These Terms of Service (the “Terms”) are a legal agreement between you and Birchhoover LLC dba LivedX (“LivedX”, “we”, “our”, or “us”) governing your access to and use of the LivedX’s websites (the “Sites”) or using mobile applications provided by and on behalf of LivedX (together with the Sites, the “Platform”) and the services which LivedX agrees to provide to you in connection with the Platform (the “Services”) including LivedX’s proprietary power skills online portal.
You represent and certify that you are of legal age to form a binding contract and are not a person barred from receiving Services or accessing or using the Platform under the laws of the United States or other applicable jurisdictions. To register as a user of the Platform and Services you must be at least 13 years old.
BY CLICKING I AGREE, OR BY OTHERWISE ACCESSING THE PLATFORM OR USING ANY OF THE SERVICES YOU AGREE TO BE BOUND BY THESE TERMS.
In the case of inconsistencies between these Terms and information included in any other materials related to the Platform or the Services (e.g., promotional materials), these Terms will always govern and take precedence.
Please click here to view a printable version of these Terms.
1.1. Description The Services are access to LivedX’s proprietary power skills online portal located at: livedx.com
1.2. Availability LivedX uses reasonable efforts to ensure that the online features of the Services are available 24 hours a day, 7 days a week. However, there will be occasions when the Services will be interrupted for maintenance, upgrades and emergency repairs or due to failure of telecommunications links and equipment that are beyond the control of LivedX. LivedX will use reasonable commercial efforts to minimize such disruption where it is within the reasonable control of LivedX. You agree that LivedX shall not be liable to you for any unavailability, modification, suspension or discontinuance of the Service. You are responsible for obtaining access to any Services and that access may involve third party fees (such as Internet service provider or airtime charges). You are responsible for those fees, including those fees associated with the display or delivery of advertisements. In addition, you must provide and are responsible for all equipment necessary to access the Services.
1.3. Registration You may access certain online features of the Services through your account on the Platform (your “Account”). You may log into your Account using a unique username and password. You are responsible for safeguarding your password and you agree not to disclose your password to any third party. You are solely responsible for any activities or actions taken under your username, whether or not you have authorized such activities or actions. You agree that the information that you provide to LivedX about yourself upon registration of your Account, and at all other times, (“Customer Data”) will be true, accurate, current and complete, and you further agree that you will maintain and promptly update the Customer Data to ensure that it remains true, accurate, current and complete. You may not impersonate any other person or use a username or password that you are not authorized to use. LivedX reserves the right to require you to change your password for any reason at any time. If you become aware of any unauthorized use of your Account, you agree to notify LivedX immediately at firstname.lastname@example.org.
1.4. Platform License Subject to these Terms, LivedX grants you a personal, limited, revocable, non-exclusive and non-transferable license to access and use the Platform and Services. This license is exclusive to you and you may not sublicense the use of the Platform. LivedX expressly retains all ownership rights, title and interest in and to all aspects of any software, Services and the Platform, including, but not limited to, all current and future patents, copyrights, trademarks, trade secrets, know-how, and other proprietary rights included or embodied in the Platform. You may not modify the Platform, create derivative works of the Platform, or reverse engineer, reverse compile, reverse assemble or do any other operation with the Platform that would reveal any source code, trade secrets, know-how or other proprietary information. This license shall not be construed or interpreted as granting or providing rights to you to use, reproduce, modify, distribute, perform, display, possess or control the source code or any other aspect of the Platform. You may not remove or modify any notice of confidentiality, trade secret, trademark or copyright encoded or embodied in the Platform or displayed by, on, or in the Platform. You may use the Platform only while these Terms remain in effect. Under no circumstances shall you have any rights of any kind in or to the Platform after any termination or expiration of your agreement to these Terms for any reason.
1.5. Advertising; Sharing Information We don’t charge you to use Platform or Services covered by these Terms. Instead, businesses and organizations pay us to show you ads for their products and services. By using our Platform and Services, you agree that we can show you ads that we think will be relevant to you. We use your Customer Data and Content (as defined below) to help determine which ads to show you. We don’t sell your Customer Data or Content to advertisers, and we don’t share information that directly identifies you (such as your name, email address, or other contact information) with advertisers unless you give us specific permission. Instead, advertisers can tell us things like the kind of audience they want to see their ads, and we show those ads to people who may be interested. In addition, we share aggregated information based off Customer Data and Content. We may also share information that you make public, including, for example, your name and public dashboard.
2. User Content and Submissions
2.1. Copyright in Your Content. In connection with your access to, or use of, the Platform or the Services, you may have the opportunity upload to the Platform certain information, data, text, software, music, sound, photographs, graphics, video, messages, or other materials (“Content”). LivedX does not claim ownership rights in any such Content that you make available. By submitting your Content and accepting the consideration set forth in these Terms, you unconditionally grant to LivedX a non-exclusive, perpetual, irrevocable, worldwide, fully-paid, transferable right and license, with the right to sublicense through multiple levels of sublicensees, under all of your intellectual property rights in the Content, to (a) reproduce, create derivative works of, distribute, publicly perform, publicly display, digitally transmit, and otherwise use the Content in any medium or format, whether now known or hereafter discovered and (b) exercise any and all other present or future rights in the Content; and disclose the Content to third parties. As between you and LivedX, you remain the owner of all Content that you make available in connection with the Services. You represent and warrant to LivedX that you are the owner of the copyright to the Content or that you have written permission from the copyright owner to use such Content. In addition, you warrant that all moral rights in any Content have been waived. You agree to indemnify and hold LivedX harmless for any violation of this provision.
2.2. Review of Content and Materials. While LivedX does not and cannot review all material on the Platform, and is not responsible for its content, LivedX reserves the right to remove, delete, move, or edit Content that it, in its sole discretion, deems abusive, defamatory, obscene, in violation of the law, including but not limited to copyright or trademark law, or otherwise unacceptable. LivedX will not be liable for the Content of any submission.
2.3. Feedback. You hereby grant LivedX a perpetual, irrevocable, worldwide license to use any Feedback (as defined below) you communicate to LivedX, without compensation, without any obligation to report on such use, and without any other restriction. LivedX’s rights granted in the previous sentence include, without limitation, the right to exploit Feedback in any and every way, as well as the right to grant sublicenses. “Feedback” means any suggestion or idea for modifying any of LivedX’s Services, including without limitation all intellectual property rights in any such suggestion or idea.
The Services are initially made available without charge. LivedX, however, reserves the right to charge for the Services, or any component thereof. Any fees for the Services will be posted on the Platform
4. Third Party Software and Linking
Although we may make software, hyperlinks, and other products and services of third-party companies available to you, your use of such products and services is subject to the respective terms and conditions imposed by the third party owning, manufacturing or distributing such products and services, and the agreement for your use will be between you and such third party. LivedX makes no warranty with regard to the products, services, or websites of any other entity. LivedX has no control over the content or availability of any third-party software or website. In particular, (a) LivedX makes no warranty that any third-party software you download or web Platform you visit will be free of any contaminating or destructive code, such as viruses, worms or Trojan horses and (b) it is your responsibility to become familiar with any web Platform's privacy and other policies and terms of service, and to contact that Platform's webmaster or Platform administrator with any concerns.
5. Suspension and Termination
LivedX reserves the right to suspend or terminate your access to and use of the Platform and Services, at any time, without notice, for any reason, including but not limited to (a) your breach of these Terms, or any other policies or guidelines set forth by LivedX, or (b) Conduct that LivedX believes is harmful to other users of the Platform or Services, or the business of LivedX or other third party information providers. Further, you agree that LivedX shall not be liable to you or any third party for any termination of your access to the Platform or Services. LivedX reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. You agree that LivedX shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Services.
7. Prohibited Data
You shall not upload to the Platform or otherwise submit or make accessible to LivedX any government issued identifiers (e.g., social security numbers), protected health information, or other types of sensitive data that is subject to specific or elevated data protection requirements (collectively, “Prohibited Data”). You acknowledge that: (i) the Platform and Services are not intended for the management or protection of Prohibited Data and may not provide adequate or legally required security for Prohibited Data; and (ii) LivedX has no liability for any failure to provide protections set forth in any laws, rules, regulations, or standards applicable to such Prohibited Data or to otherwise protect the Prohibited Data other than as provided for in these Terms. Without limiting Section 2.2, if you upload any Prohibited Data to the Platform or Services in violation of these Terms, LivedX may, without limiting any of its other rights and remedies, delete such Prohibited Data from the Platform and/or Services without providing you notice.
8. Disclaimer of Warranty
THE SERVICES AVAILABLE THROUGH THE PLATFORM ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTIES OF ANY KIND. LIVEDX EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PLATFORM OR SERVICES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. LIVEDX MAKES NO WARRANTY THAT THE PLATFORM OR THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE, THAT THE PLATFORM OR OUR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, THAT THE PLATFORM, INCLUDING THE SERVICES WILL BE AVAILABLE, OR THAT ANY OF YOUR CONTENT OR OTHER DATA THAT YOU MAKE AVAILABLE WILL BE SECURE FROM UNAUTHORIZED ACCESS OR USE. LIVEDX MAKES NO WARRANTY REGARDING ANY SOFTWARE, GOODS, SERVICES, PROMOTIONS, OR THE DELIVERY OF ANY GOODS OR SERVICES, PURCHASED, ACCESSED OR OBTAINED THROUGH THE PLATFORM OR ADVERTISED THROUGH THE PLATFORM. NO ADVICE OR INFORMATION GIVEN BY LIVEDX, ITS EMPLOYEES OR AFFILIATES SHALL CREATE A WARRANTY.
9. Rules of Conduct
9.1. Distribution of Content You agree that you will not distribute any Content that: (a) is defamatory, abusive, harassing, threatening, or an invasion of a right of privacy of another person; is bigoted, hateful, or racially or otherwise offensive; is violent, vulgar, obscene, pornographic or otherwise sexually explicit; or otherwise harms or can reasonably be expected to harm any person or entity; (b) is illegal or encourages or advocates illegal activity or the discussion of illegal activities with the intent to commit them, including a submission that is, or represents an attempt to engage in, child pornography, stalking, sexual assault, fraud, trafficking in obscene or stolen material, drug dealing and/or drug abuse, harassment, theft, or conspiracy to commit any criminal activity; (c) infringes or violates any right of a third party including any copyright, patent, trademark, trade secret or other proprietary or contractual rights, right of privacy (specifically, you must not distribute another person's personal information of any kind without their express permission) or publicity, or any confidentiality obligation; (d) is commercial, business-related or advertises or offers to sell any products, services or otherwise (whether or not for profit), or solicits others (including solicitations for contributions or donations); (e) contains a virus or other harmful component, or otherwise tampers with, impairs or damages the Platform or any connected network, or otherwise interferes with any person or entity's use or enjoyment of the Platform; (f) does not generally pertain to the designated topic or theme of the Platform; (g) violates any specific restrictions applicable to a public forum, including its age restrictions and procedures; or (h) is antisocial, disruptive, or destructive, including “flaming,” “spamming,” “flooding,” “trolling,” and “griefing” as those terms are commonly understood and used on the Internet.
9.3. Monitoring We cannot and do not assure that other users are or will be complying with the foregoing Rules of Conduct or any other provisions of these Terms, and, as between you and us, you hereby assume all risk of harm or injury resulting from any such lack of compliance.
10. Proprietary and Privacy Protection for Other Users’ Content on the Platform
LivedX hereby notifies you that all the information, content, image files, software and materials on the Platform may be protected by U.S. and international copyright and other intellectual property laws and by other applicable laws, including privacy laws. LivedX is unable to provide you with permission to copy display or distribute material for which you do not own the copyright or other intellectual property rights. You may not copy or distribute such material without the written consent of the owner, and you are solely responsible for any copyright or other intellectual property law violations that you may incur as a result of your activities on the Platform. LivedX has the absolute right to terminate your account or exclude you from any Platform if you use our Services to violate the intellectual property rights or other rights of third parties. You agree to indemnify and hold LivedX harmless for any violation of this provision.
11. Copyright Infringement
11.1. Claims of Copyright Infringement LivedX has adopted and implemented a policy that provides for the termination, in appropriate circumstances as determined by us in our sole discretion, of users who are infringers of copyright. Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement must be sent to the service provider's designated agent.
Notification must be submitted to the following:
Service Provider: Birchhoover LLC dba LivedX
Name: Legal Department
Full Address: 1625 S. Birch Street, Apt. 1003, Denver, CO 80222
11.2. Notice of Infringement. To be effective, the notification must be a written communication that includes the following:
(a) A physical or electronic signature of person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(b) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online Platform are covered by a single notification, a representative list of such works at that Platform;
(c) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
(d) Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
(e) A statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(f) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
11.3. Takedown Notices We may give you notice that we have removed or disabled access to certain material by means of a general notice on the Platform, electronic mail to your e-mail address in our records, or by written communication sent by first-class mail to your physical address in our records. If you receive such a notice, you may provide counter-notification in writing to the designated agent that includes the information below. To be effective, the counter-notification must be a written communication that includes the following:
(a) Your physical or electronic signature;
(b) Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
(c) A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
(d) Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a Federal District Court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which LivedX may be found, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.
12. Indemnity; Limitation of Liability
12.1. You agree to indemnify, and hold LivedX, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation reasonable attorney's fees and costs, arising out of or in any way connected with (a) your access to or use of the Platform or Services; (b) your violation of these Terms; (c) your violation of any third party right, including without limitation any intellectual property right or any publicity, confidentiality, property or privacy right; or (d) any claim that your use of the Platform or Services caused damage to a third party.
12.2. YOU ACKNOWLEDGE THAT YOUR ACCESS TO AND USE OF THE PLATFORM AND SERVICES AND ANY RELIANCE UPON EITHER IS AT YOUR SOLE RISK. YOU AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL LIVEDX BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, IMAGES, DATA OR OTHER INTANGIBLES, EVEN IF LIVEDX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, THAT RESULT FROM THE USE OR THE INABILITY TO USE THE PLATFORM OR THE SERVICES, FROM ANY CHANGES TO THE PLATFORM OR THE SERVICES OR FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT. YOU SPECIFICALLY ACKNOWLEDGE THAT DOWN-TIME AND COMPUTER VIRUSES ARE RISKS INHERENT IN THE USE OF THE INTERNET AND SOFTWARE PRODUCTS, AND YOU AGREE TO ASSUME RESPONSIBILITY FOR ANY HARM OR DAMAGES OF ANY KIND OR CHARACTER WHATSOEVER RESULTING FROM THESE POSSIBLE HARMS. YOU ALSO SPECIFICALLY ACKNOWLEDGE THAT YOU MAY BE DISCLOSING SENSITIVE, PRIVATE AND CONFIDENTIAL INFORMATION ABOUT YOURSELF IN YOUR USE OF THE PLATFORM AND THE SERVICES AND YOU AGREE TO ASSUME RESPONSIBILITY FOR ANY HARM OR DAMAGES OF ANY KIND OR CHARACTER WHATSOEVER RESULTING FROM YOUR RELEASE OF SUCH CONTENT. We do not control or direct what people and others do or say, and we are not responsible for their actions or conduct (whether online or offline) or any content they share (including offensive, inappropriate, obscene, unlawful, and other objectionable content).
12.3. IF YOU ARE DISSATISFIED WITH THE PLATFORM OR THE SERVICES OR WITH ANY OF THESE TERMS, OR FEEL LIVEDX HAS BREACHED THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE PLATFORM AND THE SERVICES. THE TOTAL LIABILITY OF LIVEDX TO YOU FOR ANY CLAIM ARISING FROM OR RELATING TO THESE TERMS OR USE OF THE PLATFORM OR THE SERVICES SHALL NOT EXCEED THE AMOUNT PAID BY YOU FOR THE SERVICES, IF ANY. IT IS THE INTENTION OF YOU AND LIVEDX THAT THIS PROVISION BE CONSTRUED BY A COURT AS BEING THE BROADEST LIMITATION OF LIABILITY CONSISTENT WITH APPLICABLE LAW.
12.4. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF INCIDENTAL, CONSEQUENTIAL OR OTHER TYPES OF DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
13.1. Modification LivedX may modify these Terms at any time. Modifications become effective immediately upon your first access to or use of the Platform or Services after the “Last Updated” date at the top of these Terms. Your continued access to or use of the Platform or Services after the modifications have become effective will be deemed your conclusive acceptance of the modified Terms. If you do not agree with the modifications, do not access or use the Platform or Services.
13.2. Applicable Law and Dispute Resolution These Terms shall be governed by the laws of the State of Colorado without giving effect to any conflict of laws principles that may require the application of the law of another jurisdiction. If you believe that LivedX has not adhered to these Terms, please contact us by e-mail at email@example.com. We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation. If you and LivedX are unable to reach a resolution to the dispute, you and LivedX will settle the dispute exclusively under the rules of the American Arbitration Association (www.adr.org) at its Denver, Colorado office. Any election to arbitrate by one party will be final and binding on the other. YOU UNDERSTAND THAT IF EITHER PARTY ELECTS TO ARBITRATE, NEITHER PARTY WILL HAVE THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL. You and LivedX agree that any arbitration will be limited to the dispute between LivedX and you individually. YOU ACKNOWLEDGE AND AGREE THAT YOU AND LIVEDX ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. Further, unless both you and LivedX otherwise agree in writing, an arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Platform or the Services or these Terms must be brought, if at all, within one year from the accrual of the claim or cause of action or be forever barred.
13.3. No Resale of Services You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion of the Services, use of the Services, or access to the Services.
13.4. Independent Contractors No joint venture, partnership, employment, or agency relationship exists between you and LivedX as a result of these Terms or use of the Platform or the Services.
13.5. Enforcement If any legal action is brought to enforce these Terms, the prevailing party will be entitled to reimbursement of its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive from the other party.
13.6. Force Majeure LivedX will not be liable by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, shortages, riots, epidemics, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages or any other cause which is beyond LivedX’s reasonable control.
13.7. Waiver The failure of LivedX to enforce any right or provision in these Terms will not constitute a waiver of such right or provision unless acknowledged and agreed to by LivedX in writing.
13.8. Construction The headings of Sections of these Terms are for convenience and are not to be used in interpretation.
LivedX is located in Denver, Colorado. Any questions, comments or suggestions, including any report of violation of these Terms should be provided to the Administrator as follows:
By E-mail: firstname.lastname@example.org
By Postal Mail: 1625 S. Birch Street, Apt. 1003, Denver, CO 80222
13.10. Entire Agreement These Terms constitute the entire agreement between you and LivedX and govern your use of the Platform and the Services, superseding any prior agreements between you and LivedX. The failure of LivedX to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, you and LivedX nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms shall remain in full force and effect.
BY CLICKING ON THE “ACCEPT” BUTTON BELOW, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO ANY OF THESE TERMS, LivedX IS UNWILLING TO PROVIDE SERVICES TO YOU, AND YOU SHOULD CLICK ON THE “DO NOT ACCEPT” BUTTON BELOW TO DISCONTINUE THE REGISTRATION PROCESS.