Terms of Service

1. Introduction

Welcome to Cluster Co., Ltd. (“Cluster” “we,” or “us”) and our website at https://cluster.mu/en/, along with our related websites and networks and other services provided by us (collectively, the “Platform”). These Cluster Terms of Service (the “Terms”), is a legally binding contract between you and Cluster regarding your use of the Platform.
PLEASE READ THE FOLLOWING TERMS CAREFULLY. BY USING THE PLATFORM OR ANY PART OF THE PLATFORM, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE TERMS.
If you are not eligible, or do not agree to the Terms, then you do not have our permission to use the Platform or any part of the Platform.
You acknowledge and agree that, as provided in greater detail in the Terms:

• you may use the Platform only as set forth in the Terms;
• the Platform is provided “as is” without warranties of any kind and Cluster’s liability to you is limited;
• disputes arising under the Terms will be resolved by binding arbitration, and by accepting the Terms, as described in greater detail in Section 22, you and Cluster are each waiving the right to a trial by jury or to participate in a class action.

2. Platform Overview

Cluster is a metaverse platform for experiencing, creating, and participating in social virtual reality events. Users can create, share, and interact with virtual worlds and avatars.

3. Eligibility

You must be at least 13 years of age to use the Platform. By agreeing to the Terms, you represent and warrant to us that: (a) you are at least 13 years of age; (b) you have not previously been suspended or removed from the Platform; and (c) your registration and your use of the Platform complies with all applicable laws and regulations. If you are at least 13 but are under the age of 18, you may only use the Platform with your parent’s or guardian’s consent and your parent or guardian must provide consent after having read the Terms. In such a case you represent and warrant and covenant that both you and your parent or guardian have read and consent to the Terms (including all the conditions, limitations, disclaimers, and waivers provided herein). You further acknowledge and agree that by using the Platform you are accepting a benefit that you cannot return or disgorge and that we are relying on your representations regarding your ability to accept and perform the Terms, and you therefore waive any right you may have under applicable law to void, rescind, or otherwise avoid the Terms. If you are a parent or guardian consenting to the Terms on behalf of a child between the ages of 13 and 18, you additionally agree to guarantee and be fully responsible for that person’s performance hereunder, including all financial obligations or liability he or she may incur, and all disclaimers and waivers of applicable legal protections provided herein, and you agree to take all actions (including executing such additional documents or agreements) necessary to effect and perfect the foregoing. In all other cases, you represent that you are 18 years or older and fully competent to enter into the Terms, and you hereby agree and acknowledge that you have read, understood, and agree to be bound by the Terms without modification.
You further represent and warrant that you are not listed on or covered by any sanctioned person lists administered by the United States government or United Nations, including but not limited to the United States Department of Treasury’s List of Specially Designated Nationals and Blocked Persons, the United States Department of Commerce’s List of Denied Persons or Entity List, and the United Nations Security Council Sanctions. You further represent that you are not located in a country subject to comprehensive United States sanctions, including Iran, Syria, Cuba, North Korea, or the Crimea region of Ukraine. Should you become listed on or otherwise subject to any such list or are in a country subject to comprehensive United States sanctions, then you agree to immediately cease use of the Platform.

4. User Accounts

To access most features of the Platform, you must register for an account (your “User Account”). When you register, you may be required to provide us with some information about yourself, such as your email address or other contact information (“Registration Information”). You agree that the Registration Information you provide to us is accurate and that you will keep it accurate and up to date at all times. When you register, you will be asked to provide a password.

4.1

You are solely responsible for maintaining the confidentiality of the password(s) for your User Account, and you accept responsibility for all activities that occur under your User Account. The registration application must be submitted by the individual who will use the Platform. In general, registration applications from agents will not be accepted.

4.2

Cluster may deny registration to anyone who has applied for registration under this Section 4 in any of the following circumstances.

1. Cluster determines there is a risk that you may violate the Terms.
2. All or part of the Registration Information provided to Cluster contains falsehoods, errors or omissions.
3. You have had your registration to use the Platform or another service operated by Cluster revoked in the past.
4. You are a minor or a person with limited legal capacity under the laws and regulations of the government, agencies, etc. of the country where you use the Platform, and consent of the statutory agent such as the parent has not been obtained.
5. Cluster determines the applicant is unsuitable for any other reason.

4.3

Cluster will decide whether to accept or reject the registration application in accordance with the previous paragraph and other standards of Cluster. If Cluster approves the application, it will notify you of such decision. (If you can start using the Platform, this is deemed as a notification meaning that your application was accepted by Cluster.) Such notification will complete your registration process as a user, successfully creating your User Account and an agreement (“User Agreement”) pertaining to usage of the Platform in accordance with the Terms will come into effect between you and Cluster.

4.4

If your Registration Information changes, you should notify Cluster of those changes and provide any materials requested by Cluster without delay in the manner prescribed by Cluster.

5. V Points

5.1

Cluster may grant points (“V Points”) to you in accordance with standards prescribed by Cluster (“Point Standards”).

5.2

Cluster will determine whether or not the Point Standards apply to your conduct at its own discretion. Even if Cluster determines that the Point Standards do not apply to your conduct, Cluster shall have no obligation to explain its reasoning. Additionally, Cluster shall not be liable for any damage to you arising from not being granted V Points.

5.3

By submitting a request in a manner designated by Cluster, you may use V Points in a manner designated by Cluster. Cluster may change the usage of V Points without prior notice to you.

5.4

If the V Points you hold are not used under Paragraph 5.3 for 170 days from the date those V Points were granted, they shall expire immediately. If the User Agreement between you and Cluster ends for any reason, the V Points shall expire at the time the User Agreement ends. Cluster shall have no obligation to compensate you for lost V Points, regardless of the reason.

5.5

a. In any of the following circumstances, Cluster may suspend usage or revoke V Points.

1. When you obtain V Points incorrectly, or uses or redeems V Points that they know were obtained incorrectly;
2. When V Points are forged or falsified
3. When you violate the Terms
4. When Cluster determines that suspension of usage or exchange of V Points is necessary for any other reason

b. V Points cannot be transferred or otherwise disposed of, nor can they be pledged or otherwise used as collateral.

6. No Support

We are under no obligation to provide support for the Platform. In instances where we may offer support, the support will be subject to applicable published policies.

7. User Content

7.1 User Content.

Certain features of the Platform may permit users to upload content to the Platform (“User Content”) and to publish User Content on the Platform. You retain copyright and any other proprietary rights that you may hold in the User Content you post to the Platform.

7.2 Limited License Grant to Cluster.

By posting, publishing, or otherwise developing User Content in the Platform, you grant Cluster a worldwide, non-exclusive, irrevocable, royalty-free, perpetual, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed. You agree that the license granted to Cluster under this Section 7.2 applies to any User Content you previously posted, published, or otherwise developed in the Platform.

7.3 Limited License Grant to Other Users.

By posting or sharing User Content with other users of the Platform in a public portion of the Platform, or by setting any of your User Content to public, you grant those users a non-exclusive license to access and use that User Content as permitted by the Terms and the functionality of the Platform.

7.4 User Content Representations and Warranties.

You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting or publishing User Content, you affirm, represent, and warrant that:

1. you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Cluster and users of the Platform to use and distribute your User Content as necessary to exercise the licenses granted by you in this section, in the manner contemplated by Cluster, the Platform, and the Terms;
2. your User Content, and the use of your User Content as contemplated by the Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Cluster to violate any law or regulation; and
3. your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.

7.5 Deleting User Content

1. Where permitted, you may delete copies or instances of your User Content that you have uploaded to your account through the normal functionality of the Platform. If you delete your User Content through use of that functionality, the licenses granted by you in this Section 8 to your User Content terminate as described in this Section 7.5 with respect to the particular copies or instances of your User Content that you have deleted.
2. The termination of the licenses does not apply to any copies or instances of the same User Content that you have not specifically deleted from the Platform, including those that may be displayed elsewhere.
3. The licenses under this Section 8 that you granted to your User Content that you have deleted through the Platform will survive termination solely to allow Cluster to: (i) retain server copies of particular instances of your User Content, including copies stored in connection with back-up, debugging, and testing procedures; and (ii) enable the exercise of the licenses granted in this Section 8 for any other copies or instances of the same User Content that you have not specifically deleted from the Platform, including those that may be displayed elsewhere or that exist in other users’ account inventories.

7.6 User Content Disclaimer.

We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. Cluster may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates the Terms or is otherwise objectionable. You understand that, when using the Platform, you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. Most User Content, including worlds and avatars, available through Cluster is created by other users or third parties, and Cluster does not control or actively monitor the content or technical features of individual worlds, avatars, or other User Content. You understand that any world you enter is at your own risk. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Cluster with respect to User Content. We expressly disclaim any and all liability in connection with User Content. If notified by a user or content owner that User Content allegedly does not conform to the Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Cluster does not permit copyright-infringing activities on the Platform.

8. Restrictions

You may not reproduce, distribute, publicly display, or publicly perform any part of the Platform except as otherwise expressly agreed in a separate written agreement between you and Cluster. You may not use any part of the Platform for any commercial uses or other uses outside the scope of what is expressly permitted in the Terms without entering into a separate written agreement with Cluster that expressly allows that expanded use (such an agreement, a “Commercial Use Agreement”). Unless, and solely to the extent that, such a restriction is impermissible under applicable law or applicable third party license, you may not: (a) decompile, reverse engineer, or otherwise access or attempt to access the source code for any portion of the Platform, or make or attempt to make any modification to any portion of the Platform (other than modifications of the type described in the applicable user documentation made available to you by Cluster) or (b) interfere with or circumvent any feature of the Platform, including any security, or access control mechanism. You may not use the Platform for any purpose other than a purpose for which the applicable part of the Platform is expressly designed. If you are prohibited under applicable law from using any part(s) of the Platform, you may not use them. You represent and covenant that you have complied and will continue to comply with the rights and obligations set forth in the Terms with regards to your use of any part(s) of the Platform previously downloaded or accessed. We make no representation that the Platform is appropriate or available for use outside of the Japan. Access to the Platform from countries or territories or by individuals where such access is illegal is prohibited.

9. Prohibited Conduct

By using the Platform, you agree not to:

1. use the Platform for any illegal purpose or in violation of any local, national, or international law;
2. violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
3. share, publicly post, copy, or distribute another user’s User Content without their permission;
4. post, upload, or distribute any User Content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
5. interfere with security-related features of the Platform, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Platform, except to the extent that the activity is expressly permitted by applicable law;
6. upload to the Platform any software code, routine, or instructions that interfere with, or otherwise attempt to impair, the operation of the Platform, any user’s enjoyment of the Platform, or any user’s underlying code or hardware, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Platform; (iii) attempting to collect personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Platform, or violating any regulation, policy, or procedure of any such network, equipment, or server;
7. perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Platform account without permission, or falsifying your age or date of birth;
8. bypass any security or other features of the Platform designed to control how the Platform is used, harvest, or mine User Content from the Platform, or otherwise access or use the Platform in a manner inconsistent with individual human usage;
9. use any robot, spambot, spider, crawler, scraper, or other automated means or interface not provided by us to access the Platform or to extract data;
10. decipher, reverse engineer, decompile, or disassemble the Platform, or the software used to provide the Platform, in whole or in part, or authorize, direct, or cause a third party to do so;
11. use, display, mirror, frame, or utilize framing techniques to enclose the Platform or any content available through the Platform (“Content”), or any portion or component of the Platform, unless and solely to the extent Cluster provides the means for embedding any part of the Platform or the Content;
12. access, tamper with, or use non-public areas of the Platform, Cluster’s computer systems and infrastructure, or the technical delivery systems of Cluster’s providers;
13. use the Platform in any manner to harass, abuse, stalk, threaten, defame, or otherwise infringe or violate the rights of any other party;
14. sell or otherwise transfer the access granted under the Terms or any Materials (as defined below) or any right or ability to view, access, or use any Materials;
15. transmission of data over the Platform at a volume that exceeds a certain limit set by Cluster;
16. attempt to do any of the acts described in this Section 10, or assist or permit any person in engaging in any of the acts described in this Section 10; or
17. use the Platform or other services of Cluster in any manner which Cluster deems to be unsuitable for any other reason.

10. Termination; Discontinuation and Modification of the Service

You may terminate your User Account at any time through account deletion functionality that may be provided to you via the Platform.

If you violate any provision of the Terms, your permission from us to use the Platform will terminate automatically. In addition, Cluster may in its sole discretion terminate your User Account on the Platform or suspend or terminate your access to the Platform at any time for any reason or no reason, with or without notice.

We also reserve the right to terminate the Terms, or modify or discontinue the Platform at any time (including by limiting or discontinuing certain features of the Platform), temporarily or permanently, without notice to you. We will have no liability whatsoever on account of any change to the Platform or any suspension or termination of your access to or use of the Platform.

Upon termination of the Terms, Sections 3, 4, 5, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, and 25, and any terms that survive within the Ancillary Agreements (defined below), will survive.

11. Use of Data

You agree that Cluster may collect, use, and share information, including information about you, your device, system, and peripherals, as disclosed in the Cluster Privacy Policy, available at https://cluster.mu/en/privacy (the “Privacy Policy”). Please read the Privacy Policy carefully for information relating to our collection, use, storage, and disclosure of your personal information. The Privacy Policy is incorporated by this reference into, and made a part of, the Terms.

12. IP Ownership, Reservation of Rights

The Platform is as between you and Cluster, owned and operated by Cluster. The Content, visual interfaces, interactive features, information, graphics, design, compilation, computer code, products, services, and all other elements of the Platform (the “Materials”), are protected by copyright, patent, and trademark laws of the United States and other jurisdictions, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. As between you and Cluster, all Materials, including all associated intellectual property rights, are the sole and exclusive property of Cluster, its subsidiaries or affiliated companies, or its third-party licensors. You may not sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or use the Materials except as expressly authorized under the Terms. Cluster reserves all rights not expressly granted in the Terms. You do not acquire any right, title, or interest to the Materials, whether by implication, estoppel, or otherwise, except for the limited rights set forth in the Terms.

13. Digital Millennium Copyright Act

We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended).

14. Modification of the Terms

We reserve the right, at our discretion, to change the Terms on a going-forward basis at any time. Please check the Terms periodically for changes. If a change to the Terms materially modifies your rights or obligations, you will be required to accept the modified Terms in order to continue to use the Platform. The Terms will be identified by the most recent date of revision and will be effective immediately upon being made available through https://cluster.mu/en/terms or otherwise through the Platform. Your use of the Platform after modifications to the Terms become effective constitutes your binding acceptance of such changes. If you are dissatisfied with the Terms or any modifications to the Terms, then you agree that your sole and exclusive remedy is to discontinue any use of the Platform.

15. Comments and Feedback

If you provide Cluster with any comments, bug reports, feedback, or modifications proposed or suggested by you for the Platform (“Feedback”), such Feedback is provided on a non-confidential basis (notwithstanding any notice to the contrary you may include in any accompanying communication), and Cluster will have the right to use such Feedback at its discretion, including the incorporation of such suggested changes into the Platform. You hereby grant Cluster a perpetual, unrestricted, irrevocable, nonexclusive, royalty-free license under all rights necessary to so incorporate and use your Feedback for any purpose.

16. Indemnity

You are responsible for your use of the Platform, and you will defend and indemnify Cluster and its officers, directors, employees, consultants, affiliates, and agents (together, the “Cluster Entities”) 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 Platform; (b) your violation of any portion of the Terms, any representation, warranty, or agreement referenced in the Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.

17. Disclaimers; No Warranties

ALL PARTS OF THE PLATFORM AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE PLATFORM 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, THE CLUSTER ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE PLATFORM AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE PLATFORM, 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 CLUSTER ENTITIES DO NOT WARRANT THAT THE PLATFORM OR ANY PORTION OF THE PLATFORM, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE PLATFORM, 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. CLUSTER EXPRESSLY DISCLAIMS ANY WARRANTIES OF ANY KIND WITH RESPECT TO THE ACCURACY OR FUNCTIONALITY OF LOCATION BASED SERVICES, AND WITH RESPECT TO THE ACCURACY, VALIDITY, OR COMPLETENESS OF ANY INFORMATION OR FEATURES AVAILABLE THROUGH THE PLATFORM, OR THE QUALITY OR CONSISTENCY OF THE PLATFORM. CLUSTER FURTHER DISCLAIMS ANY WARRANTY OR LIABILITY RELATED TO YOUR CARRIER’S NETWORK OR SERVICE.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE PLATFORM OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE PLATFORM WILL CREATE ANY WARRANTY REGARDING ANY OF THE CLUSTER ENTITIES OR THE PLATFORM THAT IS NOT EXPRESSLY STATED IN THE TERMS. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE PLATFORM, YOUR DEALING WITH ANY OTHER USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE PLATFORM. YOU UNDERSTAND AND AGREE THAT YOU USE THE PLATFORM, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE PLATFORM AND ANY ASSOCIATED SITES OR PLATFORMS, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE PLATFORM), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE PLATFORM OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.

18. Limitation of Liability

IN NO EVENT WILL THE CLUSTER ENTITIES BE LIABLE TO YOU 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 YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE PLATFORM OR ANY MATERIALS OR CONTENT ON THE PLATFORM, OR OTHERWISE ARISING OUT OF THE TERMS (INCLUDING ANY ANCILLARY AGREEMENT), WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY CLUSTER ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTION 21.5.c, THE AGGREGATE LIABILITY OF THE CLUSTER ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE PLATFORM OR OTHERWISE UNDER THE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO USD 100.00.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THE TERMS. THE LIMITATIONS IN THIS SECTION 19 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

19. Governing Law

The Terms is governed by the laws of the State of California without regard to conflict of law principles that would result in the application of the laws of another jurisdiction. If a lawsuit or court proceeding is permitted under the Terms, then you and Cluster agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within California for the purpose of litigating any dispute.

20. Miscellaneous

20.1

Your use of the Platform is subject to all additional terms, policies, rules, or guidelines applicable to the Platform or certain features of the Platform that we may post on or link to from any part of the Platform (the “Additional Terms”), such as additional license agreements for any downloadable Materials, or rules that apply to particular features or content on the Platform, subject to Section 15 (Modification of the Terms). All Additional Terms are incorporated by this reference into, and made a part of, the Terms.

20.2

The Terms (which includes the Privacy Policy, and, if applicable, any Additional Terms, and any Commercial Use Agreement between you and Cluster (collectively, the “Ancillary Agreements”)) is the entire and exclusive understanding and agreement between you and Cluster regarding your use of the Platform.

20.3

Except as expressly permitted in the Terms, the Terms may be amended only by a written agreement signed by authorized representatives of all parties to the Terms.

20.4

You may not assign or transfer the Terms or your rights under the Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign the Terms at any time without notice or consent.

20.5

The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of the Terms, or any provision of the Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself.

20.6

If any part of the Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.

21. Dispute Resolution and Arbitration

21.1 Arbitration.

In the interest of resolving disputes between you and Cluster in the most expedient and cost-effective manner, you and Cluster agree that every dispute arising in connection with the Terms will be resolved by binding confidential arbitration in English. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of the Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of the Terms. You understand and agree that, by entering into the Terms, any dispute resolution proceedings in connection with the Terms will be conducted only on an individual basis and not in class, consolidation or representative action. You and Cluster are each waiving the right to jury trial.

21.2 Exceptions.

Despite the provisions of Section 22.1, nothing in the Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.

21.3 Opt-Out.

If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 22 within 30 days after the date that you agree to the Terms by sending a letter to Cluster Co., Ltd. Attention: info@cluster.mu, that specifies: your full legal name, the email address associated with your account on the Platform, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Cluster receives your Opt-Out Notice, this Section 22 will be void and any action arising out of the Terms will be resolved as set forth in Section 20. The remaining provisions of the Terms will not be affected by your Opt-Out Notice.

21.4 Arbitrator.

Any arbitration between you and Cluster will: (a) be settled under the Federal Arbitration Act; (b) be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by the Terms; (c) be administered by the AAA; and (d) if an arbitration hearing is held, take place at a mutually-agreed location in California. The AAA Rules and filing forms are available online at www.adr.org.

21.5 Notice; Process

1. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or other courier services, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). Cluster’s address for Notice is: Cluster Co., Ltd. [info@cluster.mu]. The Notice must: (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought (“Demand”).
2. The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Cluster may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Cluster must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.
3. If the dispute is finally resolved through arbitration in your favor, Cluster will pay you the highest of: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Cluster in settlement of the dispute prior to the arbitrator’s award; and (iii) USD 100.00.

21.6 Decision.

Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

21.7 No Class Actions.

YOU AND CLUSTER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Furthermore, unless both you and Cluster agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

21.8 Modifications to this Arbitration Provision.

If Cluster makes any future change to this arbitration provision, other than a change to Cluster’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to Cluster’s address for Notice, in which case your account with Cluster will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.

21.9 Enforceability.

If Section 21.7 is found to be unenforceable or if the entirety of this Section 22 is found to be unenforceable, then the entirety of this Section will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 20 will govern any action arising out of or related to the Terms.

22. Communications

22.1 Consent to Electronic Communications.

By using the Platform, you consent to receiving certain electronic communications from us. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.

22.2 Emails.

We may send you emails concerning our products and services, as well as those of third parties.

23. Contact Information

The Platform is offered by Cluster Co., Ltd. located at 8-9-5, Nishigotanda, Shinagawa Ku, Tokyo To, 141-0031, Japan. You may contact us by sending correspondence to that address or by emailing us at info@cluster.mu.

24. Complaints from California Residents

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, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Platform or to receive further information regarding use of the Platform.

25. Prevailing Language

To the extent any of the Terms are made available in multiple language, in case of any discrepancies or conflicts between the English version of the Terms and any other language version of the Terms, the English version of the Terms will govern and prevail.

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Terms of Service Last Updated:

Established on May 31st, 2017
Revised on April 4th, 2019
Revised on May 20th, 2020
Revised on June 28th, 2022
Revised on June 23th, 2023