Last updated on August 16, 2024
These Terms of Service apply to all users of Simtek accounts who access Simtek Services.
For further information, please refer to the Simtek Privacy Policy and Simtek Terms of Service, which govern your use of Simtek Services.
It is of the utmost importance that you familiarize yourself with the health and safety warnings and instructions before using Simtek Services. These can be found on the Simtek website. By using Simtek Products, you represent and warrant that you have read and understand these warnings and instructions.
By accepting these terms or using simtek products with a simtek account, you acknowledge that this is a legally binding document and agree to be bound by the terms and conditions set forth herein. Please read these terms in their entirety. If you do not agree to these terms of service, please refrain from accessing or using simtek products.
Please note that these terms of use contain important terms and conditions that affect you.
You certify that you have reached the legal age of majority in the jurisdiction where you reside. If you are between the ages of 13 (or 14 if you reside in South Korea) and the age of legal majority, you represent that you are using Simtek Services under the supervision of your parent or legal guardian, who also agrees to abide by these Terms of Use. It is important that you carefully review these Terms with your parent or guardian to ensure a full understanding of your rights and obligations.
Simtek ("Simtek", "we", "us" or "our") provides motion simulator hardware and software products for virtual, mixed and augmented reality. Simtek operates under the Simtek Platform where users can download, interact with, and submit content and receive related services.
These terms and conditions ("Terms") govern your purchase, access, and use of Simtek Services. These Terms do not modify the terms of any other agreement you may have with Simtek for products, services, or otherwise. If you are using the Simtek Services on behalf of any entity, you represent and warrant that you are authorized to accept these Terms on such entity's behalf and that such entity agrees to be responsible to us if you or such entity breach these Terms.
We reserve the right to change or modify these Terms from time to time at our discretion. Should we implement an administrative change, we reserve the right to post a notice at the top of these Terms.
Your continued use of the Simtek Services will be deemed to be acceptance of the revised Terms. Should you disagree with the revised terms, kindly cease using the Simtek Services and terminate your account.
1. Simtek Services
In order to fulfill our mission of facilitating immersive interactions in XR, it is necessary for us to collect and use your personal information in accordance with the Simtek Privacy Policy.
Connect you with people and experiences that are meaningful to you. We assist you in discovering and establishing connections with individuals, groups, events, and other meaningful experiences.
Allow you to explore content, products, and services that align with your interests. We may present you with offers and promotions designed to help you discover a wide range of content, products, and services from us and from various companies and organizations that use Simtek services.
We address and prevent harmful behavior while protecting and supporting our community. For meaningful interactions to flourish, a safe environment is essential. Our dedicated teams and advanced technical systems work in concert to identify instances of misuse of our service, harmful conduct, violations of our terms and policies, and instances where intervention is necessary to protect and support the VR community. In the event that content or conduct is identified as misusing our products or violating our terms and policies, we will take appropriate action, including the removal of content, restriction of access, account deactivation, or collaboration with law enforcement.
Provide global access to our services. To operate our global services, we must store and distribute content and data in our data centers and systems around the world, including outside the country in which you reside.
2. Eligibility, Registration and Account
The Simtek Products are intended for users who are 13 years of age or older (or 14 if you are a resident of South Korea). Any registration for or use of the Simtek Products by anyone under the age of 13 (or 14 if you are a resident of South Korea) is unauthorized, unlicensed, and in violation of these Terms. You represent and warrant that you are not on the Office of Foreign Assets Control's Specially Designated Nationals List, your name is not on the U.S. Department of Commerce's Denied Persons List or Entity List, or any other U.S. export control list, and you are not a U.S. person or entity controlled by the U.S. Department of Commerce, or any other U.S. person or entity controlled by the U.S. Department of Commerce. Furthermore, you represent and warrant that you are not on the Department of Commerce Denied Persons List or Entity List, or any other U.S. export control list. Additionally, you do not use IP proxying or other methods to conceal your location. You also represent and warrant that you do not use the Simtek Products if the laws of your country prohibit such use in accordance with these Terms. Furthermore, you represent and warrant that your right to use the Simtek VR Products has not previously been suspended or terminated.
In order to access and use certain features of the Simtek Products, you may be required to register for an account. By establishing an account, you agree to the following terms: (i) provide accurate, current, and complete account information; (ii) maintain the security of your password, including not sharing your password with anyone and accepting all risks of unauthorized access to your account.
We want everyone to feel safe while they enjoy an immersive virtual experience. When accessing and using the Services, you agree to adhere to our community standards (the “Community Standards”), which outline what is and is not allowed when using the Services. You represent and warrant that you have read, understand, and agree with our Community Standards.
The Services are to be used solely for personal and non-commercial use and as demonstrated and intended, in accordance with its authorized and accompanying instruction materials, including its requirements regarding weight and height of the user of the Product. You acknowledge that the Product is a physical device, and using the Product requires physical exercise.
There are important health and safety warnings and instructions (the “instructions”), which are available here, that you must read before using the services. By using the services, you represent and warrant that you have read and understand the instructions. If you permit any household members or guests or anyone else other than you (“guest users”) to use your product, you represent and warrant that you will inform them of these instructions and enforce that they adhere to them.
For the avoidance of doubt, you agree that you or any Guest Users will not use the Product if you or they are under the age of 13, pregnant, intoxicated, epileptic, or recovering from major surgery, illness, or a heart attack, and you acknowledge that the Product is intended only for healthy users over the age of 13 who have a height of between 4’4” (132 cm) and 6’4” (192 cm) and weigh not more than 250 lbs (113 kg). You agree that you or any Guest Users will not use the Product if you or they do not meet the height and weight requirements, or if you or they are not healthy enough to engage in moderate to heavy physical exercise. You or they should consult a physician or general practitioner before beginning to use the Product in any way.
You represent, warrant, and agree to never allow other people (particularly children) and pets in the immediate vicinity of the Product while you or any Guest Users are using the Product. You understand that people or animals may be struck with a handheld controller or with the rotating arm of the Omni One treadmill, or they may attempt to climb onto the platform.
Simtek may from time to time recommend or even require that you replace certain parts of the Omni One product when reaching certain usage milestones. You agree to replace those parts promptly per Simtek’s instructions, and you acknowledge that not doing so will void any product warranties and may result in an unsafe and malfunctioning Product that may cause serious bodily injury.
If we determine, at our sole discretion, that you use the Services in a commercial setting or for commercial use, or that you present a health and safety risk, or that you violate our Community Standards, any laws or regulations, agreements, or any other Terms, we reserve the right to terminate or suspend your account and access to the Services at any time.
If we terminate or suspend your account, your license to use any software or content provided in connection with the Services is also terminated or suspended (as applicable). If your account is terminated, Simtek has the right to immediately delete all data, files, and other information stored in or for your account without further notice to you. By using the Services, you agree Simtek will not incur any liability or responsibility if it chooses to remove, disable or delete your access or ability to use any or all portion(s) of the Services. You must pay all charges up to and including the date of termination. Should you wish to resume your account after any suspension, a restoration of service fee may apply. This fee is due in addition to all past due unpaid charges and other fees.
3. Equipment, Software and Updates
Please note that certain equipment and software may be required to access and use the Simtek Products. Furthermore, we reserve the right to automatically update some of the software you receive or provide you with new software to ensure the continued optimal functionality of the Simtek Products. Such updates may include bug fixes, patches, enhanced features, missing plug-ins, and new versions. By using the Simtek Products, you consent to such automatic updates.
We reserve the right to disable access to or the ability to use Simtek Products if we determine that they pose a health and safety risk or violate our terms, agreements, laws, regulations, or policies, provided that this is technically feasible. We do not accept liability or assume responsibility for our decision to remove, disable, or delete access or ability to use any or all portions of the Simtek Products.
4. Your Use of Simtek VR Products and Content
4.1 Content and Software License. Unless otherwise agreed, if we enable the use of software, content, virtual items or other materials owned or licensed by us ("Software and Content"), we hereby grant you a limited, non-exclusive, non-sublicensable license to access, install and use the Software and Content solely for your personal and non-commercial purposes (unless otherwise authorized by us in writing), provided that you comply with these Terms. You will not use, copy, adapt, modify, decompile, reverse engineer, disassemble, decrypt, attempt to derive the source code of, create derivative works based on, distribute, license, sell, rent, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Software and Content, except as expressly permitted by us or as permitted by applicable law. Any unauthorized use of the Simtek is strictly prohibited and will terminate the license granted by these Terms. No license or right is granted to you by implication or otherwise, except as expressly granted.
4.2 Third Party Content. Your use of third party services, applications or content ("Third Party Content") made available through the Simtek Products may be subject to additional end user agreements. To the extent such agreements conflict with the terms of these Terms, these Terms shall control. Simtek has no responsibility or liability with respect to your access to or use of the Third Party Content, or any content or functionality contained in such Third Party Content, your rights to which are solely provided pursuant to a license between you and the provider of such Third Party Content. In no event shall Simtek be deemed to be the licensor of the Third Party Content, to have granted any rights to use the Third Party Content, to have assumed any obligations with respect to the Third Party Content, or to have made any representations or warranties with respect to the Third Party Content.
4.3 Trial Access to Simtek Products. We may offer free trial or other limited versions of our products so that you can try our products before purchasing the full version. These versions may have limited functionality, time limits, and other restrictions. Nevertheless, trial access to Simtek is still subject to these Terms.
4.4 Availability of Simtek Products after Purchase, Updates. Some Simtek Products may rely on services provided by third parties for some or all of their functionality.
4.5 Support. Simtek is responsible for all billing issues related to the purchase of our products and for support related to the Simtek platform. Simtek has no obligation to provide support for Third Party Content.
4.6 Availability. The Simtek Products and Content may not be available in all territories and jurisdictions, and we may restrict or prohibit use of all or a portion of the Simtek Products and Content in certain territories and jurisdictions.
4.7 Network Costs. You may be billed by your network provider for data services or other third party charges incurred in using the Simtek Products, and you accept responsibility for such charges. If you are not the billing party, we will assume that you have received permission from the billing party.
4.8 Developer Portal. The Website includes a portal where content developers can submit content to Simtek to make such content available in our Store (as defined in the Store Terms) and to manage such submitted content (the “Developer Portal”). All content submissions to the Developer Portal are subject to our Content Submission Terms. Any content that will be published in our Store is subject to the Simtek Publisher Licensing Agreement.
5. Purchasing Simtek Services
5.1 Purchase Simtek Services from Simtek. You may purchase Simtek Services only for your personal use or as a gift, except as expressly permitted by these Terms. You may not purchase Simtek Services for commercial use or resale (unless otherwise authorized by us in writing), although you may use the Simtek Products to develop and test content, software.
When placing an order or making a purchase, you will be required to provide us with information such as your address and billing information. You represent and warrant that all such information is accurate and you will ensure that such information is kept current. We shall have no responsibility or liability for any inaccurate or subsequently outdated information, and we shall have no obligation to make any effort to determine the correct contact or shipping information. For most Simtek products, you can manage your information in your account settings.
Any shipping dates or times provided by us (or a courier) are estimates only and are not guaranteed. The risk of loss of physical goods purchased by you, and the responsibility for insuring the goods, passes to you upon delivery of the goods to you. Nothing in these terms and conditions shall affect your statutory rights to reject any physical goods that are damaged or defective when received by you.
5.2 Pre-Orders. In advance of the release of a new Simtek Product, you may be able to place pre-orders. The price of the Product you pre-order will be the price quoted to you at the time you place your pre-order. Placing a pre-order does not guarantee delivery of any Simtek Product.
5.3 Our Right to Reject Your Order. We reserve the right to refuse or reject your order at any time prior to acceptance. If we do so, we will attempt to notify you. Some reasons for refusal may include (a) we are unable to supply the Simtek product to you, for example, because the item is no longer available or because of a pricing error at the point of sale; (b) you do not live in a country or region where Simtek products are available; or (c) you order more than the maximum number of Simtek products allowed; or (d) Simtek products are out of stock. If you have already paid, we will issue you a full refund, including any shipping charges.
5.4 Errors. We attempt to be as accurate as possible and to eliminate errors with respect to our Simtek Products; however, we do not represent or warrant that any Simtek Product descriptions or pricing information is accurate, complete, reliable, current, or error-free. In the event of an error, we reserve the right to correct such error and revise your order accordingly (including charging the correct price) or to cancel the order and refund any amount charged. If we discover an error in price or other material error in a Simtek product that has not yet been shipped or delivered, we will contact you to notify you of the error and give you the opportunity to proceed with the purchase at the correct price or to cancel your order. If we are unable to contact you using the contact information you provided during the order process, we will treat the order as cancelled.
5.5 Account. You may be required to be a registered user in order to purchase some Simtek Products. You are responsible for all charges incurred in connection with your account. We may attempt to collect unpaid charges, including by attempting to add charges to your payment instrument, using collection agencies, and any other legal means. If you decide to cancel your account, we reserve the right, subject to any limitations under applicable law, to collect any fees, surcharges or costs incurred prior to the cancellation. Any past due or unpaid balance must be paid before we will allow you to re-register.
5.6 Virtual Items. Your purchase of a virtual item or in-game currency within the Simtek Products is payment for a limited, non-transferable license to access and use such content or functionality within the Simtek Products. Virtual items (including characters and character names) or in-game currency purchased or made available to you in Simtek Products may only be used in connection with the Simtek Products in which they were purchased or in which they were developed by you as a result of game play. These items are not redeemable or refundable and cannot be exchanged for money or other items of value outside of the Simtek Products. We may change or discontinue any virtual item or in-game currency at any time.
5.7 Pricing and Payment. We may accept various forms of payment, including credit and debit cards and payments made through PayPal. Additional terms and conditions with your payment provider may apply.
By submitting an order or pre-order, you acknowledge that you are authorized to use the specified payment method and you authorize us to charge your order to that payment method. When you provide your payment information, you authorize us (or a third party payment processor) to process and store your payment and related information. We may use an agent, subsidiary or affiliate to process payment and shipping, depending on where you are located or where you want the Products shipped or delivered. If the payment method you provide cannot be verified, is invalid, or is otherwise unacceptable, we may suspend or cancel your order. You are responsible for resolving any problems we encounter in order to proceed with your order.
Prices are subject to change at any time without notice. We reserve the right to refuse or cancel any order at any time in our sole discretion.
5.8 Taxes. If your purchase or use of the Simtek Products is subject to any type of use or sales tax, duty or other governmental tax or fee ("Taxes"), we may charge you for such Taxes. Applicable Taxes may be presented at checkout. You are responsible for any Taxes due with respect to your purchases and use of the Services.
5.9 Content Cancellations and Returns. All purchases of digital content are final, except as required by law, or as described in our Refund Policy. Once you have purchased content, we encourage you to download, install and/or access it promptly. You consent that the supply of the digital content may begin immediately following the completion of your purchase, and you acknowledge that you will therefore lose any statutory rights you may have to withdraw and receive a refund. The laws of some jurisdictions do not allow the disclaimer or removal of certain statutory rights, so this waiver of statutory rights may not apply to you. If you are not able to download, install or access purchased content, please contact us.
5.10 Promotional Codes. We may from time to time offer certain promotional codes, referral codes, discount codes, coupon codes or similar offers (“Promotional Codes”) that may be redeemed for discounts on certain of the Services, subject to any additional terms that Simtek establishes. You agree that Promotional Codes: (a) must be used in a lawful manner; (b) must be used for the intended audience and purpose; (c) may not be duplicated, sold or transferred in any manner, or made publicly available by you (whether posted to a public forum, coupon collecting service, or otherwise), unless expressly permitted by Simtek; (d) may be disabled or have additional conditions applied to them by Simtek at any time for any reason without liability to Simtek; (e) may only be used pursuant to the specific terms that Simtek establishes for such Promotional Code; (f) are not valid for cash or other credits or points.
5.11 Gift Cards. Digital gift cards containing stored money value, may be offered by us for the purchase of Services (“Gift Cards”). You acknowledge that Simtek does not make any warranties with respect to your Gift Card balance and is not responsible for any unauthorized access to, or alteration, theft, or destruction of a Gift Card or Gift Card code that results from any action by you or a third party. You also acknowledge that we may suspend or prohibit use of your Gift Card if your Gift Card or Gift Card code has been reported lost or stolen, or if we believe your Gift Card balance is being used suspiciously, fraudulently, or in an otherwise unauthorized manner. If your Gift Card code stops working, your only remedy is for us to issue you a replacement Gift Card code. By purchasing a Gift Card, you represent and warrant to Simtek that your possession and use of the Gift Card, and the possession and use of the Gift Card by any person you permit to possess or use the Gift Card, will in each case comply with these Terms and all applicable laws, rules and regulations, and you will not use, or permit any other person to use, any Gift Card in any manner that is misleading, deceptive, unfair or otherwise harmful to consumers. Gift Cards cannot be used to purchase other gift cards, resold, used for the purchase of Products outside of the Services, used for unauthorized marketing, sweepstakes, advertising, or other promotional purposes, redeemed for more than face value, transferred for value, redeemed for cash, or returned for a cash refund (except to the extent required by law).
6. Acceptable Use
By accessing or using the Simtek Products, you agree that you will not (a) access or use the Simtek Services in any manner that could interfere with, disrupt, negatively impact, or inhibit anyone from fully enjoying the Simtek Services, including, but not limited to, defamatory, harassing, threatening, bigoted, hateful, vulgar, obscene, pornographic, or otherwise objectionable conduct or content; (b) damage, disable, overburden, or impair the functionality of Simtek Services in any way; (c) access or use Simtek Services for any illegal or unauthorized purpose or to engage in, encourage, or promote any illegal activity or any activity that violates these Terms or any other terms or guidelines provided in connection with Simtek Services; or (d) use or attempt to use another user's account without their authorization; (e) modify, adapt, hack or emulate Simtek Services; (f) use any robot, spider, crawler, scraper or other automatic device or interface not provided or authorized by us to access or extract data from Simtek Services; (g) bypass or attempt to bypass any filtering, security measures or other features designed to protect Simtek Services or third parties; or (h) infringe or violate our rights or the rights of our users or any third party.
You are solely responsible for the User Content that you submit through Simtek Services, and you represent and warrant that (a) you are either the sole and exclusive owner of all User Content that you submit, or you have obtained all rights, licenses, permissions, consents and releases necessary to grant us the rights set forth in this section; (b) the submission of your User Content and our subsequent use of such User Content will not infringe, misappropriate or violate any patent, copyright, trademark, trade secret, moral right or other proprietary or intellectual property right of any third party, or any right of publicity or privacy, or otherwise violate any applicable law or regulation.
We do not endorse or guarantee any opinions, views, advice or recommendations posted or transmitted by users. Simtek has no responsibility or liability for User Content made available through Simtek Services, and we have no obligation to review, edit, or monitor such content. However, we reserve the right and have the absolute discretion to remove, screen, or edit User Content at any time and for any reason, including content that infringes intellectual property rights or otherwise violates these Terms.
7. User Content
Our Services may include interactive features and areas where you may submit, post, upload, publish, email, send, otherwise transmit or interact with content, including, but not limited to, text, images, photos, videos, sounds, virtual reality environments or features, software and other information and materials (collectively, "User Content"). For the avoidance of doubt, User Content does not include any content submitted via the Developer Portal (“Developer Content”). Unless otherwise agreed, we do not claim any ownership rights in or to your User Content. If you use content covered by intellectual property rights that we have made available through our Services (for example, images, designs, videos or sounds we provide that you add to content you create or share on Services), we retain all rights to that content (but not yours).
By submitting User Content through the Services, you grant us a worldwide, non-exclusive, transferable, perpetual, royalty-free and fully sublicensable (i.e. we can grant this right to others) right to use, copy, display, store, adapt, publicly perform and distribute such User Content in connection with the Services (subject to applicable Privacy Settings).
We may also use your or your Guest Users’ gameplay footage, including your or your Guest Users’ gameplay recording, voice recording, visual images, and likeness (“Gameplay Footage”) for marketing purposes. You grant us permission to use Gameplay Footage, and such permission extends into perpetuity. For a valuable consideration, receipt of which is hereby acknowledged, you hereby grant us all ownership rights and the absolute and irrevocable right and permission to copyright, use and publish your Gameplay Footage which has been obtained pursuant to this paragraph. The Gameplay Footage may be copyrighted, used and/or published individually or in conjunction with other photography or video works, and in any medium and for any lawful purpose, including without limitation, trade, exhibition, illustration, promotion, publicity, advertising and electronic publication.
You are solely responsible for the User Content you make available through the Services, and you represent and warrant that (a) either you are the sole and exclusive rights owner of all User Content that you provide, or you have obtained all rights, licenses, permissions, consents and releases that are necessary to grant to us the rights specified in this section; (b) the provision of your User Content, and our subsequent use of such User Content, will not infringe, misappropriate or violate any third party's patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable laws or regulations; and (c) your User Content does not violate our Community Standards.
We do not endorse or guarantee the opinions, views, advice or recommendations posted or sent by you or any other users. Simtek has no responsibility or liability for User Content made available through the Services, and we have no obligation to screen, edit or monitor such content. However, we do reserve the right, and have absolute discretion, to remove, screen or edit User Content at any time and for any reason, including content that infringes intellectual property rights or otherwise breaches these Terms.
In the event that you are a developer who submits User Content to, or in connection with, the Services, you acknowledge and agree that our agreements with you as a developer may supersede this section of the Terms.
8. Privacy Policy
By your use of the Services, you consent to our collection and use of your data as governed by our Privacy Policy, which is incorporated by reference into these Terms. The Privacy Policy sets forth how we treat data, including how we collect, use and disclose information.
In addition, certain third parties (such as developers of Third-party Content and the manufacturers of your computer, mobile phone or other devices) may collect information about you when you use the Services. These third parties have their own privacy policies and will treat the information they collect about you according to these policies. We encourage you to review these privacy policies before providing any information to third parties. We are not responsible for the accuracy of any third party's privacy policy or for ensuring that third parties comply with their privacy policies.
9. User Safety Instructions
For detailed instructions, please refer to the Simtek product manual, which is available on the Simtek website. It is imperative that you read the user safety instructions before using any Simtek product.
10. Ownership and Intellectual Property
Unless otherwise stated, all Simtek products are the property of Simtek. You will not remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices contained in or attached to Simtek products.
11. Submissions
You may submit questions, comments, suggestions, ideas, plans, notes, drawings, original or creative materials or other feedback about us and our Services (collectively, "Submissions"). The Submissions do not include any content submitted via the Developer Portal, which is subject to the Content Submission Terms.
Any and all Submissions, and all improvements, updates, modifications, or enhancements, whether made, created or developed by you or Simtek or otherwise relating to the Services (collectively Revisions), are and will remain the property of Simtek. You acknowledge and expressly agree that any contribution of Submissions or Revisions does not and will not give or grant you any right, title, or interest in the Services or in any such Submissions or Revisions. All Submissions and Revisions become the sole and exclusive property of Simtek, and Simtek may use and disclose Submissions and/or Revisions in any manner and for any purpose whatsoever, without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to Simtek any and all right, title, and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights, and any and all other intellectual property right) that you may have in, and to any and all, Submissions and Revisions. At Simtek’s request, you will execute any document, registration, or filing required to give effect to the foregoing assignment. If you fail or refuse to execute any such document, you will be deemed to have given your power of attorney to Simtek to execute any such document on your behalf.
12. Feedback
In addition to User Content, you may submit any other information to us, such as questions, comments, suggestions, ideas, plans, notes, drawings, original or creative materials, or other information. You agree that Simtek and its affiliates are free to use the feedback in any manner they choose, without any obligation to you.
13. Disclaimers
It is of the utmost importance that you familiarize yourself with the health and safety warnings and instructions before using Simtek products. These can be found on the Simtek website.
Please note that we reserve the right to update or revise these warnings and instructions at any time. We therefore ask that you review them periodically.
You acknowledge and agree that your access to and use of Simtek products is at your own risk. As between you and Simtek, to the maximum extent permitted by applicable law, Simtek products are provided on an "as is" and "as available" basis. Simtek expressly disclaims all representations, warranties and conditions (express or implied, oral or written), including any implied warranties of merchantability, fitness for a particular purpose and non-infringement. Furthermore, Simtek does not guarantee that:
(A) the functions contained in the Simtek products will be accurate or meet your requirements,
(B) the operation of the Simtek products will be secure, uninterrupted, error-free, or virus-free, or
(C) any defects in the Simtek products will be corrected. No oral or written information, guidelines, or advice provided by Simtek shall create any warranty.
14. Indemnification
You agree to defend, indemnify and hold harmless Simtek and our affiliates, independent contractors and service providers, and each of our respective directors, officers, employees and agents, from and against any and all third-party claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys' fees) arising out of or related to (a) your purchase or use of, or inability to use, Simtek Products; (b) your violation of these Terms or any other applicable terms, conditions, warnings, or instructions provided by Simtek or any third party in connection with Simtek Products; (c) your violation of any applicable law or the rights of any third party; or (d) any User Content or feedback you provide.
15. Limitation of Liability
In no event shall Simtek be liable for any lost profits or other consequential, special, punitive, indirect, or incidental damages arising out of or related to the use of or inability to use Simtek products, even if Simtek has been advised of the possibility of such damages.
16. Dispute Resolution
For any dispute you may have with Simtek, you agree to first contact Simtek and attempt to resolve the dispute informally by sending a written notice of your claim ("Notice") to Simtek. The Notice to Simtek must be sent by certified mail, return receipt requested, addressed to Simtek Company: Guangzhou Zhuoyuan Virtual Reality Tech Co. Address: No.2 2nd Street, Xinxing Road, Xinqiao Village, Dalong Street, Panyu District, Guangzhou, Guangdong Province, China. Postal Code: 511450. The notice must (a) include your name, home address, and the email address and/or mobile phone number associated with your Simtek account; (b) include the date you purchased the product or accessory; (c) include the order number and serial number of the product(s) you purchased; (d) describe the nature and basis of the claim; and (e) set forth the specific remedy sought. You and Simtek agree that any cause of action must be commenced or filed within one year after such claim arose or such cause of action will be forever barred.
If you intend to invoke arbitration pursuant to the provisions of the preceding paragraph, you must first give Simtek 30 days written notice of the desired arbitration date. Such notice shall be sent to Simtek at the following address Guangzhou Zhuoyuan Virtual Reality Tech Co. Address: No.2 2nd Street, Xinxing Road, Xinqiao Village, Dalong Street, Panyu District, Guangzhou, Guangdong Province, China. Postal Code: 511450. The arbitration shall be governed by the laws of the People's Republic of China and the award shall be final and binding on both Simtek and you.
If Simtek intends to resolve any dispute by arbitration as provided above, Simtek shall also provide you with written notice 30 days prior to the desired arbitration date. Such notice shall specify the nature of the claim and the relief sought. If the parties fail to resolve the dispute within 30 days, you or Simtek may request arbitration. Unless your claim is determined to be frivolous and without merit, Simtek will pay the filing fee to initiate arbitration and any administrative and arbitration fees subsequently charged by the arbitration organization. If your request for arbitration is deemed to be frivolous or motivated by bad faith, Simtek will not be responsible for any arbitration fees.
17. Governing Law and Place
This agreement and any disputes, claims or proceedings arising out of or in any way relating to this agreement shall be governed by the laws of P.R. China without reference to its conflict of laws rules. Any dispute, controversy, difference or claim arising out of or relating to this Agreement, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to it shall first be resolved between the Parties through amicable negotiation, failing which, shall be referred to and finally resolved by a court of jurisdiction in Beijing, China.
18. Changes to Simtek Services
We reserve the right to change, suspend, remove, discontinue or disable access to the Simtek Services or any portion thereof at any time. To the extent required by law, we will provide you with reasonable advance notice of such changes. In no event will Simtek be liable for removing or disabling access to any portion or feature of the Simtek Services.
19. Termination
We reserve the right to terminate your right to access and use Simtek Products if you violate these Terms or any other terms or policies referenced herein, or if you otherwise create a risk or potential legal exposure for us.
20. Severability
In the event that any provision of these Terms is deemed unlawful, void, or otherwise unenforceable, it shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
21. Assignment
You may not assign these Terms or any of the rights granted hereunder without Simtek's prior written consent. Any attempted assignment without such consent shall be void. Subject to the foregoing restriction, these Terms shall be fully binding upon, inure to the benefit of, and be enforceable by us and our respective successors and assigns.
22. Non-waiver
Any failure by Simtek to insist upon or enforce performance by you of any of the provisions of these Terms or to exercise any rights or remedies under these Terms or otherwise by law will not be construed as a waiver or relinquishment of any right to assert or rely upon the provision, right or remedy in that or any other instance; rather, the provision, right or remedy will be and remain in full force and effect.
23. Injunctive Relief
You agree that a breach of these Terms will cause irreparable injury to Simtek for which monetary damages would not be an adequate remedy, and in such event, Simtek shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.
24. Contact Us
Should you have any questions or concerns regarding these Terms or our Products, please contact us by email at info@simtekxr.com.