Effective Date: October 23, 2023
Last Updated: October 23, 2023
Welcome to Cubzh! The universe of user built avatars, hangouts and games.
Voxowl, Inc. and designated subsidiaries (“Cubzh”, "Voxowl", “we”, or “us”) offers the Cubzh website (https://cu.bzh) and its related platform (collectively, “Platform”) and various other features and services, including websites, applications, forums, content, functionality, products, and services (together with the Platform, “Services”) to allow users (“Users”, “your" or “you”) to play, create, and connect.
By accepting these User Terms, you also agree to be bound by the following:
Cubzh Creator Terms, which apply to all Users who access the Services. They cover items such as the use of the World Editor, the offering of Worlds and Virtual Content (as defined below).
Cubzh Community Standards, which explains the conduct standards expected from Users, and outlines behavior prohibited on the Services.
World Guidelines, which provide information regarding the age recommendations and content descriptors associated with Worlds.
For U.S. Users, Cubzh’s Arbitration Agreement (Section 10), which outlines how disputes between you and Cubzh will be resolved. Specifically, these Cubzh Terms contain A BINDING, INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER. THIS MEANS THAT YOU GIVE UP THE RIGHT TO BRING AN ACTION IN COURT , INDIVIDUALLY OR AS PART OF A CLASS ACTION.
PLEASE READ THE CUBZH TERMS CAREFULLY BEFORE BEGINNING TO USE THE SERVICES, AS THEY SET FORTH A LEGALLY BINDING AGREEMENT BETWEEN YOU AND CUBZH. BY USING THE SERVICES, YOU AFFIRM THAT YOU HAVE REACHED THE LEGAL AGE OF MAJORITY IN YOUR JURISDICTION AND STATE OF RESIDENCE, AND UNDERSTAND, ACCEPT , AND AGREE TO BE BOUND AND ABIDE BY THE CUBZH TERMS. IF YOU DO NOT AGREE TO THE CUBZH TERMS, YOU MUST NOT USE THE SERVICES.
IF YOU ARE UNDER THE LEGAL AGE OF MAJORITY (A “MINOR”) IN YOUR JURISDICTION OR STATE OF RESIDENCE, BEFORE USING THE SERVICES, YOUR PARENT OR LEGAL GUARDIAN MUST READ AND CONSENT TO THE CUBZH TERMS. BY PERMITTING A MINOR TO USE THE SERVICES, A MINOR’S PARENT OR GUARDIAN BECOMES SUBJECT TO THE CUBZH TERMS AND AGREES TO BE RESPONSIBLE FOR THE MINOR’S ACTIVITIES ON THE SERVICES.
The Cubzh Terms are subject to change. To the extent required by applicable law, Cubzh will provide User with reasonable advance notice of any material updates or modifications by any reasonable means of notification, provided that non-material changes, feature updates, or modifications made for legal reasons (as determined by Cubzh) will be deemed to be effective immediately and without notice. Changes shall be in effect as of the “Last Updated” date listed atop this page. Your continued use of the Services after the Last Updated date constitutes your acceptance and agreement to such changes.
The Cubzh Terms consist of the following:
User Terms. The User Terms apply to any person who accesses the Services.
Creator Terms. The Creator Terms apply to all Users who access the Services. They cover items such as the use of Cubzh 's embedded World and Item Editors, alternative Editors made by Users from the community, and the offering of Worlds and Virtual Content (as defined below), and the use of music on the Services.
Cubzh Community Standards. The Cubzh Community Standards apply to all Users and outline the types of behavior that are acceptable and prohibited when using the Services.
Japan. These terms apply to Users located in Japan.
Europe. These terms apply to Users located in EU/EEA and the United Kingdom.
Plus certain other Additional Terms, which may be applicable depending on your use of the Services and may require separate consent. These include but are not limited to:
Cubzh Name and Logo Guidelines. The Cubzh Name and Logo Guidelines apply to any Creator or Brand Partner who advertises content created on Cubzh on other platforms.
These User Terms, along with the additional Creator Terms, govern, among other things, what is called User Generated Content or “UGC.” UGC is content of any kind or nature, whether material, assets, or otherwise, that Users create, upload, submit, publish, display, generate, transmit, or otherwise make available on the Services. ALL USERS ARE SUBJECT NOT ONLY TO THESE USER TERMS BUT ALSO TO THE ADDITIONAL CREATOR TERMS, WHICH ARE INCORPORATED HEREIN BY REFERENCE.
Any capitalized words not defined herein are defined in the Cubzh Dictionary.
2. User Accounts; Access to Services.
a. Creating an Account. To access certain elements and functionality of the Services, you will need to create a Cubzh account (“Account”). To create an Account, you will be asked to provide username, date of birth, and method of authenticating your Account, which may include a password and, depending on the resources accessed, you may also be asked to provide other information like a verified email address, verified phone number, or a government-issued photo identification. You agree that all information provided to Cubzh will be true, accurate, and up to date. Cubzh reserves the right to take steps to ensure that any information you provide to Cubzh in connection with your Account is accurate.
b. Securing an Account. You are responsible for maintaining the confidentiality and security of any credentials used to access your Account (e.g., a username and password). You must not share or disclose such credentials to others (except for Guardians in the case of a Minor User).
c. Account Responsibilities and Prohibitions. You understand, acknowledge, and agree that you will be responsible for any actions taken in your Account and on the Services using your access credentials, whether or not such actions have been authorized by you. You may only access the Services through your own Account. Selling your Account or your access credentials to another User is strictly prohibited. Similarly, purchasing another User’s Account or access credentials is strictly prohibited. However, transferring an Account in connection with the sale of the Virtual Content created by that Account, pursuant to a valid written agreement, is permitted.
d. Compromised Accounts. If you have reason to believe your Account has been compromised, is not secure, or has been subject to unauthorized use, you must notify Cubzh immediately by contacting Cubzh Support. If another User asks for your password or any personal information, you should report them immediately using the “Report Abuse” feature.
e. Suspension or Termination of an Account. If you violate these User Terms or any of the Cubzh Terms, including the Cubzh Community Standards, Cubzh reserves the right, in its sole discretion, to terminate or suspend (i) your Account and (ii) your right to use and access the Cubzh Services, including by suspending or terminating any alternate account(s) you create or have created. Account suspension or termination may also involve the suspension or termination of access to any content you have acquired on the Services, including without limitation Pezh, World access, In-World Items, and Virtual Items. Cubzh may also terminate your Account if Cubzh determines, in its sole discretion, you are a repeat infringer, as contemplated by the Digital Millennium Copyright Act (“DMCA”). A Guardian of a Minor User may request that Cubzh terminate their Account by contacting Cubzh Support.
f. Notification and Appeal. If, pursuant to a violation of the Cubzh Terms or in response to law enforcement or other legal request, Cubzh (i) suspends or terminates your Account or access to the Services or (ii) removes Pezh, UGC, or other content that you have on the Services, Cubzh may notify you, and may provide you an opportunity to request a review of Cubzh's decision (“Appeal”). To begin the Appeal process, contact Cubzh Support.
g. Access to Services. Cubzh reserves the right, in its sole discretion, to change or suspend the Services (or any portion thereof) at any time and for any reason, including to comply with laws, to protect Users, or to protect Cubzh's reputation, without notice to you unless required by law and without liability to Users.
3. Pezh and Cubzh Premium Membership
a. “Pezh” is the official currency of the Cubzh Services and can be used to acquire content such as Virtual Items (defined below) or access to interactive content called “Worlds” on the Services. Pezh are not a substitute for real currency, do not earn interest, and have no equivalent value in real currency. Cubzh cannot be redeemed for any fiat currency, and Cubzh is not obligated to exchange a User’s Cubzh for anything else of value.
b. Limited License to Use Pezh. Pezh have no equivalent value in real currency. Except as specifically set forth in Section 4 of the Creator Terms, your acquisition or purchase of Pezh only entitles you to receive a limited, non-transferable, revocable license to use Pezh (i) in connection with the Services, (ii) for your personal entertainment only, and (iii) in the ways permitted by Cubzh under the applicable Cubzh Terms. Your limited license to use Pezh may end if (i) you violate the Cubzh Terms, (ii) your Account is suspended or terminated, or (iii) these User Terms or the Services are terminated.
c. Acquisition and Use of Pezh. Pezh may be acquired on the Services in one of several ways. A User may acquire Pezh (i) by purchasing or otherwise receiving Pezh from Cubzh; (ii) by purchasing a membership (“Premium” as more fully described in Section 3f below) that includes a certain stipend of Pezh each month; (iii) by trading Virtual Items with other Users (as described in Section 4c below); or (iv) by other means that Cubzh may introduce. Additionally, a Creator may earn Pezh as described more fully in Section 4 of the Creator Terms.
You may not use, acquire, or distribute Pezh or Virtual Content except through the Services and except as expressly allowed by Cubzh under these Cubzh Terms. Any attempt to do so constitutes a violation of the Cubzh Terms, will render the transaction void (automatically canceled), and may result in the immediate suspension or termination of your Account and your license to use Pezh or Virtual Content. Cubzh does not recognize or take responsibility for third-party services that allow Users to sell, transfer, purchase, or otherwise use Pezh or Virtual Content, and any such use by a User is a violation of the Cubzh Terms. However, transferring an Account in connection with the sale of the World(s) created by that Account, pursuant to a valid written agreement, is permitted. Only Users who have reached the age of majority in their jurisdiction or state of residence may purchase Pezh or engage in other real-money transactions on the Services.
d. Pezh Are Non-Refundable. Except as required by law, all payments for Pezh are final and not refundable.
e. Pezh Are Subject to Change. Cubzh, in its sole discretion, may implement changes to Pezh at any time. This may include limiting the number of Pezh a User may acquire or lowering the purchase price of Pezh. Except for the limited licenses granted to you under the Cubzh Terms, Cubzh has and retains all rights in and to Pezh. This includes the right to modify, revoke, or terminate your license to use Pezh without notice, payment, or liability to you. Cubzh makes no guarantees or warranties regarding Pezh or their availability or value.
f. Premium. Cubzh Premium is a renewing subscription that provides Users with certain additional benefits on the Services (such as the ability to engage in a Trade or Resale, as those terms are defined in Section 4 below). When you purchase a subscription to Cubzh Premium, you agree that your subscription service will automatically renew and that Cubzh, through its payment provider, is authorized to charge your payment method accordingly until you cancel the subscription. Cubzh will notify you of any price increase or change to the subscription terms (such notification may be via any reasonable means). You may cancel Cubzh Premium at any time by following the instructions available here. If you cancel Cubzh Premium, you can still enjoy the benefits for the period of time for which you have already paid. Cubzh Premium subscriptions are non-refundable and non- transferable.
4. Virtual Content and the Cubzh Economy.
a. Acquiring Virtual Content. You may acquire “Virtual Items” (including without limitation clothing or digital items for your avatar), “In-World Items” (including without limitation game passes and special abilities) and other content (including without limitation World and private server access) offered by Cubzh and/or Creators (collectively “Virtual Content”) solely on the Services. The acquisition of Virtual Content on the Services is solely for your personal entertainment; it does not create any legally enforceable contract between (i) you and Cubzh or (ii) you and any Creator. Virtual Content has no real world equivalent value and you do not acquire any enforceable legal rights in and to any Virtual Content based on any transaction on the Services. When you spend Pezh to acquire Virtual Content through Marketplace or In-World, the Pezh are collected through the Services and immediately deducted from your Account balance. All such transfers are final and, unless otherwise permitted by Cubzh through its policies or practices, non-refundable and non-reversible.
b. Selling Virtual Content.
i. For Users. Cubzh allows Users to resell certain Cubzh-created Virtual Content on the Services (“Resale”). A User may engage in a Resale of such Virtual Content within Marketplace only. All Resales are final and cannot be reversed. (See here for a more detailed explanation of how to resell Virtual Content.)
ii. For Creators. A Creator may design and sell Virtual Content pursuant to the terms as outlined in Section 4 of the Creator Terms.
c. Trading Virtual Content. Cubzh allows Users to trade certain Virtual Content on the Services (“Trade”). This Virtual Content can be Traded for other Virtual Content or for a combination of Pezh and Virtual Content. When Users engage in a Trade on the Services that includes the exchange of Pezh, Cubzh is entitled to a fee. However, if no Pezh is exchanged as part of the Trade, Cubzh will not receive any fee in connection with the transaction.
d. Removal of Virtual Content. CUbzh has the right, in its sole discretion, to suspend the availability of, or remove from the Services and your Account, any content (including without limitation Worlds, Virtual Content, and UGC) without advance notice. Cubzh shall not be liable to any User for any losses you may experience because of such suspension or removal, and Cubzh is not required to refund any Pezh or other funds that a User has spent on any removed or suspended content, except where legally required.
5. Payments and Refunds
a. General. Only Users who have reached the age of majority in their jurisdiction or state of residence may engage in financial transactions on the Services, such as purchasing Pezh.
i. If you believe someone has gained access to or used your Account, including your payment method, without permission, you must notify Cubzh as soon as possible by contacting Cubzh Support. Cubzh reserves the right to suspend any Account with unauthorized charges or to restrict an Account’s ability to purchase Pezh, engage in Trades, and/or purchase Virtual Content. (See Chargeback Policy below.)
c. Chargeback Policy. If you notice charges on your credit/debit card, PayPal, or Google Play account that you did not authorize, please contact Cubzh Support before disputing any charges directly with your payment processor. Once a charge has been disputed with your payment processor, Cubzh cannot issue a refund due to prohibitions under the payment provider’s dispute process. Cubzh reserves the right to suspend any Account with unauthorized charges or to restrict an Account’s ability to purchase Pezh, engage in Trades, and/or purchase Virtual Content.
6. Intellectual Property and UGC.
a. Cubzh IP. The interfaces, graphics (including without limitation Cubzh Classic Avatars, as defined in Section 2 of the Creator Terms), trademarks, design, information, artwork, data, code, products, software, and all other elements of the Services, including the rights therein and any derivatives thereof, (“Cubzh Intellectual Property” or “Cubzh IP”) are protected by law and the Cubzh Terms. All Cubzh IP is the property of Cubzh and Cubzh’s licensors. Cubzh IP includes UGC licensed to Cubzh by Creators under the Creator Terms. Except as allowed in the Cubzh Terms and any applicable Additional Terms, you may not use any Cubzh IP contained in the Services unless you obtain separate permission in each instance from the owner. Cubzh reserves all rights in/to the Cubzh IP not granted in these Cubzh Terms or elsewhere in Additional Terms.
b. UGC. The Services contain various forums, functionality, software, and other interactive features that allow you to create, upload, submit, publish, display, generate, transmit, or otherwise make available (“Publish”) UGC on the Services. For more information on these features, please also read Section 2 of the Creator Terms.
Any UGC Published on the Services must comply with the Cubzh Terms, including the Cubzh Community Standards, and must not be illegal, fraudulent, deceptive, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties or objectionable, and must not consist of or contain software viruses, commercial solicitation, chain letters, mass mailings, or any form of “spam.”
You represent and warrant that, at the time of Publishing UGC, (i) you own or otherwise control all the rights in/to the UGC; (i) the UGC is accurate and not fraudulent or deceptive; and (iii) the UGC does not violate these Terms, any applicable laws, or the rights of any third party, including intellectual property, privacy, and publicity, and will not cause injury to any person or entity. You understand that in certain situations your UGC may be copied by other Users of the Services and discussed on and outside of the Services. If you do not have the right to submit UGC for such use, Publishing such may subject you to liability. Cubzh takes no responsibility and assumes no liability for any UGC Published by you or any third party. Cubzh has the right but not the obligation to monitor, modify, or remove any UGC on its Services, and it may exercise these rights at any time, without notice or liability to you or any third party.
c. In-World UGC. Some Worlds allow for Users of that World to Publish UGC within the World. Such Users who separately Publish UGC within a World hereby grant both Cubzh and the Creator of the applicable World a worldwide, perpetual, royalty free, and irrevocable right and non-exclusive license to use and exploit the UGC in any manner or media without any obligation, including any obligation to pay royalties or other compensation to any person or party. If such Users create a Modified Classic Avatar (as defined in Section 2 of the Creator Terms), the User hereby assigns all right, title, and interest in that Modified Classic Avatar to Cubzh; Cubzh in turn grants a non-exclusive license to both User and Creator to use and exploit that Modified Classic Avatar on the Services without any obligation (except those otherwise specified in these Cubzh Terms), including any obligation to pay royalties or other compensation to any person.
d. Copyright Infringement / Digital Millennium Copyright Act (DMCA).
i. Notice. We respect the intellectual property rights of others, and we ask you to do the same. If you are a copyright owner or an agent of a copyright owner and believe that any content on the Services infringes upon your copyrights (other than content that was previously uploaded by you to the Services, and as to which the Creator-to-Creator Copying Complaint Process, as described in Section 10.b. below, shall apply), you may submit a notice pursuant to the DMCA by contacting our Copyright Agent by email at [email protected]. If a copyright owner is under the age of 13, a DMCA notice must be submitted by a parent, guardian, or other adult representative. Your notice must include the following information:
An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
A description of the copyright-protected work or other intellectual property right that you claim has been infringed;
A description of the material that you claim is infringing and where it is located;
Your address, telephone number, and email address;
A statement by you that you have a good faith belief that the use of those materials is not authorized by the copyright owner, its agent, or the law; and
A statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
You acknowledge that if you fail to comply with all of the requirements of this Section, your DMCA notice may not be valid. See 17 U.S.C. § 512(c)(3) for further details. We may send a copy of your DMCA notice, including any contact information you provide, to the individual responsible for the reported content.
ii. Counter-Notice. If your content was removed or disabled as a result of a DMCA notice, and you believe that your content is not infringing or that you have the proper authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law to Publish and use the material in your content, you may send a counter-notice to our Copyright Agent by email at [email protected]. Any counter-notice submitted on behalf of a User under the age of 13 must be submitted by a parent, guardian, or other adult representative. When our Copyright Agent receives a counter-notice, we may send a copy of the counter-notice, including any contact information you provide, to the original complaining party informing that party that we may, in 10 business days, replace the removed content or stop disabling it. Unless the copyright owner files an action seeking a court order against the provider of the content, the removed content may be replaced or access to it restored, in our sole discretion, within 10 to 14 business days or more after our receipt of the counter-notice.
e. Trademark Infringement. If you are a trademark owner, or an agent of a trademark owner, and believe that any content on the Services infringes upon your trademark(s), please submit a trademark infringement notice to our Trademark Agent at [email protected]. When you contact us, please provide the following information in your notice:
An electronic or physical signature of the person authorized to act on behalf of the owner of the trademark;
A description of the trademark right that you claim has been infringed;
A description of the content that you claim is infringing and where it is located;
Your address, telephone number, and email address;
A statement by you that you have a good faith belief that the use of such content is not authorized by the trademark owner, its agent, or the law; and
A statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the trademark owner or authorized to act on the trademark owner’s behalf.
Note that Cubzh is not in a position to mediate disputes between Users and the holders of trademark rights. However, we take intellectual property rights seriously, and, upon receipt of a valid trademark infringement notice, we will investigate and may remove content that engages in trademark infringement.
f. Repeat Infringer Policy. Cubzh's intellectual property policy is to: (i) remove or disable access to content that Cubzh knows to be infringing on the intellectual property rights of third parties or that has been identified in a valid DMCA notice submitted by a valid copyright owner or their agent; and, (ii) in appropriate circumstances, to suspend the Accounts of and block access to the Services by any User who repeatedly or egregiously infringes the copyrights or other intellectual property rights of third-parties.
g. Feedback. Any feedback, comments, or suggestions you may provide regarding or relating to the Services is entirely voluntary, and we will be free to use such feedback, comments, or suggestions as we see fit and without any obligation to you.
7. Online Safety.
Cubzh cares about the safety of its Users. If you see any content or materials on the Services that appears to recruit, entice, advertise, or solicit any person to perform a sexual, violent, or illegal act, please contact Cubzh Support to immediately report the User and situation.
a. Community Standards. To keep its Users safe, Cubzh has created certain Community Standards to outline how Users should behave on the Services and what conduct is and isn’t allowed on the Services. Any violation of the Community Standards is considered a violation of the Cubzh Terms and may result in Account suspension or termination.
b. Parental Controls. The Cubzh Community is made up of Users of all ages. We work hard to create a safe and fun environment for all. To help foster this community, we provide Users and their parents/guardians with numerous safety features and controls. More information about these features may be found here.
8. License to and Restriction of Services.
a. License to the Services. Subject to your compliance with these User Terms or any Cubzh Terms, Cubzh grants you a non-exclusive, limited, revocable, non-transferable license to use the Services on devices that you own or control for your personal, entertainment use, including and solely in connection with the Services, the right to download and use software that Cubzh makes available for download as part of the Services, in object code form only.
b. Restrictions of Use. In addition to any other restrictions set forth in the Cubzh Terms or any Additional Terms, Users may not (a) lease, lend, sell, redistribute, or sublicense any part of the Services; (b) copy, modify, distribute, publicly perform or display, reverse engineer, disassemble, modify, or create derivative works of the Services or related or implemented technology; (c) circumvent any technological measure designed to protect the Services or any technology associated with the Services; (d) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any Services’ source code, in whole or in part (unless a portion of code contained within the Services is released as open source and the open source license governing such code expressly permits reverse engineering, copying or other modification); (e) use the Services to create malicious or abusive content (as determined by Cubzh in is sole discretion) or any content that violates these Cubzh Terms, Additional Terms, guidelines, or policies; or (f) use the Services (or any part thereof or any technology contained therein) in any manner that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable laws.
9. Third-Party Services.
b. Disclaimer. You understand that by using the Services, you may come across Third-Party Services that (i) may be considered offensive, or objectionable; (ii) may or may not be identified as having explicit language; (iii) may contain links or references to objectionable material; (iv) may contain infringing content; (v) may not function properly or as intended; may contain viruses, malware, or other harmful code; and/or (vi) may not be available in all countries or languages. You agree to use the Services at your own risk User acknowledges and agrees that Cubzh is not responsible for examining or evaluating the content, accuracy, completeness, availability, timeliness, validity, copyright, compliance, legality, decency, quality or any other aspect of such Third-Party Services. Cubzh does not warrant or endorse any Third-Party Services. You further agree that Cubzh will not have any responsibility or liability to you in connection with such Third-Party Services, including any losses you may sustain as a result of using such Third-Party Services.
i. Apple. If a User is using the Cubzh mobile application (“App”) on an iOS device, User also acknowledges and agrees to the terms of this Section. The Cubzh Terms are between User and Cubzh only, not with Apple, and Apple is not responsible for the Services and the content of the Services. Apple has no obligation whatsoever to provide any maintenance and support service with respect to the Services. If the Services fail to meet the applicable warranty, User may notify Apple, and Apple will refund any applicable purchase price for the App to User. Apple has no other warranty obligation whatsoever with respect to the Services. Apple is not responsible for addressing any claims by User or any third party relating to the Services or User’s use of the Services, including: (a) product liability claims; (b) any claim that the Services fail to meet any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third-party claim that the Services or User’s use of the App infringe that third party’s intellectual property rights. User agrees to comply with any applicable third-party terms when using the Services. Apple and Apple’s subsidiaries are third-party beneficiaries of the Cubzh Terms, and when User accepts the Cubzh Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Cubzh Terms against User as a third-party beneficiary. User hereby represents and warrants that (a) User is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) User is not listed on any U.S. Government list of prohibited or restricted parties.
10. Dispute Resolution (Between Users and Creators or Between Creators).
If a User has an issue with any Creator UGC (including Worlds or other Virtual Content), Users should first contact the Creator of the UGC directly to resolve the issue.
a. Escalation to Cubzh. While Cubzh is not responsible for the resolution of issues between Users and Creators or between Creators, Cubzh wants to make sure that everyone enjoys the Services. Accordingly, Cubzh has the right (but not the obligation) to intervene in issues between Users and Creators or between Creators to try to help resolve them. Before escalating any such issues to Cubzh, Users should first make a real, genuine effort to work out a resolution with the Creator. If such attempt is unsuccessful, User may escalate the issue to Cubzh's Customer Service team through Cubzh Support. If Cubzh chooses to intervene or take action in any dispute between a User and Creator or between Creators, User and Creator agree that Cubzh's decision (which may include deducting Pezh from the Creator and crediting Pezh to the User) is final, and Creator and User will accept that decision. Users and Creators agree to work with Cubzh in a timely manner to resolve all such issues, and failure to do so shall be a violation of the Cubzh Terms.
b. Creator-to-Creator Copying Complaint Process. As further explained in the Creator Terms, Cubzh prohibits the copying of another User or Creator’s UGC and passing it off as a User or Creator’s own work. A User or Creator who has created and previously Published to the Services original UGC material and believes that another User or Creator on the Services has improperly copied such original UGC material in violation of the Cubzh Terms (for the purposes of this process, a “Complainant”) may file a complaint using Cubzh’s Creator-to-Creator Copying Complaint Process. A complaint may be filed by emailing [email protected] with the subject line “Creator-to-Creator Copying Complaint,” and including the following: (i) identifying the original UGC material; (ii) identifying the copied work; and (ii) providing any other relevant details. If necessary, Cubzh will investigate the complaint and reach a decision as to whether copying in violation of the Cubzh Terms has occurred. If a violation is found, Cubzh may take other actions, which may include removal of copied material or termination of the reported User’s Account. A User or Creator who is unhappy with Cubzh's determination may appeal by (a) requesting and then completing an appeal form and (b) submitting such appeal form to Cubzh via email by following the instructions on the form. The appeal form may be requested by sending an email to [email protected] with the subject line: “Request Appeal Form.” You agree that any decision by Cubzh on appeal is final and binding.
c. Exclusivity of Creator-to-Creator Copying Complaint Process. Any potential Complainant is required to use the Creator-to-Creator Copying Complaint Process and not any other form of complaint or dispute resolution. This means that a Complainant is prohibited from engaging in any form of harassment or from filing a DMCA or trademark takedown notice. Failure to use the Creator-to-Creator Copying Complaint Process when required is a violation of these User Terms. Corporate entities (and those acting on behalf of a corporate entity) may, but are not required to, use the Creator-to-Creator Copying Complaint Process.
11. Dispute Resolution (Between User and Cubzh); Arbitration Agreement; Class Action Waiver.
Except as otherwise permitted in the Cubzh Terms, you agree that any dispute, claim, or controversy you may have with Cubzh arising under or relating in any way to the Cubzh Terms or the Services (“Dispute”) will be governed and resolved through the Mandatory Informal Dispute Resolution (“MIDR”) process (as outlined below).
FOR U.S. RESIDENTS ONLY: If the MIDR process has been completed but the Dispute remains unresolved, you agree that such Dispute will be determined through binding arbitration (as outlined below) and not through litigation. This agreement applies regardless of the legal theories involved in the Dispute and regardless of whether the Dispute is with Cubzh, its subsidiaries, affiliates or parent company, or any suppliers or service providers involved with the Services, or their officers, directors, employees, agents, or successors. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE GIVING UP THE RIGHT TO FILE A LAWSUIT IN COURT BEFORE A JUDGE OR JURY , INCLUDING IN A CLASS ACTION, FOR ANY DISPUTES SUBJECT TO THE ARBITRATION PROVISION BELOW.
a. Mandatory Informal Dispute Resolution. We hope there’s never a Dispute between us. but if there is, we both recognize and agree that good faith, informal efforts to resolve Disputes often result in prompt, low-cost, and mutually beneficial outcomes. Therefore, we each agree that—before either of us may commence an arbitration or assert any claim in court, except as set forth in Section 10.a.vi, below—we will engage in the following MIDR process:
i. Notice. To initiate the MIDR process, the party with a Dispute must first give written notice to the other party.
To notify Cubzh, you must send written notice to Voxowl, Inc., Legal Department, 4 Cobblestone Ln, Belmont, CA 94002by certified U.S. Mail or by Federal Express (or international equivalent), providing: (a) the User’s full name, Cubzh username, and any email or billing address associated with the User’s Cubzh Account; (b) the name and contact information of the User’s counsel, if User is represented by counsel; (c) a brief description of the User’s Dispute and the resolution requested; and (d) the ticket or case number provided by Cubzh Support to track previous attempts to resolve the Dispute, if there is one.
To notify a User, Cubzh will send a written notice to the email address or billing address that the you provided to Cubzh (or, if none is provided, through the messaging system on the Cubzh Service); that notice will include (a) the name and contact information of Cubzh's counsel; and (b) a brief description of Cubzh’s Dispute and the resolution requested.
ii. Process. Both parties will then engage in the MIDR process. The MIDR process requires conferring in writing—or, if requested by either party, via teleconference or videoconference—in a good faith effort to informally resolve the Dispute. If either party is represented by counsel, that counsel may participate.
iii. Confidentiality. All offers, promises, conduct, and statements made in the course of the MIDR process by any party, its agents, employees, and attorneys are confidential and not admissible for any purpose in any subsequent proceeding, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the MIDR process.
iv. Timing. The MIDR process shall occur within sixty (60) days of receipt of the written notice described in subsection i above, unless an extension is mutually agreed upon by the parties. However, if a party is seeking injunctive relief on an emergency basis (for example, a preliminary injunction or temporary restraining order), the MIDR process with respect to that relief shall occur within three (3) business days of receipt of the written notice described in subsection i above, unless an extension is mutually agreed upon by the parties. Any statute of limitations will be tolled while the parties engage in the informal dispute resolution process described in this section.
v. MIDR Is a Mandatory Prerequisite to Arbitration or Litigation. If, after participating in the MIDR process, we have been unable to resolve the Dispute, either party may commence an arbitration (or litigation, if the claim falls within an exception to the Arbitration Agreement (as defined below)). However, if we have not engaged in the MIDR process as set forth in this section, the Dispute may not be submitted to arbitration, nor may a claim be filed in court, until the MIDR process occurs. User and Cubzh understand and agree that any Dispute that has not first been subject to MIDR:
Shall not be accepted by the arbitration provider, and shall be deemed frivolous under Federal Rule of Civil Procedure 11(b); further, the arbitrator may allocate any arbitration fees and/or costs to any party that files a frivolous claim in violation of this Section 11.a; and
Shall be subject to dismissal if asserted in court.
vi. Exceptions. If a Dispute involves a claim that asserts infringement of patent, copyright, trademark, or trade secret rights, the User and Cubzh are not required to participate in the MIDR process set forth in this section.
b. Arbitration Agreement. THE FOLLOWING APPLIES TO U.S. USERS ONLY. If there is a Dispute between us, and we’re unable to resolve it through the MIDR process described in subsection a. above, this subsection explains in detail the process for resolving that Dispute. Please read this section carefully; it’s important.
i. ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. EXCEPT AS OTHERWISE PROVIDED IN THE CUBZH TERMS, USER AND CUBZH AGREE THAT ANY DISPUTE THAT CANNOT BE RESOLVED THROUGH MIDR, WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AS SET FORTH HEREIN, RATHER THAN IN COURT. USER AND CUBZH THEREBY AGREE TO WAIVE ANY RIGHT TO A JURY TRIAL AND AGREE THAT USER AND CUBZH MAY BRING CLAIMS AGAINST EACH OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR CLASS ARBITRATION.
This arbitration agreement and class action waiver (“Arbitration Agreement”) applies to all Users who are United States residents and, except as provided below, to all Disputes—regardless of (a) the legal theories involved in the Dispute, (b) when the Dispute arose, and (c) whether the Dispute is with Cubzh, with Cubzh’s subsidiaries, affiliates, or parent company, or with any suppliers or service providers involved with the Services (including any officers, directors, employees, agents, or successors).
ii. Federal Arbitration Act; Interpretation; and Enforcement. This Arbitration Agreement is governed by the Federal Arbitration Act (9 U.S.C. § 1 et seq.) (“FAA”), including its procedural provisions, in all respects. This means that the FAA governs, among other things, the interpretation and enforcement of this Arbitration Agreement and all of its provisions, including, without limitation, the class action waiver. State arbitration laws do not govern in any respect. Further, User and Cubzh each agree that the Cubzh Terms evidence a transaction involving interstate commerce and will be governed by and construed in accordance with federal law to the fullest extent possible.
iii. Arbitration Generally; Relief Available. There is no judge or jury in arbitration, and court review of an arbitration award is limited pursuant to the FAA. However, an arbitrator can award, on an individual basis, the same damages and relief as a court (including injunctive and declaratory relief and statutory damages) and must follow the Cubzh Terms as a court would. For the avoidance of doubt, the arbitrator can award public injunctive relief if authorized by law and warranted by the individual claim(s).
iv. Arbitration Proceedings and Rules. Arbitrations will be administered by FedArb in accordance with FedArb’s Expedited Arbitration Rules and (if applicable) Framework for Mass Arbitration Proceedings ADR-MDL, except as modified by the Cubzh Terms. In particular, the Framework for Mass Arbitration Proceedings ADR-MDL shall apply if five or more demands for arbitration are filed that share common factual or legal issues, and if counsel for the parties submitting those demands are the same or coordinated. Users can find more information at www.fedarb.com or by calling 1-650-328-9500.
Unless required by law, or unless the parties mutually agree otherwise in writing, any arbitration hearing—including oral arguments—will be conducted through video conferencing. If the arbitration hearing is conducted in person, it will take place in San Mateo County, California, if that is a convenient location for the User, or the county or parish where the User resides.
At the conclusion of the arbitration, the arbitrator will issue a written decision explaining the findings and conclusions upon which the arbitrator’s decision is based. Unless applicable law provides otherwise, the arbitration proceeding and all records pertaining to it—including but not limited to any documents prepared or produced in connection with the arbitration proceeding, as well as the hearing, the decision, and the arbitration award—will be confidential and will not be disclosed to any third party, except as necessary to obtain court confirmation of the arbitration award.
v. Commencing an Arbitration. A party who has complied with the MIDR process described above and who wishes to start arbitration must submit a demand for arbitration and a copy of the User Terms to FedArb.
vi. Fees and Costs. If you commence an arbitration in accordance with the Cubzh Terms and Arbitration Agreement, you will be required to pay the first
$50of FedArb’s filing fee. Except as otherwise set forth in Section 10(a)(v) and this subsection, you will not be responsible for paying any other fees for the arbitration other than the filing fee; all other fees or expenses charged by FedArb will be paid by Cubzh. Further, if FedArb determines that you are unable to pay any part of the filing fee, Cubzh will pay that part too.
Users are otherwise responsible for their own costs and attorneys’ fees; Cubzh will not pay such costs or attorneys’ fees unless ordered to do so by the arbitrator.
If the arbitrator finds that either the substance of the claim or the relief sought is frivolous or brought for an improper purpose, the parties agree that the arbitrator may order the losing party to reimburse the prevailing party for all arbitration fees—as well as reasonable attorneys’ fees and costs. Further, in cases where a statute authorizes the award of attorneys’ fees or costs to the prevailing party, the arbitrator may award attorneys’ fees or costs pursuant to that statute.
The parties agree that FedArb has discretion to modify the amount or timing of any fees due under any applicable rules or fee schedules, and further agree not to oppose any modifications to the timing or amount of any fees due—provided that such modifications do not increase the fees to either party.
vii. Delegation; Interpretation. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to the extent permitted by law to resolve all Disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of the Cubzh Terms, including, but not limited to, any claim that all or any part of the Cubzh Terms is void or voidable; however, in the event of a Dispute about which particular version of the Cubzh Terms you agreed to, a court will decide that specific question prior to the commencement of the arbitration. This Arbitration Agreement is intended to be broadly interpreted and will survive termination of the Cubzh Terms.
viii. Severability. If any provision of this Arbitration Agreement is found unenforceable, that provision will be severed, and the balance of the Arbitration Agreement will remain in full force and effect. If a court decides that applicable law precludes enforcement of this Arbitration Agreement as to any particular claim, then that claim must be severed from the arbitration, while the remaining claims will still be resolved through binding arbitration.
ix. Opting Out. You may opt-out of the Arbitration Agreement entirely and litigate any Dispute with us by sending written notice to Cubzh within 30 days of signing up for the Services for the first time. Thereafter, you may only opt-out of material changes to the Arbitration Agreement by sending written notice within 30 days after Cubzh provides notice of those changes (unless a longer period is required by applicable law). In either case, to opt-out, a User must send a written notice entitled “Arbitration Opt-Out Notice” to Voxowl, Inc., Legal Department, 4 Cobblestone Ln, Belmont, CA 94002 by certified U.S. Mail or by Federal Express (or international equivalent). To be valid, the opt-out notice must be sent to Cubzh from the User who wants to opt-out (or that User’s guardian) and include (a) the User’s full name, Cubzh username, and email address, (b) a clear statement that the User wants to opt-out of the Arbitration Agreement, or wants to opt-out of a material change to the Arbitration Agreement, as applicable, and (c) the User’s signature (or the signature of the User’s guardian, if the User is a Minor). If opting-out of a material change, the notice must also identify the particular material change to which the User wants to opt-out. An opt-out notice applies only to the Arbitration Agreement; all other parts of the Cubzh Terms will still apply to the User and Cubzh. Further, an opt-out notice does not revoke or otherwise affect any previous agreement to the Arbitration Agreement. By opting out of a material change to the Arbitration Agreement, you agree to arbitrate any Dispute in accordance with the language of the last version of the Arbitration Agreement that you accepted.
x. Exceptions. The Arbitration Agreement shall be subject to the following exceptions:
Users and Cubzh retain the right to participate in class-wide settlement of claims.
The Arbitration Agreement does not apply to Users who are not residents of the United States, or to Users who (pursuant to subsection ix above) properly opt-out of the entire Arbitration Agreement within 30 days of signing up for the Services for the first time.
If a Dispute is within the jurisdiction of small claims court, either the User or Cubzh may (after engaging in the MIDR process) choose to take the Dispute to small claims court in the User’s county of residence, or in the Superior Court of California, County of San Mateo.
If a Dispute involves a claim that asserts infringement of patent, copyright, trademark, or trade secret rights, either the User or Cubzh may assert the claim in federal or state court, as set forth in Section 15.
c. Timing for Raising Disputes. USER AND CUBZH AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ARISES OR IT IS PERMANENTLY BARRED.
12. Governing Law, Jurisdiction, and Venue.
a. Except as otherwise provided herein, the Cubzh Terms are governed by the laws of the State of California without regard to conflict of law principles.
b. Except for small claims court actions, any Dispute that is not subject to the Arbitration Agreement as outlined in Section 10 above (including if the Arbitration Agreement is for any reason held to be unenforceable) may only be litigated in the federal or state courts of San Mateo County, California, and User and Cubzh consent to jurisdiction in those courts for such purposes, except as otherwise provided by the European Union’s General Data Protection Regulation.
13. Disclaimers; No Warranties.
a. UGC Disclaimer. Except as may be required by applicable law, Cubzh is not liable for, nor is Cubzh obligated to screen, approve, edit, or control any UGC that Users, Creators, or others Publish or otherwise make available on the Services. Cubzh may, however, at any time, without notice, and without any obligation to User, remove, edit, block or suspend the availability of any UGC that Cubzh thinks violates the Cubzh Terms or is otherwise objectionable. User understands that when using the Services, User will see UGC from a variety of sources and understands that UGC could be inaccurate, offensive, or objectionable. User agrees to waive, and does waive, any legal or equitable right or remedy that User has or may have against Cubzh regarding UGC. If notified by a User or content owner that UGC allegedly violates the Cubzh Terms, Cubzh may investigate and decide whether to remove the UGC (which Cubzh can do at any time, without notice).
b. World Guidelines. The Services display to Users an age guideline and certain other descriptors about Worlds. A description of those age guidelines can be found here. The age guidelines or descriptors for a World may be modified from time to time, such as based on additional information reported to Cubzh or changes made to the World by a Creator. User is solely responsible for reviewing the age guidelines and descriptors for an World to determine whether any such changes have been made. Cubzh does not warrant the accuracy of the guidelines or descriptors. User acknowledges and agrees that Cubzh is not responsible for the accuracy, completeness, validity, or quality of any age guidelines or descriptors.
c. As Is. THE SERVICES AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CUBZH AND CUBZH'S OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS, AFFILIATES, INVESTORS, BUSINESS PARTNERS, SUBSIDIARIES AND AGENTS (TOGETHER, THE “AFFILIATED PARTIES”) DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICES AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICES, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT , OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE AFFILIATED PARTIES DO NOT WARRANT THAT THE SERVICES OR ANY PART OF THE SERVICES, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY TRANSLATIONS OF CONTENT , WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
d. No Responsibility. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY USER FROM CUBZH OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES WILL CREATE ANY WARRANTY REGARDING ANY OF THE AFFILIATED PARTIES OR CUBZH THAT IS NOT EXPRESSLY STATED IN THE CUBZH TERMS. USER ASSUMES ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM USER’S USE OF OR ACCESS TO THE SERVICES, USER’S DEALING WITH ANY OTHER USERS ON THE SERVICES, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES. THESE LIMITATIONS APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
14. Limitations of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL CUBZH AND THE AFFILIATED PARTIES BE LIABLE TO USER FOR ANY INDIRECT , INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO USER’S ACCESS TO OR USE OF, OR USER’S INABILITY TO ACCESS OR USE, THE SERVICES OR ANY MATERIALS OR CONTENT ON THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT CUBZH HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, USER AGREES THAT THE AGGREGATE LIABILITY OF CUBZH AND THE AFFILIATED PARTIES TO USER FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PART OF THE SERVICES OR OTHERWISE UNDER THE CUBZH TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO
$1000 USD (EXCEPT AS NOTED IN SECTION 10 ABOVE OR AS OTHERWISE SET FORTH IN THE CREATOR TERMS).
You agree that you will be responsible for your use of the Services, and you further agree to defend and indemnify Cubzh and the Affiliated Parties from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of the Services; (b) your violation of any part of the Cubzh Terms, any representation, warranty, or agreement referenced in the Cubzh Terms, or any applicable law or regulation; (c) your actual or alleged violation of any third-party right, including any intellectual property right, publicity or privacy right, property right, or confidentiality obligation; or (d) any Dispute or issue between you and any third party. Cubzh reserves the right, at Cubzh's own cost, to take on the exclusive defense and control of any matter subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with Cubzh’s defense of that claim.
16. Notice to California Residents.
a. Complaints. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, CA 95834, or by phone at (800) 952-5210 in order to resolve complaints regarding the Services or to get more information regarding your use of the Services.
b. Minors. If you are a California resident under the age of 18, you may request that Cubzh remove certain personal content that you have publicly posted to the Services, and Cubzh will comply with such request to the extent permitted and/or required by law. Such content may include personal information but does not include (a) anonymized information or (b) UGC that you have uploaded to the Services (as you have received consideration for providing it). To make such a request, please contact Cubzh Support. The request must include your username and a specific description of the content that you want removed so that Cubzh can find it. Cubzh will not accept requests via postal mail, phone, or fax and may not be able to respond if you provide incomplete information. A request does not guarantee that the information you posted will be completely removed, and there may be circumstances in which the law does not require or allow removal, even if you make such a request.
17. Miscellaneous Terms.
a. General. These User Terms, together with all Cubzh Terms, make up the entire agreement between you and Cubzh regarding the Services and your use thereof. You may not assign these Cubzh Terms or any of your rights hereunder by operation of law or otherwise without Cubzh's prior written consent. Cubzh may assign the Cubzh Terms at any time to anyone without notice or consent. This agreement is binding on and inures to the benefit of Cubzh's and your respective successors and assigns. If any part of these Cubzh Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible (or, if it cannot legally be given any effect, will be severed from the Cubzh Terms), and the remaining parts will remain in full force and effect. Nothing in the Cubzh Terms will be deemed to confer any rights or benefits on a third party (other than Apple as noted in Section 9.c.).
b. Termination; Survival. In the event of termination of these User Terms or any Additional Terms, as applicable, the rights and duties of Cubzh and User to each other will terminate except that any part of the Cubzh Terms or Additional Terms, which by their nature should survive termination, will survive, including Sections 6, 8, 9, 10, 11, 13, 14 and 15.
c. Waiver. No waiver of any part of the Cubzh Terms by either User or Cubzh shall be deemed a continuing or further waiver of any such part or any other part of the Cubzh Terms, and Cubzh's or User's failure to assert any rights or part of the Cubzh Terms shall not be deemed or otherwise constitute a waiver of such right or part.
d. Interpretation. The section headers in these Cubzh Terms are for convenience and will not impact the interpretation of these Cubzh Terms. In all cases where Cubzh is allowed to make a decision under these Cubzh Terms, that decision is completely up to Cubzh, in its sole discretion. The Cubzh Terms are subject to applicable law, meaning that they apply except to the extent otherwise prohibited or required by applicable law. Unless the context dictates otherwise, whenever the word “including,” or similar is found in the Cubzh Terms, it means “including, without limitation” and whenever the word “or,” is found in the Cubzh Terms, it means “and/or.”
e. Compliance with Laws. When using the Services, you agree to comply with all applicable laws. User will not directly or indirectly export, re-export, or transfer the Services to prohibited countries or individuals (or allow either to use the Services). User hereby represents and warrants that (i) User is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) User is not listed on any U.S. Government list of prohibited or restricted parties.
g. Investigations; Cooperation with Law Enforcement. Cubzh reserves the right to investigate and prosecute any suspected or actual violations of these Terms. Cubzh may disclose any information as necessary or appropriate to satisfy any law, regulation, legal process, or government request.
h. Prevailing Language. To the extent any of the Cubzh Terms are made available in multiple languages, in case of any discrepancies or conflicts between the English version of the Terms and any other language version, the English version will govern and prevail.
18. Contact Information.
The Services are offered by Voxowl, Inc. located at 4 Cobblestone Ln, Belmont, CA 94002. You can contact Cubzh by sending any messages to that address or completing the Cubzh Support Form. If you are a California resident, you may have the Cubzh Terms e-mailed to you by sending a request, including your email address, to the address above.
Creators are the heart of the Cubzh community, and we created the following terms (“Creator Terms”) to set forth the rules and guidelines for creating and Publishing UGC on the Services as well as the use of UGC or other Cubzh IP or content on the Services. These Creator Terms apply to all Users of Cubzh.
In addition to these Creator Terms, Creators must also abide by the User Terms, both in their capacity as a Creator and as a User of the Services, and any Additional Terms, as may be applicable.
Please note that Supplemental Provisions apply to: (i) Users in Japan (See Appendix A); and (ii) Users in the EU/EEA and the United Kingdom (collectively referred to as “Europe”) (See Appendix B).
Any capitalized words not defined herein take the meaning given to them in the User Terms or the Cubzh Dictionary.
2. Intellectual Property.
a. Cubzh Services; Ownership; License.
i. Cubzh IP. Terms outlining the ownership of Cubzh IP are set forth in Section 5.a. of the User Terms.
ii. Cubzh World & Item Editors. Cubzh provides Creators with free software tools (“Cubzh Editors”) that allows them to create, develop, modify, operate, and Publish Worlds and 3D Virtual Content (collectively encompassed by “UGC,” as that term is originally defined in the User Terms) on the Services. Cubzh owns and/or controls all rights in/to Cubzh Editors and all elements contained therein. Subject to Creator’s compliance with these Creator Terms, Cubzh grants Creator a non-exclusive, limited, revocable, non-sublicensable, and non-transferable license to use Cubzh Editors solely for the purpose of creating, developing, modifying, uploading, and Publishing Creator’s UGC on the Services (“Editors License”). Creator may only use Cubzh Editors in a way consistent with these Creator Terms.
iii. Cubzh Templates. “Templates” are made available by Cubzh (generally via Cubzh Editors) and serve as a starting point that Creators can use to more easily create UGC. Cubzh owns or controls all rights in all Templates and all elements contained therein and makes Templates available to Creators pursuant to the Editors License. Creators may only use Templates in a way consistent with these Creator Terms. Using a Template does not give Creator any ownership rights in/to that Template.
iv. Cubzh Classic Avatars. Cubzh has created, owns all intellectual property in, and makes available to Creators for use solely on the Services certain avatar models.
(collectively, “Classic Avatars”).
Subject to the rights Creator grants to Cubzh in subsection 2.b below, Cubzh grants Creators (a) the right to use such Classic Avatars as avatars solely on the Services; (b) the right to alter, customize, and modify such Classic Avatars (each a “Modified Classic Avatar”) solely for the purpose of using such Modified Classic Avatar on the Service or as otherwise permitted under these Creator Terms; and (c) the non-exclusive right to apply Creator’s UGC to Classic Avatars and Modified Classic Avatars on the Services only.
Cubzh further grants the Creator of each Modified Classic Avatar a limited, non-exclusive, revocable, non-transferable license to use such Modified Classic Avatar solely on the Services and as otherwise permitted under these Creator Terms. Cubzh reserves all rights in Classic Avatars and Modified Classic Avatars not expressly granted herein, including the exclusive right to create derivative works incorporating Classic Avatars and Modified Classic Avatars.
Creators shall in no event use Classic Avatars or Modified Classic Avatars (including any portions thereof) in connection with any off-Services physical or digital merchandise, motion picture, television program, theatrical play, book, or other publication, in each case whether for giveaway or compensated access (including license or sale). Creator hereby represents and warrants not to make any such use of Classic Avatars or Modified Classic Avatars.
v. Other Cubzh Content. Cubzh, at its sole discretion, may create, develop, and make available on and through the Services other content (“Other Cubzh Content”). Subject to Creator’s compliance with these Creator Terms, Cubzh grants Creator a non-exclusive, limited, revocable, non-transferable license to use such Other Cubzh Content solely on the Services and in connection with Creator’s UGC (“Other Content License”). Creator will not be entitled to any payment or compensation for Creator’s use of Other Cubzh Content (including any modifications or enhancements thereto).
vii. Termination of License. Cubzh reserves the right to terminate or modify the Editors License, Template License, Other and Cubzh Content License, License at any time and for any reason.
b. User-Generated Content (UGC).
i. Ownership of UGC. Except for Modified Classic Avatars and subject to the rights and licenses Creator grants in these Creator Terms (and any applicable Additional Terms), as between Creator and Cubzh or Creator and Users, Creator retains all copyrights that Creator may hold in any UGC that Creator has ever created or will create (whether alone or with others) and Publishes or makes available on the Services (excluding any non-UGC Cubzh IP that may be contained therein).
ii. Cubzh License to UGC. In consideration for the use of the Services and Creator’s potential to earn Pezh, Creator grants Cubzh a perpetual, worldwide, non-exclusive, royalty-free right and license (with the right to sublicense to any person or entity, including without limitation other Users and Creators) to host, store, transfer, translate, run, localize, publish, publicly display, publicly perform (including by means of digital audio transmissions and on a through-to-the-audience basis), reproduce (including in timed synchronization to visual images), modify, adapt, create derivative works of, enhance, distribute, and use for any business purpose related to the Services (including, but not limited to, in connection with operating, providing, improving, or publicizing the Services or Cubzh) any UGC, in whole or in part (including any incorporated or associated trademarks and underlying source code), that Creator Publishes or makes available on/through the Services.
Notwithstanding the above, Creator also grants to Cubzh the exclusive, worldwide, irrevocable, perpetual, fully paid, sublicensable right to apply Creator’s UGC to a Classic Avatar or Modified Classic Avatar, whether on or off the Services; provided, however, that Cubzh’s off-Services right specifically excludes the right to apply (a) shirts, pants, or T-Shirts designed by a Creator (excluding any Cubzh IP that may be contained therein); (b) trademarks owned or controlled by a Creator; or (iii) copyrighted material owned or controlled by a Creator that has been published outside of the Services prior to the time that it was Published by Creator on the Services.
Subject to the rights and licenses granted herein, to the extent that a Creator has or obtains any right, title or interest in any Modified Classic Avatar, Creator hereby irrevocably assigns to Cubzh all such right, title and interest. This assignment includes all intellectual property rights and other proprietary rights therein, including rights in any licenses that such Creator may have granted. It also includes rights in any Modified Classic Avatar developed under prior versions of these Cubzh Terms. Notwithstanding the foregoing, Cubzh may, in its sole discretion, permit a Creator who has customized a Classic Avatar or Modified Classic Avatar so that it no longer appears similar to a Classic Avatar or Modified Classic Avatar (or any derivatives thereof, all as determined by Cubzh in its sole discretion) to receive all right, title and interest in such customized Classic Avatar or Modified Classic Avatar, subject to Creator granting Cubzh the perpetual, worldwide, non-exclusive, royalty-free right and license discussed in this Section.
Creator also agrees to make its UGC available in any media or channel of distribution now known or hereafter developed in connection with the publicity and marketing of the Services or Cubzh as permitted herein, even if Creator has exercised a right to be forgotten under the GDPR or equivalent right under other privacy laws (all the foregoing paragraphs in this section collectively, the “UGC License”).
Cubzh’s right to market and advertise the Services or Cubzh using Creator’s UGC (excluding Modified Classic Avatars) (“Ancillary Use”) will not include using such UGC in marketing and advertising that is focused solely on promoting Creator’s UGC (as reasonably determined by Cubzh) as part of the Services without Creator’s approval, but Cubzh can generally reference, as determined by Cubzh in its sole discretion, Creator’s UGC with other UGC or material (and without Creator’s approval) to promote, market or advertise the Services or Cubzh. Cubzh may also use Creator’s UGC for non-commercial and educational uses to promote the Services (and Cubzh will reasonably determine whether a use is non-commercial or educational). Other than the potential to earn Pezh, Cubzh is not required to give Creator any attribution or compensation for any reason nor is Cubzh required to use the license Creator grants in this Section or exploit any of the rights granted herein.
Creator retains the right to delete or update any or all content within a World at any time and at Creator’s discretion (and Creator will delete or update such content if required by law), provided that regardless of any such update or deletion having occurred, and regardless of any termination of these Creator Terms or termination or suspension of Creator’s Account: (i) Virtual Content created by Creator which was validly purchased or otherwise validly obtained by a User may continue to be accessed and used by such User indefinitely in accordance with and subject to the terms and policies of the Services; and, (ii) Cubzh’s right to use any UGC or other content that is already in use by Cubzh pursuant to a license or otherwise in accordance with these Cubzh Terms or already in use by Cubzh as part of an Ancillary Use shall continue in perpetuity.
In addition to Cubzh’s right to grant sublicenses for Creator’s UGC, Creator, when Publishing certain UGC onto the Service, may be asked if Creator would like to share such UGC directly with other Users. Creator is not required to do so, but if Creator does agree to grant this right, then other Users may use Creator's UGC to create their own Worlds and other UGC on the Services without any further obligation to Creator.
Where Creator’s Virtual Content is sold or otherwise provided to a User, Creator agrees that, pursuant to the rights granted to Cubzh herein and regardless of whether the Virtual Content was sold or provided by Creator to the User, Cubzh may allow the User to continue to access and use such Virtual Content indefinitely (in accordance with and subject to the Cubzh Terms) even if the Virtual Content is no longer otherwise accessible on the Services.
Cubzh’s rights under this UGC License shall expressly survive if Creator's Account is terminated due to Creator's breach or violation of these Creator Terms or any of the Cubzh Terms.
iii. Through-to-the-Audience Rights. The rights Creator grants in these Creator Terms are provided on a through-to-the-audience basis, meaning the owners or operators of third-party services won’t have separate liability to Creator or anyone else for UGC that Creator has made available on the Services or used on Third-Party Services via Cubzh’s Services.
iv. Authorization to Publish UGC to Services. Creator must not Publish or otherwise make any UGC available on the Services if Creator is not the owner of or is not fully authorized to grant rights in all parts of that UGC. Without limiting Creator’s obligations under Section 9 of these Creator Terms (and all other obligations set forth in the Cubzh Terms), Creator agrees to pay all amounts owed to any person as a result of Creator Publishing or making UGC available on the Services.
v. Suspension of UGC Availability. Cubzh may, in its sole discretion, suspend availability of or delete any UGC or other content on the Services at any time and for any period of time, including in perpetuity, without notice if such UGC or other content violates any laws or intellectual property rights or principles or any guidelines or policies associated with the Services or if Cubzh determines in its sole discretion that such UGC does or may cause harm to Users, the Services, or to Cubzh’s reputation. Cubzh is and shall be under no obligation of any kind to Creator for suspending any UGC in accordance with this Section.
vi. Limitations on Use of UGC. Notwithstanding Creator’s ownership of UGC (other than Modified Classic Avatars and the right to apply Virtual Content and other UGC to Classic Avatars and Modified Classic Avatars) as set forth above and without limiting any other limitations set forth herein, Creator shall in no event use Creator’s UGC (in any medium or format, including on or off the Services): (a) in a manner that is offensive, defamatory, sexually explicit, or otherwise objectionable (in each case, as determined by Cubzh in its sole discretion); (b) in connection with false, defamatory, libelous or slanderous statements concerning Cubzh or otherwise in a manner intended or reasonably likely to disparage Cubzh or bring Cubzh into public disrepute; or (c) in a manner that is intended or reasonably likely to suggest or imply that Creator is affiliated with Cubzh or that Cubzh endorses Creator or its use of the applicable UGC.
vii. Infringement and DMCA. Cubzh fosters creativity and respects the intellectual property rights of others, including Creators. Any copyright owner or an agent of a copyright or trademark owner (including other Creators who are owners or agents of a copyright or trademark owner) who believes that any content on the Services (including UGC) infringes upon its copyrights or trademarks and whose complaint does not concern UGC subject to the Creator-to-Creator Copying Complaint Process (as detailed in Section 10.b. of the User Terms) may submit a notification pursuant to the DMCA (as further outlined in Section 6.d. of the User Terms). As referred to throughout the Cubzh Terms, Cubzh, in appropriate circumstances, may terminate the Accounts of Users (or Creators) who Cubzh determines, in its sole discretion, are repeat infringers as contemplated by the DMCA.
i. Group. For purposes of the Cubzh Terms, a "Group" exists where Creators have joined together and, via a single email address, registered on the Services as a single unit for the purpose of releasing a World or other Virtual Content through the Services. For corporate accounts, the company (or other legal entity) named on the account is considered a Group.
ii. Owner. Each Group must select an “Owner,” who shall be the individual or entity that controls the email address used to register the Group on the Services, to act on behalf of the Group. The Owner, in its sole discretion, may choose to transfer ownership of the Group at any time to a new owner; provided, however, that only one individual or entity may be the Owner of a Group at a time. If an Owner’s account is terminated pursuant to these Creator Terms, the Cubzh Terms, or other applicable Additional Terms, Cubzh may, in its sole discretion, designate another Owner of the Group; provided, however, that nothing will obligate Cubzh to do so if Cubzh, in its sole discretion, determines to terminate a Group.
b. Rights and Authority. By participating in a Group, each Creator grants the Owner (as such Owner may change over time) the sole and exclusive authority to act on their behalf to (i) authorize Cubzh’s use of any UGC created by the Group as set forth in these Creator Terms or pursuant to any other agreement entered into between the Owner and Cubzh; and (ii) receive payment for any activities undertaken or UGC sold by the Group on or through the Services. Group members hereby waive any claims they may have against Cubzh for any payments made to an Owner by Cubzh on behalf of the Group, and Group members agree to seek recovery of any such payments solely from the Group Owner. The authority granted to a Group’s Owner may be modified by separate agreement amongst Group members. Except as may be provided at law, any duty of accounting between a Group Owner and Group members will arise solely pursuant to a written agreement among the Group, and Cubzh will not be bound by any such agreement.
4. Cubzh Creator Economics.
i. License to Pezh. Creator’s license to use Pezh in connection with the Services is set forth in Section 3 of the User Terms.
ii. Earning Pezh. Cubzh allows Creators to earn Pezh (“Earned Pezh”) by selling or monetizing certain UGC (including Virtual Content and access to Worlds) they create on the Services. Earned Pezh consist only of those Pezh that a Creator has received from (a) the direct sale, (b) other monetization, or (c) Engagement Based Payouts (“EBP” or “Premium Payouts”) of UGC it created (either alone or with a Group) on the Services in compliance with the Cubzh Terms and any applicable Additional Terms. Pezh acquired in other ways (such as via a stipend through a Cubzh Premium membership, referral bonus, purchase of a gift card, or by trading/selling Virtual Content that you did not create) are not Earned Pezh. Cubzh may remove any Pezh earned through a violation of the Cubzh Terms or any applicable Additional Terms.
b. Selling UGC. Cubzh allows Creators to sell (i) access to Worlds; (ii) Virtual Content and (iii) other UGC they create on the Services, subject to the following:
i. Pezh Allocation Roles: There are three roles involved in the sale of all UGC on the Services. Each role may be entitled to a share of the Pezh generated from an applicable sale (“Pezh Allocation”):
Creator: The Creator is the User or Group that created the UGC being sold.
Seller/Distributor: The Distributor is (i) the Creator (if the item is sold in a World the Creator also created); (ii) another Creator on the Services (if the item is sold in a World the Creator did not create); or (iii) Cubzh (if the item is sold in Marketplace).
Platform: The Platform is always Cubzh.
ii. Changes to Pezh Allocation. Cubzh may, at any time upon notice to Creator (via any reasonable means), (a) change the Pezh Allocation and/or (b) introduce features allowing certain elements of the Pezh Allocation to be customized by those involved in a given sale.
iii. Creator Responsibility for Sales on Services. Creator acknowledges that Cubzh may on Creator’s behalf, display and host Worlds, Virtual Content, or other UGC created by Creator to be enjoyed by other Users on the Services. When a Creator receives Pezh from a User for the sale of UGC through the Services, the transaction is between the Creator and the User; Cubzh only facilitates by providing the Services. If, in connection with a Dispute, Cubzh returns Pezh to a User (or another Creator) for any UGC for which a Creator received Pezh, Cubzh reserves the right to deduct or withhold an equivalent amount of Pezh from such Creator.
iv. Random Virtual Items. Depending on Creator’s location, Creator may choose to provide Worlds that permit Users to acquire “random” Virtual Items (either with Pezh or otherwise) (each, a “Random Virtual Item”). If a Creator provides the opportunity for a User to receive a Random Virtual Item, Creator must let Users know the odds of acquiring each type of Random Virtual Item available before a User engages in the transaction to acquire a Random Virtual Item. By way of example only, if a Creator’s World allows a User to acquire a virtual marble that the User can then throw into a fountain to receive a Random Virtual Item, the Creator must disclose the odds of the User receiving each type of Random Virtual Item before the User throws the marble into the fountain.
c. EBP or Premium Payouts. EBP or Premium Payouts is a program by which certain eligible Creators can generate additional Earned Pezh based on how engaging their World is. The EBP or Premium Payouts program may be modified or terminated by Cubzh at any time, in its sole discretion, and with no obligation to any Creators because of such termination or modification.
d. Disclaimer. Developing Worlds or UGC that Users will enjoy or spend time in is difficult and can take a lot of time. Cubzh makes no promises that a Creator's World or UGC will be successful in developing a large audience or that the time, effort, and expense that a Creator spends developing, advertising, or operating a World will be financially successful.
5. Restrictions on Use.
In addition to any other restrictions set forth in the User Terms (including in Section 8.b. of the User Terms) or any Cubzh Terms, Creator will not take any action in violation of these Creator Terms, including as set forth in this Section.
Cubzh wants all Creators to develop their own ideas. Unless Creator has express written permission or a written license from the content creator to do so, Creator must not copy or make any modification to someone else’s item, content, or UGC and Publish it as Creator’s own content. Cubzh reserves the right to take any action against Creator for any improper copying of content, including the suspension or termination of a Creator’s Account.
a. Between Creators and Cubzh. Disputes between Creators and Cubzh shall be handled according to Section 11 of the User Terms.
b. Between Creators and Users or Between Creators.
i. Issues with UGC. Creators are responsible for handling all issues, including User complaints, relating to their Worlds, Virtual Content, and other UGC Published on the Services in a quick and professional manner.
ii. Return of Pezh. If a Creator has acquired Earned Pezh in connection with a World, Virtual Content, or other UGC, and, pursuant to a User complaint regarding that World, Virtual Content, or other UGC, Cubzh returns Pezh to a User, Cubzh has the right to deduct or withhold an equivalent amount of Earned Pezh from such Creator.
iii. Disputes With Creators or Users. If a Creator has a dispute with another Creator or a User, prior to commencing any litigation, Creator must first engage in a mediation with a recognized mediator or mediation service to try and amicably resolve the dispute. Such mediation requirement does not apply to disputes related to the copying of a Creator’s UGC, which shall be subject to the Creator-to-Creator Copying Complaint Process as outlined in Section 10.b. of the User Terms. Cubzh reserves the right, in its sole discretion, to resolve any dispute between Creators or between Creators and Users. Such resolution may result in suspension of Creator’s Account and/or any other action permitted by law, including but not limited to the recovery of civil or criminal penalties.
iv. Escalation to Cubzh. Notwithstanding the terms set forth in this Section, Users can escalate to Cubzh disputes with Creators, as further described in Section 10.a. of the User Terms. If Cubzh chooses to take action in any dispute between a User and Creator, both User and Creator agree that (i) Cubzh's decision (which may include deducting Pezh from the Creator and crediting Pezh to the User) is final, and (ii) they will accept that decision. Creator agrees to work with Cubzh in a timely manner to resolve all such issues, and failure to do so shall be a violation of these Creator Terms.
7. Representations & Warranties.
Creator is responsible for Creator’s UGC, and represents and warrants that: (a) Creator is the creator and owner of, or has the necessary rights and permissions to grant Cubzh the rights and license in Section 2.b.ii; (b) Creator’s UGC and the use of Creator’s UGC as described in these Creator Terms does not and will not: (i) infringe, violate, or misappropriate any third-party right; (ii) slander, defame, libel, or invade the right of privacy, publicity, or other property rights of any other person; (iii) require Cubzh to get licenses from, pay compensation, or provide attribution to any third parties; (iv) result in a breach of contract between Creator and a third party; or (v) cause Cubzh to violate any law or regulation; and (c) Creator will comply with all applicable laws, rules, and regulations and the Cubzh Terms (including without limitation these Creator Terms) in Creator’s use of the Services.
Creator agrees to be responsible for Creator’s use of the Services and to defend and indemnify Cubzh and the Affiliated Parties from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) Creator’s access to, use of, or alleged use of the Services; (b) Creator’s violation of (i) any part of the Cubzh Terms, including these Creator Terms, (ii) any representation, warranty, or agreement referenced in these Creator Terms, or (iii) any applicable law or regulation; (c) Creator’s violation of any third-party right, including any intellectual property, publicity, privacy, or property right, or confidentiality obligation; or (d) any Dispute or issue between Creator and any third party. Cubzh reserves the right, at Cubzh’s own cost, to take on the exclusive defense and control of any matter subject to indemnification by Creator (without limiting Creator’s indemnification obligations with respect to that matter), and in that case, Creator agrees to cooperate with Cubzh’s defense of that claim.
9. Limitation of Liability.
IN NO EVENT WILL THE AFFILIATED PARTIES BE LIABLE TO CREATOR FOR ANY INDIRECT , INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS), WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT CUBZH HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE. THE AGGREGATE LIABILITY OF THE AFFILIATED PARTIES TO CREATOR FOR ALL CLAIMS (INCLUDING WARRANTY CLAIMS) OR CAUSES OF ACTION IS LIMITED TO (i) THE TOTAL AMOUNT PAID OR PAYABLE BY CUBZH TO CREATOR UNDER THIS AGREEMENT FOR THE TWELVE-MONTH PERIOD PRECEDING THE TIME WITHIN WHICH CREATOR NOTIFIES CUBZH OF A CLAIM, OR (ii) TO THE EXTENT THAT CUBZH HAS NOT PAID CREATOR ANYTHING IN THE TWELVE-MONTH PERIOD PRECEDING THE TIME WITHIN WHICH CREATOR NOTIFIES CUBZH OF A CLAIM,
c. User Personal Information. If and to the extent a Creator receives any User personal information (“User PII”), Creator will not use User PII (i) to provide services to any third party; (ii) to build, help build, track or supplement any segments, profiles, or similar records on any individual User, device, or browser across the Services or any third party websites or platforms; (iii) to associate the behavior of any individual device or browser with any segment, profile, or similar record, or supplement any such record based on data of Users; (iv) to associate any data of Users with any other personal information of the User; or (v) for any unauthorized purpose in violation of any applicable law, including applicable privacy laws, or for any unauthorized purpose. Additionally, Creator shall be prohibited from selling, disclosing, sharing, renting, leasing, syndicating, modifying, reverse engineering, decompiling, lending, or otherwise altering any User PII.
d. California Consumer Privacy Act. Neither Cubzh nor Creator shall knowingly sell any “personal information” (as that term is defined by the California Consumer Privacy Act of 2018, as amended) belonging to a User, and both Cubzh and Creator have taken and will continue to take all reasonable measures to protect such personal information under their control or in their possession from unauthorized access by third parties.
a. As Is. The Services are provided “AS IS” and Section 13 of the User Terms is incorporated herein by reference.
b. Survival. Any part of these Creator Terms which by their nature should survive termination, will survive, including Sections 2b, 6, 7, 8, 9, 10, 11, and 12a.
Appendix A (EUROPEAN UNION/EUROPEAN ECONOMIC AREA AND THE UNITED KINGDOM)
If there is any inconsistency or conflict between the Cubzh Terms and the supplemental provisions, the supplemental provisions shall prevail.
2. Legal Agreement
A. Notwithstanding anything to the contrary in the Cubzh Terms, User’s agreement to the Cubzh Terms is signified by registering on the Platform.
B. User can register to the Platform by providing their date of birth, choosing a user name and a password and clicking on “Sign Up.” User can modify registration information via Account Settings at any time.
C. Unless otherwise agreed upon, User can terminate the agreements concluded with Cubzh regarding the use of the Services any time. The effective date of the termination depends on the selected Services.
3. Purchase of Pezh and virtual items
User may have the ability to purchase Virtual Content in the Services using Pezh. User can purchase Pezh against the displayed price within the Services. When User selects one of the available amounts of Pezh, User will be asked to complete the purchase within User’s Account and to select one of the available payment methods. Currently, Cubzh offers payment via debit / credit card, PayPal, gift cards (for Cubzh’s browser app), Google Play, iTunes and Amazon (for Cubzh’ mobile apps). In Cubzh’ reasonable discretion, Cubzh may amend the available payment methods from time to time. The purchase contract will be concluded at the moment where User clicks on the “Pay Now” button (or other similarly designated purchase button) and the transaction is successfully completed. As a deviation from the Cubzh Terms, in particular from Section 4 (a) of the User Terms and Section 4 of the Creator Terms, there will be a contractual relationship between Creators and Cubzh. There will not be a direct contractual relation between Creators and Users. If you acquire Virtual Content and other things against payment of Pezh, such acquisitions shall always be concluded between you and Cubzh, and Creators shall always act on behalf of Cubzh.
4. Absolute right in Pezh
As a deviation from Section 3(e) of the User Terms, and except in connection with User’s violation of a Cubzh guideline or policy or User’s breach of any of the Cubzh Terms, Cubzh may exercise Cubzh’ absolute right in Pezh in Cubzh’s reasonable discretion only with effect for the future (i.e. no effect on Pezh User already validly holds) and without effect to any notice, refund, compensation or liability Cubzh may have to User under this Appendix A or binding applicable law. The remaining provisions of Section 3(e) of the User Terms shall remain unaffected.
5. User’s statutory rights and refundability of payments
A. If the Services do not function properly or are not as described or not in conformity with User’s agreement with Cubzh, you may have additional statutory rights and remedies.
B. Nothing in the Cubzh Terms shall limit any statutory rights to refunds Users may have under applicable law.
6. Limitation of liability
Sections 13(b)-(c) and 14 of the User Terms and Section 9 of the Creator Terms do not apply. In addition, the limitations of liability as set out in 2 (g), 3 (c) and (e), 4(d), 6 (b) 9 (b)-(c), 13 (a) of the User Terms shall not apply. Instead, Cubzh shall be liable for damages exclusively according to this clause.
A. Cubzh’s liability is unlimited for damages arising out of death, injury to body or health based on a breach conducted by a legal representative or designated agent of Cubzh, as well as for damages that arise from the lack of a guaranteed characteristic or in case of fraudulent intent.
B. Cubzh’s liability is unlimited for damages caused by Cubzh, a legal representative of Cubzh, or designated agent of Cubzh by intent or gross negligence.
C. In case of a slight negligent breach of a contractual core duty Cubzh shall, except in the cases set out in this Section 6A, B and D of this Appendix A, only be liable to the amount of the typically foreseeable damage. Contractual core duties abstractly are such duties whose accomplishment enables proper fulfilment of the contract in the first place and whose fulfilment a contractual party regularly may rely on.
D. Liability pursuant to mandatory applicable law remains unaffected.
E. The limitation period for claims for damages shall be one (1) year, except in case of Section 6A, B and D of this Appendix A where the statutory statute of limitations shall apply.
7. Governing Law, Jurisdiction and Venue
A. As a deviation from Section 12 of the User Terms, to the extent that the mandatory law of User’s place of residence is more favorable than California law, the law of User’s place of residence shall apply.
B. To the extent that an agreement between Cubzh and the User is considered a consumer contract in the meaning of Art. 17 Regulation EU 1215/2012, the choice of jurisdiction and venue pursuant to Section 12 of the User Terms shall not apply.
8. Resolution / Arbitration of Disputes
A. If User is a consumer (i.e. an individual who, in contracting with Cubzh, is acting for purposes which are outside User’s trade, business, craft or profession), Section 11 (b) and (c) of the User Terms shall not apply and Section10 and 11 (a) of the User Terms and 6 (b) of the Creator Terms shall not exclude or limit any party’s recourse to the courts.
B. Cubzh is neither required nor willing to participate in any alternative dispute resolutions schemes with a consumer arbitration panel. Rather, Cubzh strives to resolve any conflicts as set out in Section 10 of the User Terms. However, please note that the European Commission has set up an Online Dispute Resolution platform http://ec.europa.eu/consumers/odr/ that provides information about alternative dispute resolution in the European Union that may be of interest.
9. Notice to California Residents
Section 16 of the User Terms does not apply.
In addition to the Sections listed in Section 17 (b) of the Cubzh Terms Section 6 of this Appendix A shall survive termination.
11. Consent to Electronic Communications
Section 17(f) of the User Terms does not apply. If Cubzh has received User’s email address in the context of the sale of a product or a service, Cubzh may use it for direct marketing of Cubzh’s own similar products or services provided that Cubzh has clearly and distinctly given User the opportunity to object, free of charge and in an easy manner, to such use of User’s email address upon their collection and on the occasion of each message in case User has not initially refused such use.
12. Right of withdrawal
If User is a consumer (i.e. an individual who, in contracting with Cubzh, is acting for purposes which are outside User’s trade, business, craft or profession), User may revoke all concluded contracts under the following conditions
A. Information concerning the exercise of the right of withdrawal
1. Right of withdrawal. Subject to Section 12D, below, User has the right to withdraw from this contract within 14 days without giving any reason. The withdrawal period will expire after 14 days from the day of the conclusion of this contract. To exercise the right of withdrawal, User must inform Cubzh of User’s decision to withdraw from this contract. User may use the below-referenced model withdrawal form, but it is not obligatory. To meet the withdrawal deadline, it is sufficient for User to send User’s communication concerning User’s exercise of the right of withdrawal before the withdrawal period has expired.
B. Model withdrawal form
(complete and return this form only if you wish to withdraw from the contract)
I/We(*) hereby give notice that I/We(*) withdraw from my/our(*) contract of sale of the following goods (*)/for the provision of the following service(*),
Ordered on(*)/received on(*)
Name of consumer(s)
Address of consumer(s)
Signature of consumer(s) (only if this form is notified on paper)
(*) Delete as appropriate.
C. Exceptions from the right of withdrawal. The right to withdrawal may not exist in respect of distance or off-premise contracts for the supply of goods made to User’s specifications or clearly personalized.
D. Expiry of the right of withdrawal. Please note that the right of withdrawal expires, in the cases of:
1. service contracts after the service has been fully performed but, if the contract places the User under an obligation to pay, only if the performance has begun with User’s prior express consent and acknowledgement that User will lose their right of withdrawal once the contract has been fully performed by Cubzh.
2. contracts for the supply of digital content which is not supplied on a tangible medium if the performance has begun and, if the contract places User under an obligation to pay, where, (i) User has provided prior express consent to begin the performance during the right of withdrawal period; (ii) User has provided acknowledgement that User thereby loses User’s right of withdrawal; and (iii) Cubzh has provided User with confirmation of the contract, which also states User’s consent to Cubzh commencing performance of the contract before the expiry of the withdrawal period and confirmation of acknowledgement about the expiry of the right of withdrawal.
Nothing in the Cubzh Terms especially as regards Section 2(b) of the Creator Terms shall affect mandatory rights to remuneration for the use of copyrightable material. Cubzh reserves the right to text and data mining of the Platform and the Services and any kind of other provided content.