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Terms of Service

Wombat Studio, Inc. ("Wombat Studio," "we" or "us") is pleased to provide you with access to the Magic Poser platform, which allows a user ("User" or "you") to upload, download, and/or publish 3D models and scenes on the Magic Poser mobile app (the “App”) and website. All elements of the Magic Poser platform, along with our proprietary technology that allows users to create 3D characters, poses, scenes, and animations, are referred to in this Agreement as the "Services."


By registering with us, or by using the Services, you agree to be bound by these Terms of Service (the "Agreement") which we may update from time to time. If we do so, we’ll let you know, either by posting the updated Terms on our Site or through other communications. It’s important that you review the updated Agreement whenever we update it or you use the Services. Your continued use of the Services constitutes your consent to such changes. PLEASE READ THIS AGREEMENT CAREFULLY AND CHECK THESE TERMS OF SERVICE PERIODICALLY FOR CHANGES. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, YOU MAY NOT USE THE SERVICES.


Our Privacy Policy, which explains how we use your personal data, is located here. By using the Services, you agree that your information may be collected and used in accordance with our Privacy Policy and this Agreement.


IMPORTANT NOTICE REGARDING ARBITRATION: WHEN YOU AGREE TO THIS AGREEMENT, YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND WOMBAT STUDIO THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 11 “DISPUTE RESOLUTION” BELOW FOR DETAILS REGARDING ARBITRATION (INCLUDING THE PROCEDURE TO OPT OUT OF ARBITRATION).

Contents

Wombat Studio Terms of Service


1. General Conditions

2. Purchases

3. Rights and Terms for Apps

4. Content

5. User Restrictions and Obligations

6. Warranty Disclaimers, Limitations of Liability, Indemnity

7. Governing Law and Forum Choice

8. Dispute Resolution

9. General Terms

10. Contact Information

1. General Conditions

a) Eligibility

While some App functionality is provided to all users, to create an account on the Services, you must be at least 13 years of age (or such other minimum age as is applicable in your country of residence), and not otherwise barred from using the Services under applicable law. By using the Services, you represent and warrant that you (or your parent or legal guardian, as required by applicable law if you are unable to form a binding contract) have reviewed and agreed to this Agreement. Parents and guardians are responsible for the acts of their children when using our Services.


Account A Magic Poser account is required in order to take full advantage of the Services. An account can be created directly by signing up in the App, or via third-party website accounts such as Twitter, Google or Facebook. You agree to provide only accurate and true information in connection with the creation of your account, and to update your information as necessary so it remains accurate and current. You may not transfer your account to any third party. You are responsible for keeping your account login information confidential and for any and all activities that occur under your account. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your account or other breach of security on the Services. You will have the ability to pick an available username to link to your account. Please note that Wombat Studio retains the right at any time to deactivate, reallocate your username at its sole discretion. In the event of the deactivation, reallocation or renaming of your username, all your User Content and Services shall continue to remain associated with your account, subject to the terms of this Agreement.


b) Access

We may, in our sole discretion, refuse to offer the Services to any person or entity. We do not guarantee that any portion of our Service will be available at all times, in all locations, or at any given time. We may, in accordance with this Agreement, modify the Services without notice to you, or terminate your right to use the Services, or any portion thereof, and block or prevent your future access to and use of the Services or any portion thereof.

2. Purchases

a) One-Time Payments and Subscriptions.

Wombat Studio requires payment of a fee for use of the Services (or certain portions thereof) and you agree to pay such fees. You have the option of making a one-time payment (“One-Time Payment”) or purchasing a subscription (“Subscription”) for such use.


b) General.

Whether you make a One-Time Payment or purchase a Subscription (each, a “ Transaction”), you expressly authorize us (or our third-party payment processor) to charge you for such Transaction. We may ask you to supply additional information relevant to your Transaction, including your credit card number, the expiration date of your credit card and your email and postal addresses for billing and notification (such information, “ Payment Information”). You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. When you initiate a Transaction, you authorize us to provide your Payment Information to third parties so we can complete your Transaction and to charge your payment method for the type of Transaction you have selected (plus any applicable taxes and other charges). You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information). By initiating a Transaction, you agree to the pricing, payment and billing policies applicable to such fees and charges, as posted or otherwise communicated to you. All payments for Transactions are non-refundable and non-transferable except as expressly provided in these Terms. All fees and applicable taxes, if any, are payable in United States dollars.


c) Subscriptions.

If you purchase a Subscription, you will be charged a monthly Subscription fee, plus any applicable taxes, and other charges (“ Subscription Fee”), at the beginning of your Subscription and each year thereafter, at the then-current Subscription Fee. BY PURCHASING A SUBSCRIPTION, YOU AUTHORIZE WOMBAT STUDIOS TO INITIATE RECURRING NON-REFUNDABLE PAYMENTS AS SET FORTH BELOW. If you purchase a Subscription, we (or our third-party payment processor) will automatically charge you each month on the anniversary of the commencement of your Subscription, using the Payment Information you have provided until you cancel your Subscription. No less than thirty (30) days and no more than sixty (60) days before your Subscription the annual anniversary of your Subscription, or otherwise in accordance with applicable law, we will send you a reminder with the then-current Subscription Fee. By agreeing to these Terms and electing to purchase a Subscription, you acknowledge that your Subscription has recurring payment features and you accept responsibility for all recurring payment obligations prior to cancellation of your Subscription by you or Wombat Studios. Your Subscription continues until cancelled by you or we terminate your access to or use of the Services or Subscription in accordance with these Terms.


d) Cancelling One-Time Payment or Subscription.

YOUR PURCHASE IS FINAL AND YOU WILL NOT BE ABLE TO CANCEL THE PURCHASE AND/OR RECEIVE A REFUND OF YOUR ONE-TIME PAYMENT OR SUBSCRIPTION FEE AT ANY TIME. But if something unexpected happens in the course of completing a Transaction, we reserve the right to cancel your Transaction for any reason; if we cancel your Transaction we’ll refund any payment you have already remitted to us for such Transaction. Without limiting the foregoing, you may cancel your Subscription at any time, but please note that such cancellation will be effective at the end of the then-current Subscription period. EXCEPT AS SET FORTH ABOVE WITH RESPECT TO YOUR INITIAL SUBSCRIPTION PURCHASE, YOU WILL NOT RECEIVE A REFUND OF ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN CURRENT SUBSCRIPTION PERIOD AT THE TIME OF CANCELLATION. To cancel, you can do so in iOS Settings app by following Apple's instructions at https://support.apple.com/en-us/HT202039. You will be responsible for all Subscription Fees (plus any applicable taxes and other charges) incurred for the then-current Subscription period. If you cancel, your right to use the Services will continue until the end of your then current Subscription period and will then terminate without further charges.

3. Rights and Terms for Apps

a) Rights in App Granted by Wombat

Subject to your compliance with this Agreement, we grant to you a limited non-exclusive, non-transferable license, with no right to sublicense, to download and install a copy of the App on a mobile device or computer that you own or control, and to run such copy of the App.


You may not copy the App, except for making a reasonable number of copies for backup or archival purposes. Except as expressly permitted in this Agreement, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App; or (iv) make the functionality of the App available to multiple users through any means. We reserve all rights in and to the App not expressly granted to you under this Agreement.


b) Accessing Our App from App Store

The following terms apply to any App accessed through or downloaded from any app store or distribution platform (like the Apple App Store or Google Play) where the App may now or in the future be made available (each an “App Provider”). You acknowledge and agree that:


4. Content

a) Definitions.

For purposes of this Agreement:


b) Our Content Ownership.

Wombat Studio does not claim any ownership rights in your User Content, and nothing in this Agreement will be deemed to restrict any rights that you may have to use and exploit your User Content. Subject to the foregoing, Wombat Studio or its licensors own and retain, solely and exclusively, all rights, title and interest in and to the Services, and all Content that we or our licensors create and make available to you through the Services, including but not limited to any and all copyrights, trademark rights, trade secret rights, patent rights, database rights and other intellectual property and proprietary rights therein. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content.


c) Our License to You

We grant you a limited, non-exclusive, non-sublicensable and non-transferable license to use the Services as they are provided to you by us, only as set forth in this Agreement. We also grant you a limited, non-exclusive, non-transferable, revocable license, with no right to sublicense, to download, view, copy, display and print any Content posted or shared with you on the Service.

Under this license, you may use the App (and for the avoidance of doubt, any User Content you create and export via the App) for your personal and professional use, including commercial exploitation. However, except as permitted under applicable law notwithstanding this provision, you may not use the App or our Content to do the following:

  1. create or distribute any product or service that competes with any Wombat Studio Service, including but not limited to a pose tool, library, or sharing platform;
  2. resell, repackage, or otherwise distribute the App or our Content, or pass it off as your own work; or
  3. otherwise interfere with our ability to provide the Services.

All software and software-as-a-service (SAAS) used in connection with the Services ("Software") is proprietary to us or to third parties, and except as may be required to exercise the foregoing license grant, any use, redistribution, sale, decompilation, reverse engineering, disassembly, translation or reduction of such software to human-readable form is prohibited. You agree that we may update the Software without notice, at any time and in our sole discretion, and that this Agreement will apply to any updated versions.


d) Your License to us

i) Use by us.

By making any User Content available through the Services, you grant Wombat Studio a worldwide, non-exclusive, royalty-free, perpetual, irrevocable, sub-licensable (through multiple tiers) right and license to use, reproduce, publicly display, distribute and adapt your User Content for the purposes of (i) developing, distributing, providing, improving, and promoting the Services, (ii) distributing and making your publicly shared User Content available via the Services, and (iii) monetizing and commercially exploiting your publicly shared User Content in any manner in which we see fit. You further grant us the right to use your name and trademarks, if any, in connection with our use of your publicly shared User Content.


ii) Use by other users.

If you upload your User Content to our Community publicly, you agree that other users may access and download your User Content subject to this Agreement.


e) Your responsibility for your User Content

By submitting User Content, you represent and warrant that (i) you own or otherwise control all of the rights to your User Content, (ii) your User Content does not infringe any third-party rights intellectual property rights, privacy rights and publicity rights, (iii) your User Content will not violate this Agreement, and that (iv) to the greatest extent permitted by law, you hereby irrevocably and unconditionally waive any and all moral rights whatsoever, or any rights of a similar nature, in your User Content, for the benefit of or in favor of Wombat Studio, including any right to be associated with your User Content (right of paternity) or any right to restrict or prevent the modification or use of your User Content in any manner whatsoever (right of integrity). To the extent you retain any such moral rights under applicable law, you hereby agree not to assert them against Wombat Studio or other Wombat Studio users in any manner whatsoever.


f) User Feedback

We appreciate your feedback and suggestions about our Services, but you agree that any feedback or suggestions submitted to us about the Services are entirely voluntary, and that we will be free to use any such feedback or suggestions as we see fit and without any obligation to you.


g) Right to Monitor or Remove

You agree that you bear all risks associated with your User Content. You are solely responsible for safeguarding your User Content, and Wombat Studio has no duty to store copies of User Content for future availability to you or any user, except as otherwise provided under this Agreement. We reserve the right to remove User Content from the Services, in whole or in part, without prior notice, for any reason or for no reason at all. We also reserve the right to decide whether User Content is appropriate and complies with this Agreement. This shall extend to the right of Wombat Studio to remove all or part of the descriptions, comments and/or annotations that You and/or third parties add and/or make in relation to your User Content, in any manner that We may determine, whenever We deem it appropriate.

5. User Restrictions and Obligations

It is important to us that the Services be used safely, and in accordance with the law, for the enjoyment of all our users. You agree that you will not use the Services to:

1. Decompile, disassemble, reverse engineer, copy, transfer, or otherwise use the Services or Content except as permitted by this Agreement;
2. Promote any illegal activity, or advocate, promote or assist any unlawful act;
3. Violate the legal rights (including the rights of publicity and privacy) of others, or transmit any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement and our Privacy Policy;
4. Transmit any material or content that is pornographic, threatening, harassing, libelous, hate-oriented, harmful, defamatory, racist, xenophobic, illegal or otherwise inappropriate;
5. Transmit any material or content that attempts to falsely state or otherwise misrepresent your identity or affiliation with a person or entity;
6. Transmit material or content that promotes, provides, or relates to instructional information about illegal activities or promotes physical harm or injury against any individual or group;
7. Transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
8. Transmit or encourage the transmission of any material that may infringe the intellectual property rights or other rights of third parties, including trademark, copyright, patent, or right of publicity, or which otherwise constitutes or promotes counterfeit materials or goods;
9. Use the services in a manner that (a) is likely to interrupt, suspend, slow down or hinder the continuity of the Services, (b) constitutes an intrusion or attempt to break into the Services or Wombat Studio’s computer or networking systems, (c) will divert of the Services' system resources, (d) may place a disproportionate load on the infrastructure of the Services, or (e) constitutes an attack on security and authentication measures of the Services or Wombat Studio’s computer or networking systems.
10. Intrude into a third party's computer system, engage in any activity that may damage, control, interfere with or intercept all or part of a third party's computer system and violate its integrity or security, or otherwise transmit any materials or content that is harmful for third party information systems (including but not limited to viruses, worms, Trojans);
11. Impersonate or misrepresent your affiliation with any person or entity;
12. Remove, hide, or alter the Magic Poser logo watermark;
13. Otherwise use the Services for purposes other than those for which they were designed; and
14. Encourage or enable any other individual to do any of the foregoing.

Additionally, you agree to inform Wombat Studio promptly about any legal complaint, claim or action related to the User Content you have uploaded using the Services.

6. Warranty Disclaimers, Limitations of Liability, Indemnity

DISCLAIMER OF WARRANTIES. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. WOMBAT STUDIO EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING: (i) ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING AND USAGE OF TRADE; (ii) THAT THE SERVICES AND CONTENT WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR; (iii) AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE OPERATION, USE OR OTHER EXPLOITATION OF THE SERVICES, WEBSITE OR THE MAGIC POSER CONTENT; AND (iv) AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE SERVICES OR CONTENT. No advice or information obtained by you from Wombat Studio, or otherwise through the Services, will create any warranty not expressly stated herein.

LIMITATION OF LIABILITY. WOMBAT STUDIO'S MAXIMUM AGGREGATE LIABILITY TO ANY USER WILL BE THE AMOUNT PAID FOR THE PERIOD IN WHICH THE LIABILITY ARISES IF THE USER HAS PAID FEES FOR USE OF THE SERVICES, OR SUCH FEES THAT WERE PAYABLE BY THE USER, OR $50 USD IN THE EVENT THAT THERE IS NO PAYMENT OBLIGATION. WOMBAT STUDIO WILL NOT OTHERWISE BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THE SERVICE OR FROM ANY INFORMATION, MAGIC POSER CONTENT, DESIGNS, PRODUCTS OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SERVICES, INCLUDING, BUT NOT LIMITED TO INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES, UNLESS OTHERWISE SPECIFIED IN WRITING.

CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

Indemnity. You agree to indemnify and hold Wombat Studio and its affiliates, subsidiaries, owners, directors, officers, employees and agents harmless from and against any and all claims, demands, suits, proceedings, liabilities, judgments, losses, damages, expenses and costs (including without limitation reasonable attorneys' fees) assessed or incurred by Wombat Studio directly or indirectly, with respect to or arising out of (i) your access to or use of the Services, (ii) your User Content, or (iii) your violation of this Agreement.

7. Governing Law and Forum Choice

This Agreement and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of California, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 9 “Dispute Resolution,” the exclusive jurisdiction for all Disputes (defined below) that you and Wombat Studio are not required to arbitrate will be the state and federal courts located in the Northern District of California, and you and Wombat Studio each waive any objection to jurisdiction and venue in such courts.

8. Dispute Resolution

a) Mandatory Arbitration of Disputes

We each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Wombat agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and Wombat are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.


b) Exceptions

As limited exceptions to Section 8(a) above: (i) we both may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights.


c) Conducting Arbitration and Arbitration Rules

The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules ”) then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.


Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.


Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules, and we won’t seek to recover the administration and arbitrator fees we are responsible for paying, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.


d) Injunctive and Declaratory Relief

Except as provided in Section 8(b) above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. To the extent that you or we prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.


e) Class Action Waiver

YOU AND WOMBAT AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ dispute is resolved through arbitration, the arbitrator may not consolidate another person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.


f) Severability

With the exception of any of the provisions in Section 8(e) of these Terms ("Class Action Waiver"), if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.

General Terms

a) Entire Agreement

This Agreement constitutes the entire and exclusive understanding and agreement between Wombat Studio and you regarding the Services, and this Agreement supersedes and replaces any and all prior oral or written understandings or agreements between Wombat Studio and you regarding the Services. If any provision of this Agreement is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect. You may not assign or transfer this Agreement, by operation of law or otherwise, without Wombat Studio’s prior written consent. Any attempt by you to assign or transfer this Agreement, without such consent, will be null. Wombat Studio may freely assign or transfer this Agreement without restriction. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their successors and permitted assigns.


b) Notices

Any notices or other communications provided by Wombat Studio under this Agreement, including those regarding modifications to this Agreement, will be given: (i) via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.


c) Waiver of Rights

Wombat Studio’s failure to enforce any right or provision of this Agreement will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Wombat Studio, Inc.. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.

10. Contact Information

If you have any questions about this Agreement or the Services, please contact Wombat Studio at:

support@thewombatstudio.com

530 LAWRENCE EXPY #419

SUNNYVALE CA 94085