You must read and agree to this Terms of Service Agreement ("Terms of Service" or "Agreement") if you are a User of the "Site" or "Services" (all as defined below). The Site and Services are owned and operated by Vocal Video Inc., a California Corporation ("Vocal Video") or "Company").
You acknowledge and agree that, by (1) clicking the "I Agree" or similar button to access the Site and Services or (2) otherwise accessing or using our Site and Services, you have read these terms and agree to these terms. If you do not agree with these terms, you must immediately cease all use of the Services.
You acknowledge that these Terms of Service are between You and Vocal Video. Your use of the Services is not only subject to these Terms of Service, but also any terms of service and/or rules of such third-party site.
We reserve the right, at any time, to modify the Services and/or the terms of this Agreement without prior notice. We recommend that you check these Terms of Service periodically to see if there have been any modifications. Modifications will become effective immediately upon being posted on the Site. Your continued use of the Services after modifications are posted will be considered an acceptance of the modified Terms of Service.
Site and Services. Vocal Video has developed and maintains a web-based application service that allows people who have signed up for the Services or Site ("Customers") to: (a) request people who receive a Vocal Video collector link ("Respondents") to submit video and audio recordings and photos of themselves using a mobile device or webcam on their computer ("Respondent Content"), (b) create, edit, and produce marketing quality videos ("Vocal Produced Videos") incorporating Respondent Content with other audio, video, or image content uploaded by Customer ("Customer Content") and other audio, video, or image content developed or licensed by Vocal Video ("Vocal Licensed Content"), (c) host and stream Vocal Produced Videos using Vocal’s video player, galleries, and other widgets ("Vocal Widgets") placed or embedded on Customer site or other authorized 3rd party site ("Authorized Site"), (d) integrate or connect Customer systems and social media accounts with the Service to share data or distribute Vocal Produced Videos ("Connectors"). In addition, the manner in which Customers, Respondents, and any other person that, includes, but is not limited to, people that come to or visit the Site or view or access any Vocal Widgets ("Visitors") (collectively, a "User" or "Users") access the Site and Services determines what type or types of Users you are and to which obligations and terms you must adhere.
1. Customer Obligations and Terms
The following Terms and Obligations in Section 1 pertain only to Customers as it is defined above.
b. Customer Materials. During your participation in the Services, you may provide Vocal Video with (i) certain Company information, including, but not limited to, Company Marks and other audio, video recordings, or images (previously referred to as "Customer Content") (ii) Respondent contact information; and (iii) any other information you decide to submit to Vocal Video or upload to the Site (collectively, (i), (ii) and (iii), the "Customer Materials"). You warrant that all Customer Materials uploaded by you, either from your own computer, mobile device, or another website/server, is either created and owned by you, or you have the necessary licenses, rights and permissions to use the Customer Materials as you intend to use them and as contemplated by the Site and grant Vocal Video the rights described herein.
c. Limited Customer Materials License. To allow Vocal Video to offer you the Services, you hereby grant Vocal Video, a non-exclusive, fully transferable, worldwide, fully paid right and license to use, reproduce, modify, create derivative works from, distribute, perform, transmit, and display your Customer Materials, but only for the limited purposes of providing the Services to you and as otherwise permitted by the Vocal Video privacy policies. This license also extends to any trusted third parties we work with to the extent necessary to provide the Services to you. You retain all ownership of your Customer Materials.
d. Limited Vocal Licensed Content License. Vocal Video has developed its own proprietary video, audio, and image content and licenses certain image and musical content in the form of audio/musical recordings, photos and/or video clips from third parties (previously referred to as "Vocal Licensed Content") and makes that content available to its Customers for use in making Vocal Produced Videos. Ownership of all intellectual property rights in Vocal Licensed Content remains with the third-party licensor or Vocal Video, and you are granted a limited right to use such Vocal Licensed Content subject to these terms. Your use of Vocal Licensed Content is subject to the following restrictions:
You may only use and modify Vocal Licensed Content in connection with making a Vocal Produced Video via the Services, and may only copy, distribute, or display the Vocal Licensed Content as incorporated within the Vocal Produced Video, and only in digital form.
You receive no right to use the Vocal Licensed Content except in connection with the Services, and no right to copy, distribute, or display Vocal Licensed Content separately from the Vocal Produced Video.
If Vocal Licensed Content featuring an individual(s) is used in connection with a sensitive, unflattering or controversial subject, you agree that you must include a statement that the image is used for illustrative purposes only and the individual is a model.
e. Customer Lists. Vocal Video may identify you (by name and logo) as a Vocal Video Customer on Vocal Video’s website and on other promotional materials.
f. Payment of Fees. If you select one of our paid plans as a Customer ("Paid Customer"), you agree to pay all per-use fees or fees associated with your subscription, as appropriate ("Fees"). Where applicable, you will be billed using the billing method you select through your account management page. If you have elected to pay the fees by credit card, you represent and warrant that the credit card information you provide is correct and you will promptly notify Vocal Video of any changes to such information. Vocal Video may provide you with the ability to pay the Fees through a third party service. All subscriptions paid through these third parties are subject to the third party's Terms of Service, and we will not be responsible for anything contained therein. Fees paid by you are non-refundable.
g. Taxes. You are responsible for payment of any sales or use taxes associated with the Fees or your use of the Site or Services.
h. Subscriptions. Our Services are billed on a subscription basis ("Subscriptions"). This means that you will be billed in advance on a recurring, periodic basis (each period is called a "Billing Cycle"). Billing cycles are typically monthly or annual, depending on what subscription plan you select when purchasing a Subscription. Your Subscription will automatically renew at the end of each billing cycle unless you cancel auto-renewal through your online account management page, or by contacting our customer success team. While we will be sad to see you go, you may cancel auto-renewal on your Subscription at any time, in which case your Subscription will continue until the end of that billing cycle before terminating. You may cancel auto-renewal on your Subscription immediately after the Subscription starts if you do not want it to renew.
i. Price Changes. Vocal Video may change the Fees charged for the Services at any time, provided that, for Services billed on a subscription basis, the change will become effective only at the end of the then-current billing cycle of your Subscription. Vocal Video will provide you with advance notice of any change in Fees.
j. Overage Fees. Unless otherwise stated, any overage fees incurred by you will be billed in arrears. Overage fees which remain unpaid for 30 days after being billed are considered overdue. Failure to pay overage fees when due may result in the applicable Services being limited, suspended, or terminated (subject to applicable legal requirements), which may result in a loss of your data associated with the Services.
k. Subscription Upgrades Added Mid-Subscription Term. You may request to add more subscription units (e.g. change plan type or add storage) to a subscription during a subscription term. The additional subscription upgrade will be as specified on the Order Form of the underlying subscription (or, absent such specification, at the same per unit pricing as the underlying subscription pricing), prorated for the portion of that subscription term remaining at the time the subscription upgrade is added. Any such additional subscription upgrade will renew or terminate on the same date as the underlying subscription. Subscription units relating to a Service cannot be decreased during a subscription term for that Service.
l. Downgrades and Inactivity. You acknowledge that we reserve the right to convert any Paid Customer account to a Free Customer account upon non-receipt of a subscription fee. You understand and agree that in the event your status as Paid Customer is terminated or interrupted for any reason, including, but not limited to, the expiration of the Subscription and/or your failure to renew a new Subscription, that your Vocal Produced Videos may become disabled and will not be viewable on any site. Furthermore, we reserve the right to terminate any Free Customer account with no prior notice to you, including the deletion of any videos and content associated therewith, if the account has been inactive for a twelve (12) month period.
m. Connector and Vocal Widget Limitation of Liability. Vocal Video provides Connectors to Customers Systems, including, but not limited to, Salesforce.com, Hubspot, Marketo, or Zapier, ("Customer Systems") and social media sites, including but not limited to YouTube, Facebook, Twitter, LinkedIn, and Instagram ("Social Media Accounts") and provides access to Vocal Video data via an Advanced Programming Interface ("API"). In addition, Vocal Video provides Vocal Widgets, including but not limited to video players, galleries, and other dynamic content, to embed and stream Vocal Produced Videos on an Authorized Site. The Vocal Video API, Connectors, Vocal Widgets, and any other services provided by Vocal Video are included within the definition of "Services". If you choose to use a Vocal Connector, API, or a Vocal Widget on your site or via a Customer System or Social Media Account, you agree to disclaim all liability and waive all potential damages, including, but not limited to interruption in service to key business systems, data loss or corruption, inadvertent video distribution using Connectors or Vocal Widgets to your Customer Systems and Social Media accounts.
n. Responsibilities for Calls and Messaging. To the extent applicable to your use of the Service, you shall at all times comply with the CAN SPAM Act of 2003, the Telephone Consumer Protection Act (47 U.S.C. §227), the Do-Not-Call Implementation Act and the Do-Not-Call list registry rules (https://www.donotcall.gov), the Telemarketing Sales Rule, 47 C.F.R. § 64.1200 et seq, and all other state or local laws, rules, regulations, and guidelines relating to calling or texting or emailing, including without limitation, rules, regulations and guidelines set forth by the Federal Trade Commission and the Federal Communications Commission (collectively, the "Calling Laws"). You agree that, as between the parties, you are the initiator of any call, SMS/MMS message, email, or other communication transmitted through the Service and for all content relating to, inducing, or encouraging calls, SMS/MMS messages or other communications to take place. Vocal Video is not responsible for reviewing the contents of any communication transmitted through the Services or transmitted by you related to your use of the Service, nor is it responsible for obtaining any necessary consents or permissions from the message recipients.
2. Respondent Obligations and Terms
The following Terms and Obligations in Section 2 pertain only to Respondents as it is defined above.
a. Respondents Materials. During your participation in the Services as a Respondent, you will provide Vocal Video with audio, video recordings, or photos of yourself or other likeness and (ii) your contact information (collectively, (i), and (ii), the "Respondents Materials"). You warrant that all Respondent Materials uploaded or contributed by you, either from your own computer, mobile device, or another website/server, is created and owned by you and you can enter into this Agreement and license the Respondent Materials to Vocal Video. You shall own the Respondent Materials.
b. Respondent Material License. To allow Vocal Video and the requesting Customer to offer you the Services, you hereby grant Vocal Video and the requesting Customer, a non-exclusive, fully transferable, worldwide, fully paid right and license to use, reproduce, modify, create derivative works from, distribute, perform, transmit, and display your Respondent Materials. By doing this, the requesting Customer becomes the "Data Controller" of the Respondent Materials.
c. Respondent Attribution. You agree and accept that by submitting Respondent Materials, you confirm and agree to have your name and other attributes, including but not limited to location, title, organization affiliation, displayed and included in Vocal Produced Videos made from your Respondent Materials. You warrant that you are who you say you are and are not attempting to misrepresent your identity.
d. Respondent Release. You hereby acknowledge, that you irrevocably consent to and authorize the use by Vocal Video, and its agents, successors, assigns and licensees, of any and all Respondent Content provided by Respondent to Vocal Video, and any reproduction of the same in any form and in any media whatsoever, in connection with the advertising, promotion and/or sale of products and services of Vocal Video and its successors, including, without limitation, use on Vocal Video’s website, videos, print catalogs, and for point of sale advertising. You hereby release any and all claims whatsoever in connection with the use of your image, likeness, privacy, and name and the reproduction thereof as aforesaid, including libel and defamation. You hereby waive any right to inspect and/or approve any images, photographs, films, video recordings or advertising copy that may be used in connection therewith or the use to which it may be applied. You hereby release Vocal Video, its agents, successors and assigns from any and all claims, demands, obligations, liabilities, costs, expenses, actions or causes of action, including, but not limited to, any claim or claims on account of or arising out of the video, photos, activities in shooting, filming, making or creating the photographs, films or video recordings. If applicable, you hereby affirm that you have obtained consent of his or her legal guardian and has the right to contract in your own name and has been advised by independent legal counsel.
Respondents’ opinions, comments and views are their own and Vocal Video shall not be liable for your views, comments or opinions and shall not be liable for any damages arising from your views, opinions or comments, including, but not limited to, knowing falsehoods or hate speech.
3. All User Obligations and Terms
The following Terms and Obligations in Section 3 pertain to all Users, including but not limited to Customers, Respondents, and Visitors, as they are defined above.
a. Minors. You must be 13 years of age or older to be a User of the Services. By continuing to use the Services, you are warranting that you are at least 13 years old. You further warrant that you have the authority to enter into these Terms of Service.
b. Conduct. You agree to obey all applicable rules and regulations in using the Services, and agree that you are responsible for the contents of your submissions or communications through the Site, including, but not limited to, Customer Materials and Respondent Materials (collectively, "Submissions").
You will not modify, create derivative works of, decompile or otherwise attempt to extract source code from us. You agree that you will not upload, share, or otherwise distribute any Submissions that:
- (i) are unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, or impersonate another person;
- (ii) contain explicit or graphic descriptions or accounts of sexual acts (including but not limited to sexual language of a violent or threatening nature directed at another individual or group of individuals), or in any way violate child pornography laws;
- (iii) victimize, harass, degrade, or intimidate an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
- (iv) infringe on any patent, trademark, trade secret, copyright, right of publicity, or other right of any party;
- (v) constitute unauthorized or unsolicited advertising, junk or bulk email (also known as "spamming"), chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling;
- (vi) contain software viruses or any other computer code, files, or programs that are designed or intended to disrupt, damage, or limit the functioning of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any third party;
- (vii) contain measures that could be used to determine the architecture of the Site, or could be used to decompile, disassemble, or reverse engineer the Site; or are to be used for a commercial purpose of any kind except as set forth herein.
- (viii) attempt to copy, download, capture Vocal Produced Videos into file format without our written permission.
We do not endorse the contents of any Submissions. We do not pre-screen or monitor Submissions. However, we have the right at our sole discretion to remove any content of any kind that, in our judgment, does not comply with these Terms of Service and any other rules of user conduct, or is otherwise harmful, objectionable, or inaccurate. We are not responsible for any failure or delay in removing such content.
If you would like to notify us of content which you believe does not comply with these Terms of Service, please contact us at email@example.com. Make sure to include both the Uniform Resource Locator ("URL") for the non-complying video or content, and the reasons you believe it does not comply. You understand that in using the Services, you may be exposed to materials that are objectionable as set forth above. You hereby waive and agree to waive all rights, claims, and actions in law or equity against Vocal Video arising from your exposure to such Submissions.
You agree that we may at any time, and at our sole discretion, terminate your account without prior notice to you and without reimbursement if we suspect a violation any of these Terms of Service. In addition, you acknowledge that we will cooperate fully with investigations by law enforcement authorities.
c. Linking and Use of Vocal Widgets. We encourage you to link to content on the Site and to embed Vocal Widgets on your site or other 3rd party sites. You may not link to the Site unless you comply with these linking conditions.
Your right to link to the Site or use Vocal Widgets is expressly conditioned upon your compliance with the following restrictions:
- (i) Screenshots of the Site, quotes taken from our text, video, or audio content, and any references to our brand, domain, or web pages must include a search-engine-followable HTML link.
- (ii) The link may not use, defame, or tarnish any logo, graphic, tagline, service mark, trademark, or copyrighted information of Vocal Video or any other third party.
- (iii) The link and surrounding materials must not deliver the Site content in a framed environment, or alter the layout, content, look, or feel of the Site.
- (iv) The link and surrounding materials must not imply affiliation or falsely represent any relationship between the linking site and Vocal Video; and
- (v) The link and surrounding materials must not portray Vocal Video, Vocal Produced Videos or services available on the Site, or the Site itself, in a false, misleading, derogatory, defamatory or otherwise offensive manner.
- (vi) Vocal Widgets must be used to embed Vocal Produced Videos and you may not attempt to dissemble, modify or otherwise tamper with them.
d. Referral Program. Vocal Video may offer a referral program, whereby an incentive is offered to a User ("Referrer") who refers another user to Vocal Video. Vocal Video reserves the right to discontinue, terminate or modify the referral program at any time. Credits or incentives awarded to a Referrer are not transferable, and have no cash value. Referrers are not agents of Vocal Video, and are not authorized to make any commitment on behalf of Vocal Video. Vocal Video is not responsible for the conduct of Referrers, and Referrers agree to hold Vocal Video harmless from and against any claims arising from Referrer's conduct.
e. Limitation of Resources. You agree that we have no responsibility or liability for the deletion or failure to store or stream any content maintained or transmitted on or through the Services. The accounts of our Users operate on shared resources. Excessive use or abuse of these shared network resources by one User may have a negative impact on all other users. Misuse of network resources in a manner that impairs network performance, including excessive consumption of CPU time, memory, disk space, and session time, is prohibited. You acknowledge that we have the right, at our sole discretion, to terminate your account, or limit the amount of storage space, bandwidth, or other resources you may use.
f. International Use. You agree to comply strictly with all export control laws, and assume sole responsibility for obtaining licenses to export or re-export as required. You represent and warrant that (i) you are 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) you are not listed on any U.S. Government list of prohibited or restricted parties.
4. General Terms and Obligations
b. Vocal Video's Intellectual Property Rights. Vocal Video is the owner and retains all proprietary rights to the Site and the Services and all associated copyrights, trademarks, brands, service marks, patents or other proprietary rights under law whether registered or unregistered. Copying, distributing, modifying, or creating derivative works of Vocal Video’s Services without Vocal Video's written permission is strictly prohibited.
Vocal Video's trademarks and/or service marks may not be used in connection with any product or service that is not provided by Vocal Video, in any manner that is likely to cause confusion among customers or users of the site, tarnishes or dilutes the marks, or disparages or discredits Vocal Video.
Moreover, you acknowledge and agree that the Services provided, including, but not limited to Vocal Produced Videos, and made available through our Site, and may be made available on various social media networking sites and numerous other platforms and downloadable programs, are the sole property of Vocal Video, Inc. At its discretion, Vocal Video, Inc. may offer additional Services and/or products, or update, modify or revise any current content and Services, and this Agreement shall apply to any and all additional Services and/or products and any and all updated, modified or revised Services unless otherwise stipulated. Vocal Video, Inc. does hereby reserve the right to cancel and cease offering any of the aforementioned Services and/or products. You, as the User, acknowledge, accept and agree that Vocal Video, Inc. shall not be held liable for any such updates, modifications, revisions, suspensions or discontinuance of any of our Services and/or products. Your continued use of the Services provided, after such posting of any updates, changes, and/or modifications shall constitute your acceptance of such updates, changes and/or modifications, and as such, frequent review of this Agreement and any and all applicable terms and policies should be made by you to ensure you are aware of all terms and policies currently in effect. Should you not agree to the updated, revised or modified terms, you must stop using the provided Services forthwith.
Furthermore, you understand, acknowledge and agree that the Services offered shall be provided "AS IS" and as such Vocal Video, Inc. shall not assume any responsibility or obligation for the timeliness, missed delivery, deletion and/or any failure to store user content, communication or personalization settings.
c. Others' Intellectual Property Rights. Vocal Video deeply respects the third party intellectual property rights that may be implicated in creating a Vocal Produced Video. These intellectual property rights, and your responsibilities with respect to these rights, are outlined below.
All trademarks and/or service marks displayed on the Site are the exclusive property of their respective owners, and may not be used without the owner's permission.
d. Notice of Copyright or Intellectual Property Infringement. Please notify us if you believe any of your intellectual property rights have been infringed by a User of the Site. Pursuant to Section 512 of the Copyright Revision Act, as enacted through the Digital Millennium Copyright Act ("DMCA")
To be effective the notification should include: (a) a physical or electronic signature of the person authorized to act on behalf of the owner of the right being infringed; (b) identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at the site; (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity, and information sufficient to permit us to locate the material; (d) information sufficient to allow us to contact the complaining party; (e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright or intellectual property owner, agent, or the law; and (f) a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of the right being infringed. If you fail to comply with all of these requirements, your DMCA notification may not be valid.
You acknowledge and agree that upon receipt and notice of a claim of infringement, we may immediately remove the identified materials from our site without liability, and the claims of the complaining party and party that originally posted the materials will be referred to the United States Copyright Office for adjudication as provided in the Digital Millennium Copyright Act.
If you believe that your video has been removed in error, you may submit a counter-notification in compliance with DMCA. To be effective, the counter-notification must include: (a) your physical or electronic signature, (b) identification of your material that has been disabled, and the location of the material before it was removed, (c) a statement under penalty of perjury that you have a good faith belief that your material was disabled as a result of mistake or mis-identification of the material, and (d) your name, address, and telephone number, and a statement that says you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located (if in the United States), or if your address is outside of the United States, for any judicial district in which the Vocal Video may be found, and that you agree to accept service of process from the complaining party, or an agent of such person.
e. Repeat Infringers. Your account will be terminated if, at Vocal Video's sole discretion, you are determined to be a repeat infringer. Repeat infringers are users who have been the subject of more than one valid takedown request that has not been successfully rebutted.
f. Disclaimer of Warranties. ALL VOCAL VIDEO SERVICES, INCLUDING WITHOUT LIMITATION OPEN SOURCE SOFTWARE, AND THE SITE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THE WARRANTY OF NON-INFRINGEMENT.
THE USE OF THE SERVICES, THE UPLOADING OF CUSTOMER MATERIALS AND/OR RESPONDENTS MATERIALS, OR THE STREAMING, EMBEDDING, DOWNLOADING OR OTHER ACQUISITION OF ANY MATERIALS OR CONTENT, INCLUDING BUT NOT LIMITED TO VOCAL PRODUCED VIDEOS, CONNECTORS, AND VOCAL WIDGETS, THROUGH THE SERVICES OR THROUGH THIRD PARTIES', IS DONE AT YOUR OWN RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITIES.
SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
g. Limitation of Liability. YOUR EXCLUSIVE REMEDY AND VOCAL VIDEO'S ENTIRE LIABILITY, IF ANY, FOR ANY CLAIMS ARISING OUT OF THE SERVICES SHALL BE LIMITED TO THE AMOUNT YOU PAID VOCAL VIDEO, IF ANY, DURING THE SIX-MONTH PERIOD BEFORE THE ACT GIVING RISE TO THE LIABILITY (OR, IF NO SUCH AMOUNT WAS PAID, $1.00 USD).
IN NO EVENT SHALL VOCAL VIDEO BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SERVICES.
YOU ARE SOLELY RESPONSIBLE FOR MAKING BACKUP COPIES OF ANY AND ALL OF YOUR CUSTOMER MATERIALS AND RESPONDENT MATERIALS. VOCAL VIDEO SHALL NOT BE LIABLE FOR ANY LOSS OF OR DAMAGE TO YOUR CUSTOMER OR RESPONDENTS MATERIALS.
SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
h. Indemnification. You agree to indemnify and hold Vocal Video, and its respective parents, subsidiaries, affiliates, officers and employees, harmless from any liabilities, claims, expenses or demands, including reasonable attorneys' fees and costs, made by any third party due to or arising out of (a) your use or misuse of the Site or Services, (b) the viewing of your content or video, (c) the violation of laws, rules, regulations or terms this Agreement, (d) your failure to comply with Vocal Video’s terms of service or other terms of any open source licenses, if applicable,(e) infringement by your content, by you, or by someone using your account, of any intellectual property or any other right of any person or entity. Vocal Video reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with Vocal Video in asserting any available defenses.
i. Termination of Use. We may terminate or suspend your use of the Services at our discretion and for any reason. Any suspected fraudulent, abusive or illegal activity may be grounds for terminating your account and may be referred to appropriate law enforcement authorities.
Upon termination or suspension, regardless of the reasons therefore, your right to use the Services immediately ceases, and we may immediately deactivate or delete your account and all related information. We shall not be liable to you or any third party for any claims or damages arising out of any termination or suspension.
j. Distribution Terms. In distributing Vocal Produced Videos to third parties, Users must obtain the third party's agreement to the below Distribution Terms. If User does not obtain the third party’s agreement to the below terms, User agrees to indemnify and defend Vocal Video for any and all claims or causes of action arising from the third party’s use of Vocal Produced Videos. User assumes all responsibility for compliance with the terms of this Agreement by third party recipients of Vocal Produced Videos.
- (i) The Vocal Produced Videos provided with these terms is licensed, and not sold. Therefore, you do not own the Vocal Produced Videos, and must comply with these terms in using the Vocal Produced Videos.
- (ii) You are granted the limited rights to use, copy, perform and display the Vocal Produced Videos. You are not granted the rights to use, copy, perform or display the Vocal Produced Videos for broadcast television, radio, or theatrical media.
- (iii) You will not use Vocal Produced Videos for any illegal or immoral purposes, including without limitation for unauthorized or illegal advertising or promotional materials, such as junk mail, spam, chain letters, or pyramid schemes.
- (iv) You may not modify the Vocal Produced Video in any way.
- (v) THE VOCAL PRODUCED VIDEO IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THE WARRANTY OF NON-INFRINGEMENT.
- (vi) IN NO EVENT SHALL VOCAL VIDEO INC. BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SITE OR OF ANY WEB SITE REFERENCED OR LINKED TO FROM THE SITE.
- (vii) You agree to indemnify and hold Vocal Video Inc. and each of their parents, subsidiaries, affiliates, officers and employees, harmless from any liabilities, claims, expenses or demands, including reasonable attorneys' fees and costs, made by any third party due to or arising out of your use or misuse of the Vocal Produced Video, your failure to comply with applicable laws, or your failure to comply with these terms.
5. Data Processing Terms – Customers
These Data Processing Terms only apply if (a) you have obtained a Customer subscription with Vocal Video, and (b) your use of Vocal Video Services involves collecting or uploading Personal Data from data subjects that are residents in the European Economic Area or Switzerland (collectively referred to as "EU Residents") and/or incorporating that Personal Data in Vocal Video Videos or otherwise sharing the Personal Data with Vocal Video.
Vocal Video considers the issues of privacy and data security to be of utmost importance.
a. Definitions For Purposes of These Data Processing Terms. The term "data subject" means the identified or identifiable person to whom any Personal Data relates.
The term "Personal Data" means ANY information that: (i) can be used, alone or in connection with other information, to identify an individual; or (ii) is otherwise subject to any applicable privacy or data laws regarding personal information. For avoidance of doubt, Personal Data includes an individual’s name, email address, and likeness, including in photographs or video.
The term "processing" means any action performed on Personal Data, including by automated means, such as collecting, recording, organizing, structuring, storing, altering, retrieving, modifying, using, disclosing, transmitting, or deleting.
The Customer is the "Data Controller" and Vocal Video is the "Data Processor" for purposes of any applicable data privacy laws, including without limitation the EU Directive 95/46/EC, the EU General Data Protection Regulation 2016/679 (the "GDPR"), and the EU-US Privacy Shield Framework for all data, including but not limited to all Customer Materials and Respondent Materials, except in the following limited circumstances where Vocal Video is the Data Controller:
- (i) Account registration and contact information submitted directly to Vocal Video site via the signup process or a contact us form
- (ii) Vocal Produced Videos
b. Your Responsibilities. As a result of using the Services and the Site, you hereby represented and warranted to Vocal Video that (a) your collection of Personal Data from EU Residents will be in compliance with your own privacy statement, to which you will receive express consent by data subjects; (b) You will comply with all applicable laws, rules and regulations in using the Vocal Video Service, including without limitation data protection regulations and laws relating to Personal Data such as the GDPR; and (c) You agree to immediately inform Vocal Video of a request by a data subject to delete Personal Data.
c. Vocal Video’s Responsibilities. Vocal Video agrees that it will:
- (i) process Personal Data in accordance with documented instructions from You, including with regard to transfers of Personal Data to a third country or an international organization, unless required to do so by applicable law, in which case it will inform You to the extent permitted by law;
- (ii) ensure personnel authorized to process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality, and that such personnel do not process any Personal Data except in accordance with Your documented instructions;
- (iii) implement appropriate technical and organizational measures to ensure the security of any Personal Data, taking into account the risks that are presented by the processing;
- (iv) ensure that third party sub-processors engaged by Vocal Video are subject to the same data protection obligations set forth in these Data Processing Terms, and Vocal Video will be responsible for sub-processors’ performance under such obligations;
- (v) taking into account the nature of the processing, assist You by appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of Your obligation to respond to requests made by data subjects pursuant to applicable law;
- (vi) taking into account the nature of the processing, assist You in meeting Your obligations under applicable law, including without limitation those arising pursuant to Articles 32 to 36 of the GDPR (relating to data security, breach notification, and impact assessments);
- (vii) and at Your written request, no more than once per year unless otherwise required under applicable law, make available to You all information necessary to demonstrate Vocal Video’s compliance with its obligations under these terms and/or permit audits to verify such compliance (to this end, You consent to Vocal Video engaging a reputable independent auditor of its choice to conduct such audits in lieu of You or Your designee);
- (viii) at Your request, delete or return to You all Personal Data in Vocal Video’s possession or control after the end of the provision of Services relating to processing, and delete existing copies unless applicable law requires storage of such Personal Data.
Notwithstanding the foregoing, You acknowledge that Vocal Produced Videos may be downloaded and/or shared on sites and platforms and may not be hosted on Vocal Video’s or its vendors’ servers. As such, Vocal Video may not be able to fulfill a request to delete Personal Data of a data subject contained in a Vocal Produced Video that has been downloaded and/or distributed in such a manner.
6. Governing Law
The laws of the state of California, USA, will apply to all matters relating to these Terms of Service and the Services without regard to the conflicts of laws principles nor the United Nations Convention on the International Sale of Goods. You agree to submit to the exclusive personal jurisdiction and venue of the United States District Court, Northern District of California in San Francisco, California USA.
7. Agreement to Arbitrate All Disputes
Notwithstanding anything contained herein, you agree that any legal disputes arising out of or relating to these Terms of Service or the Services shall be submitted to binding arbitration in Palo Alto, California USA. The arbitration shall be conducted by the American Arbitration Association under its Commercial Arbitration Rules. Any judgment on the award by the arbitrator may be entered in a court having jurisdiction thereof. You agree that any claim, action or proceeding arising out of or related to these Terms of Service or the Services must be brought in your individual capacity, and not as a plaintiff or class member in any purported representative or class proceeding. The arbitrator may not consolidate more than one person’s claims. YOU ACKNOWLEDGE THAT YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY OR PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN A CLASS ACTION OR REPRESENTATIVE PROCEEDING.
All notices to a User or to Vocal Video shall be in writing and must be sent to the attention of Legal Department at firstname.lastname@example.org. Notices to you may be sent either to the email address supplied for your account or to the address supplied by you when registering or updating your account. In addition, we may broadcast notices or messages through the site to inform you of changes to the site or other matters of importance, and such broadcasts shall constitute notice to you.
Any notices or communication under these Terms of Service will be deemed delivered to the party receiving such communication (1) on the delivery date if delivered personally to the party; (2) two business days after deposit with a commercial overnight carrier, with written verification of receipt; (3) five business days after the mailing date, if sent by US mail, return receipt requested; (4) on the delivery date if transmitted by facsimile; (5) on the delivery date if transmitted by email; or (6) immediately if broadcast by Vocal Video.
If any provision of this Agreement shall be unlawful, void or unenforceable for any reason, the other provisions shall not be affected thereby and shall remain valid and enforceable to the maximum possible extent.
You agree that this Agreement may be assigned by Vocal Video, in our sole discretion, to any third party at any time. You may not transfer or assign any of your rights and obligations under this Agreement, and any attempt to do so will be null and void.
If you are a California resident, California Civil Code Section 1798.83 permits you to request information regarding the disclosure of your personal information to third parties for the third parties’ direct marketing purposes.
Any failure by us to enforce or exercise any provision of these Terms of Service or related rights shall not constitute a waiver of that right or provision.
In any action to enforce this Agreement, the prevailing party will be entitled to costs and attorneys' fees.
This document was last updated on April 1, 2019.