These Terms of Service (the “Terms” or “Agreement”) are made and entered into by and between you (“User”, “you” or “your”) and Neon Wild, Inc., a Delaware corporation (referred to in these Terms as “Neon Wild”, “we”, “us” or “our”) for the use of the website http://neonwild.com, any site or sub-site hosted thereon, and any mobile applicable or other software provided by us (collectively, the “Platform” or “Service”).
You understand and agree that we may change these Terms at any time without prior notice. You may read a current, effective copy of these Terms at any time by selecting the “Terms of Service” link on the Platform. The revised terms and conditions will become effective at the time of posting. Any use of the Platform, products, or services after such date shall constitute your acceptance of such revised terms and conditions. If any change to these Terms is not acceptable to you, your sole remedy is to cease accessing, browsing, and otherwise using the Platform, products, or services. We will not be liable if for any reason all or any part of the Platform, products, or services are unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Platform, products, or services to users, including registered users. You are responsible for making all arrangements necessary on your end to have access to the Platform, products, or services and ensuring that all persons who access the Platform, products, or services through your internet connection are aware of and comply with these Terms.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 16, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND NEON WILD ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury (See Section 16).
1. Overview. Neon Wild provides a personalized virtual platform, which enables you to a create an Avatar, as defined below, and interact in 3D stories and open world exploration.
1.1 The Platform software is created, owned, and operated by Neon Wild, Inc.
2.Eligibility. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least eighteen (18) years old; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are under the age of eighteen (18), you represent that you have your parent’s or legal guardian’s permission to use the Service.
2.1 Parents and Legal Guardians. If you are a parent or legal guardian who allows your minor children to use the Service through your account, you accept these Terms on behalf of your child and are responsible for your child’s activity on the Service. If you (or your parent or legal guardian, as may be applicable) do not agree to these Terms, you may not use our Service.
3. Accounts and Registration.
To gain access to the Services, you must create an account (“Account”).When you register for an Account, you will be required to provide us with some information about yourself, such as your name, email address, or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at firstname.lastname@example.org.
4. General Payment Terms. Although Neon Wild may, in its discretion, make certain features and content of the Service available free of charge to certain users, other features of the Service may require you to pay fees in accordance with the terms below. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are stated in U.S. Dollars and shall be deemed non-refundable, once paid.
4.1 Prices. Neon Wild reserves the right to determine pricing for the Service. Neon Wild will make reasonable efforts to keep pricing information published on the Platform up to date. We encourage you to check our Platform periodically for current pricing information. Neon Wild may change the fees for any feature of the Service, including additional fees or charges, if Neon Wild gives you advance notice of changes before they apply. Neon Wild, at its sole discretion, may make promotional offers with varying features and legal terms available to select Users. Any such promotional offers, unless made to you and accepted by you, will not apply to your use of the Service.
4.2 Authorization. You authorize Neon Wild to charge all amounts applicable for paid features that you choose to utilize and any level of Service you select as described in these Terms or published by Neon Wild on the Service, from time to time, including all applicable taxes, to the payment method specified in your Account. If you pay any fees with a credit card, Neon Wild may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.4.3 Subscription Service. The Service may include automatically recurring payments for periodic charges (“Subscription Service”). If you activate a Subscription Service, you authorize Neon Wild to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums. The “Subscription Billing Date” is the date when you purchase your first subscription to the Service. UNLESS EXPRESSLY STATED OTHERWISE AT THE TIME YOU ACTIVATE A SUBSCRIPTION SERVICE: (A) YOUR ACCOUNT WILL BE CHARGED AUTOMATICALLY ON THE SUBSCRIPTION BILLING DATE ALL APPLICABLE FEES AND TAXES FOR THE NEXT SUBSCRIPTION PERIOD, (B) THE SUBSCRIPTION WILL CONTINUE UNLESS AND UNTIL YOU CANCEL YOUR SUBSCRIPTION OR WE TERMINATE IT, AND (C) YOU MUST CANCEL YOUR SUBSCRIPTION BEFORE IT RENEWS IN ORDER TO AVOID BILLING OF THE NEXT PERIODIC SUBSCRIPTION FEE TO YOUR ACCOUNT. We will bill the periodic Subscription Fee to the payment method you provide to us during registration (or to a different payment method if you change your payment information), or as otherwise specified in your Account. You may cancel any Subscription Service by following the instructions in your Account or contacting us at: email@example.com.
4.4 Delinquent Accounts. Neon Wild may suspend or terminate your access to the Service, including fee-based portions of the Service, if you owe any amount to us which remains unpaid for a period of thirty (30) days or more. In addition to the amount due we may charge you fees and costs that are incidental to any chargeback or collection of any the unpaid amount, including legal fees and costs.
4.5 We may at any time in the future, in our sole discretion, introduce other paid features or customization assets, such as, but not limited to virtual clothing, accessories, and makeup, which may require the payment of additional fees.
5.1 Limited License. Subject to your complete and ongoing compliance with these Terms, Neon Wild grants you, solely for your personal use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Service, including the right to customize your Avatar.
5.2 Ownership of Avatars. You acknowledge and agree that the graphic depiction of your Avatar is the sole and exclusive property of Neon Wild, and is protected by copyright and other laws.The foregoing notwithstanding, during the term hereof, and solely in connection with your use of the Service,Neon Wild grants you a non-exclusive, non-transferable, non-sublicensable license to use the Avatar.
5.2 License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Service or any Content featured thereon; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, you may not use it.
5.3 Feedback. If you choose to provide input and suggestions regarding the design and performance of the Service, problems with, or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant Neon Wild an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
6. Ownership; Proprietary Rights. The Service is owned and operated by Neon Wild, Inc. The Content, visual interfaces, graphics, design, the Avatar itself, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by Neon Wild are protected by intellectual property and other laws. All Materials included in the Service, including your Avatar, are the property of Neon Wild or its third-party licensors. Except as expressly authorized by Neon Wild, you may not make use of the Materials except in connection with your use of the Service. Neon Wild reserves all rights to the Materials not granted expressly in these Terms.
7. Third Party Services
7.1. Linked Websites. The Platform may contain links to third-party websites (“Third-Party Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such Third-Party Sites. The content of such Third-Party Sites is developed and provided by others, not by Neon Wild, and we have no control over any content or legal terms contained in any Third-Party Sites. You should contact the site administrator for those Third-Party Sites if you have any concerns regarding such links or any content located on such Third-Party Sites. To the fullest extent permitted under applicable law, Neon Wild is not responsible for the content of any linked Third-Party Sites and do not make any representations regarding the content or accuracy of any materials on such Third-Party Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access any Third-Party Sites, you do so at your own risk.
7.2. Third-Party Service Providers. Neon Wild does not warrant, endorse, guarantee, or assume any responsibility or liability for any product or service advertised or offered by a third-party (“Third-Party Service Provider”) through our Platform or Service. If you use any product or service offered by a third-party in conjunction with the Platform, you acknowledge and agree that (i) you are responsible for understanding the terms and conditions of your use of the third-party product or service; (ii) we do not control the third-party or its product or service; (iii) your use of their product or service is at your own risk; and (iv) we are not responsible and may not be held liable for the product or service, or the actions or omissions, of the third-party. Subject to these disclaimers, we may use certain Third-Party Service Providers to gather data and authenticate information regarding you, your device, and your Account. In some instances, this may require you to accept third-party software tools and products through the Platform. You further agree we may place cookies and other identifiers on the mobile devices you use to access our products, services, Website, as specified in these Terms or in our products, services
8. User Content and Avatar Creation
8.1. User Content. Any materials submitted by you, including, without limitation, photographs, videos, images, text, graphics and other materials (collectively, “User Content”) are subject to the following terms and conditions:
a) You will retain ownership of your User Content, but you grant us and our designees a worldwide, non-exclusive, transferable, royalty-free, perpetual irrevocable right and license, with right of sublicense (through multiple tiers), to use, reproduce, distribute (through multiple tiers), create derivative works of and publicly display such User Content solely in connection with the production or provision of any product or service you request or to show you how your User Content would appear in our products or services.
b) Please note that, while you retain ownership of your User Content, any template or layout in which you arrange or organize such User Content through tools and features made available through any of our Sites and Apps are not proprietary to you, and the rights to such template or layout will remain with us.
c) You represent and warrant that you own or otherwise possess all necessary rights with respect to the User Content, and that the User Content do not and will not infringe, misappropriate, use or disclose without authorization or otherwise violate any copyright, trademark, trade secret right or other intellectual property or other property right of any third party, and that the User Content are not unlawful, fraudulent, threatening, abusive, hateful, libelous, defamatory, obscene, confusingly similar to brands or branded products sold by others or otherwise objectionable.
d) You consent to the use of your name, image, and/or likeness, and you have obtained the written consent, release, and/or permission of every identifiable individual who appears in User Content to use such individual’s likeness, for purposes of using and otherwise exploiting the User Content in the manner contemplated by these Terms, or, if any such identifiable individual is under the age of eighteen (18), you have obtained such written consent, release and/or permission from such individual’s parent or guardian (and you agree to provide to us a copy of any such consents, releases and/or permissions upon our request). If you do submit a submission that contains the name, image, or likeness of an identifiable individual under the age of eighteen (18), we strongly encourage you not to include any identifying information (such as the individual’s name or address) with such User Content.
e) You agree that we may (but are not obligated to) filter any User Content (including, without limitation, deleting or replacing expletives or other harmful or offensive language), refuse to use any User Content (including, without limitation, suspending processing and shipping of any order relating to any User Content) and/or disclose any User Content and the circumstances surrounding the use thereof, to any third party in order to provide the applicable products or services, to enforce these Terms or to comply with legal obligations or governmental requests.
f) User Content that violate these Terms may be removed from our Sites and Apps; provided, however, that we have no obligation to remove User Content in response to user reports or requests. We are not responsible for, and will have no liability for, the removal, non-removal or loss of any User Content from our Sites and Apps. We recommend you keep back-up copies of your User Content on your hard drive or other personal system.
8.2. Creating Your Avatar.
In order to create an Avatar, you must either:
take a photo of your face (selfie) using the forward-facing camera of your device (for that we request access to your device’s camera) with a neutral facial expression and good lighting or choose an existing photo that meets the same requirements. Also, make sure that your hair (or anything else) does not cover your face. Remove your glasses if you are wearing them. This photo is used as a basis for the Avatar and then you can customize it accordingly (e.g. select hair style, color, accessories, etc.);
continue your Avatar, without a photo; in which case one of our default Avatars is taken as the basis and you can customize the Avatar (e.g. select hair style, color, accessories, etc.).
8.2 When customizing the Avatar, we do not expect you to enter correct data about your appearance because the Avatar is not meant to be an exact copy of you. We hope that you are creative and let your imagination run its course. Any similarity of an Avatar to actual persons, living or dead, is purely coincidental.
8.3 Once the customization is finished by you, the Avatar data file is created on the Platform.
8.4 You may also have the opportunity to copy your Avatar to other environments (as and if made possible) and make the Avatar available for use therein. The respective instructions for doing so, if applicable, will be published on the Service and/or in those other environments. Please keep in mind that third-party sites, which may be made available through our Service may have their own terms to which you expressly agree. We are not responsible for the content of third-party sites and the terms applicable therefor. When visiting these sites, we encourage you to read the terms which apply at such sites before using any service provided thereon.
8.5 Limited License Grant to Neon Wild. By providing User Content to or via the Service, you grant Neon Wild a worldwide, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed. Neon Wild reserves the right to retain your Avatar in our server even after the termination hereof or deletion of your Account.
8.8 User Content Representations and Warranties. Neon Wild disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and warrant that:
you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Neon Wild and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Neon Wild, the Service, and these Terms;
your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Neon Wild to violate any law or regulation; and
your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
9. User Conduct.
9.1 Personal, Non-Commercial Use Only. You are authorized by us to access and use the Service, including the information on the Platform, solely for your personal, non-commercial use. The information and materials displayed on our Platform may not otherwise be copied, transmitted, displayed, distributed, downloaded, licensed, modified, published, posted, reproduced, used, sold, transmitted, used to create a derivative work, or otherwise used for commercial or public purposes without our express, prior written consent. Any use of data mining, robots or similar data gathering or extraction tools or processes in connection with this Website, and any reproduction or circumvention of the navigational structure or presentation of this Website or its content, is strictly prohibited. You agree not to use the services, including this Website, for any unlawful purpose.
9.2. Prohibited Conduct. By using our Service, you expressly agree not to:
use the Service for any illegal purpose or in violation of any local, state, national, or international law;
violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission;
sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 6) or any right or ability to view, access, or use any Materials; or
attempt to do any of the acts described in this Section 9 or assist or permit any person in engaging in any of the acts described in this Section 9.
9.3. Our Content
Our Platform contains material, including but not limited to software, text, graphics, and images (collectively, the “Content”). We may own the Content or portions of the Content may be made available to us through arrangements that we have with third parties. The Content is the intellectual property of Neon Wild or our licensors and constitute trademarks, patents, copyrights, and other intellectual property rights of Neon Wild or its licensors under U.S. and foreign laws and international conventions. Unauthorized use of the Content may result in violation of copyright, trademark, and other laws. You have no rights in or to the Content, and you will not use, copy, or display the Content except as permitted under these Terms. No other use is permitted without our prior written consent. You must retain all copyright and other proprietary notices contained in the original Content on any copy you make of the Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of any of the Content on any other website or in a networked computer environment for any purpose is expressly prohibited. If you violate any part of these Terms, your right to access and/or use the Content and Platform shall automatically terminate and you shall immediately destroy any copies you have made of the Content.
9.4. Trademarks. The trademarks, service marks, and logos of Neon Wild (collectively, the “Neon Wild Trademarks”) used and displayed on this Platform are registered and unregistered trademarks or service marks of Neon Wild. Other company, product, and service names located on the Platform may be trademarks or service marks owned by third parties (the “Third-Party Trademarks”, and, collectively with the Neon Wild Trademarks, the “Trademarks”). Nothing on this Platform or in these Terms should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademarks displayed on this Platform without the prior written consent of Neon Wild specific for each such use. The Trademarks may not be used to disparage Neon Wild or the applicable third-party, Neon Wild or third-party’s products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks. Use of any Trademarks as part of a link to or from any website is prohibited without Neon Wild’ prior written consent. All goodwill generated from the use of any Neon Wild Trademarks shall inure to the Neon Wild’ benefit. Certain elements of the Platform are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including but not limited to, the use of framing or mirrors, except as otherwise expressly permitted by Neon Wild. None of the Content for this Platform may be retransmitted without the express written consent from Neon Wild for each and every instance.
10. Digital Millennium Copyright Act
10.1 DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:
DiSchino & Schamy, PLLC
4770 Biscayne Blvd., Suite 600
Miami, Florida 33137.Email: firstname.lastname@example.org
Only copyright complaints should be sent to our Copyright Agent. No other communications will be accepted or responded to.
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must comply include the following information:
an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
a description of the copyrighted work or other intellectual property that you claim has been infringed;
a description of the material that you claim is infringing and where it is located on the Service;
your address, telephone number, and email address;
a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
IMPORTANT: MISREPRESENTATIONS MADE IN A NOTICE CLAIMING THAT CONTENT OR ACTIVITY IS INFRINGING VIOLATES THE DIGITAL MILLENNIUM COPYRIGHT ACT AND MAY EXPOSE YOU TO LIABILITY FOR DAMAGES (INCLUDING COSTS AND ATTORNEYS' FEES). COURTS HAVE FOUND THAT YOU MUST CONSIDER COPYRIGHT DEFENSES, LIMITATIONS OR EXCEPTIONS BEFORE SENDING A NOTICE. ACCORDINGLY, IF YOU ARE NOT SURE WHETHER CONTENT RESIDING ON OUR PLATFORM OR SERVICE INFRINGES YOUR COPYRIGHT, WE SUGGEST THAT YOU FIRST CONTACT AN ATTORNEY. IN ADDITION, PLEASE DETERMINE WHETHER THE CONTENT YOU ARE SENDING A NOTICE ABOUT IS ACTUALLY RESIDING ON OUR SERVICE BEFORE SENDING THE NOTICE.
10.2 Repeat Infringers. Neon Wild will promptly terminate the Accounts any Users that is determined by Neon Wild to be repeat infringer.
11. Modification of these Terms. We may, from time to time, change these Terms unilaterally. Changes will apply only on a going-forward basis, and any disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose. Please check these Terms periodically for changes.Unless otherwise stated, revisions will be effective upon posting except that, for existing users, we will provide reasonable advance notice of any material modifications of the Terms and the opportunity to review the changes. If you do not agree to the modified Terms, you may terminate your account prior to the effective date of the revised Terms by contacting email@example.com to terminate your account, and, if you have prepaid for any Services, request a pro rata refund for the remainder of your prepaid subscription. If you do not accept the amended Terms, you will not be permitted to continue to use the Platform or the Services and must cease the use thereof. Except as expressly permitted in this Section, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms.
12. Term, Termination and Modification of the Service.
12.1 Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 22.214.171.124 Termination. If you violate any provision of these Terms, your authorization to access the Service and these Terms automatically terminate. In addition, Neon Wild may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice. You may terminate your account and these Terms at any time by contacting customer service at firstname.lastname@example.org.
12.3 Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay Neon Wild any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and will survive. You also understand and agree that all terms and conditions hereof that require continued performance, compliance, or effect beyond the termination date of the these Terms shall survive such termination date and shall be enforceable in the event of a failure to perform or comply.
12.4 Modification of the Service. Neon Wild reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. Neon Wild will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service. The availability of Content may change from time to time, and from geographic territory to territory. As a result, we do not guarantee that any Content will be available or remain available on the Service.
13.1 We may automatically update the Service at our sole discretion, including but not limited when we want to improve performance, enhance functionality, reflect changes to the operating system or address security issues.
13.2. If you choose not to install such updates or if you opt out of automatic updates (if possible) you may not be able to continue using the Platform and the Services.
13.3 Indemnification. To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify Neon Wilde and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Neon Wild Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
14. Disclaimers; No Warranties
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. NEON WILD DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. NEON WILD DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND NEON WILD DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR NEON WILD ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE NEON WILD ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. NEON WILD DOES NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT NEON WILD IS PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW.
15. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE NEON WILD ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY NEON WILD ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF NEON WILD TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF (OR ANY INABILITY TO USE THE SERVICE OR ANY PORTION THEREOF, OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO NEON WILD FOR ACCESS TO AND USE OF THE SERVICE IN THE TWELVE MONTHS (12) MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (B) FIVE HUNDRED ($500.00) DOLLARS.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 15 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
16. Dispute Resolution and Arbitration
16.1 Generally. In the interest of resolving disputes between you and Neon Wild in the most expedient and cost effective manner, and except as described in Section 16.2 and 16.3, you and Neon Wild agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND NEON WILD ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
16.2 Exceptions. Despite the provisions of Section 16.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
16.3 Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 16 within 30 days after the date that you agree to these Terms by sending a letter to Neon Wild, Inc. at 295 Madison Ave., Suite 977, New York, NY 10017, that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Neon Wild receives your Opt-Out Notice, this Section 16 will be void and any action arising out of these Terms will be resolved as set forth in Section 17.2. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.16.4 Arbitrator. Any arbitration between you and Neon Wild will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Neon Wild. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
16.5 Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Neon Wild’s address for Notice is: Neon Wild, Inc., 295 Madison Ave., Suite 977, New York, NY 10017. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Neon Wild may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Neon Wild must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Neon Wild in settlement of the dispute prior to the award, Neon Wild will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.00.
16.6 Fees. If you commence arbitration in accordance with these Terms, Neon Wild will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000.00, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in New York, NY but if the claim is for $10,000.00 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Neon Wild for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
16.7 No Class Actions. YOU AND NEON WILD 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, unless both you and Neon Wild agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
16.8 Modifications to this Arbitration Provision. If Neon Wild makes any future change to this arbitration provision, other than a change to Neon Wild’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Neon Wild’s address for Notice of Arbitration, in which case your account with Neon Wild will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
16.9 Enforceability. If Section 16.7 or the entirety of this Section 16 is found to be unenforceable, or if Neon Wild receives an Opt-Out Notice from you, then the entirety of this Section 16 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 17.2 will govern any action arising out of or related to these Terms.
17.4 Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the "Additional Terms"). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
17.6 Marketing Communications. By agreeing to these terms, you expressly acknowledge and agree that we may send you emails concerning out products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions provided.17.7 Contact Information. The Service is offered by Neon Wild, Inc. located at 295 Madison Ave., Suite 977, New York, NY 10017. You may contact us by sending correspondence to that address or by emailing us at email@example.com Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service. For more information, please also read our Notice to California Residents.
17.9 No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
17.10 International Use. The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
18. Notice to Apple Users. This Section 18 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Neon Wild only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and upon your acceptance 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 of these Terms. You hereby 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.
Last Updated: October 4, 2022