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 and agree to these Terms of Service. If you do not agree, 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 created, developed, or licensed by Vocal Video ("Vocal Proprietary 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 third 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 provisions of this section pertain only to Customers as such term 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 (referred to as "Customer Content"); (ii) Respondent contact information, although this information is not necessary for performance of the service; 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. Retention of Customer Materials. Unless otherwise requested by the Customer, required by law or the terms of this Agreement, Vocal Video shall delete any and all Customer Materials and related Respondent Materials (as defined below) thirty (30) days after the termination or cancelation of your use of the Services.
d. 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.
e. Limited Vocal Proprietary Content License. Vocal Video has developed proprietary video, audio, and image content, and additionally licenses certain audio and image content from third parties, including musical recordings, photos, and/or video clips (referred to as "Vocal Proprietary Content"). Vocal Video makes this Vocal Proprietary Content available to its Customers for use in making Vocal Produced Videos. Ownership of all separate intellectual property rights in Vocal Proprietary Content remains with Vocal Video and/or any third-party licensor, and your right to use such material is subject to these Terms of Service.
f. Rights to Vocal Produced Videos. Vocal Video hereby grants to Customer ownership of Vocal Produced Videos created and consistent with the terms of this Agreement. Notwithstanding the foregoing, you do not have any use or ownership rights to Vocal Proprietary Content outside of completed Vocal Produced Videos unless expressly granted by the rightsholders of such Vocal Proprietary Content or by law. Except as granted and authorized in accordance with these Terms of Service, you may not distribute, reproduce, or copy, communicate to the public, transform or modify, adapt, translate, or otherwise use and exploit said works.
Through your use of Vocal Produced Videos, you agree to the following rights and restrictions:
- (i) you may only use and modify Vocal Proprietary Content in connection with making a Vocal Produced Video via the Services, and may only copy, distribute, or display the Vocal Proprietary Content as incorporated within the Vocal Produced Video, and only in digital form;
- (ii) you receive no right to use the Vocal Proprietary Content except in connection with the Services, and no right to copy, distribute, or display Vocal Proprietary Content separately from the Vocal Produced Video;
- (iii) you 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 Customer Content for the limited purpose of producing and distributing the Vocal Produced Videos for you as permitted under these Terms of Service;
- (iv) if Vocal Proprietary Content featuring an individual 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 or actor; and
- (v) notwithstanding anything to the contrary in these Terms of Service, you must immediately cease use of and destroy all materials containing Respondent Materials (as defined in Section 2(a)), including Vocal Produced Videos, if requested by the subject Respondent, either as communicated directly to you by the Respondent or if Vocal Video informs you they have received such request from such Respondent.
Vocal Video is under no obligation to host, stream, or store the Vocal Produced Videos after the expiration of the subscription period or termination of the Services with Customer. Customer must download the Vocal Produced Videos before the service period expires or is terminated if they wish to use such material outside the subscription period.
g. 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.
h. 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. All fees are non-refundable.
i. Taxes. You are responsible for payment of any sales or use taxes associated with the Fees or your use of the Site or Services.
j. Subscriptions. Our Services are billed on a subscription basis ("Subscription"). 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.
k. 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.
l. Overage Fees. Unless otherwise stated, any overage fees, including but not limited to any applicable storage fees, incurred by you will be billed immediately upon exceeding the permitted usage threshold. Overage fees which remain unpaid for thirty (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.
m. Subscription Upgrades Added Mid-Subscription Term. You may request to add additional subscription units (e.g., change plan type, change from monthly to annual billing, etc.) to a subscription during a subscription term. The additional subscription upgrade will be 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.
n. 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 or cancel the account entirely. 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.
o. Connector and Vocal Widget Limitation of Liability. Vocal Video provides Connectors to customer's existing systems, including, but not limited to Zapier, (your system utilizing these services are the "Customer Systems") and social media sites, including but not limited to YouTube, Facebook, Twitter, LinkedIn, and Instagram (collectively, your "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.
p. 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 provisions of this section pertain only to Respondents as it is defined above.
a. Respondent 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 (referred to as "Respondent Content") and (ii) your contact information (collectively, (i) and (ii) the "Respondent 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 and may revoke your consent for use of your Respondent Content or Respondent Materials at any time upon providing notice to Vocal Video or Customer as set forth in Section 8.
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 so, the requesting Customer becomes the "Data Controller" of the Respondent Materials. Customer may further amend, extend, and modify the license to the Respondent Materials by having Respondent execute a clickthrough agreement (each a "Custom Video Release") between the Respondent and Customer at the time of contribution. If you agree to a Customer Video Release, you are entering into a separate and binding agreement with the Customer. Vocal Video is not a party to any Custom Video Release.
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, and 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 release any and all claims, demands, obligations, liabilities, costs, expenses, actions, or causes of action against Vocal Video, the requesting Customer, and their agents, successors, assigns, and licensees, in connection with use of any and all Respondent Materials in compliance with the license set forth in Section 2(b) above. 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 and 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, used prior to your revocation of consent as permitted, and as may be withdrawn by contacting Vocal Video as set forth in Section 8. If applicable, you hereby affirm that you have obtained consent of the legal guardian of any minor depictured and that such signatory. You affirm that you have the right to contract in your own name and have been advised that you can seek review of the terms of this agreement from 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, falsehoods or hate speech.
3. All User Obligations and Terms
The following provisions in this section pertain to all Users, including but not limited to Customers, Respondents, and Visitors, as they are defined above.
a. Minors. You must be thirteen (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 thirteen (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 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; and
- (viii) attempt to copy, download, capture Vocal Produced Videos into file format without our written permission.
Vocal Video reserves the right to terminate your account and your use of any Services if it is discovered you are using the account against these Terms of Service, particularly as set forth in this section.
c. Site Content. Vocal Video does not endorse the contents of any Submissions. We do not pre-screen or monitor Submissions. However, Vocal Video retains 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 as set forth in Section 8. 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.
d. 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 third 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;
- (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; and
- (vi) Vocal Widgets must be used to embed Vocal Produced Videos and you may not attempt to dissemble, modify, or otherwise tamper with them.
e. 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.
f. 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.
g. 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 United States government embargo, or that has been designated by the United States Government as a "terrorist supporting" country, and (ii) you are not listed on any United States Government list of prohibited or restricted parties.
h. Access or Use by Competitors. Vocal Video expressly prohibits use of its Site and Services for the purpose of attempting to decompile, disassemble, reverse engineer, or otherwise to discern any Vocal Video trade secrets or confidential information, or for any commercial purpose except those set forth in these Terms of Service. Vocal Video may, at its sole discretion, terminate any accounts for which it believes or suspect such activity is, has, or may take place with no notice or warning.
4. General Terms and Obligations
b. Changes to the Services. At its sole discretion, Vocal Video 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 any and all updated, modified, or revised Services unless otherwise stipulated. Vocal Video does hereby reserve the right to cancel and cease offering any of the aforementioned Services and/or products at any time. You acknowledge, accept, and agree that Vocal Video shall not be held liable for any such updates, modifications, revisions, suspensions, or discontinuance of any of our Site or Services. Vocal Video 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. 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 and patentable material, 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.
d. Others' Intellectual Property Rights. Vocal Video respects third party intellectual property rights that may be implicated in creating a Vocal Produced Video. You acknowledge these intellectual property rights, and your responsibilities with respect to these rights. 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.
e. 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.
f. 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 one (1) or more valid takedown request that has not been successfully rebutted, or are otherwise deemed so by Vocal Video.
g. 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 RESPONDENT 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.
h. Limitation of Liability. EACH PARTY'S EXCLUSIVE REMEDY AND ENTIRE LIABILITY, IF ANY, FOR ANY CLAIMS ARISING OUT OF THE SERVICES OR USE THEREOF SHALL BE LIMITED TO THE AMOUNT PAYABLE TO VOCAL VIDEO FOR USE OF THE SERVICE BY THE REQUESTING CUSTOMER, 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 ANY PARTY BE LIABLE TO THE OTHER PARTIES HERETO 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, RESPONDENT MATERIALS, AND VOCAL PRODUCED VIDEOS. VOCAL VIDEO SHALL NOT BE LIABLE FOR ANY LOSS OF OR DAMAGE TO YOUR CUSTOMER OR RESPONDENT MATERIALS.
SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
i. 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.
j. 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.
k. Distribution Terms. In distributing Vocal Produced Videos to third parties, Customer must obtain the third party's agreement to these Terms of Service. Customer shall 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. Customer assumes all responsibility for compliance with the terms of this Agreement by third party recipients of Vocal Produced Videos.
5. Data Processing Terms – Customers
a. Data Processing Addendum. This Agreement incorporates the Vocal Video Data Processing Addendum (“DPA”) available at https://vocalvideo.com/dpa, when the GDPR applies to Customer's use of the Services to process Customer Data (as defined in the DPA). The DPA is effective as October 3, 2022 and replaces and supersedes any previously agreed data processing addendum between you and Vocal Video relating to the Directive 95/46/EC.
b. Standard Contractual Clauses. This Agreement further incorporates the Standard Contractual Clauses between controllers and processors (“Controller-to-Processor Clauses”) approved by the European Commission Implementing Decision (EU) 2021/914 of June 4, 2021 (the “SCCs”). The SCCs will only apply when: (i) the GDPR applies to your use of the Vocal Video Services to process Customer Data; and (ii) Customer Data is transferred either directly or via onward transfer, to a country outside of the European Economic Area not recognized by the European Commission as providing an adequate level of protection for personal data subject to GDPR (together a “Data Transfer”). You are the controller (as defined in the GDPR) and as such the Controller-to-Processor Clauses will apply to a Data Transfer.
c. CCPA Terms. When the California Consumer Privacy Act of 2018 (“CCPA”) applies to your use of the Services to process “personal information” (as defined in CCPA) that is uploaded to the Services (“Personal Information”), Vocal Video agrees and certifies that Vocal Video will not: (a) retain, use, or disclose Personal Information except as permitted in this Agreement and under CCPA; or (b) sell Personal Information. This does not limit or reduce any other data privacy commitments Vocal Video makes to you in this Agreement.
d. UK GDPR. This Agreement further incorporates the Vocal Video United Kingdom GDPR Addendum to the DPA when United Kingdom GDPR ("UK GDPR") applies to your use of the Services to process United Kingdom Customer Data (as defined in the UK GDPR Addendum to the DPA).
e. Dissemination Notwithstanding the foregoing, you acknowledge that Vocal Produced Videos may be downloaded and/or shared on sites and platforms and are not always 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, United States, 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, United States.
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 Vocal Video, including requests from a Respondent to withdraw their consent to Vocal Video and/or Customer's use of Respondent Materials, shall be in writing and must be sent to the attention of Legal Department at legal@VocalVideo.com. 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 (i) on the delivery date if delivered personally to the party; (ii) two (2) business days after deposit with a commercial overnight carrier, with written verification of receipt; (iii) five (5) business days after the mailing date, if sent by United States mail, return receipt requested; (iv) on the delivery date if transmitted by facsimile; (v) on the delivery date if transmitted by email; or (vi) 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 §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 October 3, 2022.