Last Revised: May 5, 2023
LOBAKI SERVICES ARE INTENDED SOLELY FOR USERS WHO ARE 13 YEARS OF AGE OR OLDER. ANY REGISTRATION FOR, OR USE OF, LOBAKI SERVICES BY ANYONE UNDER THE AGE OF 13 IS UNAUTHORIZED, UNLICENSED AND IN VIOLATION OF THESE TERMS. YOU CERTIFY THAT YOU ARE OF THE LEGAL AGE OF MAJORITY IN THE JURISDICTION IN WHICH YOU RESIDE OR, IF YOU ARE BETWEEN THE AGES OF 13 AND THE LEGAL AGE OF MAJORITY, THAT YOU ARE USING THE LOBAKI SERVICES WITH THE SUPERVISION OF YOUR PARENT OR LEGAL GUARDIAN WHO AGREES TO BE BOUND BY THESE TERMS, AND THAT YOU HAVE REVIEWED THESE TERMS WITH YOUR PARENT OR GUARDIAN SO THAT YOU BOTH UNDERSTAND ALL OF YOUR RIGHTS AND OBLIGATIONS.
PLEASE BE AWARE THAT SECTION 20 OF THIS AGREEMENT CONTAINS AN ARBITRATION AGREEMENT THAT REQUIRES MOST DISPUTES BETWEEN US TO BE RESOLVED ON AN INDIVIDUAL, NON-CLASS ACTION BASIS THROUGH BINDING AND FINAL ARBITRATION INSTEAD OF IN COURT. SEE SECTION 20 FOR MORE INFORMATION REGARDING THIS ARBITRATION CLAUSE, AND HOW TO OPT OUT.
If you are using the Services on behalf of any entity, you represent and warrant that you are authorized to accept these Terms on such entity’s behalf and that such entity agrees to be responsible to us if you or that entity violate these Terms.
2. ELIGIBILITY TO ACCEPT THESE TERMS AND USE OUR SERVICES
You must be at least 13 years of age to access and use the Services. There is no exception to this requirement. Lobaki does not knowingly collect any personal information from children under the age of 13 that falls within the Children’s Online Privacy Protection Act and Rule. By your use of the Services, you agree that you are either 18 years of age or older, or an emancipated minor, or possess legal parental or guardian consent, and that you are fully able and competent to understand and accept these Terms as a binding contract and to abide by all Terms.
3. LOBAKI’S RIGHT TO MODIFY TERMS
We reserve the right to change or modify these Terms on a going-forward basis at any time and in our sole discretion. If we make changes to these Terms, we will provide notice of such changes as appropriate, such as by sending an email notification to the address you’ve provided and/or notice through the Services. If we make an administrative change, we may provide notice by updating the "Last Updated" date at the top of these Terms. The "Last Updated" date at the top of these Terms will indicate when the latest changes or modifications were made.
Your continued use of the Services will confirm your acceptance of the revised Terms. We encourage you to review these Terms from time to time to ensure you understand these Terms and conditions that apply to your access to, and use of, the Services. You may not modify these Terms without the prior written authorization of an officer of Lobaki. It is your responsibility to check these Terms from time to time to determine whether the Terms has been modified. IF YOU DO NOT AGREE TO ANY MODIFICATION OF THESE TERMS YOU MUST IMMEDIATELY CEASE USE OF THE SERVICES AND UNINSTALL ANY GAMES YOU MAY HAVE INSTALLED ON YOUR COMPUTER,VIRTUAL REALITY EQUIPMENT AND SOCIAL NETWORK PROFILES.
5. OWNERSHIP OF THE SERVICES AND INTELLECTUAL PROPERTY
The Services contain copyrighted material, technology, trademarks, service marks, trade secrets and other proprietary information, which may include computer code, text, data, video, images, illustrations, animations, sounds, musical compositions and recordings, designs, audiovisual effects, dialogues, slogans, places, characters, diagrams, concepts, choreographies, color schemes, business methods and methods of operation, concepts, ideas, know-how, moral rights, and any related documentation (collectively the “Proprietary Material”). All intellectual property rights to the Proprietary Material, including patent, copyright, trademark and trade secret rights, are owned or licensed by Lobaki.
Lobaki is a trademark or unregistered trademark of Lobaki Inc. The trademarks, services marks, trade names, trade dress, logos, page headers, custom graphics, button icons and scripts (collectively, "Marks") contained or described on our Services and any Marks associated with any products available on our Services) are the sole property of Lobaki and/or our licensors and may not be copied, imitated or otherwise used, in whole or in part, without the prior written authorization of us and/or our licensors.
You agree not to copy, download, reproduce, republish, upload, post, transmit, perform, display, distribute or sell, or in any other way exploit the Proprietary Material, or to participate with or to encourage others to engage in such acts, without the prior written consent of Lobaki. Moreover, you may not reverse engineer, disassemble, decompile, or translate any computer software programs that comprise Proprietary Material, or otherwise attempt to derive the source code of such programs, except to the extent allowed under any applicable law. If applicable law permits such activities, any information so discovered must be promptly disclosed to Lobaki and shall be deemed to be the confidential proprietary information of Lobaki. Nor may the Proprietary Material, or any portion thereof, be modified or used for any purpose other than as expressly authorized in these Terms. The Proprietary Material may include materials licensed by Lobaki from third parties, and the licensors of those materials may enforce their rights in the event of any violation of these Terms. ALL RIGHTS NOT EXPRESSLY GRANTED TO YOU IN THESE TERMS ARE RESERVED BY LOBAKI AND ITS LICENSORS.
Subject to your compliance with these Terms, Lobaki grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use one copy of the Game on a device that you own or control and to run such copy of the Game solely for your own personal, non-commercial entertainment purposes. Notwithstanding the first sentence in this Section, with respect to any Game access through or downloaded from the Online Store or any other store where virtual reality products are sold, you may have additional license rights with respect to use of the Game on a shared basis within your designated family group. The Services are licensed to you, as opposed to being sold or assigned to you, and your continued legal use of the Services is contingent upon your compliance with these Terms. This license is not a license for redistribution, so if you distribute the Game or Services, you’re violating this license.
Updates. You understand that Lobaki Services are evolving. As a result, Lobaki may require you to accept updates to Lobaki Services that you have installed on your computer, virtual reality equipment or mobile device. You acknowledge and agree that Lobaki may update Lobaki Services with or without notifying you. You may need to update third-party software from time to time in order to use Lobaki Services.
7. BETA TESTS
We may in our own discretion, permit You to test, evaluate or comment on one or more Services before they are marketed or launched, in order to identify bugs and errors in the programs and/or improve their functioning ("Beta Test"). You agree that the Beta Test content which is supplied to You under a Beta Test is highly confidential information belonging to us and that you shall not disclose or use such confidential information, unless authorized in writing by Lobaki. You may be required to sign a confidentiality or other agreement for each Beta Test in which You participate. You must perform the Beta Test personally. All comments, feedback, suggestions, ideas, criticisms and other data (collectively referred to as the "Comments") passed on, disclosed or offered to us in the course of the Beta Tests shall constitute the confidential information of Lobaki and will be the exclusive property of Lobaki. You therefore agree not to make your Comments accessible by any means or process to any outside party other than Lobaki. You acknowledge that, unless prohibited from doing so under applicable law, We may use, sell, promote and exploit the Comments in any way, without restriction and without compensation to You. You acknowledge that We may protect certain Beta Test content by incorporating technical protection measures in them to prevent any unlawful reproduction or modification of such content. Beta Test content is supplied to You "as is" and "according to availability" without any explicit or implicit guarantee of any kind. You use a beta version at your own risk. You accept that (i) the Beta Test version may include known or unknown bugs; and (ii) your progress and your data in the game may be erased at any time. At the end of the test period, or at any time when We ask You to do so, You shall return immediately all content received from us. You agree that violation of your obligations under this Section would cause us irreparable damage and that We would be entitled to take any action to prevent any breach or risk of a breach of your obligations or to obtain compensation for the damage We have incurred, in addition and without prejudice to the right to terminate your Account in accordance with these Terms. Nothing in these Terms may be interpreted as giving You any right or privilege regarding the Beta Test content.
8. OWNERSHIP OF UGC, FEEDBACK AND INVENTIONS
Our Services may include interactive features and areas where you may submit, post, upload, publish, email, send, otherwise transmit, or interact with content, including, but not limited to, text, images, photos, videos, sounds, virtual reality environments or features, software and other information and materials (collectively “UGC”). Unless otherwise agreed to, we do not claim any ownership rights in or to your UGC. If you use content covered by intellectual property rights that we have made available through our Services (for example, images, designs, videos, or sounds we provide that you add to content you create or share on our Services), we retain all rights to that content (but not yours). As between Lobaki and you, you own the copyright in any UGC that is exclusively created by you. By submitting UGC through the Services, You grant Us, in consideration of your use of the Services, a non-exclusive, perpetual, transferable, irrevocable, royalty-free, and fully sublicensable (i.e. we can grant this right to others) right and license to use, copy, display, store, adapt, publicly perform, and distribute such UGC in connection with Lobaki’s Services anywhere in the Universe.
You agree that we may use in any way we may choose without any obligation to you any comments, feedback, suggestions, questions, comments, ideas, plans, notes, drawings, or gameplay features, level designs, other submissions or information about us or our Services (“Feedback“) that you disclose, submit, or offer to us. Unless otherwise prohibited by law, We may use, sell, exploit, or create derivative works from these Feedback and, further, Lobaki may disclose these Feedback to third parties or the general public, without compensation to you.
YOU ACKNOWLEDGE THAT FEEDBACK AND UGC ARE PROVIDED BY YOU ON A COMPLETELY VOLUNTARY BASIS. SHOULD YOU NOT WISH TO HAVE YOUR FEEDBACK AND UGC INCORPORATED INTO ANY GAME OR WEBSITE FUNCTIONS, YOU MAY CHOOSE NOT TO SHARE THEM WITH LOBAKI.
9. USER-GENERATED CONTENT
You are solely responsible and liable for any UGC that you upload, post, input, publish or otherwise distribute using the Services. As a condition of your use of the Services, you agree not to use the Services for any unlawful or prohibited purpose. UGC prohibited from upload, display or posting on the Services includes, without limitation, UGC that Lobaki determines in its sole and absolute discretion:
(a) constitutes or includes any illegal or unauthorized copy, in whole or in part, of another person’s copyrighted or copyrightable work, discloses trade secrets without authorization, or otherwise violates the proprietary rights of a third party;
(b) misrepresents the source or identity of any material;
(c) is unlawful, harassing, obscene, defamatory, threatening, libelous, abusive, promotes racism, bigotry, hatred or physical harm of any kind against any individual or group, or encourages any other conduct that would be considered a criminal offense, create civil liability, or is otherwise offensive to users of the Site or inappropriate;
(d) violates the rights of privacy or publicity of any person;
(e) is deceptive or false;
(g) includes material that exploits people in a sexual or violent manner;
(f) displays pornographic or sexually explicit material of any kind;
(h) is an advertisement or solicitation to sell a product or service to Users of the Site, or constitutes any other commercial use of the Site, without the prior written consent of Lobaki;
(j) interferes with the proper functioning of the Services or Site, or violates any other of these Terms of these Terms; or
(i) is unlawful under the laws of the United States or any individual state or locality, the laws of any foreign jurisdiction, or any international treaty or convention.
You should not post any UGC if you are in doubt about its legality or its prohibition by these Terms. You acknowledge that Lobaki is a service provider that may allow Users to interact online regarding topics and content self-chosen by the Users. Lobaki does not endorse any UGC or any opinion, recommendation or advice that may be expressed. Lobaki generally does not regulate and shall have no obligation to monitor any UGC. Nonetheless, Lobaki and its agents shall have and reserve the right to monitor any UGC from time to time for any lawful purpose. Lobaki may, without notice to you, remove or block any UGC, including disabling access to such UGC. Lobaki also may terminate your access to the Site and refer the UGC to law enforcement if it is in violation of any federal, state or local law or regulation.
10. PROHIBITED USER CONDUCT
Subject to the permitted use of the Services granted in these Terms, you may not, in whole or in part, copy, photocopy, reproduce, translate, reverse engineer, derive source code from, modify, disassemble, decompile, or create derivative works based on the Service, or remove any proprietary notices or labels from the Service. Failure to comply with the restrictions and limitations contained in this Section will result in the immediate, automatic termination of your access to the Services and may subject you to civil and/or criminal liability.
You further agree that you will not, under any circumstances:
(a) frame or otherwise display any portion of the Services or its contents that is not your UGC without prior authorization;
(b) access or use the Services in any manner that could interfere with, disrupt, negatively affect or inhibit anyone from fully enjoying the Services, including, but not limited to, defamatory, harassing, threatening, bigoted, hateful, vulgar, obscene, pornographic, or otherwise offensive behavior or content.(c) sell, grant a security interest in, or transfer reproductions of all or any portion of the Services to other parties in any way not expressly authorized herein, nor shall you rent, lease or license all or any portion of the Services to others;
(d) use any robot, spider, crawler, scraper or other automated means or interface not provided or authorized by us to access the Services or to extract data;
(e) exploit the Services or any of its parts for any commercial purpose whatsoever without the express prior written authorization of Lobaki;
(f) host, provide or develop services for or using the Services, or intercept, emulate or redirect the communication protocols used by Lobaki in any way, including without limitation through protocol emulation, tunneling, packet sniffing, modifying or adding components to the Services, use of a utility program or any other techniques now know or hereafter developed, for any purpose, including without limitation unauthorized access in any form over the Internet;
(g) develop or allow any malware, adware, spyware, Trojan Horses, cancelbots, other automated “bots”, “auto players”, cheat utilities, spoofers, keyloggers, or other circumvention devices to be present on any machine used to access the Services; and/or to attempt to upload/utilize such devices against the Services;
(h) facilitate, create or maintain any unauthorized connection to the Services, or any portion thereof, including without limitation any connection to any unauthorized server that emulates, or attempts to emulate, the Services. All connections to the Services, or any portion thereof, may only be made through methods and means expressly approved by Lobaki. Under no circumstances may you connect, or create tools that allow you or others to connect to the Services, or any portion thereof, other than those expressly provided by Lobaki;
(i) use vulgar, obscene, pornographic language or other behavior while in any forums, chat rooms, or other public areas that we may offer, which will disrupt the User experience in those areas of the Site or Services;
(j) collect, harvest, scrape or capture any User information, email addresses or other personal data of the Users to send unsolicited emails or any other communication, whether this is done for commercial gain;
(h) use the Services in connection with any contests, surveys, chain letters, pyramid schemes or other similar services, whether or not they are used for commercial gain;
(k) use the Services in a manner prohibited by any applicable law or government regulation, or by these Terms; or
(l) you shall not access Lobaki Service in order to build a similar or competitive website, application or Service.
We are not responsible for and do not endorse the opinions, advice and/or recommendations displayed or sent by Users on our Services, including on any public forum and decline any responsibility in this regard.
Subject to applicable law, We do not undertake to monitor or remove the content, messages and other information made available on our Services by Users. We nevertheless reserve the right, without this constituting an obligation, to review such content, including without limitation the ability to contact You to confirm that You are the owner of the elements (text, words, images, sounds, videos, etc.) posted, and/or to remove any such content at its discretion, including without limitation, refusing any Username, avatar, screen name and/or password You have chosen. We further reserve the right to define additional rules of conduct and to place limits on the use of our Services.
11. ACCOUNT REGISTRATION AND SECURITY
To access and use certain features of the Services, you may be required to register for an account (an “Account”). By creating an account, you agree to: (i) provide accurate, current and complete account information, including a valid email address; (ii) maintain the security of your password, not share your password with any other person and accept all risks of unauthorized access to your account; and (iii) promptly provide notice at support@Lobaki.com if you discover or otherwise suspect any unauthorized use of your account or security breaches related to the Services. Certain Services may require the creation of a "Username" or an "Avatar". You agree that your Username and/or Aavatar are linked to your Account and will be publicly displayed. We therefore advise You not to include your last name in your Username. Further, You may not use a Username and/or an Avatar which is already used by someone else or which does not meet the requirements of these Terms (including without limitation any Game Code of Conduct). We reserve the right to refuse registration of, or cancel, a Username and/or Aavatar in our sole discretion. In cases where you do not choose a Username, Lobaki may automatically assign you a Username to identify you to our servers.
You may not select or use as a Username a name of another person with the intent to impersonate that person; use as a Username a name subject to any rights (including trademarks or copyrights) of a person other than you without appropriate authorization; or use as a Username a name that is otherwise offensive, vulgar or obscene. Lobaki reserves the right to refuse registration of, or to cancel, a Username in its sole and absolute discretion. Notwithstanding the foregoing, you acknowledge that Lobaki cannot guaranty the accuracy of any information submitted by any User of the Services, nor any identifying information about any User. You are solely responsible for the activity that occurs through your account. You shall be solely responsible for maintaining the confidentiality of your password. You may not share your account with a third party or use the account of a third party. You may cancel your account at any time upon written notice to Lobaki.
12. PAYMENTS AND THIRD-PARTY PAYMENT PROCESSOR
Lobaki fees are net of any applicable Sales Tax. If any Services, or payments for any Services, under these Terms are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Lobaki or its payment processor, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Lobaki for any liability or expense we may incur in connection with such Sales Taxes. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this Section, "Sales Tax" shall mean any sales or use tax, and any other tax measured by sales proceeds, that Lobaki is permitted to pass to its customers, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
13. PROMOTIONAL PROGRAMS
Lobaki may implement marketing and promotional programs in which Users are offered benefits or considerations based upon the performance of specified activities, the satisfaction of specified requirements, or other criteria. Any such program, including the eligibility and selection of Users, the award, compensation or other benefit to be granted Users, if any, and the duration, shall be at the sole and absolute discretion of Lobaki. You acquire no right or interest to participate in such program or to the impartial implementation of the program and distribution of any awards, compensation or benefits. You hereby expressly waive and disclaim any such right or interest as a material term of these Terms. To the extent such program may involve one or more third parties, you further expressly waive and disclaim any such right or interest against such third party. Lobaki may elect in its sole and absolute discretion to contact you with regard to a program. You hereby expressly authorize Lobaki to contact you by means of the contact information you have provided to Lobaki.
14. LINKS TO THIRD-PARTY WEBSITES AND APPLICATIONS
Solely as a convenience to Users, the Services may contain links to third-party websites, applications or other third-party services, and you understand that by accessing third-party links, you may be exposed to content that is offensive, harmful, inaccurate or otherwise inappropriate. You understand and agree that we are not responsible or liable for the availability or accuracy of such third-party properties or the content, products or services made available through such properties. We do not endorse or control such third-party properties and we make no representations or warranties of any kind regarding such properties. If you access or use any third-party properties, you should also be aware that such third parties’ terms and policies will govern.
15. HEALTH AND SAFETY
We advise You to take the following precautions in all cases when using a video game. Avoid playing if You are tired and/or short of sleep, under influence of alcohol or drugs or suffering emotional stress or anxiety. If you are pregnant, elderly, have vision abnormalities or psychiatric disorders, or suffer from a heart condition or other serious medical condition, we strongly recommend seeing a doctor before using the VR headset. Make sure that You play in a well-lit room and moderate the brightness of your screen. When You play a video game requiring connection to a screen, play at a good distance from the screen and as far away as the connection lead allows. While using the game, take breaks of 10 to 15 minutes every hour.
Epilepsy warning: In addition, some individuals may have epileptic seizures including, in certain cases, with loss of consciousness, particularly when exposed to strong luminous stimulations (rapid succession of images or repetition of simple geometrical figures, flashes or exposures). Such individuals are exposed to risks of seizures when they play certain video games containing such luminous stimulations; consult your doctor before any use. Parents must also pay particularly close attention to their children when they play video games. If You or your child present one of the following symptoms: dizziness, vision problems, contraction of the eyes or muscles, disorientation, involuntary movement or convulsions or momentary loss of consciousness, You should immediately stop playing and consult a doctor.
ADDITIONAL HEALTH AND SAFETY WARNINGS AND INSTRUCTIONS MAY BE PROVIDED BY THIRD PARTY DEVICE MANUFACTURERS AND GAME PLATFORMS ON WHICH YOU MAY ACCESS THE SERVICES. YOU REPRESENT AND WARRANT THAT YOU WILL READ ALL SUCH HEALTH AND SAFETY WARNINGS AND INSTRUCTIONS BEFORE USING THE SERVICES. YOU ARE SOLELY RESPONSIBLE FOR READING AND FOLLOWING ANY AND ALL INSTRUCTIONS PROVIDED BY PROVIDERS OF VIRTUAL REALITY HEADSETS, PRIOR TO CONNECTING TO AND USING THE SERVICES. Lobaki has no responsibility or liability to you related to the functionality of any virtual reality headset provided by a third party (e.g., Lobaki is not responsible for any malfunction of or physical damage to such a device as the result of perspiration or any moisture that might affect how the device works, or for any other reason).
16. USE OF THE SERVICES OUTSIDE OF THE UNITED STATES
The Services are controlled and operated by Lobaki in the State of Mississippi, United States of America. Lobaki makes no representations or warranties, either express or implied, that Services and other materials available through the Services are appropriate, legally permissible or available for use in other locations. Those who choose to access the Service from other locations do so at their own risk and are responsible for compliance with all federal, state and local laws. Whether or not you use the Services inside the United States of America, you agree to abide by any applicable export control laws and not to transfer, by electronic transmission or otherwise, any UGC, software or other materials subject to restrictions under such laws to a national destination prohibited by such laws, without first obtaining, and then complying with, any requisite government authorization. You further agree not to upload to the Services any data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software.
You represent and warrant that you (a) are not identified on the Office of Foreign Assets Control’s Specially Designated Nationals List ("SDN List"), (b) are not placed on the U.S. Department of Commerce’s Denied Persons List or Entity List or any other U.S. export control list, (c) will not use IP proxying or other methods to disguise the place of your residence, (d) will not use the Services if any applicable laws in your country prohibit you from doing so in accordance with these Terms and (e) have not previously had your right to use the Services suspended or terminated.
(a) YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES AND ANY ACCOMPANYING DOCUMENTATION AND MATERIAL ARE BEING PROVIDED TO YOU “AS IS” AND "AS AVAILABLE", WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND WHATSOEVER. WITHOUT LIMITING THE INTENDED GENERALITY OF THE PRECEDING SENTENCE, LOBAKI PARTIES (DEFINED IN SECTION 18 BELOW) DO NOT WARRANT THAT THE SERVICES OR ANY PORTION THEREOF (i) WILL BE UNINTERRUPTED, SECURE OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED; (ii) IS COMPATIBLE WITH ANY SOFTWARE, INCLUDING WITHOUT LIMITATION INTERNET BROWSER SOFTWARE; (iii) IS FREE OF INFECTION BY VIRUSES, WORMS, TROJAN HORSES OR ANYTHING ELSE MANIFESTING CONTAMINATING OR DESTRUCTIVE PROPERTIES; OR (iv) IS FREE OF DEFAMATORY, DEROGATORY OR ADULT-ORIENTED MATERIAL, OR MATERIAL THAT SOME INDIVIDUALS MAY DEEM OFFENSIVE OR OBJECTIONABLE. TO THE FULLEST EXTENT ALLOWED BY LAW, THE LOBAKI PARTIES DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE OR NON-INFRINGEMENT.
(b) LOBAKI PARTIES ARE NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SERVICES. UNDER NO CIRCUMSTANCES WILL LOBAKI PARTIES BE RESPONSIBLE FOR ANY LOSS OR DAMAGE, INCLUDING, WITHOUT LIMIATION, DAMAGE TO PROPERTY, PERSONAL INJURY OR DEATH, RESULTING FROM YOUR USE OF THE SERVICES, ANY UGC POSTED ON THE SITE OR SERVICE OR TRANSMITTED TO ANOTHER USER, OR ANY TRANSACTIONS BETWEEN OR AMONG YOU AND OTHER USERS, WHETHER ONLINE OR OFFLINE.
(c) THE SERVICES ARE CONTROLLED AND PROVIDED BY LOBAKI FROM ITS FACILITIES IN THE UNITED STATES OF AMERICA. LOBAKI PARTIES MAKE NO REPRESENTATION THAT THE SITE OR THE SERVICES ARE APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS. IF YOU ACCESS OR USE THE SITE OR THE SERVICES FROM OUTSIDE THE UNITED STATES, YOU DO SO VOLUNTARILY AND ARE RESPONSIBLE FOR COMPLIANCE WITH THE LAWS APPLICABLE TO YOUR LOCATION.
(d) THE FOREGOING DISCLAIMER OF WARRANTIES WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE LAWS OF SOME STATES OR JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO SOME OR ALL OF THE DISCLAIMERS IN THIS SECTION MAY NOT APPLY TO YOU.
(e) Medical Disclaimer. IN SUBSCRIBING TO OR OTHERWISE USING THE SERVICES, YOU AFFIRM THAT EITHER YOUR PHYSICIAN HAS APPROVED YOUR USE OF THE SERVICES OR THAT ALL OF THE FOLLOWING STATEMENTS ARE TRUE: (I) NO PHYSICIAN HAS EVER INFORMED YOU THAT YOU HAVE A HEART CONDITION OR THAT YOU SHOULD ONLY DO PHYSICAL ACTIVITIES RECOMMENDED BY A PHYSICIAN; (II) YOU HAVE NEVER FELT CHEST PAIN WHEN ENGAGING IN PHYSICAL ACTIVITY; (III) YOU HAVE NOT EXPERIENCED CHEST PAIN WHEN NOT ENGAGED IN PHYSICAL ACTIVITY AT ANY TIME IN THE PAST MONTH; (IV) YOU HAVE NEVER LOST YOUR BALANCE BECAUSE OF DIZZINESS AND YOU HAVE NEVER LOST CONSCIOUSNESS AS A RESULT OF EXERTION; (V) YOU DO NOT HAVE A BONE OR JOINT PROBLEM THAT COULD BE MADE WORSE BY A CHANGE IN YOUR PHYSICAL ACTIVITY; (VI) YOUR PHYSICIAN IS NOT CURRENTLY PRESCRIBING DRUGS FOR YOUR BLOOD PRESSURE OR HEART CONDITION; (VII) YOU DO NOT HAVE A HISTORY OF HIGH BLOOD PRESSURE; AND (VIII) YOU DO NOT KNOW OF ANY OTHER REASON YOU SHOULD NOT EXERCISE.
(f) Play Space Environment Disclaimer. ALWAYS BE AWARE OF YOUR SURROUNDINGS BEFORE BEGINNING USE AND WHILE USING YOUR HEADSET. IN USING THE SERVICES, YOU ACKNOWLEDGE AND AGREE THAT YOU ARE RESPONSIBLE FOR CREATING AND MAINTAINING A SAFE ENVIRONMENT FOR USE AT ALL TIMES. BECAUSE SERIOUS INJURIES MAY OCCUR FROM TRIPPING OR RUNNING INTO OR STRIKING WALLS, FURNITURE, OTHER OBJECTS OR PEOPLE, CLEAR AN AREA FOR SAFE USE BEFORE USING YOUR HEADSET. PLEASE TAKE SPECIAL CARE TO ENSURE THAT YOU ARE NOT NEAR ITEMS THAT YOU MAY HIT OR STRIKE, OR AREAS WHICH MAY CAUSE YOU TO LOSE YOUR BALANCE WHEN USING, OR IMMEDIATELY AFTER USING, YOUR HEADSET, LIKE OTHER PEOPLE, OBJECTS, STAIRS OR STEPS, RAMPS, SIDEWALKS, BALCONIES, OPEN DOORWAYS, WINDOWS, FURNITURE, OPEN FLAMES, CEILING FANS OR LIGHT FIXTURES, TELEVISIONS OR MONITORS OR OTHER THINGS. TAKE APPROPRIATE STEPS TO PREVENT PEOPLE OR PETS WHO DO NOT UNDERSTAND YOUR PERCEPTIONS ARE LIMITED FROM ENTERING YOUR PLAY SPACE.
(g) No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT LOBAKI PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD LOBAKI PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES OR PLATFORMS, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
(h) No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF LOBAKI SERVICES. YOU UNDERSTAND THAT LOBAKI DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF LOBAKI SERVICES.
(H) FROM TIME TO TIME, LOBAKI MAY OFFER NEW "BETA" FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT LOBAKI’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
18. LIMITATION OF LIABILITY
YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL LOBAKI, AND ITS AFFILIATES, INDEPENDENT CONTRACTORS, SERVICE PROVIDERS, SUPPLIERS, PARTNERS, AND LICENSORS, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS (THE “LOBAKI PARTIES”) BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT LOBAKI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF LOBAKI SERVICES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE SERVICES; (2) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (3) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON LOBAKI SERVICES; OR (4) ANY OTHER MATTER RELATED TO LOBAKI SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. YOU UNDERSTAND AND AGREE THAT LOBAKI PARTIES CANNOT AND WILL NOT BE RESPONSIBLE FOR ANY LOSS OF YOUR UGC OR ANY INTERRUPTIONS OF SERVICE, INCLUDING BUT NOT LIMITED TO ISP DISRUPTIONS, SOFTWARE OR HARDWARE FAILURES, OR ANY OTHER EVENT WHICH MAY RESULT IN A LOSS OF DATA OR A DISRUPTION OF SERVICE.
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE LOBAKI PARTIES ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE GREATER OF ONE HUNDRED US DOLLARS (US$100) OR THE AMOUNT YOU PAID US TO USE THE SERVICES.
THE FOREGOING DISCLAIMER OF CERTAIN DAMAGES AND LIMITATION OF LIABILITY WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE LAWS OF SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO SOME OR ALL OF THE EXCLUSIONS AND LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU.
To the maximum extent permitted by law, you agree to defend, indemnify and hold harmless the Lobaki Parties, from and against all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to reasonable attorney fees) arising from your (i) use of the Services, (ii) your violation of any of these Terms or any other applicable terms, policies, warnings or instructions provided by Lobaki or a third party in relation to the Services, (iii) your violation of any third-party right, including without limitation any copyright, trade secret, privacy or property right, or any claim that your UGC or Feedback caused damage to a third-party, or (iv) your violation of any applicable laws, rules or regulations. Lobaki reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Lobaki in asserting any available defenses. This provision does not require you to indemnify any of the Lobaki Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Site or any Services provided hereunder. You agree that the provisions in this Section will survive any termination of your Account, the Terms and/or your access to the Services.
20. ARBITRATION AGREEMENT: BINDING INDIVIDUAL ARBITRATION
Please read the following arbitration agreement in this Section ("Arbitration Agreement") carefully. It requires you to arbitrate disputes with Lobaki and limits the manner in which you can seek relief from us.
0. Applicability of Arbitration Agreement. You agree that any Dispute (defined below) will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court, if all the requirements of the small claims court, including any limitations on jurisdiction and the amount at issue in the Dispute, are satisfied and you agree to bring a Dispute in small claims court in Madison County MS, and; (2) you or Lobaki may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all Disputes that arose or were asserted before the effective date of these Terms or any prior version of these Terms.
"Dispute" as used in this Section means any dispute, cause of action, claim, or controversy arising out of or in any way related to Lobaki in connection with these Terms, the subject matter of these Terms, or access to and use of the Services, including but not limited to contract, personal injury, tort, warranty, statute or regulation, or other legal or equitable basis and disputes that involve third parties, except any dispute, cause of action, claim, or controversy relating to Lobaki’s intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights, and/or patents).
1. Arbitration Rules and Forum. In the event of any difference of opinion or dispute between the parties with respect to the construction or interpretation of this Agreement, or the alleged breach thereof, which cannot be settled amicably by agreement of the parties, such dispute shall be submitted to and determined by arbitration in the State of Mississippi in accordance with the commercial rules of the American Arbitration Association by a single arbitrator. Any arbitration award shall be final. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your Dispute to our registered agent Kevin Loud 736 S President Street #106, Jackson MS 39201.
2. Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Lobaki. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and these Terms (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
3. Waiver of Jury Trial. YOU AND LOBAKI HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Lobaki are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 20.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Arbitration Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
4. Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES BROUGHT AGAINST LOBAKI AND THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought into the State or Federal Courts located in Madison County, the State of Mississippi. All other claims shall be arbitrated.
5. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to support@Lobaki.com, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Lobaki username (if any), the email address you used to set up your Lobaki account, and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of these Terms will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
6. Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
7. Survival of Agreement. This Arbitration Agreement will survive the termination of these Terms or your relationship with Lobaki.
8. Modification. Notwithstanding any provision in these Terms to the contrary, we agree that if Lobaki makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by sending an email to Lobaki to support@Lobaki.com notifying Lobaki clearly that you reject such term.
21. GENERAL PROVISIONS
You agree that the Services shall be deemed exclusively based in the State of Mississippi, USA, and these Terms shall be deemed to have been made and executed exclusively in the State of Mississippi, USA. Any dispute arising out of these Terms shall be resolved in accordance with the laws of the State of Mississippi, USA without reference to its conflict of law provisions. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms. To the extent the parties are permitted under these Terms to initiate litigation in a court, both you and Lobaki agree that all claims and Disputes arising out of or relating to these Terms will be litigated and maintained exclusively in the state or federal courts located in Madison, Mississippi, having subject matter jurisdiction with respect to such Dispute. You and Lobaki agree to submit to the personal jurisdiction of such court. The prevailing party in any such proceeding shall be entitled to reimbursement of court costs, including a reasonable attorney fee, in addition to any other remedy awarded. In the event any provision of these Terms shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be enforced to the maximum extend permissible and the remaining portions of these Terms shall remain in full force and effect. You may not transfer or assign any of your rights or obligations provided in these Terms without the express prior written approval of Lobaki; Lobaki may assign these Terms without restriction of any kind. No failure on the part of Lobaki to enforce any provision of these Terms shall be deemed a waiver or consent. These Terms constitutes and contains the entire agreement and understanding between you and Lobaki with respect to the subject matter hereof and supersedes any prior oral or written agreements or understandings. Lobaki shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, plague, fear of plague, fuel, energy, labor or materials. All provisions of these Terms, which by their nature should survive, shall survive termination of these Terms and/or the Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
22. INFRINGEMENT NOTICE
In accordance with the Digital Millennium Copyright Act ("DMCA") and other applicable laws, we have adopted a policy of terminating, in appropriate circumstances and in our sole discretion, accounts of users who are deemed to be repeat infringers. We may also, in our sole discretion, limit access to the Lobaki Services and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
If you believe that anything on or available through the Lobaki Services infringes upon any copyright which you own or control, you may file a notification of such infringement with our Designated Agent as set forth below:
736 S. President St. #106, Jackson, MS 39201
Please see 17 U.S.C. §512(c)(3) (available at https://www.copyright.gov/title17/92chap5.html#512) for the requirements of a proper notification. If you knowingly misrepresent in your notification that the material or activity is infringing, you will be liable for any damages, including costs and attorneys’ fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
23. ELECTRONIC COMMUNICATIONS
The communications between you and Lobaki may take place via electronic means, whether you visit Lobaki Services or send Lobaki e-mails, or whether Lobaki posts notices on Lobaki Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Lobaki in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Lobaki provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
24. CONSUMER COMPLAINTS
In accordance with Mississippi Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the Mississippi Department of Consumer Affairs by contacting them in writing at 550 High Street, Jackson, MS 39205, or by telephone at (601) 359-3680.
Where Lobaki requires that you provide an e-mail address, you are responsible for providing Lobaki with your most current e-mail address. In the event that the last e-mail address you provided to Lobaki is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by these Terms, Lobaki’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Lobaki by email to the following address: support@Lobaki.com
26. CONTACT US
If you have any questions or concerns regarding these Terms or the Lobaki Services, please contact us by email at support@Lobaki.com.