Terms of Service

1. Communications

Your access to and use of the Service is conditioned upon your acceptance of and compliance with these Terms. These Terms apply to all visitors, users and others who wish to access or use the Service. By creating an Account on our Service, you agree to subscribe to newsletters, marketing or promotional materials and other information we may send. However, you may opt out of receiving any, or all, of these communications from us by following the unsubscribe link or instructions provided in any email we send.

2. Availability, Errors and Inaccuracies

We are constantly updating product and service offerings on the Service. We may experience delays in updating information on the Service and in our advertising on other web sites. The information found on the Service may contain errors or inaccuracies and may not be complete or current. Products or services may be mispriced, described inaccurately, or unavailable on the Service and we cannot guarantee the accuracy or completeness of any information found on the Service. We therefore reserve the right to change or update information and to correct errors, inaccuracies, or omissions at any time without prior notice.

3. Content

Our Service may allow you to post, link, store, share and otherwise make available certain information, text, graphics, videos, or other material on the Service ("Content"). You are responsible for the Content that you post on or through the Service, including its legality, reliability, and appropriateness. Our community, like any community, functions best when its users follow a few simple rules. By accessing and/or using the Service, you agree to comply with the following community guidelines (the "Community Guidelines"):

• You will comply with all applicable laws in connection with your use of the Service and will not use the Service for any unlawful purpose;
• You will not upload, post, e-mail, transmit, or otherwise make available any Content that:
  • infringes any copyright, trademark, right of publicity, or other proprietary rights of any person or entity; or
  • is defamatory, libelous, indecent, obscene, pornographic, abusive, sexually explicit, invasive of another's privacy, or otherwise objectionable; or
  • promotes, invokes or facilitates violence; or may be harmful to other persons; or
  • contains hate speech (i.e., speech that attacks or demeans a group based on race or ethnic origin, religion, disability, gender, age, veteran status, and/or sexual orientation/gender identity); or
  • may harm Company's, its shareholders, employees and customers' reputation or disrupt or harm Company's operations; or
  • offers, promotes or facilitates access to fraudulent services or schemes including ponzi schemes; or
  • discloses any sensitive information about another person, including that person's email address, postal address, phone number, credit card information, or any similar information.
• You will not "stalk," threaten, or otherwise harass another person;
• You will not access or use the Service 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 Service 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 Service through hacking, password or data mining, or any other means;
• You will not use the Services send or facilitate the sending of unsolicited mass e-mail or other messages;
• 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 Service;
• You will not use any robot, spider, scraper, or other automated means to access the Service 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 public portions of the Service 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 of which you become aware.

We have the right, but not the obligation, to review and reject or remove Content that, in our sole discretion, does not adhere to these Community Guidelines. We also reserve the right, in our sole and absolute discretion, to deny you access to the Service, or to any portion of the Service, or to terminate your Account at any time without notice.

By posting Content on or through the Service, You represent and warrant that:

1. the Content is yours (you own it) and/or you have the right to use it and the right to grant us the rights and license as provided in these Terms, and
2. that the posting of your Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person or entity. We reserve the right to terminate the Account of anyone found to be breaching this representation and warranty.

You hereby understand and agree that we may report any Content that we suspect violates any law or regulation to law enforcement authorities and this may cause us to disclose your Account information. We also may cooperate with law enforcement authorities or other third parties to help or assist with all investigations and prosecutions for illegal activities in connection with your use of Services.

You retain any and all of your rights to any Content you submit, post or display on or through the Service and you are responsible for protecting those rights. We take no responsibility and assume no liability for Content you or any third-party posts on or through the Service. However, by posting Content using the Service you grant us and our sublicensees a non-exclusive, royalty-free, freely sublicensable, irrevocable, perpetual the right and license to use, modify, publicly perform, publicly display, reproduce, distribute, compile, combine with other content, copy, record, synchronize, transmit, translate, format, and otherwise use or exploit (including for profit) such Content and all intellectual property and moral rights therein throughout the universe, in each case, by or in any means, methods, media, or technology now known or hereafter devised.

The Company has the right but not the obligation to monitor and edit all Content provided by users.

In addition, Company Content (defined below) found on or through this Service are the property of Company or used with permission. You may not distribute, modify, transmit, reuse, download, repost, copy, or use said Content, whether in whole or in part, for commercial purposes or for personal gain, without express advance written permission from us.

4. Copyright Policy

We respect the intellectual property rights of others. It is our policy to respond to any claim that Content posted on the Service infringes on the copyright or other intellectual property rights ("Infringement") of any person or entity.

If you are a copyright owner, or authorized on behalf of one, and you believe that the copyrighted work has been copied in a way that constitutes copyright infringement, please submit your claim via email to [email protected] with the subject line: "Copyright Infringement" and include in your claim a detailed description of the alleged Infringement as detailed below, under "DMCA Notice and Procedure for Copyright Infringement Claims".

You may be held accountable for damages (including costs and attorneys' fees) for misrepresentation or bad faith claims on the infringement of any Content found on and/or through the Service on your copyright.

5. DMCA Notice and Procedure for Copyright Infringement Claims

You may submit a notification pursuant to the Digital Millennium Copyright Act (DMCA) by providing Us with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):

• an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright's interest;
• a description of the copyrighted work that you claim has been infringed, including the URL (i.e., web page address) of the location where the copyrighted work exists or a copy of the copyrighted work;
• identification of the URL or other specific location on the Service where the material that you claim is infringing is located; your address, telephone number, and email address;
• 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;
• a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.

6. Intellectual Property

The Service and its original content (“Company Content”) (excluding Content provided by users), features and functionality are and will remain the exclusive property of Company and its licensors. The Service is protected by copyright, trademark, and other laws of both the United States and foreign countries. Our trademarks and trade dress may not be used in connection with any product or service without the prior written consent of Company, including, but not limited to, the use of framing or mirrors. All goodwill generated from the use of the Company's marks inures to our benefit. Unauthorized use of the Company Content may violate copyright, trademark, and other laws. You have no rights in or to the Company Content, and you will not use the Company Content except as permitted under these Terms. You may not sell, transfer, assign, license, sublicense, or modify the Company Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Company Content in any way for any public or commercial purpose. The use or posting of the Company Content on any other website or in a networked computer environment for any purpose is expressly prohibited.

7. Links To Other Web Sites

Our Service may contain links to third party web sites or services that are not owned or controlled by Company. Company has no control over, and assumes no responsibility for the content, privacy policies, or practices of any third-party web sites or services. We do not warrant the offerings of any of these entities/individuals or their websites.

You acknowledge and agree that Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such third-party web sites or services.

We strongly advise you to read the terms and conditions and privacy policies of any third-party web sites or services that you visit.

8. Termination

We may terminate or suspend your account and bar access to the Service immediately, without prior notice or liability, under our sole discretion, for any reason whatsoever and without limitation, including but not limited to a breach of the Terms.

If you wish to terminate your account, you may simply discontinue using the Service.

All provisions of the Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, and limitations of liability.

9. Indemnification

You agree to defend, indemnify and hold harmless Company and its licensees and licensors, and its and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees), resulting from or arising out of a) your misuse of the Service, by you or any person using your account and password; b) a breach of these Terms, or c) your violation of any third-party rights, including without limitation any copyright, trademark, property, publicity, or privacy right.

10. Limitation Of Liability

IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (A) COMPANY, ITS LICENSEES AND LICENSORS, AND ITS AND THEIR DIRECTORS, EMPLOYEES, PARTNERS, AGENTS, SUPPLIERS, OR AFFILIATES, SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (i) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICE; (ii) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICE; (iii) ANY CONTENT OBTAINED FROM THE SERVICE; AND (iv) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT, EVEN IF WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE; AND (B) ANY DIRECT DAMAGES THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE SERVICE OR THE COMPANY CONTENT SHALL BE LIMITED TO THE LESSER OF THE MONIES YOU HAVE PAID US OR RECEIVED FROM US IN CONNECTION WITH YOUR USE OF THE SERVICE DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM OR $100.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. THEREFORE, SOME OF THE ABOVE LIMITATIONS ON WARRANTIES IN THIS SECTION MAY NOT APPLY TO YOU. NOTHING IN THESE TERMS OF USE SHALL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU.

11. Disclaimer of Warranties

YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR COURSE OF PERFORMANCE.

COMPANY, ITS SUBSIDIARIES, AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT A) THE SERVICE WILL FUNCTION UNINTERRUPTED, SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; B) ANY ERRORS OR DEFECTS WILL BE CORRECTED; C) THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR D) THE RESULTS OF USING THE SERVICE WILL MEET YOUR REQUIREMENTS.

12. Compliance with Applicable Laws

The Service is based in the United States. We make no claims concerning whether the Company Content may be downloaded, viewed, or be appropriate for use outside of the United States. If you access or use the Service or the Company 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.

13. Governing Law and Dispute Resolution

These Terms shall be governed and construed in accordance with the laws of California, United States, without regard to its conflict of law provisions.

Our failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. These Terms constitute the entire agreement between us regarding our Service and supersede and replace any prior agreements we might have had between us regarding the Service.

You and 4D Sight agree that every dispute arising in connection with these Terms, the Service, or communications from us will be resolved through binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, is less formal than a court proceeding, may allow for more limited discovery than in court, and is subject to very limited review by courts. This agreement to arbitrate disputes includes all claims whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. Any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement will be resolved by the arbitrator.

YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND 4D SIGHT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

Although we are agreeing to arbitrate most disputes between us, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.

If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 18 within 30 days after the date that you agree to these Terms by sending a letter to 4D Sight, Inc., Attention: Legal Department - Arbitration Opt-Out, 2261 Market Street, #4526, San Francisco, CA 94114 that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once 4D Sight receives your Opt-Out Notice, this section will be void and any action arising out of these Terms will be resolved as set forth in the first paragraph of this Section. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.

This arbitration agreement, and any arbitration between us, is subject the Federal Arbitration Act and will be administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at +1-800-778-7879, or by contacting 4D Sight.

Before initiating arbitration, a party must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). 4D Sight's address for Notice is: 4D Sight, Inc., 2261 Market Street, #4526, San Francisco, CA 94114. The Notice of Arbitration must: (a) identify the name or account number of the party making the claim; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or 4D Sight may commence an arbitration proceeding. If you commence arbitration in accordance with these Terms, 4D Sight will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000 or if the Company has received 25 or more similar demands for arbitration, in which case the payment of any fees will be decided by the AAA Rules. If the arbitrator finds that either the substance of the claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules and the other party may seek reimbursement for any fees paid to AAA.

Any arbitration hearing will take place in the county and state of your residence unless we agree otherwise or, if the claim is for US$10,000 or less (and does not seek injunctive relief), you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a telephonic or video hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your [residence/billing address]. During the arbitration, the amount of any settlement offer made by you or 4D Sight must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based.

Except as provided in the following paragraph, the arbitrator can award any relief that would be available if the claims had been brough in a court of competent jurisdiction. If the arbitrator awards you an amount higher than the last written settlement amount offered by 4D Sight before an arbitrator was selected, 4D Sight will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) US$10,000. The arbitrator's award shall be final and binding on all parties. Judgment on the award may be entered in any court having jurisdiction.

YOU AND 4D SIGHT AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and 4D Sight agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.

If 4D Sight makes any substantive change to this arbitration provision, you may reject the change by sending us written notice within 30 days of the change to 4D Sight's address for Notice of Arbitration, in which case your account with 4D Sight will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.

This Section is found to be unenforceable fully or partially, or if 4D Sight receives an Opt-Out Notice from you, then the entirety of this Section will be null and void and, in that case, the exclusive jurisdiction and venue described in the first paragraph of this Section will govern any action arising out of or related to these Terms.

14. Changes

We reserve the right, at our sole discretion, to modify or replace these Terms at any time. If a revision is material, we will provide at least 30 days' notice prior to any new terms taking effect. What constitutes a material change will be determined at our sole discretion.

By continuing to access or use our Service after any revisions become effective, you agree to be bound by the revised terms. If you do not agree to the new terms, you are no longer authorized to use the Service.