8th Wall Terms and Conditions
Effective Date: May 29, 2023
On this page, different terms apply between 8th Wall LLC (“8th Wall”, “we”, “us”) and you, depending on whether you are a Developer, End User or a Visitor (as those terms are defined below):
- Section A (Terms and Conditions) applies to Developers.
- Section B (Supplemental Hosting Services and First Party Content Terms and Conditions) applies to Developers, to the extent you are using the Hosting Services; and Users, to the extent you are interacting with First Party Content.
- Section C (Supplemental End User Terms and Conditions) applies to End Users.
The following terms are applicable to all sections of the 8th Wall Terms and Conditions:
- “End User” means a person that accesses, views and/or interacts with Third-Party Content created by a Developer that makes use of our Services.
- “First Party Content” means any app or website content created, managed and hosted by 8th Wall. This includes our marketing site, marketing and support communications and website content developed internally using our Services and our Hosting Services.
- “Licensee” or “Developer” means any person, or the entity or the company that they represent, that is registered with us to use the Services.
- “Services” means 8th Wall’s software and technology in computers, mobile phones/tablets, and other devices (the “Technology”), access to 8th wall’s proprietary platform that supports the functionality of the technology (the “Platform”), use of 8th wall’s hosting services for hosting content created, uploaded, or shared using the technology or platform (the “Hosting Services”), and other products and services that 8th wall may provide (collectively, the “Services”).
- “Third Party Content” means any app or website content created and managed by a Developer using our Services.
- “Visitor” means any person who accesses, views and/or interacts with our First-Party Content.
Section A - Terms and Conditions
BY CREATING AN ACCOUNT WITH 8TH WALL LLC, AND/OR USING OUR SERVICES), LICENSEE UNCONDITIONALLY CONSENTS TO BE BOUND BY AND TO BECOMING A PARTY TO THESE 8TH WALL TERMS AND CONDITIONS (THE “AGREEMENT”). THIS AGREEMENT GOVERNS YOUR USE OF THE SERVICES. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ORGANIZATION OR ENTITY, YOU HEREBY REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND THAT ORGANIZATION OR ENTITY TO THESE TERMS. LICENSEE’S DOWNLOAD, INSTALLATION OR CONTINUED USE OF THE SERVICES WILL ALSO CONSTITUTE ASSENT TO THE TERMS OF THIS AGREEMENT. IF LICENSEE DOES NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, LICENSEE WILL HAVE NO RIGHT TO USE THE TECHNOLOGY AND/OR SERVICES. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO ALL OF THESE TERMS, TO THE EXCLUSION OF ALL OTHER TERMS.
Licensee will create an account and select a password and user name (“8th Wall User ID”) to access and use the Services. Licensee promises to provide accurate, complete and updated account information. Licensee will be responsible for maintaining the security of Licensee’s account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Licensee’s account with or without Licensee’s knowledge or consent. Licensee will also cooperate with 8th Wall in establishing a password or other procedures for verifying that only designated employees of Licensee have access to any administrative functions of the Services. Licensee will ensure that such designated employees do not transfer their accounts to any third party without our prior written consent.
3. Intellectual Property.
a. Limited License to Access the Platform. Subject to full compliance with the terms of this Agreement, we hereby grant Licensee a limited, personal, non-sublicensable, non-transferable, royalty-free, nonexclusive license to use and access the 8th Wall’s Platform and online portal solely for its internal business purposes.
b. Limited License to Use the Technology. Subject to full compliance with the terms of this Agreement, we hereby grant Licensee a limited, personal, non-sublicensable, non-transferable, royalty-free, nonexclusive license to use the Technology for the sole purpose of allowing Licensee to build (strictly in accordance with our official user documentation) software applications or, if 8th Wall permits you to do so, web applications on your own website (each an “App”) and that may communicate with the Platform, and for other purposes authorized by us in writing.
c. Limited License to Distribute the Technology in Licensee’s App. Subject to full compliance with the terms of this Agreement, we hereby grant Licensee a limited, personal, non-sublicensable, non-transferable, royalty-free, nonexclusive license to distribute the Technology in object code form only as part of an App, and only subject to an end-user license agreement which is at least as protective of our proprietary rights in the Technology as those contained in this agreement. Without limiting the foregoing, these terms and conditions will include terms for 8th Wall’s benefit regarding (a) restrictions on reverse engineering (to the maximum extent permitted by applicable law); (b) disclaimer of warranties; and (c) limitation of liability, all of which will be at least as beneficial to 8th Wall as those contained herein.
d. Limited License to Use the Sample Application. Subject to full compliance with the terms of this Agreement, we hereby grant Licensee a limited, personal, non-sublicensable, non-transferable, royalty-free, nonexclusive license to download and use the sample application available by 8th Wall for download (the “Sample Application”) solely for the purpose of evaluating the Sample Application and the functionality of the Technology.
e. Hosting Services. If Licensee elects to use the Hosting Services, (i) Licensee shall also comply with Section B: Hosting Services and First Party Content Terms and Conditions set out below, which are incorporated into this Agreement, and (ii) subject to full compliance with the terms of this Agreement, we hereby grant Licensee a limited, personal, non-sublicensable, non-transferable, royalty-free, nonexclusive license to use and access the Hosting Services solely for its internal business purposes.
a. Licensee will not use the Services to create, develop or continue a current or proposed program that is competitive with the Technology. If Licensee intends at any time to institute such a program, Licensee will promptly inform 8th Wall, will not use in that program (whether for advice, review or otherwise) any personnel who have had access to any part of the Technology, and will not use any part of the Technology or any related intellectual property in connection with that program.
b. Except in connection with Licensee’s limited right to distribute the Technology in object code form in accordance with Section 2, Licensee will not disclose (or allow access to) the Technology (or any information derived from them) to any third party and will limit access to the Technology (and any derived information) to individuals who are developing the App and who are bound by this agreement (“Authorized Users”). In support of this obligation, Licensee will apply at least the same security that Licensee uses to protect Licensee’s own most confidential information.
c. Licensee will not (and will not authorize or encourage any third party to): (i) reverse engineer or otherwise attempt to discover the source code of any aspect of the Services (except to the extent such restriction is prohibited by applicable law), (ii) modify, translate, or create derivative works based on the Services; (iii) except as expressly permitted herein, use the Services for timesharing or service bureau purposes or for any purpose other than its own use and benefit; or (iv) use the Services other than in accordance with this Agreement and in compliance with all applicable laws and regulations.
d. Licensee acknowledges that the Technology may include third party software, including some open source software. Licensee shall be responsible for complying with the terms applicable to any third party software licenses and open source software licenses integrated in their App. Licensee shall comply with any obligations or notice requirements specified by relevant third-party licensors. Licensee agrees not to use any open source software in the development of any application in such a way that would cause any portions of the Technology to be subject to any open source software licensing terms or obligations.
e. Licensee shall comply with any developer documentation, usage guidelines, release notes, notices, explanatory materials and any other documentation made available now or in the future on the Platform, or as otherwise provided to Licensee by 8th Wall (“Documentation”). Any rights not expressly granted are reserved.
5. Niantic Lightship
If Licensee elects to use Niantic Lightship features (“Lightship”) within an 8th Wall project, use of Lightship is subject to the Niantic Lightship Developer Platform Terms of Service and License Agreement (https://lightship.dev/legal/terms/), and Licensee agrees to comply with the terms set out therein.
6. Changes to the Technology.
Licensee’s App will maintain 100% compatibility with the Technology and the Platform (including changes provided to Licensee by 8th Wall which will be implemented in the App promptly thereafter). Licensee understands and agrees that we may cease support of old versions or releases of the Technology at any time. We may also automatically update the version of the Services that Licensee is using, including without limitation the Technology installed on each device (each, a “Device”) of Licensee’s end users.
Certain versions or functionalities of the Technology may currently be free of charge, but we reserve the right to make certain additional features, updates or new versions/releases available only for payment. If Licensee chooses to purchase such Services, Licensee will pay 8th Wall fees for the applicable Service (“Fees”). We will not charge you any Fees without your prior authorization. Unless otherwise agreed to in writing, all Fees will be invoiced monthly and all invoices issued under this Agreement are payable in U.S. dollars within thirty (30) days from date of invoice. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. Licensee will be responsible for all taxes associated with the Services, including but not limited to taxes arising from payments collected via 8th Wall Payments (as defined below), but excluding taxes based on 8th Wall’s net income). All Fees paid are non-refundable and are not subject to set-off.
8. 8th Wall Payments.
As part of the Services, 8th Wall offers the ability to process payments for App functionality, digital content or digital goods created using the Technology (“8th Wall Payments”). The payment processing services offered as part of 8th Wall Payments are provided by a third party provider and offered at our sole discretion. Licensee may only use the payment processing services offered through 8th Wall Payments to charge for App functionality, digital content or digital goods created using the Technology.
Where Licensee has chosen to use 8th Wall Payments, we will collect payments owed to Licensee by Licensee End Users (“End User Fee”). Licensee agrees that the receipt of the End User Fee by 8th Wall satisfies the payer’s obligation to Licensee. 8th Wall reserves the right to adjust or withhold all or a portion of the End User Fee to provide refunds or settle disputes and chargebacks with End Users (which it may do in its sole discretion), as well as any other banking charges or other administrative expenses incurred by 8th Wall as a result of Licensee’s use of 8th Wall Payments.
In exchange for the provision of 8th Wall Payments, Licensee agrees to pay 8th Wall a fee per transaction between Licensee and Licensee’s end user (“8th Wall Payment Fee”). 8th Wall will notify the Licensee of the applicable 8th Wall Payment fee via the Platform. 8th Wall reserves the right to amend the 8th Wall Payment Fee from time to time.
Use of 8th Wall Payments is subject to the Stripe Connected Account Agreement, which includes the Stripe Services Agreement (collectively, the “Stripe Agreements”). By using 8th Wall Payments, Licensee agrees to be bound by and shall comply with the Stripe Agreements, as modified by Stripe from time to time. Licensee shall also comply with all applicable card network rules, policies, laws and regulations at all times when using 8th Wall Payments. Licensee shall not use 8th Wall Payments for any activity expressly prohibited by the Stripe Restricted Businesses List. Licensee acknowledges that the payment processing activities provided through 8th Wall Payments are between Licensee, Stripe and Licensee’s end user and not 8th Wall.
Licensee may from time to time provide suggestions, comments or other feedback to 8th Wall with respect to the Services (“Feedback”). Feedback, even if designated as confidential by Licensee, shall not create any confidentiality obligation for 8th Wall notwithstanding anything else. Licensee shall, and hereby does, grant to 8th Wall a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose.
10. Confidentiality; Data Collection.
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).
a. Use and Non-Disclosure. The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (i) to give access to such Proprietary information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. Notwithstanding anything else, 8th Wall is permitted to disclose (including through display of Licensee’s logo) that Licensee is one of its customers (including in its publicity and marketing materials).
d. Aggregated Anonymous Data. Notwithstanding anything to the contrary, Licensee acknowledges and agrees that 8th Wall may (i) internally use and modify (but not disclose) Licensee Data and Device Data for the purposes of (A) providing the Services and any support or consultation services to Licensee and (B) generating Aggregated Anonymous Data (as defined below), and (ii) freely use and make available Aggregated Anonymous Data for 8th Wall’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing 8th Wall’s products and services). “Aggregated Anonymous Data” means data submitted to, collected by, or generated by 8th Wall in connection with Licensee’s use of the Services, but only in aggregate, anonymized form which can in no way be linked specifically to Licensee or any individual.
e. DATA PROCESSING ADDENDUM. THIS SECTION APPLIES IF AND TO THE EXTENT WE PROCESS ANY CUSTOMER PERSONAL DATA (AS DEFINED IN THE DPA) OF LICENSEE’S CLIENTS OR END USERS THAT IS SUBJECT TO THE GDPR (AS DEFINED IN THE DPA) ON YOUR BEHALF. BY ENTERING INTO THIS AGREEMENT OR USING OUR SERVICES, YOU HEREBY ACCEPT AND AGREE TO ABIDE BY THE TERMS OF THE DATA PROCESSING ADDENDUM AT https://www.8thwall.com/dpa (“DPA”), WHICH ARE HEREBY INCORPORATED BY REFERENCE. For the purposes of the Standard Contractual Clauses (as defined in the DPA), Licensee and its applicable affiliates are each the data exporter, and Licensee’s acceptance of this Agreement shall be treated as its execution of the Standard Contractual Clauses and applicable appendices.
Licensee will defend, indemnify, and hold harmless 8th Wall, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses (including reasonable attorneys’ fees), that arise from or relate to (i) Licensee’s, an Authorized User’s or Licensee’s end users’ use or misuse of the Services (ii) Licensee’s violation of this Agreement or breach of its representations or warranties, (iii) infringement by Licensee or any Authorized User of any intellectual property or other right of any person or entity, or (iv) a claim alleging that Licensee or Licensee’s App infringes or violates the rights of, or has caused harm to, a third party. 8th Wall reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by Licensee, in which event Licensee will assist and cooperate with 8th Wall in asserting any available defenses.
8TH WALL PROVIDES THE SERVICES “AS IS” AND WITHOUT WARRANTY OF ANY KIND, AND HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY, AND NON-INFRINGEMENT. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS SO THE FOREGOING LIMITATIONS MAY NOT APPLY TO LICENSEE.
13. LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, WILL 8TH WALL OR ITS SUPPLIERS OR RESELLERS BE LIABLE TO LICENSEE OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, ACCURACY OF RESULTS, DEVICE FAILURE OR MALFUNCTION, OR DAMAGES RESULTING FROM LICENSEE’S USE OF THE SERVICES. 8TH WALL’S LIABILITY FOR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF THIS AGREEMENT WILL BE LIMITED TO $100. THE FOREGOING WILL NOT APPLY TO DAMAGES FOR BODILY INJURY THAT, UNDER APPLICABLE LAW, CANNOT BE SO LIMITED. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF LICENSEE HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSION MAY NOT APPLY TO LICENSEE.
14. Term; Termination.
This Agreement is effective as of the date Licensee begins using the Services and is effective until terminated in accordance with this Section 14. Licensee may terminate this Agreement at any time by removing or ceasing all use of the Services. We may terminate this Agreement and Licensee’s access to the Services at any time and for any reason. All licenses granted to Licensee hereunder terminate upon termination or expiration of this Agreement. Without limiting the foregoing, 8th Wall may suspend or limit Licensee’s access to or use of the Services if (i) Licensee account is more than sixty (60) days past due, or (ii) Licensee’s use of the Service results in (or is reasonably likely to result in) damage to or material degradation of the Service which interferes with 8th Wall’s ability to provide access to the Service to other customers; provided that in the case of subsection (ii): (a) 8th Wall will use reasonable good faith efforts to work with Licensee to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (b) prior to any such suspension or limitation, 8th Wall will use commercially reasonable efforts to provide notice to Licensee describing the nature of the damage or degradation; and (c) 8th Wall will reinstate Licensee’s use of or access to the Services, as applicable, if Licensee remediates the issue within thirty (30) days of receipt of such notice. All provisions of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued payment obligations (if applicable), ownership provisions, warranty disclaimers, indemnity and limitations of liability.
15. Choice of Law; Arbitration.
This Agreement is governed by and will be construed under the laws of the State of California, without regard to the conflicts of laws provisions thereof. Any dispute arising from or relating to the subject matter of this Agreement will be finally settled in Santa Clara County, California, in English, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who will be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party will have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, Santa Clara County, California or the Northern District of California. Any arbitration under these Terms will take place on an individual basis: class arbitrations and class actions are not permitted. LICENSEE UNDERSTANDS AND AGREES THAT BY ENTERING INTO THESE TERMS, LICENSEE AND 8TH WALL ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
16. Changes to Agreement, Platform, or Service.
8th Wall may modify the Agreement at any time, in 8th Wall’s sole discretion. If 8th Wall does so, 8th Wall will let Licensee know either by posting the modified Agreement on the Platform or 8th Wall’s website or through other communications. It is important that Licensee reviews the Agreement whenever 8th Wall modifies it because if Licensee continues to use the Platform or Services after 8th Wall has notified Licensee of the modification and the modified Agreement has been posted on the Platform or 8th Wall’s website, Licensee is indicating to 8th Wall that Licensee agrees to be bound by the modified Agreement. If Licensee does not agree to be bound by the modified Agreement, then Licensee may not continue to use the Platform or Services. Because the Platform and Services are evolving over time, 8th Wall may change or discontinue all or any part of the Platform or Services at any time and without notice, at 8th Wall’s sole discretion.
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. This Agreement represents the complete agreement concerning the subject matter hereof between the parties and supersedes all prior agreements and representations between them. This Agreement may be amended only by a writing executed by both parties or as otherwise provided in Section 16. If any provision of this Agreement is held to be unenforceable for any reason, such provision will be reformed only to the extent necessary to make it enforceable. Any notices or other communications provided by 8th Wall under this Agreement, including those regarding modifications to this Agreement, will be given: (i) via email; or (ii) by posting to the Platform. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is given. For notices made by posting to the Platform, the date of such posting will be deemed the date that notice is given. The failure of 8th Wall to act with respect to a breach of this Agreement by Licensee or others does not constitute a waiver and will not limit 8th Wall’s rights with respect to such breach or any subsequent breaches. This Agreement is personal to Licensee and may not be assigned or transferred for any reason whatsoever without 8th Wall’s consent and any action or conduct in violation of the foregoing will be void and without effect. 8th Wall expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder.
Please contact email@example.com if you have any questions or concerns regarding the Services.
Section B: Supplemental Hosting Services and First Party Content Terms & Conditions
Your use of the Hosting Services and/or First Party Content is at all times subject to Section A of the 8th Wall Terms and Conditions (https://www.8thwall.com/terms), and the 8th Wall Content Guidelines (https://www.8thwall.com/guidelines). Any capitalized terms used herein shall have the same meaning as defined in the ‘Key Terms’ section of the 8th Wall Terms and Conditions. In the event of a conflict between these Supplemental Hosting Services and First Party Content Terms & Conditions (the “Supplemental Terms”) and the 8th Wall Terms and Conditions, these Supplemental Terms will prevail.
VISITORS SHOULD BE AWARE THAT SECTION 11 (ARBITRATION APPLICABLE TO FIRST PARTY CONTENT) CONTAINS A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER THAT AFFECT YOUR LEGAL RIGHTS. If you are a Visitor in the European Economic Area (“EEA“), or any other country that does not allow such arbitration agreement, Section 11 does not apply to you.
The following additional terms apply to the use of the Hosting Services and/or First Party Content:
You must be over the age 13 or the age of digital consent to access First Party Content.
You represent, warrant, and agree that you will comply with the 8th Wall Content Guidelines at all times whilst using the Hosting Services or accessing or interacting with First Party Content. Furthermore, you agree that you will not contribute any Content (defined below) or otherwise use or interact with the Hosting Services and/or First Party Content in a manner that:
a. Infringes or violates the intellectual property rights or any other rights of anyone else (including 8th Wall);
b. Violates any law or regulation, including any applicable export control laws;
c. Is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
d. Jeopardizes the security of your 8th Wall account or anyone else’s (such as allowing someone else to log in to the Hosting Services as you);
e. Attempts, in any manner, to obtain the password, account, or other security information from any other user;
f. Tracks or collects data about other users (such as usage data or any personal data), including, without limitation, tracking other users’ cookies or log-in codes.
g. Violates the security of any computer network, or cracks any passwords or security encryption codes;
h. Runs Maillist, Listserv, any form of auto-responder or “spam” on the Hosting Services, or any processes that run or are activated while you are not logged into the Hosting Services, or that otherwise interfere with the proper working of 8th Wall’s Services (including by placing an unreasonable load on the Hosting Service’s infrastructure, such as through crypto mining);
i. “Crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Hosting Services or Content (through use of manual or automated means);
j. Copies or stores any significant portion of the Content;
k. Decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Hosting Services;
l. Circumvents any security or safety measures or other technological restrictions 8th Wall has put in place in the Hosting Services or for First Party Content.
A violation of any of the foregoing is grounds for termination of your right to use or access the Hosting Services or First Party Content.
2. Use of the Hosting Services and First Party Content.
The materials displayed or performed or made available on or through the Hosting Services, including, but not limited to, augmented reality content, text, videos, graphics, data, articles, photos, images, illustrations, textures, meshes, code and scripts, First Party Content, Your Content (defined below), and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Hosting Services, and you will not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including 8th Wall’s) rights.
You understand that 8th Wall and its licensors own the Hosting Services and all First Party Content. You will not modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Hosting Services or First Party Content.
You agree not to distribute in any medium any part of the Hosting Services or the Content without 8th Wall’s prior written authorization, unless 8th Wall makes available the means for such distribution through functionality offered by the Hosting Services (such as the features that enable you to embed Content on your own website).
8th Wall reserves the right to decide whether any Content violates these Supplemental Terms, and 8th Wall may at any time, without prior notice and in its sole discretion, remove any Content from the Hosting Services for any reason.
3. Commercial Uses.
You agree not to use the Hosting Services for any of the following commercial uses unless you obtain 8th Wall’s prior written approval:
a. the sale of access to the Hosting Services or First Party Content;
b. the sale of advertising, sponsorships, or promotions placed on or within the Hosting Services or First Party Content.
Notwithstanding the foregoing, Developers are permitted to Content to the Hosting Services to promote their business or artistic enterprise.
a. For all of Your Content, you hereby grant 8th Wall a license to translate, modify (for technical purposes, for example making sure your content is viewable on an iPhone as well as a computer) and reproduce and otherwise act with respect to Your Content, in each case to enable us to operate the Hosting Services and provide First Party Content, as described in more detail below. This is a license only – your ownership in Your Content is not affected.
b. You may have the ability to store Your Content in your own personal 8th Wall account, in a manner that is not viewable by any other user except you (“Personal Content”). If you create or store such Personal Content on the Hosting Services or within First Party Content, then you grant 8th Wall the license above, as well as a license to display, perform, and distribute your Personal Content for the sole purpose of making that Personal Content accessible to you and providing the Hosting Services necessary to do so.
c. You may have the ability to share Your Content only via the Hosting Services in a manner that only certain specified users can view (for example, a private upload to one or more other users) (“Limited Audience Content”). If you create, store, or share such Limited Audience Content on the Hosting Services, then you grant 8th Wall the licenses above, as well as a license to display, perform, and distribute your Limited Audience Content for the sole purpose of making that Limited Audience Content accessible to such other specified users, and providing the Hosting Services necessary to do so. Also, you grant such other specified users a license to access that Limited Audience Content, and to use and exercise all rights in it, as permitted by the functionality of the Hosting Services. If you are uploading Content you did not create or own, you are responsible for ensuring that the Content you upload is licensed under terms that grant these permissions to such other specified users.
d. If you share Your Content publicly on the Hosting Services and/or in a manner that more than just you or certain specified users can view (“Public Content”), then you grant 8th Wall the licenses above, as well as a license to use, reproduce, prepare derivative works of, display, perform, and distribute your Public Content for the purpose of making that Public Content accessible to all 8th Wall users and providing the Hosting Services necessary to do so, as well as all other rights necessary to use and exercise all rights in that Public Content in connection with 8th Wall’s business, including without limitation for promoting and redistributing part or all of the Hosting Services (and derivative works thereof) in any media formats and through any media channels. However, 8th Wall will try to notify you if it uses your Public Content for its own advertising and promotional purposes. Also, you grant all other users of the Hosting Services a license to access that Public Content, and to use and exercise all rights in it, as permitted by the functionality of the Hosting Services. If you are uploading Content you did not create or own, you are responsible for ensuring that the Content you upload is licensed under terms that grant these permissions to all other users of the Hosting Services. Public Content also includes any content that you create, use or otherwise provide through First Party Content.
You agree that the licenses you grant are royalty-free, perpetual, sublicenseable and transferable, irrevocable, and worldwide.
You agree that 8th Wall may display advertising embedded in, in proximity to, or otherwise in connection with displaying Your Content on the Hosting Services, and you will not be entitled to any payments in connection with such advertising. Finally, you understand and agree that 8th Wall, in performing the required technical steps to provide the Hosting Services and First Party Content to our users (including you), may need to make changes to Your Content to conform and adapt Your Content to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.
5. DMCA Takedown.
You may have heard of the Digital Millennium Copyright Act (the “DMCA”), as it relates to online service providers, like 8th Wall, being asked to remove material that allegedly violates someone’s copyright. We respect others’ intellectual property rights, and we reserve the right to delete or disable Content alleged to be infringing, and to terminate the accounts of repeat alleged infringers; to review our complete Copyright Dispute Policy and learn how to report potentially infringing content, click here. To learn more about the DMCA, click here.
6. User Risks and Responsibilities.
Any information or Content publicly posted or privately transmitted through or on the Hosting Services and/or First Party Content is the sole responsibility of the person from whom such content originated, and you access the Hosting Services and/or First Party Content and such related information at your own risk. 8th Wall is not liable for any errors or omissions in that information or content or for any damages or loss you might suffer in connection with it. We cannot control and have no duty to take any action regarding how you may interpret and use the content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Hosting Services.
Our First Party Content is provided “as is” and we cannot and do not represent or warrant that any First Party Content is free of harmful components. You assume the entire risk as to the quality and performance of First Party Content. First Party Content is provided for entertainment purposes only and you should not rely on any information contained within the First Party Content. We do not guarantee that First Party Content is accurate, complete, reliable, current or error-free.
8th Wall cannot guarantee the identity of any users with whom you may interact in using the Hosting Services and/or First Party Content and is not responsible for which users gain access to the Hosting Services or First Party Content
You are responsible for all Content you contribute, in any manner, to the Hosting Services and/or First Party Content, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it. You will keep all your registration information accurate and current. You are responsible for all your activity in connection with the Hosting Services and/or First Party Content.
Some First Party Content may enable you to save data to a new or existing Niantic Profile. Use of Niantic Profile is subject to the Niantic Terms of Service, available at https://nianticlabs.com/terms.
If you wish to complain about any Content please contact us via firstname.lastname@example.org
8. Interactions with Third Parties.
8th Wall has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third party websites or by any third party that you interact with through the Hosting Services or First Party Content. In addition, 8th Wall will not and cannot monitor, verify, censor or edit the content of any third party site or service. By using the Hosting Services or interacting with First Party Content, you release and hold us harmless from any and all liability arising from your use of any third party website or service.
Your interactions with organizations and/or individuals found on or through the Hosting Services and/or First Party Content, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that 8th Wall shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
If there is a dispute between participants using the Hosting Services and/ or First Party Content, or between users and any third party, you agree that 8th Wall is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release 8th Wall, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: “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.”
To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless 8th Wall and our subsidiaries and affiliates, and each of our respective officers, directors, agents, partners and employees from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Claims”) arising out of or related to (a) your access to or use of the Hosting Services and/or First Party Content; (b) Your Content, (c) your violation of these Terms; (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with your use of First Party Content. You agree to promptly notify 8th Wall of any third-party Claims, cooperate with 8th Wall in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, reasonable attorneys' fees). You also agree that 8th Wall will have control of the defense or settlement, at 8th Wall’s sole option, of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in terms applicable between you and 8th Wall.
10. Limitation of Liability
TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, NEITHER 8TH WALL NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE FIRST PARTY CONTENT WILL BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, OR FROM THE USE OF OR INABILITY TO USE THE FIRST PARTY CONTENT, OR FROM ANY INTERACTIONS YOU MAY HAVE WITH FIRST PARTY CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT 8TH WALL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL 8TH WALL’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS EXCEED ONE HUNDRED DOLLARS ($100). THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN 8TH WALL AND YOU.
11. Arbitration provisions applicable to use of First Party Content
THIS NOTICE IS ONLY APPLICABLE TO VISITORS ACCESSING FIRST PARTY CONTENT. THIS NOTICE DOES NOT APPLY: (1) IF YOU ARE A RESIDENT OF THE EEA, OR ANY JURISDICTION WHICH DOES NOT ALLOW THIS ARBITRATION AGREEMENT, (2) IF YOU OPT OUT OF ARBITRATION AS DESCRIBED IN THIS SECTION BELOW, OR (3) TO CERTAIN TYPES OF DISPUTES DESCRIBED IN THIS SECTION BELOW.
If you live in the US or another jurisdiction which allows you to agree to arbitration, you and 8th Wall agree that any disputes relating to First Party Content will be settled by binding arbitration, except that each party retains the right: (a) to bring an individual action in small claims court and (b) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights (the action described in this clause (b), an "IP Protection Action"). Notwithstanding this arbitration agreement, 8th Wall reserves the right to bring an action in any court of competent jurisdiction against you to stop and/or seek compensation for the intentional or willful misuse or abuse of its intellectual property and/or Services.
Without limiting the preceding paragraph, you will also have the right to litigate any other dispute if you provide 8th Wall with written notice of your desire to do so by email to email@example.com within thirty (30) days following the date you first access First Party Content (such notice, an "Arbitration Opt-out Notice"). When you submit an Arbitration Opt-out Notice, you will be required to represent that you are opting out within 30 days of first accessing First Party Content. If you don’t provide 8th Wall with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any dispute except as expressly set forth in clauses (a) and (b) above. Further, unless both you and 8th Wall otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this class action waiver is held unenforceable, then the parties’ agreement to arbitrate will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Supplemental Terms. If the terms of this Section are found unenforceable as to any claim for relief, that claim must be severed from the arbitration and brought pursuant to Section 15, “Choice of Law, Arbitration” in Section A of the Terms and Conditions. All other claims will be arbitrated. The arbitrator, and not any court or agency, shall have exclusive authority to (a) determine the scope and enforceability of this arbitration agreement and (b) resolve any dispute related to its interpretation, applicability, enforceability, or formation including any claim that all or any part of it is void or voidable.
The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer-Related Disputes (the “AAA Rules“) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at https://www.adr.org/Rules or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section. Our responsibility to pay any AAA filing, administrative, and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, 8th Wall will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rules of Civil Procedure 11(b)).
Section C: Supplemental End User Terms and Conditions for Third Party Content
This section applies to you, as an End User, to the extent you access Third Party Content. Capitalized terms used in this section not defined below have the same meaning given to them in the “Key Terms” section of the 8th Wall Terms and Conditions.
You understand that Third Party Content may be subject to different terms and privacy practices. You acknowledge that Developers are not employed by 8th Wall and we are not liable for any Third Party Content.
Some Third Party Content may enable you to save data to a new or existing Niantic Profile. Use of Niantic Profile is subject to the Niantic Terms of Service, available at https://nianticlabs.com/terms.
Terms specific to 8th Wall Payments
Developers may charge for access to Third Party Content. Your purchase is subject to the Terms and Conditions in Section A, to the extent applicable, as well as the following terms outlined below. Access to Third Party Content is sold by Developers and not by us. We are only responsible for arranging and concluding your purchase on behalf of Developers.
When you purchase access to Third Party Content, you agree that we may obtain authorization for your chosen payment method to cover the cost of your purchase, and your chosen payment method will be charged for your purchase, including any taxes due under applicable law. All payments are non-refundable. Notwithstanding the foregoing, you agree that any right you may have to cancel your purchase under applicable law no longer applies once you have accessed the Third Party Content. All prices and other amounts are charged in the Developer’s chosen currency notified to you at your time of purchase.
Terms Specific to Residents of the European Economic Area (EEA)
If you live in the EEA, you have certain rights to withdraw from online purchases. On completion of your purchase of Third Party Content, you hereby consent to the immediate performance of the contract and acknowledge that you will have no right of withdrawal. If you have any issues with your purchase, please reach out to us at firstname.lastname@example.org