PLEASE READ THE FOLLOWING CAREFULLY before downloading, installing and/or using the verifyt® services, which is created, operated, and managed by NetVirta, Inc. and its affiliates (collectively the “NetVirta”). These terms and conditions require you arbitrate any disputes you have with NetVirta and NetVirta’s partners (the “Partner” or “Partners”), and you waive the ability to bring claims against both NetVirta and the Partners in a class action format.
By clicking the “accept” or “ok” button, or installing and/or using the Verifyt® smartphone application (the “App”) and/or the Verifyt® web plugin (the “Plugin”, the App and the Plugin are collectively called the “Services”) you expressly acknowledge and agree that you are entering into a legal agreement with NetVirta, and have understood and agree to comply with, and be legally bound by, these terms and conditions (the “Agreement”). You hereby waive any applicable rights to require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent not prohibited under applicable law. If you do not agree to be bound by this Agreement please do not install, download, and/or use the Services or any component thereof.
1. Ability to Accept. The Services are not intended for consumers under the age of eighteen (18). By downloading, installing, and/or using the App you affirm that you are over eighteen (18) years of age. If you are a consumer under the age of 18 and would like to access the Service, please make sure your guardian reviews, and agrees to this Agreement on behalf of you.
2. App License. Subject to the terms and conditions of this Agreement, NetVirta hereby grants you a personal, revocable, non-exclusive, non-sublicensable, non-assignable, non-transferable license (“License”) to: (i) download, install and use the App on a mobile telephone, tablet or other device (each a “Device”) that you own or control; (ii) access and use the App on that Device in accordance with this Agreement and any applicable Usage Rules (defined below).
3. Restrictions. You agree not to, and shall not permit any third party to: (i) make the Services available over a network where it could be used by multiple devices owned or operated by different people at the same time; (ii) disassemble, reverse engineer, decompile, decrypt, or attempt to derive the source code of, the Services; (iii) copy, modify, improve, or create derivative works of the Services or any part thereof; (iv) circumvent, disable or otherwise interfere with security-related features of the Services or features that prevent or restrict use or copying of any content or that enforce limitations on use of the Services; (v) use the NetVirta’s name, logo or trademarks without NetVirta’s prior written consent; and/or (vi) use the Services to violate any applicable laws, rules or regulations, or for any unlawful, harmful, irresponsible, or inappropriate purpose, or in any manner that breaches this Agreement.
4. Account. In order to use some of the Services’ features you may have to create or use an account (an “Account”). If you register for any feature that requires a password and/or username, you agree that: (i) You will not use a username (or e-mail address) that is already being used by someone else, may impersonate another person, belongs to another person, violates the intellectual property or other right of any person or entity, or is offensive. We may reject the use of any password, username, or e-mail address for this or for any other reason in NetVirta’s sole discretion; (ii) You will provide true, accurate, current, and complete registration information about yourself in connection with the registration process and, as permitted, to maintain and update it continuously and promptly to keep it accurate, current, and complete; (iii) You are solely responsible for all activities that occur under your Account, password, and username - whether or not you authorized the activity; (iv) You are solely responsible for maintaining the confidentiality of your password and for restricting access to your Device so that others may not access any password protected portion of the Services using your name, username, or password; (v) You will immediately notify us of any unauthorized use of your Account, password, or username, or any other breach of security; and (vi) You will not sell, transfer, or assign your Account or any Account rights. NetVirta will not be liable for any loss or damage (of any kind and under any legal theory) to you or any third party arising from your inability or failure for any reason to comply with any of the foregoing obligations. If any information that you provide, or if we have reasonable grounds to suspect that any information that you provide, is false, inaccurate, outdated, incomplete, or violates this Agreement, or any applicable law, NetVirta may suspend or terminate your Account. NetVirta also reserves the more general and broad right to terminate your Account or suspend or otherwise deny you access to it or its benefits - all in NetVirta’s sole discretion, for any reason, and without advance notice or liability. If you would like to deactivate or close your Account, please email: firstname.lastname@example.org .
5. PARTNERS. NetVirta’s Services may include features that facilitate you to use your 3D body model to shop for products that are made or sold by the Partners, by means of sending your personal information and 3D models (the “Data”) to the Partners with your consent. To clarify, NetVirta will not send your Data to any Partner without your consent. NetVirta will send your Data to a Partner only when you have made a selection (the “Selection”) of the Partner via the Services. The Selection can be made by any of the following ways:
5.1. Scan a Partner’s QR code. You can use your app to scan a QR code that is displayed at a Partner website, or a pamphlet at a Partner’s store, or an email from a Partner, or any other outbound marketing means that the Partners may use.
5.2. Click on a Partner’s web link. On your smartphone, you can click on a web link, usually accompanied by the QR code above, that is displayed at a Partner website or an email from a Partner; or type in the web link displayed on a pamphlet at a Partner’s store, or any other outbound marketing means that the Partners may use.
5.3. You send a web link. NetVirta’s Services also provide a unique web link that is specifically generated for you under your account. You can text or email this web link to a Partner directly.
6. Usage Rules. If you are downloading or have downloaded the App from a third party mobile device platform or service provider (“Distributor”), such as for example, Apple App Store or Google Play Store, please be aware that the Distributor may have established usage rules which also govern your use of the App (“Usage Rules”). You acknowledge that, prior to downloading the App from a Distributor, you have had the opportunity to review and understand, and will comply with, its Usage Rules. You represent that you are not prohibited by any applicable Usage Rules and/or applicable law from using the App; if you are unable to make such a representation you are prohibited from installing and/or using the App.
7. Intellectual Property Rights.
7.1. Ownership. You acknowledge that while you may be using the Services, the software included in the Services is licensed and not sold to you. NetVirta retains all title, ownership rights and Intellectual Property Rights (defined below) in and to the Services, and NetVirta reserves all rights not expressly granted herein. “Intellectual Property Rights” means any and all rights in and to any and all trade secrets, patents, copyrights, service marks, trademarks, know-how, or similar intellectual property rights, as well as any and all moral rights, rights of privacy, publicity and similar rights of any type under the laws or regulations of any governmental, regulatory, or judicial authority, whether foreign or domestic.
7.2. Content. The content on or in the Services, including, without limitation, the text, information, documents, descriptions, products, software, graphics, photos, sounds, videos, and interactive features (the “Materials”), and the trademarks, service marks and logos contained and displayed on the Services (“Marks”), and together with the Materials and feedback and other information provided by you (the “User Submissions”, and together the “Content”), is the property of NetVirta, and may be protected by applicable copyright or other intellectual property laws and treaties.
7.3. Use of Content. The content on or in the Services is provided to you “as is” for your personal use only and may not be used, copied, distributed, transmitted, broadcast, displayed, sold, licensed, de-compiled, or otherwise exploited for any other purposes whatsoever without NetVirta’s prior written consent. If you download or print a copy of the content (which you may do for personal purposes only) you must retain all copyright and other proprietary notices contained therein.
8.1. NetVirta may in the future charge a fee for certain features and/or uses of the Services or in-app purchases. You will not be charged for any such uses of the Services unless you first agree to such charges, but please be aware that any failure to pay applicable charges may result in you not having access to some or all of the Services.
8.2. Please be aware that your use of the Services may require and utilize internet connection or data access. To the extent that third party service provider or carrier charges for your internet or data usage are applicable, you agree to be solely responsible for those charges.
10. Dispute Resolution
10.1. If any controversy, allegation, or claim arises out of or relates to the Services, the Content, your User Submissions, this Agreement, whether heretofore or hereafter arising (collectively, "Dispute"), or to any of NetVirta’s actual or alleged intellectual property rights (an "Excluded Dispute"), which includes those actions set forth in 9.4, you and NetVirta agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. NetVirta’s notice to you will be sent to you based on the most recent contact information that you provide. But if no such contact information exists or if such information is not current, NetVirta has no obligation under this Section 9.1. To provide NetVirta notice of an arbitration demand, send the demand to: email@example.com . For a period of sixty (60) days from the date of receipt of notice from the other party, NetVirta and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or NetVirta to resolve the Dispute or Excluded Dispute on terms with respect to which you and NetVirta, in each of our sole discretion, are not comfortable.
10.2. Binding Arbitration. If NetVirta cannot resolve a Dispute as set forth in Section 9.1 (or agree to arbitration in writing with respect to an Excluded Dispute) within sixty (60) days of receipt of the notice, then ANY AND ALL DISPUTES ARISING BETWEEN YOU AND NetVirta MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION. THIS INCLUDES ANY AND ALL DISPUTES BASED ON ANY PRODUCT OR SERVICE (WHETHER BASED IN CONTRACT, STATUTE, REGULATION, ORDINANCE, TORT - INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, FRAUD, ANY OTHER INTENTIONAL TORT OR COMMON LAW, CONSTITUTIONAL PROVISION, RESPONDEAT SUPERIOR, AGENCY OR ANY OTHER LEGAL OR EQUITABLE THEORY - AND WHETHER ARISING BEFORE OR AFTER THE EFFECTIVE DATE OF THIS AGREEMENT). Place of arbitration shall be Boston, Massachusetts, United States. The Federal Arbitration Act ("FAA") shall govern the arbitrability of all disputes between NetVirta and you regarding this Agreement (and any additional terms) and the Services, including the No Class Action Matters section below. BY AGREEING TO ARBITRATE, EACH PARTY IS GIVING UP ITS RIGHT TO GO TO COURT AND HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY.
10.3. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would. The arbitration will be conducted by an arbitration company selected by NetVirta (the “Arbitration Company”) under its rules by a single arbitrator experienced in commercial disputes. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in Boston Massachusetts or at another mutually agreed location. The arbitrator shall issue a written award setting forth the arbitrator’s complete determination of the dispute and the factual findings and legal conclusions relevant to it. The arbitrator's award may be entered in any court of competent jurisdiction. Payment of all filing, administration, and arbitrator fees will be governed by the Arbitration Company’s rules. This arbitration provision shall survive termination of this Agreement or the Agreement.
10.4. Limited Time To File Claims. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR NetVirta WANT TO ASSERT A DISPUTE (BUT NOT A EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR NetVirta MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 9.1) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES OR IT WILL BE FOREVER BARRED. Commencing means, as applicable (a) by delivery of written notice as set forth above in Section 9.1; (b) filing for arbitration with the AAA as set forth in Section 9.2; or (c) filing an action in state or Federal court. The parties expressly waive any contrary statute of limitations or time bars, both legal and equitable, to the Disputes.
10.5. Injunctive Relief. The foregoing provisions of this Section 9 will not apply to any legal action taken by NetVirta to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Services, any Content, your User Submissions and/or NetVirta’s intellectual property rights (including such NetVirta may claim that may be in dispute), NetVirta’s operations, and/or NetVirta's products or services.
10.6. No Class Action Matters. YOU AND NetVirta 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 OR AS AN ASSOCIATION. Disputes will be arbitrated only on an individual basis and will not be joined or consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. There shall be no right or authority for any Dispute to be arbitrated on a class action basis or on any basis involving Disputes brought in a purported representative capacity on behalf of the general public, or other persons or entities similarly situated. But if, for any reason, any court with competent jurisdiction holds that this restriction is unconscionable or unenforceable, then our agreement in Section 9.2 to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 9.6. Notwithstanding any other provision of this Section 9, any and all issues relating to the scope, interpretation and enforceability of the class action waiver provisions contained herein (described in this "No Class Action Matters" section), are to be decided only by a court of competent jurisdiction, and not by the arbitrator. The arbitrator does not have the power to vary these class action waiver provisions.
10.7. Federal And State Courts In Boston, Massachusetts. Except where arbitration is required above, small claims actions, or with respect to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute arising hereunder may only be instituted in the small claims courts in Boston, Massachusetts. Accordingly, you and NetVirta consent to the exclusive personal jurisdiction and venue of such courts for such matters.
10.8. Small Claims Matters Are Excluded From Arbitration Requirement. Notwithstanding the foregoing, either of you or NetVirta may bring qualifying claim of Disputes (but not Excluded Disputes) in small claims court of competent jurisdiction. Notwithstanding any other provision in the Agreement to the contrary, to the extent NetVirta makes a material change to this dispute resolution provision, such change will not apply to any dispute that you provided NetVirta notice of prior to the change in the dispute resolution provision.
11. Limitation of Liability.
UNDER NO CIRCUMSTANCES SHALL NetVirta BE LIABLE FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF DATA, REVENUE, BUSINESS OR REPUTATION, THAT ARISES UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR THAT RESULTS FROM THE USE OF, OR THE INABILITY TO USE, THE SERVICES EVEN IF NetVirta HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN ANY EVENT, NETVIRTA’S TOTAL AGGREGATE LIABILITY FOR ALL DAMAGES AND LOSSES THAT ARISE UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR THAT RESULT FROM YOUR USE OF OR INABILITY TO USE THE SERVICES, SHALL NOT IN ANY CIRCUMSTANCE EXCEED THE TOTAL AMOUNTS ACTUALLY PAID BY YOU FOR THE LICENSE TO THE SERVICES TO NETVIRTA.
12. Indemnity. You agree to defend, indemnify and hold harmless NetVirta, and Partners, and their respective officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs and expenses (including, but not limited to attorney’s fees) arising from: (i) your use of, or inability to use, the Services; (ii) your User Submissions; (iii) your violation or alleged violation of this Agreement; (iv) your violation of any third party right, including, without limitation, any copyright, property, or privacy right; (v) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Services or your activities in connection with the Services; (vi) information or material transmitted through your Device, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vii) any misrepresentation made by you; or (viii) NetVirta’s or Partners’ use of the information that you submit to us (including your User Submissions). Without derogating from or excusing your obligations under this section, NetVirta reserves the right (at your own expense), but are not under any obligation, to assume the exclusive defense and control of any matter which is subject to an indemnification by you if you choose not to defend or settle it. You agree not to settle any matter subject to an indemnification by you without first obtaining NetVirta's express approval.
13. Export Laws. You agree to comply fully with all applicable export laws and regulations to ensure that neither the Services nor any technical data related thereto are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.
14. Updates and Upgrades. NetVirta may from time to time provide updates or upgrades to the Services (each a “Revision”), but are not under any obligation to do so. Revisions will be supplied according to NetVirta's then-current policies, which may include automatic updating or upgrading without any additional notice to you. You consent to any such automatic updating or upgrading of the Services. All references herein to the Services shall include Revisions. This Agreement shall govern any Revisions that replace or supplement the original Services, unless the Revision is accompanied by a separate license agreement which will govern the Revision.
15. Term and Termination.
15.1. Term and Termination. This Agreement is effective until terminated by NetVirta or you. NetVirta reserves the right, at any time, to: (i) discontinue or modify any aspect of the Services; and/or (ii) immediately terminate this Agreement and your use of the Services due to your breach of this Agreement, and shall not be liable to you or any third party for any of the foregoing. If you object to any term or condition of this Agreement or any subsequent modifications thereto, or become dissatisfied with the Services in any way, your only recourse is to immediately discontinue use of the Services.
15.2. Effect of Termination . Upon termination of this Agreement, you shall cease all use of the Services. This Section 15.2 and Sections 3 ( Restrictions), 7 (Intellectual Property Rights), 9 (Privacy), 11 (Limitation of Liability ), 12 (Indemnity), 16 (Assignment), 17 (Modification), 18 ( Governing Law), and 19 (General) shall survive termination of this Agreement.
16. Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you but may be assigned by NetVirta without restriction or notification.
17. Modification. NetVirta reserves the right to modify this Agreement at any time by sending you an in-app notification, email notification, and/or publishing the revised Agreement. Such change will be effective ten (10) days following the foregoing notification thereof, and your continued use of the Services thereafter means that you accept those changes.
18. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to its conflict of laws rules.
19. General. This Agreement and any other legal notices published by NetVirta in connection with the Services, shall constitute the entire agreement between you and NetVirta concerning the Services. In the event of a conflict between this Agreement and any such legal notices, the terms of the applicable notice shall prevail with respect to the subject matter of such notice. No amendment to this Agreement will be binding unless in writing and signed by NetVirta. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. All section and sub-section headings used in this Agreement are for convenience only, and shall not be relied upon or used in interpreting this Agreement. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and a party’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. YOU AGREE THAT ANY CAUSE OF ACTION THAT YOU MAY HAVE ARISING OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
20. Investigations; Cooperation with Law Enforcement; Termination; Survival. NetVirta reserves the right, without any limitation, to: (i) investigate any suspected breaches of the Services’ security or its information technology or other systems or networks, (ii) investigate any suspected breaches of this Agreement, (iii) investigate any information obtained by NetVirta in connection with reviewing law enforcement databases or complying with criminal laws, (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters, (v) prosecute violators of this Agreement, and (vi) discontinue the Services, in whole or in part, or suspend or terminate your access to it, in whole or in part, including any user accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third party. Any suspension or termination will not affect your obligations to NetVirta under this Agreement. Upon suspension or termination of your access to the Services, or upon notice from NetVirta, all rights granted to you under this Agreement will cease immediately, and you agree that you will immediately discontinue use of the Services. The provisions of this Agreement, which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to NetVirta in this Agreement, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, and mandatory arbitration.
21. California Consumer Rights and Notices. Residents of California are entitled to the following specific consumer rights information: you may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs by mail at: 400 R St., Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254. Their website is located at: https://www.dca.ca.gov.