Last updated: 10th October 2020
PERSONS UNDER THE AGE OF 13 ARE NOT PERMITTED TO USE THE SERVICES EXCEPT WITH THE PRIOR WRITTEN CONSENT OF THEIR PARENT OR SCHOOL. IF YOU ARE UNDER 18 YEARS OF AGE AND REGISTERING TO USE THE SERVICES WE RECOMMEND THAT YOU READ THIS DOCUMENT TOGETHER WITH YOUR PARENT OR TEACHER.
1. Nature of the services
Out of Thin AR builds augmented, virtual and mixed reality content for distribution using Zappar WebAR. Our native mobile applications operate on iOS and Android.
2. What means what?
In these TOU certain words with a Capital letter have a particular meaning. These are listed below:
“Account Holder” means the individual, business or organization in whose name is registered by Out of Thin AR. If it is not clear who the intended Account Holder is the final determination will be made by Out of Thin AR in its sole and absolute discretion and the name of the Account Holder entered in Out of Thin AR’s records will be conclusive.
“authorized User” means the Account Holder (also known as a “member”).
“Business User” means a person who has a Business Plan for the Services.
“Content Trigger” means the mechanism by which content can be activated, QR code scanning, deep links, image look-up and other content triggers.
“Permitted Purposes” means (a) for Business Users, any lawful commercial, trade or professional use within any user guidelines published by us.
“Parent” includes a parent or legal guardian.
“Services” means our Out of Thin AR service and technology together with its related databases, features, functionality, plug-ins, software, SDKs, templates, tools, documentation and web pages including any modifications or updates thereto.
“User” means the Account Holder, or any individual who uses the Services via a Login regardless of whether or not they are the Account Holder.
“User Agreement” means the legal contract between Out of Thin AR and the Account Holder for the provision of the Services which shall incorporate and be subject to these TOU.
“User Content” means any and all animation, documents, images, links, sound files, videos, data, text and other content that a User creates, enters, uploads, distributes, or transmits via the Services.
“Virus” means any thing or device (including any software, code, file or programme) which may: (a) prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; (b) prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by rearranging, altering or erasing the programme or data in whole or part or otherwise); or (c) adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
“you” means you, the person using the Services, or registering as an Account Holder.
“your codes” means the QR codes and other types of marker for activating content.
“Out of Thin AR” or “we” means Medical Site Solutions, LLC a private limited company.
“Out of Thin AR Account” means the account registered with Out of Thin AR by which the Account Holder and (where applicable) their authorized Users access the Services.
“Out of Thin AR Project” means a single augmented, virtual or mixed reality experience that can be launched via user-defined triggers.
“Out of Thin AR Technology” means Zappar's proprietary augmented reality and image recognition technology on which the Services are based which can be used with images and objects located in the real world to create augmented, virtual and mixed reality experiences displayed on smartphones and handheld devices and unlocked using Content Triggers.
“Out of Thin AR Website” means our website for the Services located at https://Outofthinar.com
In these TOU:
The words “includes” and “including” are not limited in any way and mean “includes or including without limitation”.
The word “person” includes individuals, companies, corporations, partnerships, limited liability partnerships, co-operatives, associations and other natural and legal persons.
The section and paragraph headings are for convenience only and shall not affect their interpretation. Unless stated otherwise, references to a Section is to a section of these TOU.
Where a conflict, ambiguity or difference exists in the interpretation, wording or meaning of a provision or term in any of our published policy documents, or in any written communication to you, the provision or term contained in the most recent policy document or communication shall apply.
3. Acceptance of terms
4. Changes to these terms
We may, at our sole and absolute discretion, revise, modify or replace these TOU by updating the posting on the Out of Thin AR Website at any time with or without notice to you. You should visit the Out of Thin AR Website from time to time to review the current version of the TOU because they are legally binding upon you. If you do not wish to accept the new TOU you should not continue to use the Services. If you continue to use the Services after the date on which any changes come into effect, your use of the Services indicates your agreement to be legally bound by the new TOU.
5. Opening an account with us
5.1 Who is allowed to use the Services?
You are only allowed to use the Services if you meet the following criteria and represent and warrant that you: (a) are 13 years of age or older, (b) are not currently restricted or prohibited from using the Services; (c) will comply with these TOU at all times; and (d) agree to provide at your cost all equipment, resources, software and internet access necessary to use the Services.
If you do not meet all eligibility requirements outlined in these TOU, or cease to meet them, you are not allowed to use the Services. Out of Thin AR also reserves the right, at our sole and absolute discretion, to refuse to accept any request to open a Out of Thin AR Account.
To use the Services each User will need to register with us by creating an Out of Thin AR Account. You must ensure that the details provided by you on registration or at any time are correct and complete. You must inform us immediately of any changes to the information that you provided when registering by updating your personal details; so that we can communicate with you effectively. If you provide any information that is untrue, inaccurate, not current or incomplete, or if we have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we may suspend or terminate your Out of Thin AR Account and/or your right to use the Services with or without notice to you.
Out of Thin AR reserves the right to remove and/or clear out inactive Out of Thin AR Projects and inactive Out of Thin AR Accounts as part of the general housekeeping procedures we periodically carry out to improve the efficiency and performance of the Services. This housekeeping may result in the temporary or permanent removal or deactivation of the inactive Out of Thin AR Project or Out of Thin AR Account, and erasure or disabling of all content and data connected or related to it, including User Content. For these purposes each of the following are considered to be inactive: (a) Out of Thin AR Projects that have not been engaged with for more than 12 months; (b) Out of Thin AR Accounts that have had no activity on them for 12 months or more, AND no payment has been received during that period, AND no engagements have been recorded against any Out of Thin AR Project associated with that Out of Thin AR Account during that period.
6. Right to use the Services
The User must not at any time (directly or indirectly) do any of the following: (a) use the Services for any activity or purpose which is illegal, immoral or improper whether in the United States or elsewhere in the world; (b) modify, adapt, translate or create derivative works based on the Services; (c) reverse engineer, decipher, decompile, disassemble, or attempt to derive any source code for, or any other trade secrets embedded in, the Services; (d) copy (in whole or in part) the Services or the Out of Thin AR Technology; (e) charge any person for access to or use of the Services; (f) frame, rent, lease, loan, distribute, resell, sublicense or transfer the Services.
The User must not use in any manner Content Triggers belonging to another User without their express consent and the User must not use Content Triggers within any media or on any materials (whether physical or digital) which do not belong to them unless authorized to do so by the owner.
Business Users must not represent Out of Thin AR as having approved or endorsed any products or services, or use Out of Thin AR’s name or logos on or in connection with any products or services without Out of Thin AR’s prior written consent.
6.2 Proprietary notices
The User must not remove, alter or obscure any copyright, trademark or other proprietary rights notice contained in the Services.
6.3 Reservation of rights
Out of Thin AR retains all right, title and interest in and to the Services and all related data and intellectual property rights, except those limited rights to use the Services given in this Section 6. Any content (including software) we provide to you as part of the Services is licensed under these TOU for your use during the term of the User Agreement, and not sold to you.
7. Fees, payment and refunds
You must pay all fees applicable to your use of the Services in accordance with your pricing plan. In addition, You must pay our fees by the date and in the manner described in the invoice, billing agreement or as otherwise notified to you. All sums charged for using the Services are exclusive of taxes, levies or duties (e.g. VAT or other sales taxes) imposed by taxation authorities, and you shall be responsible for payment thereof in addition. Fees are payable in the currency reflected in the relevant invoice or billing agreement.
Any fees not paid in full as and when due shall incur interest which shall accrue on such unpaid amounts at an annual rate of 6% commencing on the due date and continuing until fully paid, whether before or after any judgment. We may also suspend your Out of Thin AR Account and right to use the Services until such time as all overdue payments have been brought up to date.
Out of Thin AR reserves the right to change the payment terms and pricing for the Services at our sole and absolute discretion by giving notice to you. The amended pricing and/or payment terms will (unless stated otherwise) be effective from the date of that notice and will apply to any fees incurred by you following the effective date of that price change.
All payments made are processed on our behalf by third party payment providers. You accept that Out of Thin AR is not responsible for these third party payment providers and their operation or availability. By agreeing to these TOU, you authorize Out of Thin AR or our nominated payment provider to make any reasonable and necessary inquiries to validate your Out of Thin AR Account and financial information.
Out of Thin AR operates a “NO RETURNS” policy across all our plans and all fees charged for the use of the Services (including any VAT and other taxes charged on the fees) are NON-REFUNDABLE except as required by applicable law.
8. User warranties and indemnity
You represent, warrant and undertake that:
any Out of Thin AR Account created by or on your behalf is for your own personal, business or educational use (as applicable) and the account has not been created with the intention to impersonate, falsely represent or create a false association with another person;
your use of the Services will be in strict accordance with these TOU and with all applicable laws and regulations including any local laws or regulations in your country, state, city or other governmental area regarding online conduct and acceptable content, and including all applicable laws regarding the transmission of personal data outside the European Economic Area (EEA) or the country in which you reside;
you will comply with the rules and regulations of your mobile device service providers, internet service providers and other third party service providers;
(If you are a Business User) you will comply with the prudent practices, methods, specifications and standards of safety and performance commonly used in operations similar to those of your business or profession, including any advertising standards, professional standards or codes of practice; and
all information provided by you to Out of Thin AR is and will remain throughout your use of the Services true, accurate and complete. You will promptly notify Out of Thin AR of any material change in that information.
INDEMNIFICATION. You acknowledge that any breach of these TOU may cause Out of Thin AR damage or loss and you agree to indemnify and hold harmless Out of Thin AR and its employees, directors and shareholders (collectively, the “Out of Thin AR Indemnified Parties”) against any and all liabilities, claims, actions, proceedings, losses, damages, expenses and costs (including court costs and legal fees) whether direct, indirect or consequential and including any economic loss or other loss of profits, business or goodwill which Out of Thin AR or any of the Out of Thin AR Indemnified Parties may suffer or incur as a result of any of the following matters: (a) your use of the Services, including Content Triggers; (b) your User Content; and (c) any breach by you or anyone acting on your behalf of these TOU.
9. User content: general rules
Strict compliance with the following provisions of Sections 9, 10 and 11 are a condition of the User Agreement.
Users acknowledge that the Services are designed to be accessible via the Internet and Out of Thin AR does not guarantee any confidentiality or privacy with respect to User Content. Any User Content that published may potentially become visible to anyone who activates the associated Content Trigger(s). Furthermore, due to the nature of the Internet and search engines in particular, User Content may remain on devices or websites not operated or controlled by Out of Thin AR even after such User Content has been removed or deleted from our systems. You acknowledge and agree that any User Content published to the Services may become openly available across the Internet.
You acknowledge and agree that you and not Out of Thin AR are solely responsible for all User Content that you make available through the Services including the content that is uploaded to your QR code via the Upload Feature. User Content will not be vetted or edited in advance by Out of Thin AR and Out of Thin AR exercises no editorial control over User Content. Notwithstanding this, Out of Thin AR reserves the right at our sole and absolute discretion (but shall have no obligation) to refuse, suspend access to or remove any User Content available through the Services at any time. We do not need a reason to exercise this right (or to give you prior notice), but we would normally only refuse, suspend access to or remove content if: (a) we deem it to be unlawful or in breach of these TOU; or (b) we receive a complaint about your User Content; or (c) we receive a Court Order requiring its removal from our systems; or (d) the content violates our terms of service with our server provider. User Content that has been removed may continue to be stored by us in order to comply with legal obligations. For details on how we handle complaints about User Content please click on the following link: https://www.outofthinar.com/privacy-policy
While Out of Thin AR makes reasonable efforts to ensure that Content Triggers correctly point to the User Content that Users and their end users have assigned to them, you acknowledge that it is your sole responsibility to test and check the correct functionality of all Content Triggers before putting them into use. Out of Thin AR ACCEPTS NO LIABILITY WHATSOEVER FOR ANY LOSSES INCURRED AS A CONSEQUENCE OF ANY INCORRECTLY CONFIGURED CONTENT
10. User content: ownership
So that we can provide you with the Services and distribute your User Content through your chosen publication channels you grant Out of Thin AR and its group companies an irrevocable, worldwide, royalty-free and non-exclusive licence to store, reproduce, adapt and modify (e.g. for technical reasons to enable the content to work on our platform), translate, publish, display, perform, transmit, distribute and otherwise use your User Content and Content Triggers on or through the Services, solely for the purposes of enabling Out of Thin AR and its group companies to operate, maintain, make available and distribute the Services in accordance with the User Agreement, including (as applicable) enabling our content delivery platform to (a) put together the final published version of your User Content and (b) provide individuals who activate your Content Triggers with access to your User Content. The licence granted to Out of Thin AR will continue throughout your use of the Services and until an item of User Content has been removed from our systems. This is a licence only – your ownership of your User Content is not affected. You represent and warrant to Out of Thin AR that you have (and will continue to have during your use of the Services) all necessary rights, permissions, power and authority to grant the licences contained in this paragraph.
11. User content: prohibited content
You must not during the course of your use of the Services (and shall ensure that end users of your Out of Thin AR Projects do not) create, enter, import, upload, store, link to, share, publish, make available to the public, distribute or transmit any content or data that:
is or contains a Virus;
is unlawful, harmful, offensive, abusive, threatening, defamatory, libellous, vulgar, obscene, infringing, menacing, harassing or racially or ethnically offensive or otherwise objectionable or otherwise breaching any laws;
facilitates or encourages conduct that constitutes a criminal offence, or otherwise breaches any applicable laws, regulations or code of practice;
depicts indecent, pornographic or sexually explicit images;
compromises the rights of, brings harm to, or in any way unfairly deals with children and minors;
incites, promotes or encourages violent, exploitative, racist, discriminatory, socially unacceptable or irresponsible behaviour;
is discriminatory based on age, race, gender, gender reassignment, colour, religious belief, sexual orientation, disability or any other protected characteristic of an individual;
reveals any confidential or sensitive information unless you are authorized to make such disclosure;
impersonates any living person, misrepresents your affiliation with a person, or contains forged or manipulated headers intended to disguise the origin of the content;
violates the privacy rights of any living person or harvests or collects data about others without their knowledge and consent;
is a breach of the copyright, patent, trademark, trade secret, database right or any other intellectual property right of any person unless you have the permission of the controller or owner of such right;
streams, distributes, links to or accesses any material that you know, or ought reasonably to know, cannot be legally streamed, distributed, linked to or accessed;
causes damage or injury to any person or property;
interferes with the use or enjoyment of the Services by another person.
12. Privacy and data protection
You should carefully read our Privacy Notice for Out of Thin AR before deciding to become a User. The Privacy Notice describes what information, including Personal Data, we may collect from you in connection with the Services and how we use that information. Our Privacy Notice is available at https://www.outofthinar.com/privacy-policy. Your use of the Services may also result in cookies and similar technologies being placed on your computer or mobile device.
Except as expressly stated otherwise in our Privacy Notice, the User is responsible for any collection, storage, disclosure and use of, and access to, Personal Data of any person that relates to the User’s use of the Services including any Personal Data contained within the User’s User Content. In particular, it is understood that the Privacy Notice mentioned above does not apply to any Personal Data that the User collects from end users of their Out of Thin AR Projects in their capacity as a Controller (including Personal Data collected from individuals using the Upload Feature). The User must ensure that they inform their end users of what Personal Data the User collects from end users of their Out of Thin AR Projects and how the User will use the Personal Data.
If Out of Thin AR processes any Personal Data on a User’s behalf when providing the Services, the parties record their intention that the User shall be the Controller and Out of Thin AR shall be acting solely as a Processor and, in any such case, the following general principles apply:
the User acknowledges and agrees that the Personal Data may be transferred or stored outside the EEA or the country where the User is located in order to carry out the Services and Out of Thin AR’s other obligations under these TOU;
the User shall ensure that the User is entitled to transfer the relevant Personal Data to Out of Thin AR so that Out of Thin AR may lawfully use, process and transfer the Personal Data in accordance with these TOU on the User's behalf;
the User shall ensure that the relevant third parties (including end users of the User’s Out of Thin AR Projects) have been informed of, and (where legally required) have given their valid consent to, such use, processing, and transfer as required by all applicable data protection legislation;
Out of Thin AR shall process the Personal Data only in accordance with these TOU and any lawful instructions reasonably given by the User from time to time; and
each party shall take appropriate technical and organizational measures against unauthorized or unlawful processing of the Personal Data or its accidental loss, destruction or damage.
13. Fair Use Policy
13.1 General statement
A policy of fair and acceptable usage applies to the Services. This Fair Use Policy applies to everyone who uses the Services. As part of our Fair Use Policy you must not do any of the following:
use the Services in any way which breaches Sections 9 to 12 (inclusive);
use the Services in any way that disrupts or interferes with, or has the potential to disrupt or interfere with, the Services;
use the Services (either individually or collectively with other Users) in any manner that is excessive, abnormal, or places a significant burden on our platform, website, online services or network, whereby such use does, will or could negatively impact or adversely affect optimal platform performance benchmarks (as set at our sole and absolute discretion from time to time) to the detriment of other Users;
interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services, or bypass any measures we may use to prevent or restrict access to the Services (or other Out of Thin AR Accounts, computer systems or networks connected to the Services);
use the Services in a way which infringes or misappropriates the intellectual property or privacy rights of any person;
harvest or scrape any content, data, code, scripting, or images from the Services;
upload or introduce Viruses onto the Services;
connect or attempt to connect Viruses or content or materials to a Content Trigger or Out of Thin AR Project that belongs to another User.
You must comply with all directions and specifications we publish concerning the media files that can be imported into the Services e.g. format, type, size, and length.
13.2 Consequences of breach
If you breach our Fair Use Policy, or we consider that you are otherwise using the Services in an unfair, excessive or disruptive manner, or otherwise at our sole and absolute discretion, we may (in addition to our rights set out elsewhere in these TOU) place limitations or restrictions on service features otherwise described as “free” or “unlimited”, e.g. we may place additional limits on the number of interactions with your Out of Thin AR Project; or limit the type / size of file you or others can import into the Services. We may also place upper limits on hosting of data and data transfer from our content delivery network to end users.
If you breach our Fair Use Policy, we will normally ask you to correct your behaviour first before taking any action, but we reserve the right not to give notice in the case of deliberate, serious or persistent breaches or misuse of the Services. You understand that breach of the Fair Use Policy may be grounds for immediate termination of your User Agreement and right to use the Services.
14. Delivery, availability and modification of the services
Out of Thin AR will begin to make the Services available to the Account Holder and their authorized Users at the moment of activating the Out of Thin AR Account. When the Account Holder starts monthly paid use of the Services Out of Thin AR will provide those features of the Services that are available for the type of use paid for, at the moment of receiving payment.
Out of Thin AR warrants to the Account Holder that (a) we will perform the Services with reasonable care and skill and (where applicable) within a reasonable time; nor do we guarantee the level of activity that your Out of Thin AR Projects will generate, such as the number of scans you will get. We do not guarantee that the Services will be fault-free or offer constant, uninterrupted access. If a fault occurs with the Services you should report it to info@OutofThinAR.com and we will attempt to correct the fault as soon as we reasonably can.
Your access to the Services may occasionally be suspended or restricted to allow for repairs, maintenance, updates or the introduction of new facilities or services. If this happens, we will attempt to restore the service as soon as we reasonably can.
BETA SERVICES. Out of Thin AR may provide features or products that we are still testing and evaluating. These products and features are identified as alpha, beta, preview, early access or evaluation (or words or phrases with similar meanings) (collectively, "Beta Services"). Notwithstanding anything to the contrary in these TOU, the following terms apply to all Beta Services: (a) you may use or decline to use any Beta Services; (b) Beta Services may not be supported and may be changed at any time without notice to you; (c) Beta Services may not be as reliable or available; (d) Beta Services have not been subjected to the same security measures and auditing to which the final released version of the Services have been subjected; and (e) Out of Thin AR SHALL HAVE NO LIABILITY ARISING OUT OF OR IN CONNECTION WITH BETA SERVICES - USE IS AT YOUR OWN RISK.
15. Ending the User Agreement
Out of Thin AR plans/ subscriptions will continue in force unless and until terminated in accordance with the provisions of these TOU. All Out of Thin AR plans will automatically renew at the end of the billing cycle, unless the Account Holder gives notice to Out of Thin AR to cancel the plan before their subscription renews.
Out of Thin AR may, in our sole and absolute discretion, immediately suspend or terminate the User Agreement and your access to and use of all or any aspect of the Services with or without notice and for any reason, including (a) if you breach any of your obligations under these TOU; (b) if Out of Thin AR is required to do so by law or through an order of any competent authority; or (c) Out of Thin AR permanently discontinues the Services. Suspension of the Services does not affect your obligations to us under these TOU. Any suspected fraudulent, abusive or illegal activity may be grounds for terminating the User Agreement and may be referred to the appropriate law enforcement authorities.
The Account Holder may cancel the User Agreement and their Out of Thin AR Account for any reason at any time by giving us written notice which shall take effect upon the date we receive your notice at our address given below. If you do cancel your Out of Thin AR Account, and you are a Business User, your plan will be charged for the remainder of the billing cycle (monthly or annual) that you are currently in and your Out of Thin AR Account and content will be disabled at the end of the current billing cycle.
16. What happens when the User Agreement ends?
Upon cancellation or termination of the User Agreement by Out of Thin AR or the Account Holder, regardless of the reason:
your right to use the Services and the rights granted to you in Section 6.1 immediately ceases, and you acknowledge and agree that Out of Thin AR may delete your Out of Thin AR Account and at any time thereafter remove, archive or permanently erase all content and information (including User Content) associated with you and/or your Out of Thin AR Account;
Out of Thin AR may deny you any further access to and use of the Services. (This may include using technical measures to prevent your access to the Services);
Out of Thin AR shall have the right, but not the obligation, to disable all of your existing Content Triggers;
Out of Thin AR shall not be liable to you or any third party for any claim or damages arising out of said cancellation or termination or for the consequent loss of any content or information;
Out of Thin AR shall unless applicable law requires otherwise not be required to refund any fees or other payments to you regardless of the remaining period of your subscription to the Services; and
all provisions of these TOU that are intended to survive the cancellation or termination by their nature or because such has expressly been provided for shall survive. These provisions include provisions relating to ownership of intellectual property, disclaimers, indemnity obligations, limitations and exclusions of liability, and applicable law. Any licences granted by you under these TOU shall survive after the User Agreement has been cancelled or terminated.
The cancellation or termination of the User Agreement shall be without prejudice to the provisions of this Section 16 and to any rights either of us may have accrued by, at or up to the date of such cancellation or termination.
17. Third Party Services
As a convenience to Users, the Services may include links to other resources, on-line services or material (a “Third Party Service”) which are beyond our control. Out of Thin AR is not responsible for any content, functions, accuracy, legality, appropriateness or any other aspect of such Third Party Services. The inclusion of a link to a Third Party Service does not imply endorsement by Out of Thin AR or any association with its operators.
18. Advertising and sponsorship
Part of the Services may contain or display third party advertising, promotions and sponsorship. Advertisers, promoters and sponsors are responsible for ensuring that material and promotions submitted for inclusion within the Services complies with relevant laws and codes of practice. Out of Thin AR shall not be responsible to you for any error or inaccuracy in advertising or sponsorship material, or the conduct of any promotion.
Your communication or dealings with, or participation in promotions of, advertisers, promoters and sponsors found on or through the Services, including payment and delivery of related goods or services, and other terms, conditions, warranties or representations associated with such dealings are solely between you and the relevant third party and Out of Thin AR shall have no responsibility or liability of any kind in relation thereto.
EXCEPT AS EXPRESSLY AND SPECIFICALLY STATED IN THESE TOU: (A) THE USER ASSUMES SOLE RESPONSIBILITY FOR RESULTS OBTAINED FROM THE USE OF THE SERVICES BY THE USER, AND FOR ANY CONCLUSIONS DRAWN FROM SUCH USE. OUT OF THIN AR SHALL HAVE NO LIABILITY FOR ANY DAMAGE CAUSED BY ERRORS OR OMISSIONS IN ANY CONTENT, INFORMATION, INSTRUCTIONS OR OTHER MATERIALS PROVIDED TO OUT OF THIN AR BY THE USER IN CONNECTION WITH THE SERVICES, OR ANY ACTIONS TAKEN BY OUT OF THIN AR AT THE USER’S DIRECTION; (B) ALL WARRANTIES, REPRESENTATIONS, CONDITIONS AND ALL OTHER TERMS OF ANY KIND WHATSOEVER IMPLIED BY STATUTE OR COMMON LAW ARE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCLUDED FROM THESE TOU INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT; AND (C) THE SERVICES ARE PROVIDED TO THE USER ON AN "AS IS", “AS AVAILABLE” BASIS.
OUT OF THIN AR ACCEPTS NO RESPONSIBILITY OR LIABILITY FOR ANY INABILITY TO ACCESS OR USE THE SERVICES OR ANY INABILITY FOR YOU TO PROVIDE ANY BUSINESS DEPENDENT ON THE SERVICES DUE TO TECHNICAL OR OTHER FAILURE OUTSIDE OUR CONTROL. OUT OF THIN AR DOES NOT CONTROL HOW ENGAGEMENTS ARE GENERATED WITH YOUR CONTENT TRIGGERS. WE ARE NOT RESPONSIBLE FOR FRAUDULENT ACTIVITY ON YOUR CONTENT TRIGGERS, OR OTHER POTENTIALLY INVAILD ACTIVITY THAT MAY AFFECT YOUR BUSINESS ACTIVITIES.
OUT OF THIN AR SHALL NOT BE LIABLE FOR NON-CONFORMANCE OR NON-PERFORMANCE OF THE SERVICES WHICH IS CAUSED BY YOUR USE OF THE SERVICES IN A MANNER FOR WHICH THEY ARE NOT INTENDED, OR FOR MODIFICATION OR ALTERATION OF THE SERVICES BY ANY PARTY OTHER THAN OUT OF THIN AR OR OUT OF THIN AR'S DULY authorized CONTRACTORS OR AGENTS.
OUT OF THIN AR DOES NOT HAVE ANY OBLIGATION TO VERIFY THE IDENTITY OF THE PERSONS USING THE SERVICES, NOR DO WE HAVE ANY OBLIGATION TO MONITOR THE USE OF THE SERVICES BY OTHER USERS; THEREFORE WE DISCLAIM ALL LIABILITY FOR IDENTITY THEFT OR ANY OTHER MISUSE OF YOUR IDENTITY.
IN THE EVENT OF ANY LOSS OR DAMAGE TO DATA COMPRISED IN ANY USER CONTENT (“USER DATA”), THE USER'S SOLE AND EXCLUSIVE REMEDY SHALL BE FOR OUT OF THIN AR TO USE REASONABLE COMMERCIAL ENDEAVOURS TO RESTORE THE LOST OR DAMAGED USER DATA FROM THE LATEST BACK-UP OF SUCH USER DATA MAINTAINED BY ZAPPAR (IF ANY). OUT OF THIN AR SHALL NOT BE RESPONSIBLE FOR ANY LOSS, DESTRUCTION, ALTERATION OR DISCLOSURE OF USER DATA CAUSED BY ANY THIRD PARTY. OUT OF THIN AR SHOULD NOT BE USED AS A BACK-UP SERVICE FOR YOUR FILES AND YOU MUST SECURELY BACK-UP YOUR FILES BEFORE UPLOADING THEM TO THE SERVICES.
THE SERVICES AND CONTENT TRIGGERS PROVIDED FOR USE BY USERS MAY CONTAIN TECHNOLOGY THAT IS NOT FAULT TOLERANT AND IS NOT INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS OR IN ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE (SUCH AS IN THE DESIGN, CONSTRUCTION, OPERATION OR MAINTENANCE OF NUCLEAR FACILITIES; AIRCRAFT NAVIGATION, COMMUNICATION OR FLIGHT CONTROL; LIFE SUPPORT MACHINES; WEAPON SYSTEMS; SECURITY SYSTEMS; HEALTH CARE OR PHARMACEUTICAL PRODUCTS OR SERVICES; OR ANY OTHER ENVIRONMENTS OR APPLICATIONS IN WHICH THE FAILURE OF THE SERVICES OR CONTENT TRIGGERS COULD LEAD TO SERIOUS INJURY OR DEATH, ENVIRONMENTAL DAMAGE OR FINANCIAL LOSS. THE USER RELEASES OUT OF THIN AR FROM ANY AND ALL LIABILITY FOR USE OF THE SERVICES AND CONTENT TRIGGERS IN ANY OF THE ACTIVITIES OR ENVIRONMENTS REFERRED TO IN THIS SECTION AND SHALL INDEMNIFY AND HOLD HARMLESS OUT OF THIN AR TOGETHER WITH ITS EMPLOYEES, DIRECTORS AND SHAREHOLDERS FROM ANY CLAIM ARISING OUT OF THE USER’S USE OF THE SERVICES AND CONTENT TRIGGERS IN ALL OF THOSE ACTIVITIES AND ENVIRONMENTS.
THE ABOVE DISCLAIMERS DO NOT EXCLUDE OR LIMIT ANY LIABILITY OF OUT OF THIN AR IN THE CIRCUMSTANCES REFERRED TO IN SECTION 20.2 BELOW.
20. EXCLUSION AND LIMITATION OF LIABILITY
20.2 NOTHING IN THESE TOU EXCLUDES OUT OF THIN AR’S LIABILITY FOR THE FOLLOWING MATTERS: (A) DEATH OR PERSONAL INJURY ARISING FROM OUR NEGLIGENCE; (B) FRAUD OR FRAUDULENT MISREPRESENTATION; OR (C) ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW, INCLUDING (WHERE APPLICABLE) YOUR STATUTORY RIGHTS AS A CONSUMER.
20.3 SUBJECT TO SECTION 20.2, OUT OF THIN AR SHALL NOT BE LIABLE TO THE USER WHETHER IN TORT (INCLUDING FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), CONTRACT, MISREPRESENTATION, RESTITUTION OR OTHERWISE FOR ANY OF THE FOLLOWING: (A) ANY LOSS OF REVENUE OR PROFITS, LOSS OF BUSINESS, LOSS OF OPPORTUNITY, OR LOSS OF ANTICIPATED SAVINGS; (B) DEPLETION OF GOODWILL OR INJURY TO REPUTATION; (C) LOSS OR CORRUPTION OF DATA OR INFORMATION; (D) LOSSES SUFFERED BY THIRD PARTIES; (E) ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS, COSTS, DAMAGES, CHARGES OR EXPENSES (INCLUDING EXEMPLARY, MULTIPLE OR PUNITIVE DAMAGES OF ANY KIND); HOWSOEVER ARISING UNDER OR IN CONNECTION WITH THE USER AGREEMENT AND/OR THE SERVICES AND REGARDLESS OF WHETHER OR NOT SUCH LOSSES WERE FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES AT THE START OF THE USER AGREEMENT OR OUT OF THIN AR WAS ADVISED OF THE POSSIBILITY OF THE USER SUFFERING THE SAME.
20.4 SUBJECT TO SECTION 20.2, OUT OF THIN AR'S TOTAL AGGREGATE LIABILITY TO THE USER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, RESTITUTION OR OTHERWISE ARISING UNDER OR IN CONNECTION WITH THE USER AGREEMENT SHALL BE LIMITED TO WHICHEVER IS THE GREATER OF (1) THE TOTAL FEES ACTUALLY PAID BY THE USER FOR USE OF THE SERVICES DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE AND (2) THE SUM OF $100 USD. THE LIABILITY LIMIT IN THIS SECTION SHALL INCLUDE ALL CLAIMS FOR INTEREST WHETHER STATUTORY OR OTHERWISE.
21. International use
Although the Services may be accessible worldwide, Out of Thin AR makes no promise that the Services are appropriate or available for use in locations outside the United States, and accessing the Services from locations where its contents are illegal or unlawful is prohibited. If you choose to access and use the Services from locations outside the United States, you do so on your own initiative and are responsible for compliance with local laws. Any offer for any product, service and/or information made in connection with the Services is void where prohibited.
22. General provisions
Amendments. Except as expressly provided otherwise herein, the User Agreement may only be amended or varied by a written document that has been signed by or on behalf of the Account Holder and an authorized representative of Out of Thin AR.
Assignment. The User Agreement is personal to the parties. The Account Holder may not assign, transfer, sub-contract, or in any other manner make over to any third party the benefit and/or burden of the User Agreement without the prior written consent of Out of Thin AR. We may assign all or any of our rights under the User Agreement to another legal entity or business where we reasonably believe your rights will not be adversely affected.
Entire Agreement. You agree that the User Agreement, these TOU and the other documents referred to in it constitute the entire agreement between you and Out of Thin AR regarding the Services and their use, and supersede all prior agreements, understandings, communications and proposals (whether oral, written or electronic) with respect to the subject matter of the User Agreement. Each of the parties acknowledges and agrees that in entering into the User Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party hereto or not) relating to the subject matter of the User Agreement, other than as expressly set out in these TOU, or, in the case of Personal Users, incorporated by the Consumer Rights Act 2015. This provision does not exclude liability for fraud or fraudulent misrepresentation.
Force Majeure. Out of Thin AR shall not be responsible for any breach of the User Agreement caused by circumstances beyond our reasonable control, including any Act of God, terrorism, failures or delays in transportation or communications, failure of your internet or mobile connectivity, failure of the world wide web, denial-of-service attacks, strikes, labour disturbances or slowdowns, or any act or failure by a User or their employees, agents, or contractors.
No Equitable Relief. In no event shall you seek or be entitled to rescission, injunctive or other equitable relief, or to enjoin or restrain the operation of the Services, the exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Services or any content or other material used or displayed through the Services.
No Waiver. If you breach the User Agreement and Out of Thin AR chooses to ignore this, we will still be entitled to use our rights and remedies at a later date or in any other situation where you breach the User Agreement.
Relationship between us. No agency, partnership, joint venture, or employment relationship is created as a result of the User Agreement. Neither party has any authority to act in the name or on behalf of or otherwise to bind the other in any respect (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
Severability. If any provision of the User Agreement is held invalid or unenforceable, all remaining provisions shall nevertheless remain valid and enforceable, to the extent they can be given effect without the invalid portions.
Third party rights. The User Agreement does not confer any rights on any person or party other than Out of Thin AR, its indemnified parties and the Account Holder and, where applicable, their successors and permitted assigns.
Any notice Out of Thin AR is required or permitted to give under these TOU may either be sent to you by email or posted on the Out of Thin AR Website. You may send notices to us by email or by post using our addresses listed in Section 25: “Our Contact Details”. An email will be deemed received on the date of successful transmission and any notice sent to us by post will be deemed received when we actually received it at our offices.
24. Applicable law and jurisdiction
The formation, interpretation and performance of this Agreement and any disputes arising out of it will be governed by the substantive and procedural laws of the state of California without regard to its rules on conflicts or choice of law and, to the extent applicable, the laws of the United States of America. The exclusive jurisdiction and venue for actions related to the subject matter hereof will be the state and federal courts located in Los Angeles County, California and the Central District Court of California, respectively, and you hereby submit to the personal jurisdiction of such courts. This choice of venue is designed to be mandatory, and not permissive, in nature. You hereby waive any right to a jury trial in any proceeding arising out of or related to this Agreement. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. A printed version of this Agreement and of any related notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
NO CLASS ACTIONS. Users may only resolve disputes with Out of Thin AR on an individual basis and will not bring a claim in a class, consolidated or representative action. Class arbitrations, class actions, private attorney general actions and consolidation with other arbitrations are not allowed.
25. Our contact details
The Services are owned and operated by Out of Thin AR a division of Medical Site Solutions, LLC.
If you have any queries or complaints concerning the Services we can be contacted at the following addresses:
Postal address: Out of Thin AR, 300 w. Beech St Suite 1005 San Diego, CA 92101
Email address: info@OutofThinAR.com
If you wish to report any violation of these TOU please send an email to info@OutofThinAR.com.
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