Swarm VR, Inc. (“Swarm”) Terms of Service
Last Updated: September 22, 2020
1. Arbitration, Class Actions, Damages and Refunds.
IMPORTANT NOTICE REGARDING ARBITRATION: WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND US THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTIONS 13 (“GOVERNING LAW AND FORUM CHOICE) AND 14 (“DISPUTE RESOLUTION”) BELOW FOR DETAILS REGARDING ARBITRATION (INCLUDING THE PROCEDURE TO OPT OUT OF ARBITRATION). THESE TERMS ALSO INCLUDE A WAIVER OF RIGHTS BY YOU TO BRING A CLASS ACTION AGAINST US AND A LIMITATION ON DAMAGES THAT YOU CAN COLLECT FROM US THAT MAY ARISE OUT OF YOUR USE OF THE SERVICES. BY USING THE SERVICES, YOU AGREE TO THESE PROVISIONS. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT INSTALL, COPY, OR USE THE SERVICES. WITH LIMITED EXCEPTION (SEE SECTION 5), ANYTHING YOU PURCHASE FROM US IS NON-REFUNDABLE.
2. Changes to Terms or Services. We reserve the right to update these Terms at any time. If we do, the updated Terms will be communicated to you in accordance with Section 15(d). You must agree to these updates to continue using the Services. If you don’t agree to be bound by the updated Terms, then, except as otherwise provided in Section 14(h) “Effect of Changes on Arbitration,” you may not use the Services anymore. Since our Services are evolving over time we may also change or discontinue all or any part of the Services, at any time and without notice. We reserve the right to unilaterally deploy patches, updates, or upgrades to the Services.
3. Who May Use the Services and How?
(a) Eligibility. You may use the Services only if you are 13 years or older, capable of forming a binding contract with Swarm, and are not barred from using the Services under applicable law.
(b) Game Platforms. You are accessing our Games through certain software providers which may also act as a download agent, which includes, but is not limited to, platforms like Steam and Oculus (“Game Platforms”). To access, purchase or download our Games through a Game Platform, you must create an account with that Game Platform (a “Gaming Account”) and you acknowledge and agree that the Game Platform’s terms and conditions may apply to your use of the Game Platform, your Gaming Account, and your use of our Services through the Game Platform. In the event of any conflict between any Game Platform’s terms and conditions and these Terms, these Terms will take priority.
(d) Accuracy of Account Information. It’s important that you ensure that your Account information is accurate, complete and up-to-date, including by updating the relevant information through your Gaming Account. If you don’t, we may suspend or terminate your Account.
4. Swarm Content.
(a) Swarm Content. For purposes of these Terms, “Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services. Swarm and its licensors exclusively own all right, title and interest in and to the Services and Content, including all associated intellectual property rights.
(b) In-Game Content. We may offer certain upgrades, add-ons, features, and other options, or in-game currency, within and via the Services (“In-Game Content”). In-Game Content may include, for example, virtual currency, character skins, weapons or other gear for your character, experience boosts, or other items that may improve your in-game experience. In-Game Content may also include access to quests or challenges that allow you to unlock additional rewards. We may offer access to In-Game Content as part of a special event or “season,” and these special events and seasons may be subject to additional terms and conditions. You may purchase access to certain In-Game Content, or receive access to In-Game Content in connection with a purchase, as described below in Section 5. You may also be able to obtain certain In-Game Content without purchase, such as through an event or through gameplay. All In-Game Content is Swarm Content, and any In-Game Content you access or use through our Services remains the property of Swarm. In-Game Content has no monetary value and is not redeemable or refundable for any “real world” money or anything of monetary value. You cannot transfer, sell, or exchange In-Game Content.
Your access to and use of In-Game Content is subject to the license terms and restriction set forth in these Terms, and we may revoke your license to such In-Game Content at any time consistent with these Terms with no liability to you. Additional restrictions may apply to your use of In-Game Content, including any restrictions related to the functionality of the Games or that may be communicated to you separately via the Games or our other Services. To the extent allowed by law, we may in our sole discretion modify, substitute, replace, suspend, cancel or eliminate any In-Game Content, including your ability to access or use In-Game Content, without notice or liability to you.
(c) License Keys. We may offer for purchase or otherwise make available unique keys that you can use to access our Games through a Game Platform (a “License Key”). License Keys are personal to you, and may not be transferred or sold. If we reasonably believe that you have engaged in fraud or otherwise violated these Terms, we may disable a License Key, or otherwise revoke your rights to use our Games in connection with a License Key. License Keys are not redeemable for money or anything with monetary value.
(d) Rights in Content Granted by Swarm. Subject to your compliance with these Terms, Swarm grants to you a limited, non-exclusive, non-transferable license, with no right to sublicense, (i) to access and view the Content (including any In-Game Content you have purchased or otherwise obtained access to in accordance with these Terms); (ii) if you have a valid License Key to use a Game, or you have purchased a Game through a Game Platform, to download and install that Game on a computer you own or control; in each case of (i) and (ii) solely in connection with your permitted use of the Services. Except as expressly permitted in these Terms, you may not: (w) copy, modify or create derivative works based on the Services; (x) distribute, transfer, sublicense, lease, lend or rent our Services to any third party; (y) reverse engineer, decompile or disassemble the Services; or (z) make the functionality of the Services available to multiple users through any means. Swarm reserves all rights in and to the Services, including our Games and Content, not expressly granted to you under these Terms.
(e) Streaming. We welcome and encourage you to stream your experiences with our Games provided you: (i) limit such streaming to non-commercial purposes; (ii) do not charge a fee for viewing or access to your streamed content; (iii) maintain your stream within the “T” guidelines of the ESRB (e.g., no swearing or nudity) or similar rating boards; (iv) do not host competitions without our express written consent, which may be subject to further requirements; and (v) clearly indicate when your stream is being sponsored by including the persistent text “Sponsored By _______” (inserting your sponsor’s name) in your stream.
5. Payments. When you purchase access to our Games through a Game Platform, or a License Key, or In-Game Content (each, a “Transaction”), you expressly authorize the Game Platforms (or the Game Platforms’ third-party payment processors) to charge you for such Transaction. They may ask you to supply additional information relevant to your Transaction, including your credit card number, the expiration date of your credit card and your email and postal addresses for billing and notification (such information, “Payment Information”). You acknowledge and agree that the Game Platforms’ terms and conditions may also apply to your Transaction. When you initiate a Transaction, you authorize the Game Platforms to provide your Payment Information to third parties so they can complete your Transaction and to charge your payment method for the type of Transaction you have selected (plus any applicable taxes and other charges). You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information). SUBJECT TO THE REFUND POLICY OF THE RELEVANT GAME PLATFORM, YOUR PURCHASE IS FINAL AND YOU WILL NOT BE ABLE TO CANCEL THE PURCHASE AND/OR RECEIVE A REFUND OF YOUR PURCHASE AT ANY TIME. But if something unexpected happens in the course of completing a Transaction, the Game Platforms reserve the right to cancel your Transaction for any reason and, if they cancel your Transaction, they’ll refund any payment you have already remitted to them for such Transaction.
6. Beta Testing. From time to time, we may offer a beta version of our Services (“Beta”). Betas are not guaranteed to work properly, and may cause malfunctions or other issues with your computer or other device or system. When you use a Beta, you acknowledge and agree to the following additional terms: (a) Swarm may automatically delete or modify any software, data, Content, or other materials or information related to the Beta, including those stored on your computer, for any reason at any time; (b) Swarm may discontinue or terminate your access to a Beta at any time, which would render your Beta unplayable or unable to function properly; (c) if Swarm discontinues or terminates a Beta, you will delete any local instance of the Beta on your computer and all Content, data, materials and other information you received from Swarm in connection with the Beta; (d) you will have no rights to any compensation based on your participation in a Beta; and (e) your participation in a Beta does not entitle you to receive access to the full commercial version of the Game or other portion of our Service, and you may be required to separately purchase the full commercial version.
7. General Prohibitions and Swarm's Enforcement Rights.
You agree not to do any of the following:
(a) use the Services for commercial purposes (such as virtual reality arcades) without Swarm's prior consent or unless specifically permitted by these Terms;
(b) engage in any conduct that we deem objectionable (i.e., cheating), violent, or discriminatory, or that may disrupt another user’s enjoyment of the Services, including by harassing other users (i.e., “trolling”);
(c) remove or bypass any measure that prevents misuse of the Services;
(d) forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services or Content to send altered, deceptive or false source-identifying information;
(e) collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
(f) violate any applicable law or regulation; or
(g) encourage or enable any other individual to do any of the foregoing.
Although we’re not obligated to monitor access to or use of the Services or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms and to comply with applicable law or other legal requirements.
8. Links to Third Party Websites or Resources. The Services may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.
9. Termination. We may terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you. Upon any termination, discontinuation or cancellation of the Services or your Account, this sentence and the following Sections will survive: 4(a), 4(b), and 10 – 15.
10. Warranty Disclaimers.
(a) Disclaimers with Respect to Our Services and Content. THE SERVICES AND CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any Content.
(b) Disclaimers with Respect to Third-Party Hardware. Our Services, including our Games, may require the use of third-party hardware, including headsets or sensors (e.g., Oculus Rift or HTC Vive hardware products) (“Third-Party Hardware”). You acknowledge and agree that Swarm is not responsible for Third-Party Hardware, including any damages or malfunctions that arise from your use of our Services in connection with such Third-Party Hardware. You acknowledge and agree that you are solely responsible for reading any warnings or instructions provided with Third-Party Hardware, and for ensuring that your use of our Services, including our Games, complies with such instructions.
11. Indemnity. You will indemnify, defend, and hold harmless Swarm and its officers, directors, employees, agents, contractors, and other representatives from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of the Services or Content, or (ii) your violation of these Terms.
12. Limitation of Liability.
(a) NEITHER Swarm NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT Swarm OR ANY OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
(b) USE OF VIRTUAL REALITY SOFTWARE, INCLUDING OUR GAMES, AND ANY THIRD-PARTY HARDWARE MAY AFFECT HEART AND BREATHING RATE, CAUSE UNINTENDED SIDE EFFECTS SUCH AS MOTION SICKNESS OR DISORIENTATION, OR AGGRAVATE PRE-EXISTING MEDICAL CONDITIONS. YOU EXPRESSLY WAIVE Swarm's LIABILITY FOR RISKS INHERENT IN THE USE OF VIRTUAL REALITY SOFTWARE, AND Swarm WILL NOT BE LIABLE TO YOU FOR ANY CAUSE OF ACTION OR UNDER ANY THEORY OF LIABILITY ARISING FROM SUCH RISKS.
(c) IN NO EVENT WILL Swarm's TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TO Swarm FOR USE OF THE SERVICES OR CONTENT OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO Swarm, AS APPLICABLE.
(d) THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN Swarm AND YOU.
13. Governing Law and Forum Choice. These Terms and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of Washington, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 14 “Dispute Resolution,” the exclusive jurisdiction for all Disputes (defined below) that you and Swarm are not required to arbitrate will be the state and federal courts located in Seattle, and you and Swarm each waive any objection to jurisdiction and venue in such courts.
14. Dispute Resolution.
(a) Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Swarm agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and Swarm are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
(b) Location of Arbitration. If you are a resident of the United States, any arbitration will take place in your country of residence, to the exclusion of all other venues.
(c) Exceptions. As limited exceptions to Section 14(a) above, the following Disputes can be resolved in court and need not be resolved through arbitration: (i) any Dispute that can be resolved in small claims court (if it qualifies); and (ii) any Dispute involving the infringement or misappropriation of our intellectual property rights.
(d) Opt-out: You have the right to opt out of arbitration entirely and litigate any Dispute if you provide us with written notice of your desire to do so by email at email@example.com within thirty (30) days following the date you first agree to these Terms.
(e) Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.
If your claim is for U.S. $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or video-conference hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds U.S. $10,000, the right to a hearing will be determined by the AAA Rules. Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
(f) Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. We’ll pay for all filing, administration and arbitrator fees and expenses if your Dispute is for less than $10,000, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration, we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
(g) Class Action Waiver. YOU AND Swarm AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
(h) Effect of Changes on Arbitration. Notwithstanding the provisions of Section 1 “Changes to Terms or Services” above, if Swarm changes any of the terms of this Section 14 “Dispute Resolution” after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to firstname.lastname@example.org) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Swarm's email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Swarm in accordance with the terms of this Section 14 “Dispute Resolution” as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
(i) Severability. With the exception of any of the provisions in Section 14(g) of these Terms (“Class Action Waiver“), if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
15. General Terms.
(a) Entire Agreement. These Terms and any other document referred to in these Terms constitute the entire agreement between Swarm and you regarding the Services and Content. These Terms supersede and replace any and all prior oral or written understandings or agreements between Swarm and you regarding the Services and Content.
(b) Severability. To the extent the applicable law permits, the provisions of these Terms will be interpreted to the maximum extent possible. If any of the provisions in these Terms are held unenforceable, the remaining provisions will not be affected.
(c) No assignment. You may not assign or transfer these Terms to another person.
(d) Notices. Any notices or other communications provided by Swarm under these Terms, including those regarding modifications to these Terms, will be given (at our sole discretion): (i) via email; (ii) within the Game itself, or (ii) by posting on our Site.
(e) No Waiver. Both parties’ actions and / or inactions will not create any other rights under these Terms except as what is explicitly written in these Terms. Swarm's failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Swarm. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
16. Contact Information. If you have any questions about these Terms or the Services, please contact Swarm at email@example.com.