4(C).

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5. Notices, Questions and Customer Service

You agree that: (i) we may give you notices of new, revised or changed terms and other important matters by prominently posting notice on the home page of the Service, or in another reasonable manner; and (ii) we may contact you by mail or email sent to the address provided by you.  You agree to promptly notify us if you change your email or mailing address.  

If you have a question regarding using the Service, you may contact us at info@versussystems.com. You acknowledge that the provision of customer support is at VERSUS’ sole discretion and that we have no obligation to provide you with customer support of any kind.   

6. Links by You to the Service 

We grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to create hyperlinks to the Service, so long as: (a) the links only incorporate text, and do not use any Trademarks; (b) the links and the content on your website do not suggest any affiliation with VERSUS or cause any other confusion; and (c) the links and the content on your website do not portray VERSUS or its products or services in a false, misleading, derogatory, or otherwise offensive matter, and do not contain content that is unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party or are otherwise objectionable to VERSUS.  VERSUS reserves the right to suspend or prohibit linking to the Service for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third party.

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7. Linked-To Websites; Advertisements; Dealings with Third Parties

A. Linked Services; Advertisements.  The Service may contain links, as part of third-party ads on the Service or otherwise, to or from third-party websites (“Linked Services”), including websites operated by advertisers, licensors, licensees, and certain other third parties who may have business relationships with VERSUS.  VERSUS may have no control over the content, operations, policies, terms, or other elements of Linked Services, and VERSUS does not assume any obligation to review any Linked Services.  VERSUS does not endorse, approve, or sponsor any Linked Services, or any third-party content, advertising, information, materials, products, services, or other items.  Furthermore, VERSUS is not responsible for the quality or delivery of the products or services offered, accessed, obtained by or advertised at such Services.  Finally, VERSUS will under no circumstances be liable for any direct, indirect, incidental or special loss or other damage, whether arising from negligence, breach of contract, defamation, infringement of copyright or other intellectual property rights, caused by the exhibition, distribution or exploitation of any information or content contained within these third-party Linked Services.  Any activities you engage in connection with any of the same are subject to the privacy and other policies, terms and conditions of use and/or sale, and rules issued by the operator of the Linked Services.  VERSUS disclaims all liability in connection therewith. 

B. Dealings with Third Parties.  Any interactions, correspondence, transactions, and other dealings that you have with any third parties found on or through the Service (including on or via Linked Services or advertisements) are solely between you and the third party (including issues related to the content of third-party advertisements, payments, delivery of goods, warranties (including product warranties), privacy and data security, and the like).  VERSUS disclaims all liability in connection therewith. 

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8. Wireless

A. Wireless Features.  The Service may offer certain features and services that are available to you via your wireless Device.  These features and services may include the ability to access the Service’s features and upload content to the Service, receive messages from the Service, and download applications to your wireless Device (collectively, “Wireless Features”).  Standard messaging, data, and other fees may be charged by your carrier to participate in Wireless Features.  Fees and charges may appear on your wireless bill or be deducted from your pre-paid balance.  Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless Device.  You should check with your carrier to find out what plans are available and how much they cost.  Contact your carrier with questions regarding these issues.

B. Terms of Wireless Features.  You agree that as to the Wireless Features for which you are registered for, we may send communications to your wireless Device regarding us or other parties.  Further, we may collect information related to your use of the Wireless Features.  If you have registered via the Service for Wireless Features, then you agree to notify VERSUS of any changes to your wireless contact information (including phone number).  

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9. Dispute Resolution

A. APPLICABLE LAW/BINDING ARBITRATION.  ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH, TOUCHING UPON OR RELATING TO THESE TERMS, THE SERVICE, ANY COUPONS, OR THE BREACH OF THESE TERMS AND/OR THE SCOPE OF THE PROVISIONS OF THIS ARBITRATION CLAUSE, SHALL BE SUBMITTED TO JAMS (“JAMS”) FOR FINAL AND BINDING ARBITRATION UNDER ITS STREAMLINED ARBITRATION RULES, TO BE HELD IN LOS ANGELES COUNTY, CALIFORNIA, BEFORE A SINGLE ARBITRATOR WHO SHALL BE A RETIRED JUDGE. THE ARBITRATOR SHALL BE SELECTED BY MUTUAL AGREEMENT OF THE PARTIES OR, IF THE PARTIES CANNOT AGREE, THEN BY STRIKING FROM A LIST OF ARBITRATORS SUPPLIED BY JAMS.  THE ARBITRATION SHALL BE A CONFIDENTIAL PROCEEDING, CLOSED TO THE GENERAL PUBLIC.  THE ARBITRATOR SHALL ISSUE A WRITTEN OPINION STATING THE ESSENTIAL FINDINGS AND CONCLUSIONS UPON WHICH THE ARBITRATOR’S AWARD IS BASED. THE ARBITRATOR SHALL HAVE THE POWER TO ENTER TEMPORARY RESTRAINING ORDERS AND PRELIMINARY AND PERMANENT INJUNCTIONS. NEITHER PARTY SHALL BE ENTITLED OR PERMITTED TO COMMENCE OR MAINTAIN ANY ACTION IN A COURT OF LAW WITH RESPECT TO ANY MATTER IN DISPUTE UNTIL SUCH MATTER SHALL HAVE BEEN SUBMITTED TO ARBITRATION AS HEREIN PROVIDED AND THEN ONLY FOR THE ENFORCEMENT OF THE ARBITRATOR’S AWARD.

B. Limited Time to File Claims.  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES -- OR IT WILL BE FOREVER BARRED.  

C. Small Claims Matters Are Excluded from Arbitration Requirement.  Notwithstanding the foregoing, either of us may bring qualifying claim in small claims court.

D. No Class Action Matters.  Except where prohibited by law, Participants agree that: (a) any and all disputes, claims and causes of action arising out of or connected with this Program, a Competition or any points, prizes or benefits awarded in connection therewith will be arbitrated only on an individual basis, without resort to any form of class action, and will not be consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party; (b) any and all claims, judgments and awards shall be limited to actual out-of-pocket costs incurred, including costs associated with entering this Program, but in no event attorneys’ or experts’ fees; and (c) under no circumstances will you be permitted to obtain awards for, and you hereby waive all rights to claim indirect, punitive, incidental and consequential damages and any other damages, other than for actual out-of-pocket expenses, and any and all rights to have damages multiplied or otherwise increased.

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10. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES

YOUR ACCESS TO AND USE OF THE SERVICE IS AT YOUR SOLE RISK.  THE SERVICE IS PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS.  Therefore, to the fullest extent permissible by law, VERSUS and its subsidiaries and each of their respective employees, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns (collectively, the “VERSUS Parties”) hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, as to: 

(a) the Service (including the Content and the User-Generated Content); 

(b) the functions, features, or any other elements on, or made accessible through, the Service; 

(c) any products, services, or instructions offered or referenced at or linked through the Service; 

(d) security associated with the transmission of your User-Generated Content transmitted to VERSUS via the Service; 

(e) whether the Service or the servers that make the Service available are free from any harmful components (including viruses, Trojan horses, and other technologies that could adversely impact your Device);

(f) whether the information (including any instructions) on the Service is accurate, complete, correct, adequate, useful, timely, or reliable;

(g) whether any defects to or errors on the Service will be repaired or corrected; 

(h) whether your access to the Service will be uninterrupted; 

(i) whether the Service will be available at any particular time or location; and

(j) whether your use of the Service is lawful in any particular jurisdiction.  

EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED HEREIN OR IN ADDITIONAL TERMS PROVIDED BY A VERSUS PARTY, VERSUS PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS. 

Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimers may not apply to the extent such jurisdictions’ laws are applicable.

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11. LIMITATIONS OF OUR LIABILITY

UNDER NO CIRCUMSTANCES WILL ANY VERSUS PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental, or consequential losses or damages that are directly or indirectly related to:

(a) the Service (including the Content and the User-Generated Content); 

(b) your use of or inability to use the Service, or the performance of the Service; 

(c) any action taken in connection with an investigation by VERSUS Parties or law enforcement authorities regarding your access to or use of the Service;

(d) any action taken in connection with copyright or other intellectual property owners or other rights owners; 

(e) any errors or omissions in the Service’s technical operation; or 

(f) any damage to any user’s computer, hardware, software, modem, or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line, or network failure or any other technical or other malfunction, including losses or damages in the form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or equipment failure or malfunction.

The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if the VERSUS Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of god, telecommunications failure, or destruction of the Service).  

Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to you.  

EXCEPT AS MAY BE PROVIDED IN ANY ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL VERSUS PARTIES’ TOTAL LIABILITY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SERVICE AND YOUR RIGHTS UNDER THESE TERMS, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID VERSUS IN CONNECTION WITH THE TRANSACTION(S) THAT UNDERLIE THE CLAIM(S); PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A TRIBUNAL WITH APPLICABLE JURISDICTION FINDS SUCH TO BE UNCONSCIONABLE.  

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12. Updates to Terms

These Terms (or if applicable Additional Terms), in the form posted at the time of your use of the applicable services to which it applies, shall govern such use (including transactions entered during such use).  AS OUR SERVICE EVOLVES, THE TERMS UNDER WHICH WE OFFER THE SERVICE MAY PROSPECTIVELY BE MODIFIED AND WE MAY CEASE OFFERING THE SERVICE UNDER THE TERMS OR ADDITIONAL TERMS FOR WHICH THEY WERE PREVIOUSLY OFFERED.  ACCORDINGLY, EACH TIME YOU SIGN IN TO OR OTHERWISE USE THE SERVICE YOU ARE ENTERING INTO A NEW AGREEMENT WITH US ON THE THEN APPLICABLE TERMS OF SERVICE AND YOU AGREE THAT WE MAY NOTIFY YOU OF OTHER TERMS BY POSTING THEM ON THE SERVICE (OR IN ANY OTHER REASONABLE MANNER OF NOTICE WHICH WE ELECT), AND THAT YOUR USE OF THE SERVICE AFTER SUCH NOTICE CONSTITUTES YOUR GOING FORWARD AGREEMENT TO THE OTHER TERMS FOR YOUR NEW USE AND TRANSACTIONS.  Therefore, you should review the posted terms of service and any applicable Additional Terms each time you use the Service (at least prior to each transaction or submission).  The new terms will be effective as to new use and transactions as of the time that we post them, or such later date as may be specified in them or in other notice to you.  However, the terms of service (and any applicable Additional Terms) that applied when you previously used the Service will continue to apply to such prior use (i.e., changes and additions are prospective only) unless mutually agreed.  In the event any notice to you of new, revised or additional terms is determined by a tribunal to be insufficient, the prior agreement shall continue until sufficient notice to establish a new agreement occurs.  You should frequently check the home page, and the email you associated with your purchases for notices, all of which you agree are reasonable manners of providing you notice.  You can reject any new, revised or Additional Terms by discontinuing use of the Service and related services.

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13. General Provisions

A. VERSUS’ Consent or Approval.  As to any provision in these Terms or any Additional Terms that grants VERSUS a right of consent or approval, or permits VERSUS to exercise a right in its “sole discretion,” VERSUS may exercise that right in its sole and absolute discretion.  No VERSUS consent or approval may be deemed to have been granted by VERSUS without being in writing and signed by an officer of VERSUS.  

B. Applicable Law.  These Terms and any Additional Terms will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with, the laws of the State of California, without regard to its conflicts of law provisions.

C. Indemnity.  You agree to, and you hereby, defend, indemnify, and hold VERSUS Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any VERSUS Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter: (i) your User-Generated Content; (ii) your use of the Service and your activities in connection with the Service, including, without limitation, any transaction entered into by you through your use of the Service; (iii) your breach or alleged breach of these Terms or any Additional Terms; (iv) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Service or your activities in connection with the Service; (v) information or material transmitted through your Device, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vi) any misrepresentation made by you; (vii) any other party’s access and/or use of the Service with your account; and (viii) VERSUS Parties’ use of the information that you submit to us (including your User-Generated Content) (all of the foregoing, “Claims and Losses”).  You will cooperate as fully required by VERSUS Parties in the defense of any Claim and Losses.  Notwithstanding the foregoing, VERSUS Parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses.  VERSUS Parties reserve the right to assume the exclusive defense and control of any Claims and Losses.  You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a VERSUS Party.

D. Operation of Service; Availability of Products and Services; International Issues.  VERSUS controls and operates the Service from its U.S.-based offices in the U.S.A., and VERSUS makes no representation that the Service is appropriate or available for use beyond the U.S.A.  If you use the Service from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply.  The Service may describe products and services that are available only in the U.S.A. (or only parts of it) and are not available worldwide.  We reserve the right to limit the availability of the Service and/or the provision of any content, program, product, service, or other feature described or available on the Service to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service, or other feature that we provide.  You and we disclaim any application to these Terms of the Convention on Contracts for the International Sale of Goods.

E. Export Controls.  Software related to or made available by the Service may be subject to export controls of the U.S.A.  No software from the Service may be downloaded, exported, or re-exported: (i) into (or to a national or resident of) any country or other jurisdiction to which the U.S.A. has embargoed goods, software, technology or services (which, as of the effective date of these Terms, includes Cuba, North Korea, Iran, Sudan, and Syria), or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders, or (iii) to anyone on the U.S. Department of Commerce’s Bureau of Industry and Security Entities List as published in the Export Administration Regulations (including entities engaged in weapons of mass destruction proliferation in various countries and persons and entities that are suspected of diverting U.S. origin items to embargoed countries or terrorist end-uses).  You are responsible for complying with all trade regulations and laws both foreign and domestic.  Except as authorized by law, you agree and warrant not to export or re-export the software to any county, or to any person, entity, or end-user subject to U.S. export controls, including as set forth in subsections (i) – (iii) above.

F. Severability; Interpretation.  If any provision of these Terms, or any Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the Additional Terms (which will remain in full force and effect).  To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter.  Wherever the word “including” is used in these Terms or any Additional Terms, the word will be deemed to mean “including, without limitation,”.

G. Communications.  When you communicate with us electronically, such as via email and text message, you consent to receive communications from us electronically.  Please note that we are not obligated to respond to inquiries that we receive.  You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.  

H. Investigations; Cooperation with Law Enforcement; Termination; Survival.  VERSUS reserves the right, without any limitation, to: (i) investigate any suspected breaches of its Service security or its information technology or other systems or networks, (ii) investigate any suspected breaches of these Terms and any Additional Terms, (iii) investigate any information obtained by VERSUS in connection with reviewing law enforcement databases or complying with criminal laws, (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters, (v) prosecute violators of these Terms and any Additional Terms, and (vi) discontinue the Service, in whole or in part, or, except as may be expressly set forth in any Additional Terms, suspend or terminate your access to it, in whole or in part, including any user accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third party.   Any suspension or termination will not affect your obligations to VERSUS under these Terms or any Additional Terms.  Upon suspension or termination of your access to the Service, or upon notice from VERSUS, all rights granted to you under these Terms or any Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Service.  The provisions of these Terms and any Additional Terms, which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to VERSUS in these Terms, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, and mandatory arbitration.

I. Assignment.  VERSUS may assign its rights and obligations under these Terms and any Additional Terms, in whole or in part, to any party at any time without any notice.  These Terms and any Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of VERSUS.  

J. No Waiver.  Except as expressly set forth in these Terms or any Additional Terms, (i) no failure or delay by you or VERSUS in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms or any Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.  

K. Connectivity.  You are responsible for obtaining and maintaining all Devices and other equipment and software, and all internet service provider, mobile service, and other services needed for your access to and use of the Service and you will be responsible for all charges related to them.

L. California Consumer Rights and Notices.  Residents of California are entitled to the following specific consumer rights information: you may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs by mail at: 400 R St., Suite 1080, Sacramento, California95814, or by telephone at (916) 445-1254.  Their website is located at: http://www.dca.ca.gov.

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14. Terms Applicable For Apple iOS

If you are accessing or using our Service through a Device manufactured and/or sold by Apple, Inc. (“Apple”, with such a device herein referenced as an “Apple Device”):

(i) To the extent that you are accessing the App through an Apple Device, you acknowledge that these Terms are entered into between you and VERSUS and, that Apple is not a party to these Terms other than as third-party beneficiary as contemplated below.

(ii) The license granted to you in Section 1 [LINK] of these Terms is subject to the permitted Usage Rules set forth in the Apple App Store Terms and Conditions (see: http://www.apple.com/legal/itunes/us/terms.html) and any third party terms of agreement applicable to the App. 

(iii) You acknowledge that VERSUS, and not Apple, is responsible for providing the App and Content thereof.

(iv) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or any support services to you with respect to the App. 

(v) To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App.

(vi) Notwithstanding anything to the contrary herein, and subject to the terms in these Terms, you acknowledge that, solely as between Apple and VERSUS, VERSUS and not Apple is responsible for addressing any claims you may have relating to the App, or your possession and/or use thereof, including, but not limited, to: (i) product liability claims, (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.  

(vii) Further, you agree that if the App, or your possession and use of the App, infringes on a third party’s intellectual property rights, you will not hold Apple responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims.

(viii) You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms, 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 against you as a third-party beneficiary thereof. 

(ix) When using the App, you agree to comply with any and all third-party terms that are applicable to any platform, website, technology or service that interacts with the App.

(x) You represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

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