WIVU PROVIDES AN ONLINE PLATFORM THAT CONNECTS USERS WITH LOCATIONS WHERE, ALONG WITH THEIR FRIENDS AND COMPANIONS, THEY CAN WATCH DIFFERENT TYPES OF CONTENT, ENJOY FOOD & BEVERAGES, AND PARTICIPATE IN VARIOUS ACTIVITIES (KARAOKE, ETC.). PLEASE READ THESE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, THE JURISDICTION AND VENUE FOR DISPUTES, OBLIGATIONS TO COMPLY WITH APPLICABLE LAWS AND REGULATIONS, AND LIABILITY FOR DAMAGES. THIS AGREEMENT CONTAINS, AMONG OTHER THINGS, AN ARBITRATION PROVISION CONTAINING A CLASS ACTION WAIVER APPLICABLE TO USERS WHO ARE RESIDENTS OF THE UNITED STATES (INCLUDING ITS POSSESSIONS AND TERRITORIES), CANADA AND MEXICO.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, THE JURISDICTION AND VENUE FOR DISPUTES, OBLIGATIONS TO COMPLY WITH APPLICABLE LAWS AND REGULATIONS, AND LIABILITY FOR DAMAGES.
THIS AGREEMENT CONTAINS, AMONG OTHER THINGS, AN ARBITRATION PROVISION CONTAINING A CLASS ACTION WAIVER APPLICABLE TO USERS WHO ARE RESIDENTS OF THE UNITED STATES (INCLUDING ITS POSSESSIONS AND TERRITORIES), CANADA AND MEXICO.
These WiVu, Inc. (“WiVu”) Terms of Service (this “Agreement”) apply to your access or use of the WiVu websites, mobile sites, and applications (collectively, the “WiVu Sites”) and the content, features, and services (the “Services”) made available by WiVu.
In this Agreement, “WiVu” and “we” mean the WiVu company that is providing the Services to you, and with whom you are entering into this Agreement. The terms “User” and “you” mean any user of the Services. This Agreement incorporates WiVu’s standard policies, procedures, and terms and conditions for use of the Services that are referenced by name or by links in this Agreement (collectively, the “WiVu Policies”).
By accessing or using the Services or by clicking “accept” or “agree” to this Agreement, (1) you acknowledge that you have read, understand, and agree to be bound by this Agreement, and (2) you represent and warrant that you are AT LEAST 18 YEARS OF AGE and not prohibited by law from accessing or using the Services. WiVu may update or revise this Agreement (including any WiVu Policies) from time to time and You agree that you will review this Agreement periodically. You are free to decide whether or not to accept a modified version of this Agreement, but accepting this Agreement, as modified, is required for you to continue using the Services (You may have to click “accept” or “agree” to show your acceptance of any modified version of this Agreement). If you do not agree to the terms of this Agreement or any modified version of this Agreement, you must terminate your use of the Services, in which case you will no longer have access to your Account (as defined below). Except as otherwise expressly stated by WiVu, any use of the Services (e.g., the use of the Reservation Services (as defined herein) or Payment Services (as defined herein) is subject to the version of this Agreement in effect at the time of use.
Part I - Reservation Services
1. Location Reservations. WiVu provides reservation services (the “Reservation Services”) through the WiVu Sites for the purpose of assisting users to secure screening room reservations and related Services at participating third-party locations including without limitation restaurants, hotels, family entertainment centers, and theaters (each, a “Location”). In response to a User’s online request for a Location reservation, WiVu contacts the Location’s computerized database of reservations. The availability of reservation is determined at the time of User’s query and based on information provided to WiVu by the Location. Once a reservation is made by User through the WiVu Sites, WiVu will provide confirmation of the reservation to User by email or other electronic messages as has been agreed to by User. By using the Reservation Services, User agrees to receive reservation confirmations, updates, modifications and/or cancellations by email or other electronic messages.
2. Cancellation and No-Show Policy. WiVu is committed to providing superior quality services to Users and Locations. To assist us in maintaining a consistently high level of service for the Locations and their patrons, Users must cancel any reservations via the WiVu sites that they will be unable to honor at least 48 hours in advance of the reservation or pursuant as such other terms as may be detailed on the WiVu Sites regarding the specific Location or date & time. WiVu will require a valid debit or credit card number to finalize your reservation, either to confirm that the debit or credit card information you have provided is accurate or in other circumstances as detailed on the WiVu Sites, and we may place a temporary authorization on your debit or credit card at the time you provide such information. After we verify that your debit or credit card information is accurate, usually within a few days, the authorization may be removed. WiVu uses this debit or credit card information as described in our privacy policy and shall have no liability for any charges made to the debit or credit card account for any failure to cancel your reservation in accordance with a Location’s cancellation policy.
4. Usage Guidelines. User agrees to use the Reservation Services only to book reservations at Locations and then honor those reservations by arriving at the Locations on time and ordering and paying for food & beverage and any other Services that require an additional charge. Any user wishing to book more than one reservation for User’s personal use during any one time period must contact WiVu prior to booking for approval.
Part II – Payment
6. Payment. The following terms and conditions apply when you choose to use the Payment Services made available by WiVu through the WiVu Sites in the United States (“Payment Services Terms”).
7. General Description and Requirements. The Payment Services allow Users to pay for Services rendered at participating Locations through the WiVu Sites. In order to use the Payment Services at a participating Location, you must: (1) make a reservation for the Location through the Reservation Services; (2) select any additional services that are required to be booked in advance, including any additional content costs, food & beverage and potential minimum spending levels, as indicated on the WiVu Sites; (3) provide valid payment method information through or to the WiVu Sites as further described below; (3) provide and verify your mobile phone number as further described below; and (4) have an Account in good standing. Additionally, certain Payment Services may only be available through one or more of our applications which you may be required to download in order to use either in advance or while at the Location. There is no fee to you to use the Payment Services, but your mobile carrier’s standard text message and data charges may apply for which you agree to be solely responsible./p>
8. Payment Method Information. In order to use the Payment Services, you must provide account information for at least one valid debit or credit card or other payment method acceptable to WiVu through or to the WiVu Sites. WiVu uses this payment method account information as described in our privacy policy. If you provide account information for a debit or credit card to the WiVu Sites via a third party, your provision of such debit or credit card shall also be subject to the terms and conditions specified by such third party. WiVu takes no responsibility and assumes no liability for any actions or omissions of such third party. You may add, delete, and edit the payment method account information you have provided from time to time directly through the WiVu Sites. If you provide account information in such a manner for more than one valid debit or credit card, you must select which debit or credit card you want to use to pay your Location charges.
To the extent permitted by applicable law and subject to our privacy policy, you acknowledge and agree that we may use certain third-party vendors and service providers to process payments, manage debit and credit card information and detect and prevent fraud.
By providing debit or credit card account information through or to the WiVu Sites, you represent, warrant, and covenant that: (1) you are legally authorized to provide such information to us; (2) you are legally authorized to perform payments from the debit or credit card account(s); and (3) such action does not violate the terms and conditions applicable to your use of such debit or credit card account(s) or applicable law. When you authorize a payment using a debit or credit card account via the WiVu Sites, you represent, warrant, and covenant that there are sufficient funds or credit available to complete a payment using the debit or credit card account.
9. Verified Mobile Phone Number. In order to use the Payment Services, you must provide a valid mobile phone number through the WiVu Sites and verify such number as instructed by us. To verify your mobile phone number, we will send you a code via text message to the mobile phone number you provided, and you must enter that code as instructed in the WiVu Sites. If you change your mobile phone number, you must promptly provide and verify your new mobile phone number. When you provide your mobile phone number, you expressly consent to receive direct dial calls, autodialed and prerecorded message calls, and text messages relating to the Payment Services at that number.
10. Account Settings. You may establish certain default settings for your use of the Payment Services through the WiVu Sites, such as your preferred payment card account. You may change these settings through the WiVu Sites.
11. Payment Authorization and Settlement. After you place an order at a participating Location, you may pay your Location bill using the Payment Services. You may review your bill and select the gratuity from certain options through the WiVu Sites or a minimum gratuity may be added in accordance with the Location’s gratuity policies. When you pay your Location bill using the Payment Services, you authorize the Location to charge your debit or credit card for the full amount of your final bill, which may include among other things a gratuity based on your selection or minimum gratuity, if any, charged by the Location, any applicable taxes, surcharges or fees and may include adjustments for any errors or omissions. These Terms do not alter any separate payment obligations you may incur for the Location and you are responsible for timely payment of all amounts owed by you to any Location. Except to the extent otherwise required by applicable law, WiVu is not responsible or liable for any payments authorized through the WiVu Sites using your payment method information and for any payments made to WiVu hereunder, WiVu is acting merely as an intermediary specifically appointed by the Location and/or any other Merchant providing products or services at the Location (a “Merchant”) to process and collect payments on their behalf.
12. Receipts and Transaction History. As a courtesy, we will email a receipt to the email address associated with your Account upon completion of a transaction using the Payment Services. You may print and save copies of these receipts and a record of your transactions will be maintained on the WiVu sites for your convenience.
13. Certain Limitations. You acknowledge and agree that WiVu provides the Payment Services only as a convenience and is not a party to your payment transactions performed using the Payment Services. WiVu is an independent contractor for all purposes and is not your agent or trustee. WiVu is not responsible, and has no liability for, the products or services that are paid for with the Payment Services. WiVu shall not be liable for any transactions made directly with Locations.
WiVu is not liable for any payments that the Payment Services do not complete because: (1) your debit or credit card account does not contain sufficient funds to complete the transaction or the transaction would exceed the credit limit or overdraft protection of the debit or credit card account; (2) you have not provided us with correct payment account information; (3) your debit or credit card has expired; or (4) circumstances beyond our control (such as, but not limited to, power outages, interruptions of cellular service, or any other interferences from an outside force) prevent the execution of the transaction. To the extent that any amounts owed cannot be collected from your debit or credit card account through the Payment Services, you are solely responsible for paying the applicable Location(s) by other means.
Part III – Terms for All Services
14. Privacy Policy. WiVu is committed to helping you safeguard your privacy online. Please review our privacy policy for details about how we collect, use, and disclose information in connection with the Services.
15. Your Account. You are required to create an account with WiVu through the WiVu Sites (“Account”) in order to use the Reservation Services or Payment Services. When registering for an Account, you must provide true, accurate, current, and complete data about yourself on the WiVu registration form (“Registration Data”). You also agree to promptly update the Registration Data to keep it true, accurate, current, and complete. You are solely responsible for maintaining the confidentiality of your Account and the information in your Account, and, except as otherwise required by applicable law, you are solely responsible for all use of your Account, whether or not authorized by you. You agree to immediately notify WiVu of any unauthorized use of your Account or any other breach of security related to your use of the Services.
16. Communications from WiVu. If you use our Sites and Services, WiVu may communicate with you via electronic messages, including email, text message/SMS, or mobile push notifications in accordance with our privacy policy.
17. Technical Requirements. Use of the Services requires Internet access through your computer or mobile device. You are responsible for all mobile carrier data or text message charges resulting from your use of the Services, including from any notifications provided by the Services. In order to use the text message based services, you must maintain an active account with a carrier of electronic communications through mobile devices and you may not use a prepaid cellular phone to access such text message services. WiVu does not guarantee that the Services will be compatible with all devices or will be supported by all mobile carriers. You may be required to have JavaScript (or similar technologies) enabled to use the WiVu Site, and some features and portions of the WiVu Site (including, but not limited to, making, modifying, or canceling reservations) may not be accessible with JavaScript disabled.
18. Modifications to Services. WiVu reserves the right, in its sole discretion, to modify the Services from time to time and without notice, including, without limitation, by removing, adding, or modifying portions of the WiVu Sites, Locations, and/or Merchants. WiVu shall have no liability to you for any of the foregoing actions. If you object to any such changes, your sole recourse shall be to cease using the Services. Continued use of the Services following any such changes shall indicate your acknowledgment of such changes and satisfaction with all the Services.
19. Intellectual Property Rights and Grant of Rights to User. The features, information, and materials provided and depicted through the Services are protected by copyright, trademark, patent, and other intellectual property laws. All text, graphical content, video, data, and other content made available through the Services (collectively, the “WiVu Content”) are provided to User by WiVu or its partners or licensors solely to support User’s permitted use of the Services. The WiVu Content may be modified from time to time by WiVu in its sole discretion. Except as expressly set forth herein, no license is granted to User for any other purpose, and any other use of the Services or the WiVu Content by User shall constitute a material breach of this Agreement. WiVu and its partners or licensors retain all rights in the Services and WiVu Content and any associated patents, trademarks, copyrights, mask work rights, trade secrets, or other intellectual property rights. No license, right, or interest in any trademarks of WiVu or any third party is granted under this Agreement.
20. Application License. Subject to the terms and conditions of this Agreement, WiVu grants User a non-exclusive, non-transferable, revocable license to use the WiVu mobile applications, in object code form only, on User’s compatible mobile devices, solely to support User’s permitted use of the Services.
21. Use Restrictions. The Services and WiVu Content are offered solely for User’s personal use for the purposes described in this Agreement and such uses must comply with all laws and applicable government regulations. Any and all other uses are prohibited. WiVu expressly reserves all its rights and remedies under applicable laws (including state, federal, and provincial/territorial laws) including, without limitation, in its sole discretion, to refuse service, terminate Accounts, remove or edit content, cancel reservations, or deny access to the Services.
Without limiting the foregoing, WiVu reserves the right to refuse admittance to or expel from the premises anyone that it or the Location determines is behaving in a manner that could be disruptive or pose any danger to any other attendee or anyone else at the Location or who violates any of the Location’s rules, including but not limited to forbidding outside food and beverage, restrictions on smoking, etc. User agrees that in the event of such an occurrence, User shall not be entitled to a refund of any portion of amounts paid.
User’s reservation is for a private Location rental and User may not advertise the event to the public without the expressed written consent of WiVu, or in any way leverage WiVu’s, the Location’s or any third party’s name, trademarks (“Marks”) or other intellectual property to promote User’s reservation, outside of User’s privately invited guests. Any unauthorized usage thereof will result in the cancellation of User’s reservation and any paid deposit or minimum charge forfeited and User will be solely responsible for any resulting liability.
Views expressed by any attendee at the Event are their own. WiVu shall have no liability for advice given, or views expressed, by any attendee at the Event or in any material provided to attendees. User and attendees are prohibited from making statements or otherwise displaying any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, sexually explicit, profane, hateful, fraudulent, racially, ethnically, or otherwise objectionable material of any kind, including, but not limited to any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, or federal law. Any attendee providing content must not misappropriate or infringe on a third party’s intellectual property rights, including but not limited to copyright, trademark, trade secret, or other proprietary rights, violate the rights of a third party, or contain defamatory or otherwise unlawful material.
You are responsible for leaving the Location in the same condition it was in when you arrived (not including any remaining services items to be cleared or standard wear & tear). You acknowledge and agree that, as a User, you are responsible for your own acts and omissions and are also responsible for the acts and omissions of any individuals whom you invite to, or otherwise provide access to, the Location, including but not limited to following the Location’s rules and regulations (failure to follow such directives may result in a termination of use of the Location with return of any fees at the Location and WiVu’s sole discretion).
In the event a Location reports and provides evidence of missing equipment or damage (each, a "Damage Claim"), including but not limited to photographs, you agree to be liable for such verified claims and agree to pay the cost of cleaning, repairing or replacing the damaged items with equivalent items, as the Location deems necessary in its sole and absolute discretion, with equivalent items. In addition, you agree not to (and not to allow any third party to): (1) use any deep-link, robot, spider, scraper, or other automatic or manual device, process, or means to access, copy, search, or monitor any portion of the Services or WiVu Content, except as expressly authorized by WiVu; (2) take any action that imposes or may impose (in WiVu's sole determination) an unreasonable or a disproportionately large load on the Services or WiVu's infrastructure; (3) utilize any device, software, or routine that will interfere or attempt to interfere with the functionality of the Services; (4) rent, lease, copy, provide access to or sublicense any portion of the Services or WiVu Content to a third party; (5) use any portion of the Services or WiVu Content to provide, or incorporate any portion of the Services or WiVu Content into, any product or service provided to a third party; (6) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to WiVu); (7) modify any Services or WiVu Content or create any derivative product from any of the foregoing; (8) remove or obscure any proprietary or other notices contained in the Services or WiVu Content; (9) use the Services or WiVu Content for any illegal purpose; or (10) publicly disseminate information regarding the performance of the Services or WiVu Content or access or use the Services or WiVu Content for competitive analysis or benchmarking purposes. WiVu reserves the right to limit, in its sole discretion, the provision and quantity of any feature or service to any person or geographic area.
22. United States Government End Users. The Services constitute a “commercial item” as defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire any WiVu Sites with only those rights set forth therein.
23. Export Control. You may not use, export, or re-export any WiVu Sites or other aspects of the Services (or any copy or adaptation of the foregoing) in violation of applicable law, including, without limitation, United States and foreign export laws and regulations. You represent and warrant that 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 that you are not listed on any U.S. Government list of prohibited or restricted parties.
24. Termination. WiVu may suspend your ability to use all or any element of the Services or may terminate this Agreement effective immediately, without notice or explanation. Without limiting the foregoing, WiVu may suspend your access to the Services if we believe you to be in violation of any part of this Agreement (including any WiVu Policies). After any suspension or termination, you may or may not be granted permission to use the Services or re-establish an Account. You agree that WiVu shall not be liable to you for any termination of this Agreement or for any effects of any termination of this Agreement. You are always free to discontinue your use of the Services at any time. You understand that any termination of your Account may involve deletion of any content stored in your Account for which WiVu will have no liability whatsoever.
25. Reviews, Comments, Communications, and Other Content. The Services may permit you to submit, transmit, post or otherwise provide content, including, but not limited to, reviews, comments, ratings, photos, images, videos, sounds, text, data, links and location information; send emails and other communications; and submit suggestions, ideas, comments, questions, or other information (“User Content”). Any such User Content must not be illegal, threatening, obscene, racist, defamatory, libelous, pornographic, infringing of intellectual property rights, promoting of illegal activity or harm to groups and/or individuals, invasive of a third party’s publicity or privacy rights, purposely false or otherwise injurious to third parties, or objectionable and must not consist of or contain software, computer viruses, commercial solicitation, political campaigning, chain letters, mass mailings, any form of “spam” or references to illegal activity, malpractice, purposeful overcharging, false advertising, or health code violations (e.g., foreign objects in food, food poisoning, etc.). Your User Content should be unbiased and objective. You may not submit reviews, comments or ratings for which you are being compensated in any manner, or for your own Location or any Location of your employer, friend, relative or a competitor. You may not use a false email address, impersonate any person or entity, or otherwise mislead as to the origin of User Content. Your name and your profile photo may be displayed publicly with such User Content. WiVu reserves the right (but has no obligation) to monitor, remove, or edit User Content in WiVu's sole discretion, including if User Content violates this Agreement (including any WiVu Policies), but you acknowledge that WiVu may not regularly review submitted User Content. If you do submit User Content, and unless we indicate otherwise, you grant WiVu a nonexclusive, perpetual, royalty-free, irrevocable, and fully sublicensable (through multiple tiers, including to locations, partners and other third party websites and feeds) right to use, modify, reproduce, adapt, translate, publish, create derivative works from, distribute, display, and otherwise exploit such User Content throughout the world in any media, and, where applicable, you hereby waive any privacy or publicity rights or any similar rights in an individual’s name or likeness in addition to any moral or other rights you may have in the User Content you submit in favor of WiVu. You represent that you own, or have the necessary permissions to use and authorize the use of User Content as described herein. WiVu takes no responsibility and assumes no liability for any User Content submitted by you or any other User or third party, nor do we guarantee any confidentiality with respect to User Content.
26. Artificial Intelligence. Some features and tools in our Services use artificial intelligence ("AI"), including generative AI, to provide you with Services. WiVu may partner with third-parties entities or utilize third-party large language models in developing and providing these services. WiVu processes data you may input and any generated data for purposes of providing you with our Services, for product improvement purposes, for quality and troubleshooting purposes, and other purposes in accordance with these Terms and our Privacy Policy. When we partner with third-party entities, we do not permit such third parties to train their own models based on personal or otherwise sensitive data provided to us, unless in exceptional circumstances, where the use case will undergo a robust internal review and approval process. All information and content generated by such AI tools are provided on an "as-is" and "as-available" basis. WiVu makes no representations of any kind as to the relevance, accuracy, or completeness of such content and is not responsible for any damage or losses arising from your use of or reliance on such content.
27. Your Representations and Indemnity. You represent and warrant that you own or otherwise control all of the rights to any User Content submitted by you; that all User Content submitted by you is accurate; and that exploitation of such User Content by WiVu and its other Users, partners, and licensees will not violate this Agreement, cause injury to any person or entity, or infringe any third-party rights (including, without limitation, intellectual property rights and rights of privacy or publicity). You will indemnify, hold harmless, and (at WiVu's request) defend WiVu, its affiliates, and its and their representatives, agents, directors, managers, officers, employees, and shareholders (collectively, the “WiVu Parties”) from and against all claims resulting from (1) any User Content submitted by you, (2) your use of the Services, or (3) any breach or alleged breach by you of this Agreement.
28. Liability Limitations. EXCEPT AS EXPRESSLY SPECIFIED HEREIN, IN NO EVENT SHALL THE WIVU PARTIES BE LIABLE FOR ANY INJURIES, LOSSES, CLAIMS, OR DIRECT DAMAGES OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHICH ARISE OUT OF OR ARE ANY WAY CONNECTED WITH (1) THIS AGREEMENT (INCLUDING ANY CHANGES THERETO), (2) ANY USE OF THE WIVU SITES, SERVICES, THE WIVU CONTENT, OR THE USER CONTENT, (3) ANY FAILURE OR DELAY (INCLUDING, BUT NOT LIMITED TO, THE USE OR INABILITY TO USE ANY COMPONENT OF ANY OF THE SERVICES), OR (4) YOUR VISIT TO ANY LOCATION OR THE PERFORMANCE, NON-PERFORMANCE, CONDUCT, OR POLICIES OF ANY LOCATION OR MERCHANT IN CONNECTION WITH THE SERVICES. IN ADDITION, YOU SPECIFICALLY UNDERSTAND AND AGREE THAT ANY THIRD PARTY DIRECTING YOU TO THE WIVU SITE BY REFERRAL, LINK, OR ANY OTHER MEANS IS NOT LIABLE TO USER FOR ANY REASON WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES OR LOSS ASSOCIATED WITH THE USE OF THE SERVICES OR THE WIVU CONTENT.
IF THE DISCLAIMER OF DIRECT DAMAGES ABOVE IS NOT ENFORCEABLE AT LAW, YOU EXPRESSLY AGREE THAT OUR LIABILITY TO YOU (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION) WILL AT ALL TIMES BE LIMITED TO FIFTY US DOLLARS ($50).
You and WiVu understand and agree that the disclaimers, exclusions, and limitations in this Section 28 and in Section 29 are essential elements of this Agreement and that they represent a reasonable allocation of risk. In particular, you understand that WiVu would be unable to make the Services available to you except on these terms and agree that this Agreement will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
29. Disclaimer of Warranties. YOU UNDERSTAND THAT USE OF THE SERVICES IS AT YOUR OWN RISK AND WIVU CANNOT GUARANTEE THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. THE SERVICES, ALL WIVU CONTENT, AND ANY OTHER INFORMATION, PRODUCTS, AND MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SERVICES, ARE PROVIDED TO USER ON AN “AS IS” BASIS AND WITHOUT WARRANTY OF ANY KIND. WIVU EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, OR INDEMNITIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, OR ANY WARRANTY ARISING FROM A COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. WIVU DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT WIVU WILL REVIEW THE INFORMATION OR MATERIALS MADE AVAILABLE THROUGH THE SERVICES FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN ANY SUCH INFORMATION OR MATERIALS WITHOUT LOSS. WIVU SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES, OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE WIVU’S REASONABLE CONTROL.
THE FOREGOING DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
30. Third-Party Websites, Applications and Services. The Services may contain hypertext links to websites and applications operated by parties other than WiVu. Such hypertext links are provided for User’s reference only, and WiVu does not control such websites and is not responsible for their content. WiVu's inclusion of any hypertext links to such websites or applications does not imply any endorsement of the material on such websites or applications or any association with their operators. WiVu assumes no liability whatsoever for any such third-party websites, applications or any content, features, products, or services made available through such third-party websites or applications. Additionally, Apple Inc., Google, Inc., and Microsoft Corporation will be a third-party beneficiary to this contract if you access the Services using applications developed for Apple iOS, Android, or Microsoft Windows-powered mobile devices, respectively. These third party beneficiaries are not parties to this contract and are not responsible for the provision or support of the Services in any manner. Your access to the Services using these devices is subject to terms set forth in the applicable third party beneficiary's terms of service, including any license transferability and other usage rules therein. To the extent a WiVu Location enables a Third-Party Platform (as defined below), the offering, sale, purchase or consumption of alcohol, cannabis, tobacco, gambling or related products (“Age Restricted Goods”) are provided subject to the applicable laws that govern such Age Restricted Goods, and WiVu has no affiliation with or liability related to a Location’s offering of such Age Restricted Good. “Third-Party Platform” means any platform, add-on, service or product not provided by WiVu that a Location elects to integrate or enable.”
31. Release. Locations and Merchants are solely responsible for their interactions with you and any and all claims, injuries, illnesses, damages, liabilities, and costs (“Claims”) suffered by you or anyone in your party as a result of your interaction with or visit to any Location or Merchant or from any promotion, offer, product or service of any Location or Merchant. Users must resolve all disputes directly with Locations. To the maximum extent permitted by applicable law, you hereby release the WiVu Parties from any and all such Claims. IN CONNECTION WITH THE FOREGOING, IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” You hereby expressly waive and relinquish all rights and benefits under that section and any law of any jurisdiction of similar effect with respect to the release of any unknown or unsuspected claims you may have against the WiVu Parties pertaining to the subject matter of this Section 22. If you are a resident of the United Kingdom or European Union, this release shall not apply to any damage arising from our willful misconduct or gross negligence, nor shall it apply to damage from injury to life, body or health.
32. Severability. If any of the provisions, or portions thereof, of this Agreement are found to be invalid under any applicable statute or rule of law, then, that provision (or portion thereof) notwithstanding, this Agreement shall remain in full force and effect and such provision or portion thereof shall be deemed omitted.
33. Assignment. This Agreement and the rights granted and obligations undertaken hereunder may not be transferred, assigned, or delegated in any manner by User, but may be freely transferred, assigned, or delegated by WiVu.
34. Waiver. Any waiver of any provision of this Agreement, or a delay by any party in the enforcement of any right hereunder, shall neither be construed as a continuing waiver nor create an expectation of non-enforcement of that or any other provision or right.
35. ARBITRATION AGREEMENT AND JURY TRIAL WAIVER, CLASS ACTION WAIVER, AND FORUM SELECTION CLAUSE.
You agree that any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and the WiVu Parties or their successors or assigns shall exclusively be settled through binding and confidential arbitration. If you are a resident in Mexico, you hereby expressly waive any right to exercise a class action before a Mexican court against WiVu and WiVu Parties, pursuant to the terms of the Federal Code of Civil Procedure (CódigoFederal de ProcedimientosCiviles) and any other applicable Mexican legislation.
Arbitration shall be subject to the Federal Arbitration Act and not any state or provincial/territorial arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively, the “Rules and Procedures”).
In the case of arbitration and where permitted by law, you are thus agreeing to GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that you file in small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
In the case of arbitration and where permitted by law, you and WiVu must abide by the following rules: (1) ANY CLAIMS MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (3) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, WiVu will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (4) WiVu also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (5) the arbitrator shall honor claims of privilege and privacy recognized at law; (6) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (7) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (8) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and, in such instance, the fees and costs awarded shall be determined by the applicable law.
Notwithstanding the foregoing, either you or WiVu may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in Los Angeles, California. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in Los Angeles, California in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within Los Angeles County, California for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
With the exception of WiVu Parties (1) and (2) in this Section (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting part was not contained herein. If, however, either subpart (1) or (2) is found to be invalid, unenforceable, or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor WiVu shall be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration (including any claims brought by parties outside the United States or Canada), the dispute shall be exclusively brought in state or federal court located in Los Angeles County, California.
For more information on AAA, the Rules and Procedures, or the process for filing an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
36. Choice of Law. This Agreement is made under and shall be governed by and construed in accordance with the laws of the State of California, U.S.A, consistent with the Federal Arbitration Act (to the extent permitted by applicable law), without giving effect to any principles that provide for the application of the law of another jurisdiction. You may also be entitled to certain consumer protection rights under the laws of your local jurisdiction and/or country of residency.