1. ACCEPTANCE OF THE TERMS AND CONDITIONS
1.3 - THE SECTION BELOW TITLED “MISCELLANEOUS” CONTAINS A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
2. USE OF THE VIVOOM SERVICE
2.1 - The Vivoom Service contains material, including but not limited to software, text, graphics, images, sounds, music, videos, audiovisual combinations and other materials (collectively referred to as the "Content"). The Vivoom Services allows users that are registered (such users, “Registered Users”) to view and share Content with other Registered Users and to their social media contacts across multiple social media platforms.
2.2 - The Company hereby grants you a limited, non-exclusive, non-transferable license to use the mobile web experience solely for your own personal use, or to access the Site and use the Site solely for your own personal use.
2.4 - We may own the Content or portions of the Content may be made available to us through arrangements that we have with third-parties. The Content is protected by United States and foreign intellectual property laws. Unauthorized use of the Content may result in violation of copyright, trademark, and other laws. You have no rights in or to the Content, and you will not use, copy or display the Content except as permitted under this Agreement. No other use is permitted without our prior written consent. You must retain all copyright and other proprietary notices contained in the original Content on any copy you make of the Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of any Content on any other web site or in a networked computer environment for commercial purposes without the express consent from Vivoom is expressly prohibited. If you violate any part of this Agreement, your right to access and/or use the Content and Vivoom Service shall automatically terminate and you shall immediately destroy any copies you have made of the Content. The trademarks, service marks, and logos of the Company (the "Company Trademarks") used and displayed on the Vivoom Service are registered and unregistered trademarks or service marks of the Company. Other company, product, and service names displayed on the Vivoom Service may be trademarks or service marks owned by third-parties (the "Third-Party Trademarks", and, collectively with the Company Trademarks, the "Trademarks"). Nothing contained in the Vivoom Service and/or in this Agreement should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on the Vivoom Service without the prior written consent of the Company specific for each such use. The Trademarks may not be used to disparage the Company or the applicable third-party, the Company's or third-party's products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks. Use of any Trademarks as part of a link to or from any web site is prohibited without the Company's prior written consent. All goodwill generated from the use of any Company Trademark shall inure solely to the Company's benefit. Certain elements of the Vivoom Service are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including but not limited to, the use of framing or mirrors, except as otherwise expressly permitted in Section 2.1 of this Agreement. None of the Content may be retransmitted without the express written consent from the Company for each and every instance.
2.5 - You agree not to: (a) take any action that imposes an unreasonable load on the Vivoom Service, (b) use any device, software or routine to interfere or attempt to interfere with the proper working of the Vivoom Service or any activity being conducted on or through the Vivoom Service, (c) attempt to decipher, decompile, disassemble or reverse engineer any of the software comprising, making up or underlying the Vivoom Service, (4) delete or alter any material posted on the Vivoom Service by the Company or any other person or entity, or (5) frame or link to any of the materials or information available on the Vivoom Service for commercial purposes without the express consent from Vivoom.
2.6 - The Vivoom Service may contain links to third-party web sites ("External Sites"). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or Webmaster for those External Sites if you have any concerns regarding such links or any content located thereon. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of any materials on such External Sites. You should take precautions when downloading files from all web sites to protect your computer from viruses and other destructive programs. If you decide to access any External Sites, you do so at your own risk.
2.7 - The Vivoom Service provides certain services that are available via a mobile device, including (i) the ability to upload User Content (as defined below) to the Vivoom Service via a mobile device, (ii) the ability to browse the Vivoom Service and the Site from a mobile device and (iii) the ability to access certain features through the mobile web experience. To the extent you access the Vivoom Service through a mobile device, your wireless service carrier's standard charges, data rates and other fees may apply. In addition using certain features of the mobile web experience may be prohibited or restricted by your carrier, and not all mobile web experiences may work with all carriers or devices. By using the mobile web experience, you agree that we may communicate with you regarding Company and other entities by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the mobile web experience may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Company account information to ensure that your messages are not sent to the person that acquires your old number.
2.8 - The Vivoom Service is supported by advertising revenue and may display advertisements and promotions, and you hereby agree that Vivoom may place such advertising on the Vivoom Services or in connection with the display of Content or information from the Vivoom Services whether submitted by you or others. The types, mode and extent of such advertising and promotions are subject to change.
2.9 - You acknowledge that Company may establish general practices and limits concerning use of the Vivoom Service, including without limitation, the maximum period of time that data or other content will be retained by the Vivoom Service and the maximum storage space that will be allotted on Company's servers on your behalf. You agree that Company has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Service. You acknowledge that Company reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Company reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
2.10 - The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials on the Site infringe your copyright, you (or your agent) may send us a notice requesting that the material be removed, or access to it blocked with the following information:
An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
A description of the copyrighted work that you claim has been infringed.
A description of where the material that you claim is infringing is located on the Vivoom Services;
Your address, telephone number and email address;
A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and
A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or duly authorized to act on the copyright owner’s behalf.
Notices and counter-notices must meet the then current statutory requirements imposed by the DMCA (see for details). Notices and counter-notices with respect to the Site should be sent to the Company by mail:
c/o Vivoom, Inc.
855 Boylston St., 10th Floor
Boston, MA 02116
3. YOUR CONDUCT
You are solely responsible for all Content that you upload, post, publish or display (hereinafter, "Upload") or email or otherwise use via the Vivoom Service (such content, the "User Content"). Company cannot and does not review all User Content--Company merely acts as a passive conduit for distribution of the User Content to other users of the Vivoom Service. That said, Company may remove User Content that does not adhere to Company’s Community Guidelines, or that is offensive or otherwise unacceptable to Company in its sole discretion. Company reserves the right to investigate and take appropriate legal action against anyone who, in Company's sole discretion, violates this provision, including without limitation, removing the offending User Content from the Vivoom Service, suspending or terminating the account of such violators and reporting you to the law enforcement authorities. You agree to not use the Vivoom Service to:
Email or otherwise upload any User Content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, "junk mail," "spam," "chain letters," "pyramid schemes," "contests," "sweepstakes," or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another's privacy, hateful racially, ethnically or otherwise objectionable; or (vii) in the sole judgment of Company, is objectionable or which restricts or inhibits any other person from using or enjoying the Vivoom Service, or which may expose Company or its users to any harm or liability of any type;
Interfere with or disrupt the Vivoom Service or servers or networks connected to the Vivoom Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Vivoom Service; or
Violate any applicable local, state, national or international law, or any regulations having the force of law;
Impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
Solicit personal information from anyone under the age of 18;
Harvest or collect email addresses or other contact information of other users from the Vivoom Service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
Advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;
Further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or
Obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Vivoom Service.
4. YOUR SUBMISSIONS
4.1 - As between you and Company, you shall retain ownership of your User Content that you submit to the Vivoom Service. When you use the Vivoom Service your User Content is submitted and saved within the Vivoom Service. You warrant and represent that you either own all right, title and interest, or have a sufficient license to use, all User Content provided or shared through your account. You hereby grant Company and its affiliates, licensees, assignees and designees, a perpetual, irrevocable, non-exclusive, worldwide, royalty-free, fully paid-up, sublicensable, assignable, transferable license and right to copy, transmit, distribute, reproduce, modify, combine, adapt, publish, translate, rent, lease, sell, publicly perform, display, and otherwise use and fully exploit (through all media now known or hereafter created), and make derivative works from your User Content or any part thereof, along with your name or any party thereof, and other biographical information or information from your user profile, all in Company’s sole discretion, for any and all purpose, including, but not limited to: (i) displaying the User Content within the Vivoom Service; (ii) displaying the User Content on third party websites and applications; (iii) allowing other users to play, download, embed or hypertext link to the User Content on third party websites, subject to your User Content privacy settings on those third party websites or applications; (iv) promoting the Vivoom Service; (v) sublicensing of any or all of the foregoing rights to others for entertainment purposes or to our advertising partners for use in their promotional campaigns, advertising, marketing and other purposes; (vi) deleting or removing the User Content for any reason including but not limited to content moderation; and (vii) archiving or preserving the User Content for disputes, legal proceedings, or investigations. You further grant all users of the Vivoom Service permission to view your User Content for any and all purposes. You consent to the use of your image, voice, name, likeness, biographical materials, and personality which are necessary in connection with Company’s or others’ exercise of the license granted in this Section 4.1. You are solely responsible for the acquisition of any and all third-party clearances, permissions and licenses which are necessary in connection with Company’s or others’ exercise of the license granted in this Section 4.1, including, without limitation, with respect to the use of any copyrighted or trademarked materials and the use of any images, voices, names, likenesses, biographical materials, personalities or music and for the payment of any and all applicable fees for securing such clearances, permissions and licenses. You may not use the User Content for commercial purposes, which means that you may not use, reproduce, display, perform, distribute, or otherwise exploit the User Content directly or indirectly to derive a commercial benefit or pecuniary gain. You may not sell, lease, transfer, license, or distribute materials, products or services that use, reproduce, display, perform, rent, lease, sell, distribute, or otherwise exploit the User Content and incorporate the User Content, or provide the User Content to third parties that perform any of the foregoing.
4.2 - You also represent and warrant to Company that nothing in your User Content is false, inaccurate or misleading; that your User Content does not include confidential information of others, and does not infringe any other person's or entity's rights; that neither you nor anyone else appearing in the User Content is a member of any union which has jurisdiction over your or their performance in the User Content; and that you and any other person (or your or that person's parent or guardian if under the age of 18 or unable to provide consent for any reason) or any entity mentioned or shown in your User Content hereby release and hold harmless Company and its licensees, assignees and designees from and against any and all claims concerning Company's or its licensees', assignees' and/or designees' use, modification, display or distribution of your User Content or any part thereof. You hereby waive any right to inspect any use, modification, display or distribution of your User Content by Company or others in connection with the exercise of the license granted in Section 4.1, and waive, release, and hold Company, and its licensees, assignees and designees harmless against any and all claims based on privacy, publicity, defamation, misappropriation, intellectual property or similar claims, whether secured by statute or common law, for any use, modification, display or distribution of your User Content by Company or others in connection with the exercise of such license, and have caused all applicable third-parties with rights in or to your User Content to do the same. Nothing contained herein or in any other document to which you are bound shall be construed as obligating Company, its affiliates, licensees, assignees or designees, or anyone acting under the authority of any of the foregoing to actually use, display or distribute your User Content or any part thereof, and you grant the foregoing the right to decide whether to use, display or distribute the User Content or any part thereof, and to edit and modify it, all of which is within Company's sole discretion.
4.3 - You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Vivoom Service ("Feedback"), provided by you to Company are non-confidential and non-proprietary, and Company, or any of its affiliates, may use such communication or material for any purpose whatsoever, including, but not limited to, reproduction, disclosure, transmission, publication, broadcast, and further posting, without acknowledgment or compensation to you. Further, Company and its affiliates are free to use any ideas, concepts, know-how, or techniques contained in any communication or material you send to Company for any purpose whatsoever, including, but not limited to, developing, manufacturing, and marketing products. By submitting any Feedback, you are granting Company a perpetual, royalty-free and irrevocable right and license to use, reproduce, modify, adapt, publish, translate, distribute, transmit, publicly display, publicly perform, sublicense, create derivative works from, transfer and sell such Feedback and to use your name and other identifying information in connection with such Feedback.
5. SOCIAL NETWORKING SERVICES
6. LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTIES
6.1 - THE COMPANY, ITS AFFILIATES, THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, OR LICENSORS (COLLECTIVELY, THE "COMPANY PARTIES") MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE VIVOOM SERVICE AND/OR THE CONTENT, INCLUDING BUT NOT LIMITED TO ACCURACY, RELIABILITY, COMPLETENESS, TIMELINESS OR RELIABILITY. THE COMPANY PARTIES SHALL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY OR COMPLETENESS OF THE CONTENT OR ANY OTHER INFORMATION CONVEYED TO THE USER OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN OR FOR ANY DELAYS OR INTERRUPTIONS OF THE CONTENT OR INFORMATION STREAM FROM WHATEVER CAUSE. YOU AGREE THAT YOU USE THE VIVOOM SERVICE AND THE CONTENT AT YOUR OWN RISK.
THE COMPANY PARTIES DO NOT WARRANT THAT THE VIVOOM SERVICE WILL OPERATE ERROR FREE OR THAT THE VIVOOM SERVICES, ITS SERVER, AND/OR THE CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE VIVOOM SERVICE OR THE CONTENT RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, NO COMPANY PARTY SHALL BE RESPONSIBLE FOR THOSE COSTS.
THE VIVOOM SERVICE AND THE CONTENT ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OF ANY KIND. THE COMPANY PARTIES DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON INFRINGEMENT OF THIRD PARTIES RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE.
6.2 - IN NO EVENT SHALL ANY COMPANY PARTY BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INCIDENTAL AND CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) RESULTING FROM THE USE OR INABILITY TO USE THE VIVOOM SERVICE AND/OR THE CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH COMPANY PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.3 - Some states do not allow exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the limitations or exclusions set forth above may not apply to you. IN SUCH STATES, THE LIABILITY OF THE COMPANY PARTIES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
You agree to defend, indemnify, and hold harmless the Company Parties from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from your breach of this Agreement or your access to, use or misuse of the Content, User Content and/or the Vivoom Service. The Company shall provide notice to you of any such claim, suit, or proceeding. The Company reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting the Company's defense of such matter.
8.1 - The Company reserves the right, in its sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Vivoom Service and/or the Content at any time and for any reason, including, without limitation, in the event of any violation of this Agreement, without prior notice or liability. Company further reserves the right to change, suspend, or discontinue all or any part of the Vivoom Service and/or the Content at any time without prior notice or liability. You may terminate your account at any time.
8.2 - Sections 2 (Use of the Vivoom Service), 4 (Your Submissions), 6 (Limitation of Liability and Disclaimer of Warranties), 7 (Indemnification), and 8 (Termination) shall survive the termination of this Agreement
9. COMPLIANCE WITH APPLICABLE LAWS
9.1 - This Site is based in Boston, MA, USA. We make no claims concerning whether the Content may be downloaded, viewed, or be appropriate for use outside of the United States. If you access the Vivoom Service and/or the Content from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
9.2 - The United States controls the export of products and information. You expressly agree to comply with such restrictions and not to export or re-export any of the Content to countries or persons prohibited under the export control laws. By downloading the Content, you are expressly agreeing that you are not in a country where such export is prohibited or are a person or entity for which such export is prohibited. You are solely responsible for compliance with the laws of your specific jurisdiction regarding the import, export, or re-export of the Content.
10. U.S. GOVERNMENT RESTRICTED RIGHTS
The Content is provided with "RESTRICTED RIGHTS”. Use, duplication, or disclosure by the Government is subject to the restrictions contained in 48 CFR 52.227-19 and 48 CFR 252.227-7013 et seq. or its successor. Use of the Site or Content by the Government constitutes acknowledgement of our proprietary rights in the Site and Content.
This Agreement is governed by the internal substantive laws of the State of Massachusetts, without respect to its conflict of laws provisions. In the event of a dispute arising under or relating to this Agreement (each, a “Dispute”), either party may elect to finally and exclusively resolve the dispute by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate, at any time, shall be final and binding on the other party. IF EITHER PARTY CHOOSES ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL. DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the FAA. Any court in the City of Boston, Massachusetts may enforce the arbitrator’s award. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in the City of Boston, Massachusetts. The parties may litigate in court to compel arbitration, to stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. In addition, Company may litigate in court to seek injunctive relief.
You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. Failure of the Company to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against the Company unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. You agree that you are solely responsible for your interactions with any other user in connection with the Vivoom Service and Company will have no liability or responsibility with respect thereto. Company reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Vivoom Service. Except as expressly agreed by the Company and you, this Agreement constitutes the entire Agreement between you and the Company with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees. Any information submitted or provided by you to the Site might be publicly accessible. Important and private information should be protected by you. The Company is not liable for protection of privacy of electronic mail or other information transferred through the Internet or any other network that you may use.
You consent and agree that your clicking of the “I Accept” button constitutes your electronic signature, acceptance, and agreement under the United States federal E-SIGN legislation and that such electronic signature will meet the requirements of an original signature as if actually signed by you in writing. Further, you agree that no certification authority or other third-party verification is necessary to the enforceability of your signature. At our request, any electronically signed document must be re-executed in original form by you. No party hereto may raise the use of an electronic signature as a defense to the enforcement of this Agreement or any amendment or other document executed in compliance with this Agreement.
12. HOW TO CONTACT VIVOOM
If you have any questions or comments about this Agreement or the Vivoom Service, please contact Company by email at firstname.lastname@example.org.
You also may write to Company at:
855 Boylston St., 10th Floor
Boston, MA 02116