Boulevard Arts, Inc. (“Boulevard,” “we,” “us,” or “our”) welcomes you. We invite you to access and use our Services, which are made available to you through the Platform.
Capitalized terms not defined in these Terms of Use shall have the meaning set forth in our Privacy Policy.
We provide our Services to Visitors and Users subject to the following Terms of Use, which may be updated by us from time to time without notice to you. By browsing the public areas or by accessing and using the Services, you acknowledge that you have read, understood, and agree to be legally bound by these Terms of Use and our Privacy Policy, which is hereby incorporated by reference (collectively, this “Agreement”). If you do not agree to any of these terms, then please do not use the Services.
THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
1. DESCRIPTION AND USE OF SERVICES
We provide Visitors and Users with access to the Services as described below.
Visitors. Visitors, as the term implies, are people who don’t register with us, but want to browse around. No login is required for Visitors. Visitors can: (a) view all publicly-available content; and (b) e-mail us.
Users. Registration and login is required for all Users, who can do all the things that Visitors can do, and: (a) create, access, manage, and update their own personal account; (b) view all virtual reality content for which they have subscribed; (c) execute Transactions; (d) sign up for our various programs; and (e) sign up for alerts and other notifications.
Boulevard is under no obligation to accept any individual as a User and may accept or reject any registration in its sole and complete discretion. In addition, Boulevard may deactivate any account at any time, including, without limitation, if it determines that a User has violated these Terms of Use.
2. COMMUNITY GUIDELINES
Boulevard’s community, like any community, functions best when its users follow a few simple rules. By accessing and/or using the Platform, you agree to comply with these community guidelines (the “Community Guidelines”) and that:
· You will comply with all applicable laws in your use of the Services and the Platform and will not use them for any unlawful purpose;
· You will not access or use the Services to collect any market research for a competing business;
· You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
· You will not interfere with or attempt to interrupt the proper operation of the Platform through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any data, files, or passwords related to the Platform through hacking, password or data mining, or any other means;
· You will not cover, obscure, block, or in any way interfere with any advertisements and/or safety features (e.g., report abuse button) on the Platform;
· You will not use any robot, spider, scraper, or other automated means to access the Platform for any purpose without our express written permission; provided, however, we grant the operators of public search engines permission to use spiders to copy materials from the Platform for the sole purpose of and solely to the extent necessary for creating publicly-available searchable indices of the materials, but not caches or archives of such materials;
· You will not take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure; and
· You will let us know about inappropriate content you become aware of. If you find something that violates our Community Guidelines, please let us know, and we’ll review it.
We reserve the right, in our sole and absolute discretion, to deny you access to the Platform, or any portion of the Platform, without notice, and to remove any content that does not adhere to these Community Guidelines.
3. RESTRICTIONS
Users must be 13 years or older. If you are under 13, you need a parent or guardian to register to use the Platform. If you are 13 or older, but under the age of majority in your jurisdiction, you should review this Agreement with your parent or guardian to make sure that you and your parent or guardian understand it.
4. USE OF HEADSETS
You understand and acknowledge that there are certain health and safety risks associated with the use of virtual reality headsets (“Headsets”) and that by using those Headsets, you are assuming those risks. Please consult your Headset documentation for such risks or visit the manufacturer’s/supplier’s website.
BOULEVARD, NOT BEING THE SUPPLIER OR MANUFACTURER OF THE HEADSETS OR THE SUPPLIER’S OR MANUFACTURER’S AGENT, MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND WHATSOEVER WITH RESPECT TO ANY HEADSETS AND DISCLAIMS ANY SUCH WARRANTIES THAT MIGHT OTHERWISE EXIST. BOULEVARD EXPRESSLY DISCLAIMS ANY LIABILITY ARISING FROM SUCH MANUFACTURERS’ AND/OR SUPPLIERS’ ACTS OR OMISSIONS IN CONNECTION WITH ANY HEADSETS AND/OR YOUR USE THEREOF.
You agree to comply with any and all health and safety-related best practices (and all updates thereto) that may be provided by the manufacturers and/or suppliers of the Headsets.
5. PAYMENT
You may make Transactions through the Platform, in which case the terms of this Section shall apply with respect to such Transaction. You may also make certain transactions through third-party distribution platforms, such as Samsung and Oculus, in which case their terms shall apply with respect to such transaction.
As consideration for any Transactions you make on the Platform, you shall pay Boulevard all applicable fees and taxes. Our third-party payment processor shall authorize your credit card, bank account, or other approved payment facility you provided during the registration process for the full payment of the fees and any applicable taxes, and you hereby consent to the same. If the mailing address you provided us is in the United States, all payments will be charged and made in U.S. dollars. If the mailing address you provided us is outside the United States or any of its possessions or territories, all payments will be charged and made in your local currency.
You must provide current, complete, and accurate billing and credit card information. You must promptly update all Billing Information (such as billing address, card number, and expiration date) to keep your account current, complete, and accurate, and you must promptly contact us if your credit card is lost or stolen, or if you become aware of a potential breach of account security, such as an unauthorized disclosure or use of your Sign-In Name or Password (as defined below). You hereby authorize our third-party payment processor to obtain or determine updated or replacement expiration dates for your credit card in the event that the credit card you provided us expires. We reserve the right for our third-party payment processor to charge any renewal card issued to you to the same extent as the expired card. If payment is not received from your credit card issuer, you hereby agree to pay all amounts due upon demand. You agree to pay all costs of collection, including attorney’s fees and costs, on any outstanding balance. In certain instances, the issuer of your credit card may charge you a foreign transaction fee or related charges, which you will be responsible to pay. You are advised to check with your bank and credit card issuer for details.
6. SIGN-IN NAME; PASSWORD; UNIQUE IDENTIFIERS
If a User does not log in to the Platform using a third-party login provider (e.g., Facebook), such User will be prompted to create an account, which includes a sign-in name (“Sign-In Name”), a password (“Password”), and perhaps certain additional information that will assist in authenticating the person’s identity when he or she logs-in in the future (“Unique Identifiers”). When creating your account, you must provide true, accurate, current, and complete information. Each Sign-In Name and corresponding Password can be used by only one User. You are solely responsible for the confidentiality and use of your Sign-In Name, Password, and Unique Identifiers, as well as for any use, misuse, or communications entered through the Platform using one or more of them. You will promptly inform us of any need to deactivate a Password or Sign-In Name, or change any Unique Identifier. We reserve the right to delete or change your Password, Sign-In Name, or Unique Identifier at any time and for any reason and shall have no liability to you for any loss or damage caused by such action. Boulevard will not be liable for any loss or damage caused by any unauthorized use of your account.
7. INTELLECTUAL PROPERTY
The Platform contains material, such as virtual reality exhibitions, software, text, graphics, images, sound recordings, audiovisual works, and other material provided by or on behalf of Boulevard (collectively referred to as the “Content”). The Content may be owned by us or other third parties. The Content is protected under both United States and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and other laws.
Visitors may view all publicly-available Content for their own personal, non-commercial use. Users may view all publicly-available Content and any Content for which they have subscribed, in each case for their own, non-commercial use.
Except as stated in the immediately prior sentence, you have no rights in or to the Content, and you will not use the Content except as permitted under this Agreement and the functionality of the Platform. No other use is permitted without prior written consent from us. You must retain all copyright and other proprietary notices contained in the original Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, publicly 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 the Content on any other website or in a networked computer environment for any purpose is expressly prohibited.
If you violate any part of this Agreement, your permission to access and/or use the Content and the Platform automatically terminates and you must immediately destroy any copies you have made of the Content.
The trademarks, service marks, and logos of Boulevard (the “Boulevard Trademarks”) used and displayed on the Platform are registered and unregistered trademarks or service marks of Boulevard. Other company, product, and service names located on the Services may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with the Boulevard Trademarks, the “Trademarks”). Nothing on the Platform should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of Boulevard Trademarks inures to our benefit.
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. None of the Content may be retransmitted without our express, written consent for each and every instance.
8. COMMUNICATIONS WITH US
Although we encourage you to communicate with us, we do not want you to, and you should not, e-mail us any content that contains confidential information. With respect to all e-mails and communications you send to us, including, but not limited to, feedback, questions, comments, suggestions, and the like, we shall be free to use any ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including but not limited to, the development, production, and marketing of products and services that incorporate such information without compensation to you.
9. NO WARRANTIES; LIMITATION OF LIABILITY
WE DO NOT WARRANT THAT THE PLATFORM OR THE SERVICES WILL OPERATE ERROR-FREE OR THAT THE PLATFORM, THE SERVICES, THEIR SERVERS, OR THE CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES.
THE PLATFORM, THE SERVICES, AND THE CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. WE DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT BOULEVARD MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW. THE FOREGOING LIMITATION DOES NOT APPLY IN THE STATE OF NEW JERSEY.
IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) WE SHALL NOT BE LIABLE FOR ANY INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE SERVICES, THE PLATFORM, OR THE CONTENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) OUR LIABILITY FOR DIRECT DAMAGES, NOT ATTRIBUTABLE TO PERSONAL INJURIES, WILL NOT EXCEED THE FEES PAID BY YOU UNDER THIS AGREEMENT DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM, EXPRESSLY EXCLUDING ANY FEES YOU PAY TO THIRD-PARTY DISTRIBUTION PLATFORMS.
YOU AGREE THAT ANY COMMON-LAW CAUSE OF ACTION ARISING UNDER TORT, CONTRACT, OR WARRANTY RELATED TO THE PLATFORM OR OTHERWISE ARISING UNDER THIS AGREEMENT MUST BE COMMENCED BY YOU WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
BOULEVARD HAS MADE EVERY EFFORT TO DISPLAY THE ARTWORK, PRODUCTS, COLORS, AND IMPRINTS AS ACCURATELY AS POSSIBLE ON THE PLATFORM. HOWEVER, THE FINAL PRODUCTS AND/OR SERVICES DELIVERED IN CONNECTION WITH ANY TRANSACTION MAY VARY FROM THE IMAGES VIEWED ON THE PLATFORM DUE TO A NUMBER OF FACTORS THAT ARE NOT WITHIN OUR CONTROL. THESE FACTORS INCLUDE, BUT ARE NOT LIMITED TO, SYSTEM CAPABILITIES AND CONSTRAINTS OF YOUR COMPUTER, MANUFACTURING PROCESS ISSUES, AND THE AVAILABILITY OF PRODUCTS. ALTHOUGH BOULEVARD WILL EXERCISE COMMERCIALLY REASONABLE EFFORTS TO HELP ENSURE THAT THE PRODUCTS AND SERVICES CONFORM TO YOUR EXPECTATIONS, VARIATIONS SOMETIMES OCCUR. ALL PRODUCTS AND SERVICES, PRICING, SPECIFICATIONS, AND OFFERINGS ARE SUBJECT TO CHANGE WITHOUT NOTICE. THE SERVICES MAY CONTAIN INFORMATION ON THE PRODUCTS AND SERVICES OF PARTICIPATING ORGANIZATIONS, NOT ALL OF WHICH ARE AVAILABLE IN EVERY LOCATION. A REFERENCE TO A PRODUCT OR SERVICE ON THE PLATFORM DOES NOT IMPLY THAT SUCH PRODUCT OR SERVICE IS OR WILL BE AVAILABLE IN YOUR LOCATION. THE PLATFORM MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS OR OMISSIONS. UNLESS REQUIRED BY APPLICABLE LAWS, WE ARE NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL, TECHNICAL, OR PRICING ERRORS LISTED ON THE PLATFORM.
10. TRANSACTIONS VIA THIRD-PARTY DISTRIBUTION PLATFORMS
As noted above, you may execute orders for Boulevard products and Services (e.g., purchasing the App, subscribing to Content, etc.) via third-party distribution platforms, such as Oculus and Samsung.
IN CONNECTION WITH ANY SUCH TRANSACTION, YOU HEREBY ACKNOWLEDGE AND AGREE THAT THE PRODUCTS AND SERVICES INCLUDED IN SUCH ORDER ARE PROVIDED TO YOU BY BOULEVARD AND NOT BY SUCH THIRD-PARTY DISTRIBUTION PLATFORMS. YOU FURTHER ACKNOWLEDGE AND AGREE THAT YOUR DOWNLOAD, INSTALLATION, AND USE OF ANY SUCH PRODUCT AND/OR SERVICE ARE GOVERNED BY THIS AGREEMENT AND THAT ANY INFORMATION (INCLUDING PERSONAL INFORMATION) YOU PROVIDE TO BOULEVARD WILL BE SUBJECT TO OUR PRIVACY POLICY. SUCH THIRD-PARTY DISTRIBUTION PLATFORMS ARE NOT RESPONSIBLE FOR ANY PRIVACY OR ANY OTHER PRACTICES OF BOULEVARD AND EXPRESSLY DISCLAIM ANY LIABILITY ARISING FROM BOULEVARD’S ACTS OR OMISSIONS IN CONNECTION WITH ANY SUCH PRODUCTS AND/OR SERVICES OR YOUR USE THEREOF.
11. EXTERNAL SITES
The Platform may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External 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 linked External Sites, you do so at your own risk.
12. INDEMNIFICATION
You agree to defend, indemnify, and hold harmless us, our affiliates, and our third-party distribution platforms and our and their respective officers, directors, employees, agents, successors, licensees, and assigns from and against any losses, costs, expenses, liabilities, claims, actions, or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from: (i) your breach of this Agreement; or (ii) your misuse of the Content, the Platform, or the Services. We shall provide notice to you of any such claim, suit, or proceeding and shall assist you, at your expense, in defending any such claim, suit, or proceeding. We reserve the right to assume the exclusive defense and control of any matter that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
13. COMPLIANCE WITH APPLICABLE LAWS
The Platform and the Services are based in the United States and elsewhere. We make no claims concerning whether the Content may be viewed or be appropriate for use outside of the United States. If you access the Platform, the Services, or the Content from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
14. TERMINATION OF THE AGREEMENT
We reserve the right, in our sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Platform, at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the Platform at any time without prior notice or liability. Provided you are not in breach of this Agreement at the time of such termination, we shall provide you a pro-rata refund of any subscription fees you have paid us (expressly excluding any fees you have paid any third-party distribution platform) for any Content for which you had a continued right to access via the Platform at the time of such termination.
15. DIGITAL MILLENNIUM COPYRIGHT ACT
Boulevard respects the intellectual property rights of others and attempts to comply with all relevant laws. We will review all claims of copyright infringement received and remove any Content deemed to have been posted or distributed in violation of any such laws.
Our designated agent under the Digital Millennium Copyright Act (the “Act”) for the receipt of any Notification of Claimed Infringement which may be given under that Act is as follows:
Boulevard Arts, Inc.
c/o Lowenstein Sandler LLP
1251 Avenue of the Americas
New York, New York 10020
Attention: David L. Goret, Esq.
If you believe that your work has been copied on the Services in a way that constitutes copyright infringement, please provide our agent with notice in accordance with the requirements of the Act, including (i) a description of the copyrighted work that has been infringed and the specific location on the Services where such work is located; (ii) a description of the location of the original or an authorized copy of the copyrighted work; (iii) your address, telephone number and e-mail address; (iv) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; (v) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (vi) an electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
16. DOWNLOADING THE APPS FROM THE APP STORE
· The following terms apply when you download our App from Apple’s App Store. These terms are in addition to all other terms contained in the Agreement. You acknowledge and agree that (i) the Agreement is concluded between you and Boulevard only, and not Apple; and (ii) Boulevard, not Apple, is solely responsible for the App and content thereof. Your use of the App must comply with the App Store Terms of Service.
· You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
· In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, of the App to you and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. As between Boulevard and Apple, any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Boulevard.
· You acknowledge that, in the event of any third-party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, as between Boulevard and Apple, Boulevard, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App against you as a third-party beneficiary thereof.
17. BINDING ARBITRATION
In the event of a dispute arising under or relating to this Agreement, the Platform, the Services, or any other products or services provided by us (each, a “Dispute”), either party may elect to finally and exclusively resolve the dispute by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate, at any time, shall be final and binding on the other party. IF EITHER PARTY CHOOSES ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL. DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the FAA. Any court in New York, New York may enforce the arbitrator’s award. The arbitration shall be administered by the Judicial Arbitration and Mediation Services (“JAMS”) pursuant to JAMS’ Streamlined Arbitration Rules and Procedures, if applicable, or otherwise pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules (the “JAMS Rules”). Such disputes will be resolved by the arbitrator as determined under the JAMS Rules. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in New York, New York. The parties may litigate in court to compel arbitration, to stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. In addition, Boulevard may litigate in court to seek injunctive relief.
18. CLASS ACTION WAIVER
You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
19. MISCELLANEOUS
This Agreement is governed by the internal substantive laws of the State of New York, without respect to its conflict of laws provisions. The following Section shall survive any termination of this Agreement: “Use of Headsets,” “Payment,” “Intellectual Property,” “Communications with Us,” “No Warranties; Limitation of Liability,” “Representations; Warranties; and Indemnification,” “Termination of the Agreement,” “Binding Arbitration,” “Class Action Waiver,” and “Miscellaneous.”
Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you in writing, this Agreement constitutes the entire Agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.