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OBSKUR SOFTWARE LICENSE AND TERMS OF SERVICE

(Effective: December 10, 2022)

IMPORTANT, READ CAREFULLY: YOUR USE OF AND ACCESS TO THIS SOFTWARE AND ANY WEBSITES, MOBILE APPLICATIONS, CLOUD APPLICATIONS, PRODUCTS AND OTHER SERVICES ASSOCIATED WITH THIS SOFTWARE (COLLECTIVELY, INCLUDING THE SOFTWARE, THE “SERVICES”) OF MOVELLA INC. AND ITS AFFILIATES (“MOVELLA”, “WE” OR “US”) IS CONDITIONED UPON YOUR COMPLIANCE WITH AND ACCEPTANCE OF THIS SOFTWARE LICENSE AND TERMS OF SERVICE (THESE “TERMS”), WHICH INCLUDE YOUR AGREEMENT TO ARBITRATE CLAIMS. PLEASE REVIEW THOROUGHLY BEFORE ACCEPTING.

BY DOWNLOADING, INSTALLING, CLICKING AN “ACCEPT” OR “I AGREE” BUTTON/BOX OR OTHERWISE USING ANY OF THE SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS AND ALL EXHIBITS AND INCORPORATED POLICIES (THIS “AGREEMENT”) THE SERVICES ARE NOT AVAILABLE TO PERSONS WHO ARE NOT LEGALLY ELIGIBLE TO BE BOUND BY THESE TERMS. IF YOU ARE USING THE SERVICES ON BEHALF OF A COMPANY OR OTHER ENTITY, YOU HEREBY REPRESENT THAT YOU ARE AUTHORIZED TO AGREE TO THESE TERMS ON BEHALF OF SUCH ENTITY AND THAT YOU HEREBY AGREE TO THESE TERMS ON BEHALF OF SUCH ENTITY, AND THE TERM “YOU” OR “YOUR” REFERS TO SUCH ENTITY.

The Services may be used for creating, capturing, compositing, displaying, recording and livestreaming audio/video, including live or digital avatar streaming, advertisements, promotions, and interactive content, including live streaming, motion capture, and multiplayer online games. The purchase of any devices or other physical products to be used in connection with the Services shall be conducted under Movella’s standard purchase terms and conditions related to such sales, and not under these Terms.

You acknowledge that we may, from time to time and at any time, in our sole discretion and without notification to you, revise or modify these Terms. Your access and/or use of the Services indicates your agreement to be governed by these Terms. It is your sole responsibility to apprise yourself of any such revision(s) or modification(s) each time you use the Services. If you do not so agree, you are not authorized to access or use the Services.

System Requirements. Use of the Services requires one or more compatible devices, suitable Internet access, and certain software, and may require obtaining updates or upgrades from time to time. Because use of the Services involves hardware, software, and Internet access, Your ability to access and use the Services may be affected by the performance of these factors. You acknowledge and agree that such system requirements, which may be changed from time to time, are Your responsibility.

1. License

Subject to your compliance with these Terms and payment of any applicable license fees, you are granted a limited, non-sublicensable license (i.1., a personal and limited right) to access and use the Services for your personal use or individual business use only. The Services are owned, operated and provided by Movella. Except for User Content or Market Content (as those terms are defined in Section 2 below), all content, information, and other materials used in or on the Services including, without limitation, Movella’s trademarks and logos, the visual interfaces, graphics, design, compilation, information, software, computer code (including source code or object code), services, text, pictures, information, data, sound files, other files, and the selection and arrangement thereof (collectively, the “Materials”) are protected by relevant intellectual property and proprietary rights and laws. All Materials are the property of Movella or its subsidiaries or affiliated companies and/or third-party licensors.

Movella reserves all rights not expressly granted in these Terms. This license is subject to these Terms and does not permit you to engage in any of the following: (a) resale of the Services or the Materials; (b) distribution, public performance or public display of any Materials other than as part of the Services; © modifying or otherwise making any derivative uses of the Services or the Materials, or any portion of them; (d) use of any data mining, robots, or similar data gathering or extraction methods; (e) downloading of any portion of the Services, the Materials, or any information contained in them, except as expressly permitted on the Services; or (f) any use of the Services or the Materials except for their intended purposes. Any use of the Services or the Materials except as specifically authorized in these Terms, without the prior written permission of Movella, is strictly prohibited and may violate intellectual property rights or other laws. Unless explicitly stated in these Terms, nothing in them shall be interpreted as conferring any license to intellectual property rights, whether by estoppel, implication, or other legal principles. Movella can terminate this license as set out in Section 10.

2. User Content and Market Content.

“User Content” is any live or pre-recorded audio-visual works or other digital works that you transmit (including for example, your likeness, voice, your avatar, sound, video images or text), that are broadcast or streamed using the Services or that you otherwise upload or use in connection with the Services, other than Market Content. Your User Content as broadcast or distributed using the Services is referred to as your “Stream”. “Market Content” is any image, sound, video, file, code or other digital item that you submit to Movella for inclusion in any market, exchange, digital asset sublicense or other similar distribution, regardless of whether subject to any remuneration.

  1. User Content License. You grant to Movella and its sub-licensees, to the furthest extent and for the maximum duration permitted by applicable law (including in perpetuity if permitted under applicable law), an unrestricted, worldwide, irrevocable, fully sub-licensable, nonexclusive, and royalty-free right to: (a) use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, and display your User Content, including without limitation for promoting and redistributing part or all of the Services (and derivative works thereof) in any form, format, media, or media channels now known or later developed or discovered; (b) use the account name, identity, likeness, and voice (and other identifying information you provide as intended for distribution with your Stream) that you submit in connection with such User Content, including without limitation for promotional or user listing purposes, and we may display certain metrics like number of subscribers or followers and traffic statistics, however we will not share any advertising financial information; and © use statistics and analytics related to your account for advertisement placing and suitability determination. Should such User Content contain the name, identity, likeness, and/or voice (or other biographical information) of third parties (including any which may consist of copyrighted works), you represent and warrant that you have obtained the appropriate consents and/or licenses for your use of such features and content, and that Movella and its sub-licensees are allowed to use them to the extent indicated in these Terms.

  2. Market Content License. You grant to Movella and its sub-licensees, to the furthest extent and for the maximum duration permitted by applicable law (including in perpetuity if permitted under applicable law), an unrestricted, worldwide, irrevocable, fully sub-licensable, nonexclusive, and royalty-free right to: (a) use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, and display your Market Content for promoting and redistributing such Market Content in accordance with the exchange, digital asset marketplace or other offering related to the purpose of making such content available to other parties; (b) use your account name, identity, likeness, and voice (or other biographical information) the account information in association with the offering of such Market Content, including without limitation for promotional or listing purposes, and we may display certain metrics related to the distribution or use of such content, including for example, number of downloads or popularity. Should such User Content contain the name, identity, likeness, and/or voice (or other biographical information) of third parties (including any which may consist of copyrighted works), you represent and warrant that you have obtained the appropriate consents and/or licenses for your use of such features and content, and that Movella and its sub-licensees are allowed to use them to the extent indicated in these Terms.

  3. With respect to streaming live and pre-recorded audio-visual works, the rights granted by you hereunder terminate once you delete such User Content from the Services, or generally by closing your account, except:(a) to the extent you shared it with others as part of the Services and others copied or stored portions of the User Content; (b) Movella used it for promotional purposes; and © for the reasonable time it takes to remove from backup and other systems. Movella has no obligation to remove any User Content from previously distributed promotional materials or programs.

  4. User Content Representations and Warranties. You are solely responsible for your User Content and Market Content, and the consequences of posting or publishing such content. You represent and warrant that: (1) you are the creator or own or control all right in and to the User Content and/or Market Content or otherwise have sufficient rights and authority to grant the rights granted herein; (2) your User Content and/or Market Content does not and will not: (A) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right, or (B) defame any other person; (3) your User Content and/or Market Content does not contain any viruses, adware, spyware, worms, or other harmful or malicious code; and (4) unless you have received prior written authorization, your User Content and/or Market Content specifically does not contain any pre-release or non-public beta software or game content or any confidential information of Movella or any third party. Movella reserves all rights and remedies against any users who breach these representations and warranties.

  5. Content is Uploaded at Your Own Risk. Movella uses reasonable security measures in order to attempt to protect User Content and Market Content against unauthorized copying and distribution from our Services. However, Movella does not guarantee that any unauthorized copying, use, or distribution of User Content or Market Content by third parties will not take place. To the furthest extent permitted by applicable law, you hereby agree that Movella shall not be liable for any unauthorized copying, use, or distribution of User Content or Market Content by third parties and release and forever waive any claims you may have against Movella for any such unauthorized copying or usage of the User Content or Market Content, under any theory. THE SECURITY MEASURES TO PROTECT USER CONTENT OR MARKET CONTENT ARE PROVIDED AND USED “AS-IS” AND WITH NO WARRANTIES, GUARANTEES, CONDITIONS, ASSURANCES, OR OTHER TERMS THAT SUCH SECURITY MEASURES WILL WITHSTAND ATTEMPTS TO EVADE SECURITY MECHANISMS OR THAT THERE WILL BE NO CRACKS, DISABLEMENTS, OR OTHER CIRCUMVENTION OF SUCH SECURITY MEASURES.

  6. Promotions. Movella may authorize you to conduct one or more promotions(1.g., a contest or sweepstakes) on, through, or utilizing the Services (a “Promotion”). In such event, if you choose to promote, administer, or conduct a Promotion, you must adhere to the following rules: (1) You may carry out Promotions to the extent permitted by applicable law and any additional rules or requirements imposed by Movella, and you are solely responsible for ensuring that any Promotions comply with any and all applicable laws, obligations, rules and restrictions; (2) You will be classified as the promoter of your Promotion in the applicable jurisdiction(s) and you will be solely responsible for all aspects of and expenses related to your Promotion, including without limitation the execution, administration, and operation of the Promotion; drafting and posting any official rules; selecting winners; issuing prizes; and obtaining all necessary third-party permissions and approvals, including without limitation filing any and all necessary registrations and bonds. Movella has the right to remove your Promotion from the Services (including, but not limited to, blocking your access or use of the Services) if Movella reasonably believes that your Promotion does not comply with these Terms or applicable law; (3) Movella is not responsible for and does not endorse or support any such Promotions. You may not indicate that Movella is a sponsor or co-sponsor of the Promotion; and (4) You will display or read out the following disclaimer when promoting, administering, or conducting a Promotion: “This is a promotion by [Your Name]. Movella does not sponsor or endorse this promotion and is not responsible for it.”.

  7. Endorsements/Testimonials. You agree that your use of the Services, including your User Content and Market Content, will comply with the FTC’s Guidelines Concerning the Use of Testimonials and Endorsements in Advertising, the FTC’s Disclosures Guide, the FTC’s Native Advertising Guidelines, and any other guidelines issued by the FTC from time to time (the “FTC Guidelines”), as well as any other advertising guidelines required under applicable law. For example, if you have been paid or provided with free products in exchange for discussing or promoting a product or service through the Services, or if you are an employee of a company and you decide to discuss or promote that company’s products or services through the Services, you agree to comply with the FTC Guidelines’ requirements for disclosing such relationships. You, and not Movella, are solely responsible for any endorsements or testimonials you make regarding any product or service through the Services.

3. Third-Party Applications.

  1. Features of the Services that interoperate with any third party service or application (such as Twitch or other streaming platform) (“Third Party Applications”) will depend on the continuing availability of the Third Party Application and related features. You shall be responsible for obtaining and maintaining all necessary licenses and rights from third parties, including login credentials, tokens and keys, for Third-Party Applications in order to enable use with the Services, and for compliance with the terms of use required by the third party providers.

  2. There can be no assurance that we will be able to modify integrations or applications following any third party’s system changes or interruption.  If the third party ceases to make the necessary API or program available, or makes changes to its application, we may cease providing such Service features or the Services, and you shall not be entitled to any refund, credit, or other compensation, including with respect to any digital currency or digital assets used with the Services.  You shall not be entitled to any refund, credit or compensation if the Third Party Application provider suspends or terminates your use or access to the Third Party Application. Any outstanding obligations to pay fees associated with the Services shall not be affected by any changes to a third party API or system changes, including any unavailability of Services as a result of such third party’s changes or service interruption, or your non-compliance with any third party license terms.

4. User Interaction

  1. We may make available through the Services certain digital content that may operate like digital assets or other elements in connection with the use of the Services (“OBSKUR Tokens”), that may be used to exchange for other digital assets or elements. OBSKUR Tokens are intended to be acquired and consumed solely within the Services. They do not serve as currency and have no monetary value, and they cannot be converted into any similar digital asset or currency.
  2. Users of Third-Party Applications may be able to interact with you and your Stream, to the extent permitted by the Third-Party Application provider, and subject to the user’s use of any required extensions or permissions. Third-Party Application providers may use a virtual currency or similar digital content that may be received, earned or purchased as a means for users to express appreciation or to access or unlock certain benefits (such as digital assets, user tiers or other features), or otherwise as incentives or other media (for example, Twitch Bits) (generally referred to herein as “Digital Tokens”). In certain cases, Digital Tokens may be exchanged for OBSKUR Tokens. In the event of any such exchange, there will be no refund and OBSKUR Tokens cannot be converted or exchanged back to Digital Tokens of any Third Party Application provider.

5. Advertising Services

  1. You may be eligible to participate in our advertising services in connection with the Services (the “Advertising Services”). We have sole discretion to approve and revoke any participation in the Advertising Services. You may use the Advertising Services only as permitted by applicable laws and in accordance with our use guidelines and policies that we may provide and update from time to time (our “Advertising Services Policies”). You may discontinue your use of the Advertising Services at any time.

  2. By enrolling in the Advertising Services, you permit us to serve, as applicable, advertisements and other content (“Ads”) on your Stream.

  3. Payment

    1. Subject to this Section and your compliance with these Terms, you will receive a payment related to the number of clicks on Ads displayed on your Stream, the number of valid impressions of Ads displayed on your Stream, or other valid events performed or stated criteria in connection with the display of Ads on your Stream, only if and when Movella determines that your Stream has remained in compliance with these Terms and our Advertising Services Policies for the entirety of the period for which payment is made and through to the date that the payment is issued.

    2. If your advertiser participant account (“Account”) is in good standing through to the time when Movella issues you a payment, we will pay you by the end of the calendar month following any calendar month in which the balance reflected in your Account equals or exceeds the applicable payment threshold. If Movella is investigating your compliance with these Terms or the Advertising Services Policies or you have been suspended or terminated, your payment may be delayed or withheld. To ensure proper payment, you are responsible for providing and maintaining accurate contact and payment information in your Account.

    3. Unless expressly authorized in writing by Movella, you may not enter into any type of arrangement with a third party where that third party receives payments made to you under the Advertising Services.

    4. Payments will be calculated solely based on Movella's accounting. You acknowledge and agree that you are only entitled to payment for your use of the Advertising Services for which Movella has been paid. If, for any reason, Movella does not receive payment from an advertiser, you are not entitled to be paid for any associated use of the Advertising Services. Additionally, if an advertiser whose Ads are displayed on any Stream defaults on payment to Movella, we may withhold payment or charge back your Account.

    5. We have the right to withhold or adjust payments to you to exclude any amounts we determine arise from invalid activity. Invalid activity includes, but is not limited to, (i) spam, invalid clicks, invalid impressions, invalid queries, invalid conversions, or other invalid events on Ads generated by any person, bot, automated program or similar device, including through any clicks, impressions, queries, conversions, or other events originating from your IP addresses or computers under your control; (ii) clicks, impressions, queries, conversions, or other events solicited or generated by payment of money, false representation, or requests for end users to click on Ads or take other actions; (iii) Ads served to end users whose browsers have JavaScript disabled or who are otherwise tampering with ad serving or measurement; (iv) any click, impression, query, conversion, or other event occurring on your Stream that does not comply with these Terms or Advertising Services Policies; (v) any click, impression, query, conversion, or other event occurring on a Stream associated with another Advertising Services Account you use; and (vi) all clicks, impressions, queries, conversions, or other events in any Account with significant amounts of invalid activity, as described in (i-v) above or with the types of invalid activity indicating intentional misconduct. In the event we detect invalid activity, either before or after issuing a payment for that activity, we reserve the right to debit your Account, and adjust future payments accordingly, for all invalid clicks, impressions, queries, conversions, or other events including for all clicks, impressions, queries, conversions, or other events on Properties that do not comply with these Terms or the Advertising Services Policies.

    6. Additionally, we may refund or credit advertisers for some or all of the advertiser payments associated with any user’s Account. You acknowledge and agree that, whenever we issue such refunds or credits, you will not be entitled to receive any payment for any associated use of the Advertising Services.

    7. We will pay your advertising payments through Stripe, our third party processor. We don’t support any other payment processors at this time. You will be required to establish the relevant account with Stripe and maintain your account in good standing in order to be able to collect advertising payments. Your payments will be subject to any applicable transaction fees associated with the use of the Stripe service.

  4. Termination, Suspension, and Entitlement to Further Payment

    1. We may at any time, without providing a warning or prior notice, temporarily suspend further payments on your Account, suspend or terminate the participation of your Stream in the Advertising Services, or suspend or terminate your Account because of, among other reasons, invalid activity or your failure to fully comply with the Advertising Services Policies. We can terminate your participation in the Advertising Services, and close your Account, if your Account remains inactive for a period of 2 or more consecutive months. If Movella closes your Account due to inactivity, and the balance reflected in your Account equals or exceeds the applicable threshold, we will pay you that balance, subject to our payment provisions as stated above. If we close your Account due to inactivity, you will not be prevented from reactivating use of the Advertising Services.

    2. If we terminate your Account due to your breach of these Terms or the Advertising Services Policies, including, but not limited to, your causing or failing to prevent invalid activity on any Stream, or your failure to otherwise fully comply with the Advertising Services Policies, you will not be entitled to any further payment for any prior use of the Advertising Services. If you breach these Terms or Advertising Services Polices and Movella suspends or terminates your Account, you (i) are prohibited from creating a new Account, and (ii) may not be permitted to monetize content on other Movella products.

    3. If you dispute any payment made or withheld relating to your use of the Advertising Services, or, if we terminate your Account and you dispute your termination, you must notify us within 30 days of any such payment, non-payment, or termination by submitting an appeal. If you do not, any claim related to the disputed payment or your termination is waived.

    4. You may terminate your use of the Services at any time by completing our account cancellation process. Your Advertising Services Account will be considered terminated within 10 business days of our receipt of your notice. If you terminate your Account and the balance reflected in your Account equals or exceeds the applicable threshold, we will pay you that balance, subject to the payment provisions stated above, within approximately 90 days after the end of the calendar month in which you terminated your use of the Advertising Services. Any balance reflected in your Account below the applicable threshold will remain unpaid.

  5. Taxes. As between you and Movella, Movella is responsible for all taxes (if any) associated with the transactions between Movella and advertisers in connection with Ads displayed on your Stream. You are responsible for all taxes (if any) associated with any compensation you receive from your participation in the Advertising Services. .

  6. Testing. You authorize us to periodically conduct tests that may affect your use of the Advertising Services. To ensure the timeliness and validity of test results, you authorize us to conduct such tests without notice.

6. Data

Our Privacy Policy is located at www.obskur.com/privacy-policy and is incorporated herein by reference. In addition to the terms and conditions in the Privacy Policy, there are additional terms and conditions related to certain data that processed and collected in connection with the Services.

We will use information about your Stream and your audience determine relevant channels and categories for listing purposes and to help match advertisers with participants in our Advertising Services program. We will use your email address and Third Party Application account information to provide service integration, for example, to associate your account with your Twitch account ID to enable the use of the Services with their platform. You will be required to create a password to use our Services (including Advertising Services if applicable), and we will also use your personal data to enable single sign-on functionality with our Services. By using our Services you hereby consent to our use of your personal data to provide integration with the Third Party Applications that you have selected for your account use, and if you participate in the Advertising Services program, you hereby consent to our use of your personal data to provide integration with Stripe.

7. Prohibited Use

You agree not to violate any law, contract, intellectual property, or other third-party right; not to commit a tort, and that you are solely responsible for your conduct while on the Services. You agree that you will comply with these Terms and will not:

  • create, upload, transmit, distribute, or store any content that is inaccurate, unlawful, infringing, defamatory, obscene, pornographic, invasive of privacy or publicity rights, harassing, threatening, abusive, inflammatory, or otherwise objectionable;

  • impersonate any person or entity; falsely claim an affiliation with any person or entity; access the Services accounts of others without permission; forge another person’s digital signature; misrepresent the source, identity, or content of information transmitted via the Services; or perform any other similar fraudulent activity;

  • harvest or collect email addresses or other contact information of other users from the Services;

  • defame, harass, abuse, threaten, or defraud users of the Services or any Third Party Applications or their users, or others, or collect or attempt to collect, personal information about users or third parties without their consent;

  • delete, remove, circumvent, disable, damage, or otherwise interfere with (a) security-related features of the Services, User Content or Market Content, (b) features that prevent or restrict use or copying of any content accessible through the Services, © features that enforce limitations on the use of the Services, User Content or Market Content, or (d) the copyright or other proprietary rights notices on the Services, User Content or Market Content;

  • reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Services or any part thereof, except and only to the extent that this activity is expressly permitted by the law of your jurisdiction of residence;

  • modify, adapt, translate, or create derivative works based upon the Services or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;

  • interfere with or damage the operation of the Services or any Third Party Application or any user’s enjoyment of them, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code;

  • access any website, server, software application, or other computer resource owned, used, and/or licensed by Movella, including but not limited to the Services, by means of any robot, spider, scraper, crawler, or other automated means for any purpose, or bypass any measures Movella may use to prevent or restrict access to any website, server, software application, or other computer resource owned, used, and/or licensed by Movella, including but not limited to the Services;

  • manipulate identifiers in order to disguise the origin of any User Content or Market Content transmitted through the Services;

  • interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies, or regulations of networks connected to the Services; use the Services in any manner that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying the Services, or that could damage, disable, overburden, or impair the functioning of the Services in any manner;

  • use or attempt to use another user’s account without authorization from that user and Movella;

  • attempt to circumvent any content filtering or analytical techniques we employ, or attempt to access any service or area of the Services that you are not authorized to access;

  • attempt to indicate in any manner, without our prior written permission, that you have a relationship with us or that we have endorsed you or any products or services for any purpose; or

  • use the Services for any illegal purpose, or in violation of any local, state, national, or international law or regulation, including without limitation laws governing intellectual property and other proprietary rights, data protection, and privacy.

Movella reserves the right to terminate your receipt, transmission, or other distribution of any such material using the Services. Movella intends to cooperate fully with any law enforcement officials or agencies in the investigation of any violation of these Terms or of any applicable laws, and you consent to the sharing or release of any information about you we collect in connection with the Services related to such cooperation.

8. Trademarks

OBSKUR, Movella, the Movella logos, and any other product or service name, logo, or slogan used by Movella, and the look and feel of the Services, including all page headers, custom graphics, button icons, and scripts, are trademarks or trade dress of Movella, and may not be used in whole or in part in connection with any product or service that is not Movella’s, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Movella, without our prior written permission.

All other trademarks referenced in the Services are the property of their respective owners. Reference on the Services to any products, services, processes, or other information by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation thereof by us or any other affiliation.

9. Disputes, Disclaimers and Limitation of Liability

  1. Indemnification. To the fullest extent permitted by applicable law, you agree to indemnify, defend, and hold harmless Movella, its affiliated companies, and each of our respective contractors, employees, officers, directors, agents, third-party suppliers, licensors, and partners (individually and collectively, the “Movella Parties”) from any claims, losses, damages, demands, expenses, costs, and liabilities, including legal fees and expenses, arising out of or related to your access, use, or misuse of the Services (including but not limited to Advertising Services), any User Content or Market Content you post, store, or otherwise transmit in or through the Services, your violation of the rights of any third party, any violation by you of these Terms, or any breach of the representations, warranties, made by you herein. You agree to promptly notify the Movella Parties of any third-party claim, and Movella reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Movella, and you agree to cooperate with Movella’s defense of these claims. Movella will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it. Movella’s advertisers are third party beneficiaries of this indemnity.

  2. Disclaimers; No Warranties. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (A) THE SERVICES AND THE CONTENT AND MATERIALS CONTAINED THEREIN ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN WRITING BY MOVELLA; (B) THE MOVELLA PARTIES DISCLAIM ALL OTHER WARRANTIES, STATUTORY, EXPRESS, OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT AS TO THE SERVICES, INCLUDING ANY INFORMATION, CONTENT, OR MATERIALS CONTAINED THEREIN; © MOVELLA DOES NOT REPRESENT OR WARRANT THAT THE CONTENT OR MATERIALS ON THE SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE; (D) MOVELLA IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS RELATING TO TEXT OR PHOTOGRAPHY; AND (E) WHILE MOVELLA ATTEMPTS TO MAKE YOUR ACCESS AND USE OF THE SERVICES SAFE, MOVELLA CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR OUR SERVER(S) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, AND THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD AND YOUR DEVICES ON WHICH YOU USE THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MOVELLA OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.

    1. Limitation of Liability and Damages

      1. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (A) IN NO EVENT SHALL MOVELLA OR THE MOVELLA PARTIES BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS, OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE SERVICES OR THE MATERIALS, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM MOVELLA, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO MOVELLA’S RECORDS, PROGRAMS, OR SERVICES; AND (B) IN NO EVENT SHALL THE AGGREGATE LIABILITY OF MOVELLA, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE, OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY, OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE MOVELLA SERVICES EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR USE OF THE MOVELLA SERVICES DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM, EXCEPT THAT YOU WILL BE ENTITLED TO RECEIVE ADVERTISING COMPENSATION WHICH YOU HAVE EARNED AND ARE ENTITLED TO RECEIVE IN ACCORDANCE WITH SECTION 5.1. TO THE EXTENT THAT APPLICABLE LAW PROHIBITS LIMITATION OF SUCH LIABILITY, MOVELLA SHALL LIMIT ITS LIABILITY TO THE FULL EXTENT ALLOWED BY APPLICABLE LAW.

      2. Reference Sites. THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY REFERENCE SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN MOVELLA AND RECEIVED THROUGH OR ADVERTISED ON THE MOVELLA SERVICES OR RECEIVED THROUGH ANY REFERENCE SITES.

      3. Basis of the Bargain. YOU ACKNOWLEDGE AND AGREE THAT MOVELLA HAS OFFERED THE SERVICES, MATERIALS, AND OTHER CONTENT AND INFORMATION, SET ITS FEES OR PRICES, AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND MOVELLA, AND THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND MOVELLA. MOVELLA WOULD NOT BE ABLE TO PROVIDE THE SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.

    2. Properties, the Services, the Marks or any other technology and software that we provide or use to provide the Services and the Restream Properties.

    3. Applicable Law and Venue. PLEASE READ THE FOLLOWING CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH MOVELLA AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM MOVELLA.

      You and Movella agree to arbitrate any dispute arising from these Terms or your use of the Services, except that you and Movella are not required to arbitrate any dispute in which either party seeks equitable and other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. ARBITRATION PREVENTS YOU FROM SUING IN COURT OR FROM HAVING A JURY TRIAL. You and Movella agree that you will notify each other in writing of any dispute within thirty (30) days of when it arises. Notice to Movella shall be sent to: Movella Inc., Attn: Legal, 3535 Executive Terminal Drive, Suite 110, Henderson, NV 89052. You and Movella further agree: to attempt informal resolution prior to any demand for arbitration; that any arbitration will occur in Los Angeles County, California; that arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of JAMS; and that the state or federal courts in Los Angeles County, California have exclusive jurisdiction over any appeals of an arbitration award and over any suit between the parties not subject to arbitration. Other than class procedures and remedies discussed below, the arbitrator has the authority to grant any remedy that would otherwise be available in court. Any dispute between the parties will be governed by this Agreement and the laws of the State of California and applicable United States law, without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction. Whether the dispute is heard in arbitration or in court, you and Movella will not commence against the other a class action, class arbitration, or other representative action or proceeding.

      If you are a resident in any jurisdiction in which the provision in the section above is found to be unenforceable, then any disputes, claims, or causes of action arising out of or in connection with these Terms will be governed by and construed under the laws of your jurisdiction of residence, and shall be resolved by competent civil courts within your jurisdiction of residence.

  3. Claims. YOU AND MOVELLA AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

10. Termination

To the fullest extent permitted by applicable law, Movella reserves the right, without notice and in our sole discretion, to terminate your license to use the Services (including the right to post User Content or Market Content) and to block or prevent your future access to and use of the Services, including where we reasonably consider that: (a) your use of the Services violates these Terms or applicable law; (b) you fraudulently use or misuse the Services; or © we are unable to continue providing the Services to you due to technical or legitimate business reasons. Our right to terminate your license includes the ability to terminate or to suspend your access to any purchased products or services, including any digital assets. To the fullest extent permitted by applicable law, your only remedy with respect to any dissatisfaction with: (i) the Services, (ii) any term of these Terms, (iii) any policy or practice of Movella in operating the Services, or (iv) any content or information transmitted through the Services, is to terminate your account and to discontinue use of any and all parts of the Services.

11. Miscellaneous

  1. Non-Assertion. During and after the term of your license, you shall not assert, nor shall you authorize, assist, or encourage any third party to assert, against us or any of our customers, end users, vendors, business partners, licensors, sub-licensees or transferees, any patent infringement or other intellectual property infringement claim with respect to the Services or any part thereof.

  2. Waiver. If Movella fails to exercise or enforce any right or provision of these Terms, it will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms will be effective only if in writing and signed by the relevant party.

  3. Severability. If any provision of these Terms is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from these Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.

  4. Assignment. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Movella without restriction. Any assignment attempted to be made in violation of these Terms shall be void.

  5. Survival. Upon termination of these Terms, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, Section 2.a., 2.1., 2.1., and Section 9.

  6. Entire Agreement. These Terms comprise the entire agreement between you and Movella relating to the subject matter herein and will not be modified except by a writing signed by authorized representatives of both parties, or by a change to these Terms made by Movella as set forth in the introductory paragraphs of these Terms.