Terms and Conditions

Last Updated: [September 18th 2020]

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Introduction and Acceptance

This Terms of Use Agreement (“Agreement”) constitutes a legally binding agreement between you (whether as an Operator User Operator and/or Operator Operator User (each as defined below)), and 9374-7319 Quebec Inc., d/b/a Phenomena (“Phenomena”) and governs your use of and access to (a) Phenomena’s website [www.thephenomenavr.com] and all corresponding domains, subdomains, web pages and websites associated therewith (“Sites”); (b) the virtual reality platform and management system (“Platform”), which includes (i) the cloud-based portal through which Operators may download and otherwise access Content (as hereinafter defined) and the online tool that Operators may use to schedule time at an Operator’s location (the “Scheduler”), and (ii) the software loaded onto each individual game station, including the background service which monitors activity and reports to our web services, provides station state information and enables you to remotely control the station from the station monitor, and the launcher which allows Operator Users to browse, find, and start titles they want to experience, and which is started automatically whenever virtual reality is available on your station, your Operator User stops playing a title, or when you explicitly start it using the station monitor; (c) all software and/or applications made available by Phenomena from time to time and to which this Agreement is applied, whether made available on or accessed by the Platform, mobile devices, web interfaces, computers, tablets or otherwise (“Software”); and (d) any other content, including but not limited to games, applications, educational materials, movies, tools, features, graphics, images, audio-visual content, photographs, audio, images, illustrations, graphics, video, information and software (the “Content”) offered by Phenomena through the Sites and/or Platform ((a) through (d) collectively, the “Services”). Services are available subject to Phenomena’s sole discretion and certain Services may be limited based on region.

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BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR CONTINUING TO USE THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICES.

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This Agreement, and any additional terms Phenomena may provide regarding, and which you may have to accept to access other products, games and services Phenomena may offer you, are incorporated in this Agreement (“Additional Terms”).

Phenomena reserves the right, in our sole discretion, to modify, alter or otherwise update this Agreement at any time. Amendments will be effective upon Phenomena’s posting of such updated Agreement at this location. Your continued access or use of the Services after such posting constitutes your consent to be bound by this Agreement, as amended. The date on which this Agreement was last amended will appear at the beginning thereof.

On notice to you, Phenomena may immediately terminate this Agreement, and/or access to the Services, or cease offering or deny access to the Services or any portion thereof, at any time for any reason.

In order to use the Services, you must register for the Services and provide certain Personal Information. Our collection and use of Personal Information in connection with the Services is as provided in Phenomena’s Privacy Policy located at [www.thephenomenavr.com/privacypolicy], the terms of which form an integral part of this Agreement. Any capitalized terms used, but not defined herein, shall have their respective meanings in the Privacy Policy.

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The Services

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Eligibility and Compliance

Use of the Services is limited to Operator Users who are thirteen (13) years of age or older. By using the Services, you represent and warrant to Phenomena that: (a) you are at least thirteen (13) years of age or older; (b) you have read and understand the terms and conditions of this Agreement and agree to be bound by its terms and conditions; (c) if you are entering into this Agreement on behalf of your employer, you have been legally authorized by your employer to enter into this Agreement and have the authority to bind your employer to this Agreement; and (d) your use of the Services does not violate any law, rule or regulation to which you or your employer are subject, or any terms, conditions or requirements promulgated by any Third Party Services (as defined below). Certain features of the Services may be subject to heightened age and/or other eligibility requirements and restrictions as indicated. If you are an Operator User between the ages of thirteen (13) and eighteen (18) or under the age of majority in your jurisdiction, please review this Agreement with a parent or guardian. Your parent or guardian should agree to this Agreement on your behalf and parental discretion is advised for all Operator Users under the age of eighteen (18) or majority.

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Account

In order to access and use certain content, features, tools and functionality of the Services, including to access Content, you must register for and maintain an active account (“Account”). You may register for an Account by creating a username and password combination (“Credentials”), and providing certain personal information, such as your name, address, age, and at least one valid payment method (either a credit card or accepted payment partner). Phenomena collects, uses and stores such information in accordance with our Privacy Policy. You are solely responsible for providing and maintaining the accuracy and content of your information. You are also responsible for maintaining the strict confidentiality of your Credentials and you are responsible for any access to or use of the Services by you or any person or entity using your Credentials. You agree to immediately notify Phenomena of any unauthorized use of your Credentials or Account or any other breach of security. It is your sole responsibility to: (a) control the dissemination and use of your Credentials and Account; (b) control access to your Credentials and Account; and (c) cancel your Account. Phenomena reserves the right to deny access, use and registration privileges to any user of the Services if Phenomena believe you have provided inaccurate information or if there is a question about the identity of the person trying to access the Services. Phenomena shall not be responsible or liable for any loss or damage arising from your failure to comply with this subsection 2(b).

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Ownership

As between you and Phenomena, Phenomena (or its licensors) owns the Services, Content, code, software, materials displayed on or otherwise made available or accessible through the Services, including as contained in any advertisements, (collectively, “Phenomena IP”) and all rights therein. This includes all intellectual property and intellectual property rights in such Phenomena IP.

The trademarks, logos, service marks, and trade names (collectively the “Trademarks”) displayed on the Services are the sole property of Phenomena and may not be used for any purpose without Phenomena’s prior written consent, including in any manner that is likely to cause customer confusion, or that disparages or discredits Phenomena.

As between you and Phenomena, Phenomena owns any and all data, statistics, content, and information, and any derivatives or aggregations thereof, in any form or medium, that is collected, downloaded, uploaded or otherwise received, directly or indirectly, from you or by or through the Services, including any data, content, and information derived, processed or generated by the Services based on an Operator’s or User’s use of and access to the Services (collectively “Data”).

Neither this Agreement nor your use of the Services convey or grant to you any rights or licenses (i) in or related to the Phenomena IP, or (ii) to use or reference in any manner the Trademarks or those of Phenomena’s licensors without Phenomena’s prior written permission, which may be withheld at its sole discretion. No rights or licenses are granted to you to use the Data under this Agreement, except as expressly set forth herein, and Phenomena reserves all rights, title, and interest therein.

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Postings

The Services may provide you with an opportunity to submit, post, email or otherwise make available comments, reviews and feedback via the Services (collectively, “Postings”). Phenomena does not acquire any ownership rights in the Postings, but does obtain a license from you as detailed herein. You represent that you own the Postings posted by you or you otherwise have the right to grant the rights, licenses and privileges described in this Agreement. You hereby grant to Phenomena a non-exclusive, royalty free, irrevocable, perpetual license to use your Postings throughout the world for any purpose, in any form or format, on or through any media now known or hereafter developed, including the right to modify, edit, create derivative works and translate such Postings. All Postings are and will be considered non-confidential and non-proprietary. Postings do not reflect the views of Phenomena, and you understand that by using the Services, you may be exposed to other people’s Postings that could be offensive, indecent or objectionable and, as such, Phenomena does not guarantee the accuracy, integrity, quality or content of any Postings. Phenomena have the right, but not the obligation, to review any Posting and to delete, remove, move, edit or reject, without notice to you, for any reason or for no reason. Under no circumstances shall Phenomena be liable in any way for Postings, including, without limitation, errors or omissions in any Postings, or any loss or damage of any kind incurred as a result of any Postings made available.

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Restrictions

You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services or the Content except as expressly permitted by Phenomena; (iii) decompile, reverse engineer or disassemble any part of the Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Services; (vi) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks; (vii) impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity; or (viii) use the Services in a manner that violates any laws.

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Conduct while using the Services

The use of or access to the Services for unlawful or harmful activities is expressly prohibited. You agree that, while using the Services, you shall not:

   • engage in or encourage conduct that would violate any applicable law, rule, regulation, judicial or government order or give rise to civil liability or violate or infringe upon any intellectual property, proprietary, privacy, moral, publicity or other rights of ours or of any other person or entity;

   • submit, post, email, display, transmit or otherwise make available through the Services any material or take any action that is or is likely to be unlawful, harmful, threatening, abusive, tortious, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy or publicity rights, harassing, profane, obscene or vulgar, or promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;

   • engage in or encourage conduct that affects adversely or reflects negatively on the Services, and/or Phenomena’s business, goodwill or reputation or causes duress, distress or discomfort to Phenomena or anyone else, or discourage any person from using the Services, or from advertising or becoming an Operator in connection with the Services;

   • submit, post, email, display, transmit or otherwise make available through the Services any material that contains a software virus, worm, spyware, Trojan horse or other computer code, file or program designed to interrupt, impair, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;

   • except as expressly permitted herein, use the Services for lawful commercial, business or educational purposes;

   • modify, disrupt, impair, alter or interfere with the use, features, function, operation or maintenance of the Services or the rights or use or enjoyment of the Services by any other user;

   • solicit passwords or personal identifying information for commercial or unlawful purposes from other Operator Users or engage in spamming, flooding, harvesting of email addresses or other personal information, “spidering”, “screen scraping”, “phishing”, “database scraping”, or any other activity with the purposes of obtaining lists of other Operator Users or other information, including transmitting or facilitating in the transmission of junk email, chain letters, duplicative or unsolicited messages; or

   • submit, post, email, display, transmit or otherwise make available through the Services any information, materials or content (and/or engage in or encourage conduct or other activities) that are, or could be perceived as, false, incorrect, misleading or deceptive.

Phenomena assumes no responsibility for monitoring the Services for inappropriate, false, incorrect, misleading, deceptive or unlawful content, information, materials or conduct posted by or on behalf of a third party.

If at any time Phenomena chooses in its sole discretion to monitor the Services, Phenomena nonetheless assumes no responsibility for Postings, assumes no obligation to modify or remove any Postings, and no responsibility for the conduct of any Operator or Operator User. Phenomena reserves the right to investigate and take appropriate legal action against anyone who, in Phenomena’s sole discretion, violates, or is suspected of violating, this Section, including, without limitation, reporting you to law enforcement authorities or cooperating with law enforcement who validly request information from Phenomena.

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Operators

If you elect to enter into a license and make Content available, whether at one of your authorized locations or via your platform or otherwise for lawful commercial, business or educational purposes (“Content License”), You shall be treated as an “Operator” and agree to do so solely in accordance with the terms and conditions of this Agreement and the terms and conditions of the applicable Content License. Any and all other uses are strictly prohibited. As an Operator, you may designate or specify which Content you wish to make available to the individuals, customers or Operator Users who access, use, play and interact with Content at your authorized locations or on your platform or via your Account (“Operator Users”).

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License Grants

Subject to and conditioned on your compliance with the terms and conditions of this Agreement, any applicable End User License Agreement and any Additional Terms Phenomena makes available through the Services, Phenomena grants a personal, non-exclusive, non-assignable, nontransferable and limited right and license to Operator to use and access the Services to manage its arcades or other virtual reality operations and enable the provision and availability of certain Content to Operator Users.

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Accessing Content

Prior to accessing, displaying or making any Content available, whether at your authorized location, on your platform, via the Services or otherwise, you agree to enter into a Content License with Phenomena. Unless otherwise elected by you via your Account, Content shall be downloaded via the Services. By making the Content available and/or providing Operator Users with access to such Content, you represent, warrant and covenant that (i) you have entered into all necessary Content Licenses with Phenomena; (ii) you have not modified any age range or age gating requirements associated with any particular piece of Content; and (iii) you have obtained and shall maintain all necessary rights, licenses, consents, permissions and clearances in order to make the Content available and your provision of such Content to Operator Users shall not violate any applicable laws, rules or regulations (including any laws regarding content and age rating, and the export of data or software to and from all relevant countries) or infringe on the intellectual property rights of any third party. You further acknowledge and agree that the availability to you of Content shall terminate in the event that: (1) Phenomena terminates your Content License or elects to no longer make such Content available on the Services; (2) if you breach the terms and conditions of your Content License; and/or (3) the Content is exclusively offered to Operators. The Operator acknowledges and agrees that Phenomena may access the Services and your Account at any time and for any reason with or without your prior permission, including to provide support to Operators and audit Operators’ use of the Services and the Content.

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Users

You are solely responsible for the acts and omissions of the Operator Users. Phenomena shall have no obligations or liabilities to any Operator for the acts and omissions of the Operator Users. You further agree to indemnify Phenomena for any third party claims arising from any Operator User’s use of, access to or interaction with the Services and/or Content.

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Fees

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   • Platform

Access and use of the Platform is free. At any time, Phenomena may choose to charge fees for various premium features and services, and we will notify you of those charges at the time that we offer features and services for a fee. We may, in our sole discretion, and by notifying you by email, change this policy and begin charging for access to the Platform and other features and services, and we may, in our sole discretion, add, remove or change the features and services we offer or the fees (including the amount and type of fees) we charge at any time. If we introduce a new service or charge a new fee, we will establish and notify you of the fees for that service at the launch of the service or start of charging a new fee. If we notify you of new fees or changes to fees for an existing service, then you agree to pay all fees and charges specified and all applicable taxes for your continued use of the applicable service.

   • Content Fees  

Phenomena will charge fees (“Content Fee”) to the Operator for the use of the Content at the Operator’s locations by the Operator Users. Unless otherwise agreed in writing, Phenomena shall track the usage of the Content by Operator Users in connection with the Service. The Content Fee shall be listed in your Account for each item of Content, and due and payable to Phenomena on the dates set forth in your Account. Phenomena reserves the right to increase or otherwise modify the Content Fee and will provide reasonable notice to its Operators of any such change (e.g., by a notification in an administrative panel of the Platform and/or by email or other means). If you do not wish to pay the increased fees you may optout of using the item of Content affected by the fee change.

   • Deposit and Payment

Upon creations of your Account and in order to use the Scheduler feature to make reservations to use the Content, you will be required to provide a valid credit card number or other form of payment. To confirm that the credit card information you have provided is accurate, Phenomena may place a temporary authorization on your credit card at the time you provide your credit card information. After we verify that your credit card information is accurate, usually within a few days, the authorization will be removed.

As they become due, the Content Fee will be automatically charged to the payment method (credit card or other) indicated in your Account. Phenomena shall have no liability for any charges made to the credit card account for any failure to cancel a reservation in the Scheduler.

Phenomena uses all information collected regarding payment methods (credit card information or other) as described in our Privacy Policy.

   • Invoices

Phenomena shall generate and provide to you, at least monthly, through the Services or by email, an invoice for applicable fees, including Content Fees.

   • Tracking, Monitoring and Collection of Information

You hereby grant Phenomena the right to track, monitor and collect information and Data generated via the Services, including that related to Operators’ and Operator Users’ interaction with and use of the Content, which shall be determined by Phenomena in its sole discretion from time to time. Phenomena shall share certain Data with you that you may access via your Account dashboard (or otherwise to the extent Phenomena elects to make Data available in other formats). You may use such Data solely for your internal business purposes and may not share such Data with third parties, except as otherwise agreed to in writing.

• Third Party Services and Third Party Materials

The appearance, availability, or your use of any third party websites (whether in the form of a hyperlink or redirect), services platforms, data, virtual goods, or materials (“Third Party Services”) referenced or included anywhere in connection with the Services does not constitute an endorsement by, nor does it incur any obligation, responsibility or liability on the part of Phenomena. Your use of the Third Party Services is governed by the terms and conditions between you and the Third Party Service. However, Phenomena reserve the right to restrict your access to or the availability of any Third Party Services that you access via the Services. If any Third Party Services you interact with obtains or collects personal information from you, in no event shall Phenomena assume or have any responsibility or liability. Accordingly, Phenomena encourages you to be aware when you leave the Services and/or use Third Party Services and to read the applicable terms and conditions and privacy policy of each Third Party Service you use.

You acknowledge and agree that by accessing or interacting with the Services, some third-party materials and information, including any software, components, accounts, licenses, advertisements, documents, data, content, specifications, products, games, equipment or components that are used in conjunction with, or of or relating to the Services, or use in connection with the Services (collectively, “Third Party Materials”) may be displayed, viewed, accessed or provided in connection with your use of the Services and/or Content. Any acquisition or use of such Third Party Materials is solely between Operators and the applicable third party provider. Phenomena does not own, control, warrant or support any Third Party Materials and shall not be liable for any breach, failure, or unavailability of the Third Party Materials for any reason whatsoever, nor shall Phenomena incur any obligation, responsibility or liability in connection with such Third Party Materials.

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Term and Termination

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   • Term

This Agreement shall commence on the date you begin using the Services and shall continue until terminated under the terms of this Agreement.

   • Termination by Either Party

Either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (a) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (b) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (c) makes or seeks to make a general assignment for the benefit of its creditors; or (d) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

   • Termination by Phenomena

Phenomena may terminate this Agreement with you upon written notice to you at any time. Subject to the terms and conditions of this Agreement, upon termination, Phenomena may disable your access to your Account.

   • Termination by Operator

An Operator may terminate this Agreement at any time, without prior notice to Phenomena, by disabling its Account via the Platform.

   • Effects of Termination on Operator

Except as may be expressly set forth herein, upon disabling your Account and/or other termination of this Agreement for any reason, you will no longer be able to use the Services (e.g., to download Content or launch any Content via the Platform or otherwise) and Phenomena will no longer track any Content usage for your stations. Except as may be expressly set forth herein, upon termination of this Agreement, all licenses granted to you by Phenomena in the present Agreement shall terminate. Subject to Phenomena’s discretion, if you voluntarily elected to disable your Account (and were not in breach, and this Agreement was not otherwise terminated by Phenomena), you may be able to reactivate your Account. Phenomena may continue to provide you access to certain Account information that Phenomena elects to make available to you for a duration of Phenomena’s choosing. In the event of termination, any fees due from you prior to termination shall remain payable to Phenomena.

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Disclaimer

THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT WITH THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, THIRD-PARTY CONTENT, THIRD-PARTY MATERIALS AND THIRD-PARTIES UTILIZED BY OPERATORS.  PHENOMENA IS NOT RESPONSIBLE FOR ANY LIMITATIONS, DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. YOUR OR ANY OPERATOR USER’S USE OF THE SERVICES OR ANY ITEMS OBTAINED THROUGH THE SERVICES IS AT YOUR OR ANY OPERATOR USER’S OWN RISK. EXCEPT FOR ANY WARRANTIES BY PHENOMENA EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES, CONTENT AND PHENOMENA IP ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OR STATEMENTS OF ANY KIND, EXPRESS OR IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER PHENOMENA NOR ANY PERSON ASSOCIATED WITH PHENOMENA MAKES ANY STATEMENT, WARRANTY, OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE SERVICES, CONTENT OR PHENOMENA IP. WITHOUT LIMITING THE FOREGOING, NEITHER PHENOMENA OR ANY PERSON ASSOCIATED WITH PHENOMENA MAKES ANY STATEMENT, WARRANTY, OR REPRESENTATION THAT THE FEATURES AND FUNCTIONS CONTAINED IN THE SERVICES, CONTENT OR PHENOMENA IP WILL MEET YOUR OR A OPERATOR USER’S SPECIFIC REQUIREMENTS OR EXPECTATIONS OR THAT THE OPERATION OF THE SERVICES, CONTENT OR USE OF THE PHENOMENA IP WILL BE UNINTERRUPTED OR ERROR FREE OR INTEROPERABLE OR COMPATIBLE WITH OTHER SOFTWARE OR SERVICES, THAT DEFECTS WILL BE CORRECTED, THAT THE SERVICES, CONTENT OR PHENOMENA IP WILL BE UPDATED, UPGRADED OR IMPROVED, THAT THE SERVICES, CONTENT, PHENOMENA IP, OR PHENOMENA SYSTEMS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. PHENOMENA HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. NO VERBAL OR WRITTEN REPRESENTATIONS, INFORMATION OR ADVICE GIVEN BY PHENOMENA OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY EXPRESS WARRANTIES MADE BY PHENOMENA IN THIS AGREEMENT. ALL TURNKEY VR ESPORT ARENAS ARE NON REFUNDABLE. ALL SALES ARE FINAL.

Limitations of Liability

IN NO EVENT SHALL PHENOMENA, OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS, OR EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY DAMAGES WHATSOEVER, INCLUDING: (I) LOSS OF PRODUCTION, USE, BUSINESS, INCOME, REVENUE, PROFIT, OR DIMINUTION IN VALUE; (II) IMPAIRMENT, INABILITY TO USE, LOSS, INTERRUPTION, OR DELAY OF THE SERVICES OR CONTENT; (III) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (IV) ANY LOSS, DAMAGE OR IMPAIRMENT DUE TO ANY CLAIMS OR ACTIONS FOR PROPERTY DAMAGE ARISING OUT YOUR USE OR ACCESS TO THE SERVICES OR CONTENT (INCLUDING ANY PROPERTY DAMAGE THAT OCCURS AT AN OPERATOR’S LOCATION); OR (V) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES (INCLUDING SUCH LOSSES IDENTIFIED IN (I) – (IV) OF THIS PROVISION TO THE EXTENT THOSE LOSSES OR PORTIONS THEREOF ARE NOT DIRECT LOSSES), REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. OPERATORS SHALL BE RESPONSIBLE FOR ALL CLAIMS AND DAMAGES RESULTING FROM THE MISUSE OF THE SERVICES BY OPERATOR, ITS AUTHORIZED USERS, OR THE OPERATOR USERS.

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Indemnity

You agree to indemnify, defend and hold Phenomena and its affiliates, and their respective successors and assigns, present and former directors, officers, employees, representatives, agents, licensors, partners, suppliers and service providers harmless from any and all claims, liabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees), arising in any way out of or in connection with (a) your, or any User’s, use of the Services; (b) your, or any User’s, breach or violation of this Agreement; (c) your Postings or any User’s Postings; or (d) your or any User’s violations of the rights of any third party. Phenomena reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you and all negotiations for its settlement or compromise, and you agree to fully cooperate with Phenomena upon our request.

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Support

For assistance with technical issues or customer support inquiries related to the Services, please send an email to: [support@thephenomenavr.com]

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General Provisions

   • Waiver

No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

   • Severability

If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

   • Force Majeure

In no event will Phenomena be liable or responsible to you, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by any circumstances beyond Phenomena's reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, endemics, epidemics, pandemics (including the 2019 novel coronavirus disease (COVID-19) pandemic), war, terrorism, invasion, riot or other civil unrest, strikes, labour stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo (each, a “Force Majeure Event”). In the event of any failure or delay caused by a Force Majeure Event, Phenomena will use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.

   • Entire Agreement

This Agreement constitutes the entire agreement and understanding of Phenomena and you with respect to their subject matter and replaces and supersedes all prior or contemporaneous agreements or undertakings regarding the subject matter.

   • Governing Law and Jurisdiction

This Agreement will be governed by and construed in accordance with the laws of the Province of Québec and the federal laws of Canada applicable therein, without giving effect to any choice or conflict of law provision, principle or rule (whether of the laws of the Province of Québec or any other jurisdiction) and notwithstanding your domicile, residence or physical location.

Any action or proceeding arising out of or relating to the Services and under this Agreement will be instituted in the courts of the Province of Québec and/or the Federal Court of Canada, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such action or proceeding. You waive any and all objections to the exercise of jurisdiction over you by such courts and to the venue of such courts.

   • Notice

Phenomena may give notice by means of a general notice on its website located at [www.thephenomenavr.com], by electronic mail to your email address in your Account, or by written communication sent to your address as set forth in your Account.

You may give notice to Phenomena by written communication to Phenomena's address at:

9374-7319 Quebec Inc. d.b.a. Phenomena

2200 Stanley Street

Montréal, Québec, H3A 1R6

[support@thephenomenavr.com]

   • Claims of Copyright or Trademark Infringement

Phenomena respects the intellectual property rights of others and expects the Operators and Operator Users to do the same. If you are a copyright owner or trademark owner, or are authorized to act on behalf of one, or authorized to act under any exclusive right under a copyright or trademark, please report alleged infringements taking place on or through Services to [support@thephenomenavr.com], indicating “Copyright Claim” or “Trademark Claim” as the case may be in the e-mail’s subject and by providing the following information:

   • Copyrighted work that you claim has been infringed;

   • Material that you claim is infringing and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Phenomena to locate the material;

   • Provide your full legal name, mailing address, telephone number, and, if available, email address.

   • Non-Assignment

This Agreement is not assignable, transferable, or to be sublicensed by you except with Phenomena’s prior written consent. Phenomena may assign, transfer, or delegate any of its rights and obligations hereunder without your consent.

   • No joint venture, partnership or employment

No joint venture, partnership, employment or agency relationship exists between you or Phenomena as a result of the contract between you and Phenomena or use of the Services.

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