TERMS OF SERVICE
Effective Date: Jan 1st, 2017
- Acceptance of the Terms and Conditions.
- Binding Agreement; Description. This Terms of Service (“Agreement”) is a binding contract between you, an individual user (“Vibber” or “you”), and Vibby, Inc.(“Vibby,” “we,” “us,” or “our”) governing your use of www.vibby.com and any other websites and/or online services or properties owned and operated by Vibby (collectively, the “Service”). BY ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT.IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, THEN YOU MAY NOT USE THE SERVICE.
- Material Terms and Notices. As provided in greater detail in this Agreement (and without limiting the express language of this Agreement), you acknowledge the following:
- the Service is licensed to you, not sold to you, and you may use the Service only as set forth in this Agreement;
- the use of the Service may be subject to separate third party terms of service and fees, which are your sole responsibility;
- the Service is provided “as is” without warranties of any kind and Vibby’s liability to you is limited; and
- we will resolve disputes arising under this Agreement through binding arbitration. By accepting this Agreement, as provided in greater detail in Section 10 of this Agreement, you and Vibby are each waiving the right to a trial by jury or to participate in a class action.
- Changes to this Agreement. You understand and agree that Vibby may change this Agreement at any time without prior notice; provided that Vibby will endeavor to provide you with prior notice of any material changes.You may read a current, effective copy of this Agreement at any time by selecting the appropriate link on the Service.The revised Agreement will become effective at the time of posting.Any use of the Service after such date will constitute your acceptance of such revised Agreement.If any change to this Agreement is not acceptable to you, then your sole remedy is to stop accessing, browsing, and otherwise using the Service. The terms of this Agreement will govern any updates Vibbyprovides to you that replace and/or supplement any portion of the Service, unless the upgrade is accompanied by a separate license or revised Agreement, in which case the terms of that license or revised Agreement will govern.Notwithstanding the preceding sentences of this Section 1.c, no revisions to this Agreement will apply to any dispute between you and Vibbythat arose prior to the effective date of such revision.
- Consideration. You understand and agree that this Agreement is entered into in consideration of your use of the Service and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged.
- Eligibility. THE SERVICE IS NOT FOR PERSONS UNDER THE AGE OF 13 OR FOR ANY VIBBERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICE BY VIBBY. IF YOU ARE UNDER 13 YEARS OF AGE, THEN YOU MUST NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER.Furthermore, by accessing or using the Service, you affirm that either you are at least 18 years of age or have been authorized to use the Service by your parent or guardian who is at least 18 years of age.
- The Service.
- Description. The Service allows Vibbers to create highlight and mashup reels (“vibs”) from their favorite online video platforms (“Video Platforms”) by linking to different time signatures in one or more source videos (each a “Source Video”) using the public APIs of the applicable Video Platforms or public-facing video files.The Service does not reproduce a Source Video at any time. Because the Service is reliant upon access to Source Videos on Video Platforms, Vibby does not guarantee continued access to any vibs and assumes no liability for your inability to access any vibs that you have spent time creating.
- Log-In Credentials. While you may always browse the public-facing pages of the Service without registering, in order to enjoy the full benefits of the Service and to Post (as defined in Section 5.a below) Vibber Content (as defined in Section 5.a below), you must create an account with the Service (an “Account”).
- Account Security. You are responsible for the security of your Account, and are fully responsible for all activities that occur through the use of your credentials.You will notify Vibby immediately at email@example.com if you suspect or know of any unauthorized use of your log-in credentials or any other breach of security with respect to your Account.Vibby will not be liable for any loss or damage arising from unauthorized use of your credentials prior to you notifying Vibby of such unauthorized use or loss of your credentials.Separate log-in credentials may be required to access External Sites(as defined in Section 7below).
- Accuracy of Information. When creating an Account, you agree to provide true, accurate, current, and complete information as Vibby requires.You will update the information about yourself promptly, and as necessary, to keep it current and accurate.We reserve the right to disallow, cancel, remove, or reassign certain usernames and permalinks in appropriate circumstances, as determined by us in our sole discretion, and may, with or without prior notice, suspend or terminate your Account if activities occur on your Account which, in our sole discretion, would or might constitute a violation of this Agreement, or an infringement or violation of any third party rights, or of any applicable laws or regulations.If messages sent to the email address you provide are returned as undeliverable, then Vibby may terminate your Account immediately without notice to you and without any liability to you or any third party.
- Intellectual Property Rights
- License. The Service is licensed, not sold, to you for use only under the terms of this Agreement.Vibby reserves all rights not expressly granted to you.Subject to your complete and ongoing compliance with this Agreement, Vibby hereby grants you a personal, limited, revocable, non-transferable license to access and use the Service solely for your personal, non-commercial use, including the right to use the functionality of the Service to create vibs, subject to your clearance of any associated third party rights.
- Content. Except for Vibber Content, the content that Vibbers may access on or through the Service, including, without limitation, any text, graphics, photos, software, and interactive features, may be protected by copyright or other intellectual property rights and owned by Vibby or Vibby’sthird party licensors (the “Vibby Content”).You may not copy, reproduce, upload, republish, transmit, Post (as defined in Section5.abelow), create derivative works of, publicly perform,or distribute any materials from the Service in any way without prior express written permission of the copyright owner of such material or as otherwise specified in this Agreement or permitted by the Service’s intended functionalities.You may not modify or use any materials obtained from or available through the Service unless you have obtained the applicable copyright owner’s prior express written authorization.Vibbyowns all design rights, databases, and compilation and other intellectual property rights in and to the Service, in each case whether registered or unregistered, and related goodwill.
- Marks. The Vibby trademarks, design marks, service marks, and logos (the “Vibby Trademarks”) used and displayed on the Service are Vibby’s registered and unregistered trademarks or service marks.Other product and service names located on the Service may be trademarks or service marks owned by third parties (the “Third-Party Trademarks,” and, collectively with the Vibby Trademarks, the “Trademarks”).Nothing on the Service or in this Agreement should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on this Service without Vibby’s prior express written consent for each individual use.You may not use the Trademarks to disparage Vibby or the applicable third party (including Vibby’s or the third party’s products or services) or in any manner, using commercially reasonable judgment, that may damage any goodwill in the Trademarks.You may not use any Trademarks as part of a link to or from any Service without Vibby’s prior express written consent.All goodwill generated from the use of any Vibby Trademark will inure solely to Vibby’s benefit.
- Restrictions. You may not sell, transfer, assign, license, sublicense, or modify the Vibby Content, and you may not reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Vibby Content in any way for any public or commercial purpose without Vibby’s prior written consent.The use or posting of any of the Vibby Content on any other website or in a networked computer environment for any purpose is expressly prohibited.If you violate any part of this Agreement, then your right to access and/or use the Vibby Content and Service will automatically terminate and you must immediately destroy any copies you have made of the Vibby Content.
- Vibber Content
- Definition. “Vibber Content” means any content that Vibbers upload, post, or transmit (collectively, “Post”) to or through the Service including, without limitation, literary works, photographs, audiovisual works, artwork, and any other work subject to protection under the laws of the United States or any other jurisdiction, including, but not limited to, patent, trademark, trade secret, and copyright laws.
- Screening Vibber Content. Vibby offers Vibbers the ability to submit Vibber Content to the Service.Vibby does not pre-screen any Vibber Content, but reserves the right to refuse or delete any Vibber Content in its sole discretion.In addition, Vibby has the right—but not the obligation—in its sole discretion to refuse or delete any Vibber Content that it reasonably considers to violate this Agreement or be otherwise illegal or inappropriate.Vibby does not guarantee the accuracy, integrity, or quality of any Vibber Content, and under no circumstances will Vibby be liable in any way for any Vibber Content, including liability for any errors or omissions in any Vibber Content or for any loss or damage of any kind incurred as a result of the use of any Vibber Content Posted to or through the Service.
- Intellectual Property Rights. YOU RETAIN OWNERSHIP OF ANY RIGHTS YOU MAY HAVE IN YOUR VIBBER CONTENT AND SUBMITTING YOUR VIBBER CONTENT TO THE SERVICE DOES NOT TRANSFER OWNERSHIP OF YOUR RIGHTS.
- Licenses to Vibber Content. You hereby grant Vibbyan unrestricted, assignable, sublicensable, revocable, royalty-free license throughout the universe to reproduce, distribute, publicly display, communicate to the public, publicly perform(including by means of digital audio transmissions and on a through-to-the-audience basis), make available, create derivative works from, retransmit from External Sites, and otherwise exploit and use (collectively, “Use”) all Vibber Content you Post to or through the Service by any means, through any media and formats now known or hereafter developed, for the purposes of (i) advertising, marketing, and promoting Vibby and the Service; and (ii) providing the Service as authorized by this Agreement.You further grant Vibbya royalty-free license to use your username, image, and likeness to identify you as the source of any of your Vibber Content. You must not Postany Vibber Content on or through the Service or transmit to Vibbyany Vibber Content that you consider to be confidential or proprietary.Any Vibber Content Postedby you to or through the Service or transmitted to Vibbywill be considered non-confidential and non-proprietary, and treated as such by Vibby, and may be used by Vibbyin accordance with this Agreement without notice to you and without any liability to Vibby.This means that you are granting Vibby the right to Use your Vibber Content without the obligation to pay royalties to any third party, including, but not limited to, a sound recording copyright owner (e.g., a record label), a musical work copyright owner (e.g., a music publisher), a PRO, a sound recording PRO (e.g., SoundExchange), any unions or guilds, and engineers, producers or other royalty participants involved in the creation of Vibber Content.
- You Must Have Rights to the Content You Post. You must not Post any Vibber Content to the Service if you are not the copyright owner of or are not fully authorized to grant rights in all of the elements of the Vibber Content you intend to Post to the Service.You represent and warrant that: (i) you own the Vibber Content Posted by you on or through the Service or otherwise have the right to grant the license set forth in this Agreement; (ii) the Posting and Use of your Vibber Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any person; (iii) the Posting of your Vibber Content on the Service will not require us to obtain any further licenses from or pay any royalties, fees, compensation, or other amounts, or provide any attribution to any third parties; and (iv) the Posting of your Vibber Content on the Service does not result in a breach of contract between you and a third party.You agree to pay all monies owing to any person as a result of Posting your Vibber Content on the Service.
- Through-To-The-Audience Rights. All of the rights you grant in this Agreement are provided on a through-to-the-audience basis, meaning the owners or operators of External Sites will not have any separate liability to you or any other third party for Vibber Content Posted or Used on such External Sites via the Service.
- Waiver of Rights to Vibber Content. By Posting Vibber Content to or through the Service, you waive any rights to prior inspection or approval of any marketing or promotional materials related to such Vibber Content.You also waive any and all rights of privacy, publicity, or any other rights of a similar nature in connection with your Vibber Content, or any portion thereof.To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain, or permit any action based on any moral rights that you may have in or with respect to any Vibber Content you Post to or through the Service.
- No Liability. Vibby will not be liable for any unauthorized use of Vibber Content by any other Vibber or third party.
- Prohibition on Uploading Objectionable Content. You agree not to Post any Vibber Content to the Service that is or could be interpreted to be (i) abusive, bullying, defamatory, harassing, harmful, hateful, inaccurate, infringing, libelous, objectionable, obscene, offensive, pornographic, shocking, threatening, unlawful, violent, or vulgar; or (ii) promoting bigotry, discrimination, hatred, racism, or inciting violence, as Vibby may determine in its sole discretion (collectively, “Objectionable Content”).If you encounter any Objectionable Content on the Service, then please email Vibby at firstname.lastname@example.org.You acknowledge and agree that Vibby provides you the right to report Objectionable Content as a courtesy, and Vibby has no obligation to remove or take any other action with respect to any Objectionable Content on the Service that you report to us.
- Restrictions on Use of the Service.
- In using the Service, you agree not to:
- take any action that imposes an unreasonable load on the Service’s infrastructure;
- use any device, software, or routine to interfere or attempt to interfere with the proper working of the Service, or any activity conducted on the Service;
- attempt to decipher, decompile, disassemble, or reverse engineer any of the software comprising or making up the Service;
- delete or alter any material Vibby or any other person or entity Posts on the Service;
- intentionally mislabel the category of, or provide any false information with respect to, your vib;
- alter any Source Video other than as expressly permitted by the intended functionality of the Service, including by impermissibly overlaying audio on your vib or the Source Video or removing or obscuring any notices of third party copyright or other intellectual property rights;
- frame or link to any of the materials or information available on the Service, or download a Source Video or vib;
- alter, deface, mutilate, circumvent, or otherwise bypass any approved software through which the Service is made available;
- use any Trademarks, photographs, or other content belonging to Vibby or obtained from the Service, a Source Video, or a Video Platform with our express written consent;
- access, tamper with, or use non-public areas of the Service, Vibby’s (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of Vibby’s providers;
- abuse, harass, harm, or advocate or incite abuse, harassment, or harm of another person or group, including Vibby employees;
- provide any false personal information to Vibby;
- create a false identity or impersonate another person or entity in any way;
- create a new account with Vibby, without Vibby’s express written consent, if Vibby has previously disabled an account of yours;
- solicit, or attempt to solicit, personal information from other users of the Service;
- restrict, discourage, or inhibit any person from using the Service, disclose personal information about a third person on the Service or obtained from the Service without the consent of that person, or collect information about Vibbers of the Service;
- use the Service to send communications to persons who have requested that you not send them communications;
- usethe Service, without Vibby’sexpress written consent, for any unauthorized purpose, including communicating or facilitating any commercial advertisement or solicitation or spamming;
- gain unauthorized access to the Service, to other Vibbers’ accounts, names, or personally identifiable information, or to other computers or websites connected or linked to the Service;
- Postor otherwise make available any virus, worm, spyware, or any other computer code, file, or program that may or is intended to disable, overburden, impair, damage, or hijack the operation of any hardware, software, or telecommunications equipment, or any other aspect of the Service or communications equipment and computers connected to the Service;
- interfere with or disrupt the Service, networks, or servers connected to the Service or violate the regulations, policies, or procedures of those networks or servers;
- violate any applicable federal, state, or local laws or regulations or the terms of this Agreement; or
- assist or permit any persons in engaging in any of the activities described above.
- External Sites.
- Vibby has no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason;
- Feedback is provided on a non-confidential basis, and Vibbyis not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and
- You irrevocably grant Vibbyperpetual and unlimited permission to Use the Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.
- Notice and Procedure for Making Claims of Copyright or Other Intellectual Property Infringements.
- Respect of Third Party Rights. Vibby respects the intellectual property of others and takes the protection of intellectual property very seriously, and we ask our users to do the same.Infringing activity will not be tolerated on or through the Service.
- Repeat Infringer Policy. Vibby’s intellectual property policy is to (i) remove or disable access to material that Vibby believes in good faith, upon notice from an intellectual property owner or his or her agent, is infringing the intellectual property of a third party by being made available through the Service; and (ii) remove any Vibber Content uploaded to the Service by “repeat infringers.”Vibby considers a “repeat infringer” to be any user that has uploaded Vibber Content or Feedback to or through the Service and for whom Vibby has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such Vibber Content or Feedback.Vibby has discretion, however, to terminate the Account of any user after receipt of a single notification of claimed infringement or upon Vibby’s own determination.
- Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” containing the following information to the Designated Agent identified in Section9.dbelow.Your Notification of Claimed Infringement may be shared by Vibby with the user alleged to have infringed a right you own or control and with other third parties, and you hereby consent to Vibby making such disclosure.Your communication must include substantially the following:
- a physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
- identification of works or materials being infringed, or, if multiple works are covered by a single Notification of Claimed Infringement, a representative list of such works;
- identification of the specific material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Vibby to locate the material;
- information reasonably sufficient to permit Vibby to contact you, such as an address, telephone number, and, if available, an email address at which you may be contacted;
- a statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- a statement that the information in the Notification of Claimed Infringement is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Designated Agent Contact Information. Vibby’s designated agent for receipt of Notifications of Claimed Infringement (the “Designated Agent”) can be contacted at:
- Counter Notification. If you receive a notification from Vibby that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Vibby with what is called a “Counter Notification. ”To be effective, a Counter Notification must be in writing, provided to Vibby’s Designated Agent through one of the methods identified in Section 9.dabove and include substantially the following information:
- a physical or electronic signature of the subscriber;
- dentification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- astatement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
- thesubscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which Vibby may be found, and that the subscriber will accept service of process from the person who provided notification under Section 9.c above or an agent of such person.
- Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to Vibby in response to a Notification of Claimed Infringement, then Vibby will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that Vibby will replace the removed Vibber Content or Feedback or cease disabling access to it in 10 business days, and Vibby will replace the removed Vibber Content or Feedback and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless Vibby’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the user from engaging in infringing activity relating to the material on Vibby’s system or network.
- False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides that:
- Dispute Resolution.
- Generally. In the interest of resolving disputes between you and Vibby in the most expedient and cost effective manner, you and Vibby agree that any dispute arising out of or in any way related to this Agreement or your use of the Service will be resolved by binding arbitration.Arbitration is less formal than a lawsuit in court.Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts.Arbitrators can award the same damages and relief that a court can award.This agreement to arbitrate disputes includes all claims arising out of or in any way related to this Agreement or your use of the Service, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement.YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND VIBBY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT THIS AGREEMENT SHALL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT.
- Exceptions. Notwithstanding Section 10.a above, nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
- Arbitrator. Any arbitration between you and Vibby will be governed by the Federal Arbitration Act and the Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA.The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Vibby.The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
- Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by U.S. Mail or email (“Notice”). Vibby’s address for Notice is: Vibby, Inc., 350 5th Ave, Suite 7610, New York, NY 10118 or email@example.com.The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”).The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Vibby may commence an arbitration proceeding.During the arbitration, the amount of any settlement offer made by you or Vibby must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.If the dispute is finally resolved through arbitration in your favor with a monetary award that exceeds the last written settlement amount offered by Vibby prior to selection of an arbitrator, then Vibby will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Vibby in settlement of the dispute prior to the arbitrator’s award; or (iii) $15,000.
- Fees. If you commence arbitration in accordance with this Agreement, Vibby will reimburse you for your payment of the filing fee, unless your claim is for more than $15,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules.Any arbitration hearing will take place at a location to be agreed upon in New York, New York, but if the claim is for $15,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address.If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Vibby for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules.Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based.Each party agrees that such written decision, and information exchanged during arbitration, will be kept confidential except to the extent necessary to enforce or permit limited judicial review of the award.The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
- No Class Actions. YOU AND VIBBY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.Further, unless both you and Vibby agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
- Modifications to this Arbitration Provision. Except as otherwise provided in this Agreement, if Vibby makes any future change to this arbitration provision, other than a change to Vibby’s address for Notice, then you may reject the change by sending us written notice within 30 days of the change to Vibby’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and Vibby.
- Enforceability. If Section 10.f above is found to be unenforceable or if the entirety of this Section 10 is found to be unenforceable, then the entirety of this Section 10 will be null and void.
- Limitation of Liability and Disclaimer of Warranties.
- VIBBY, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS (COLLECTIVELY, THE “VIBBY PARTIES”) MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE SERVICE AND ANY CONTENT AVAILABLE ON THE SERVICE, INCLUDING, BUT NOT LIMITED TO, THE ACCURACY, RELIABILITY, COMPLETENESS, TIMELINESS, OR RELIABILITY THEREOF.THE VIBBY PARTIES WILL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY, OR COMPLETENESS OF ANY CONTENT OR ANY OTHER INFORMATION CONVEYED TO ANY VIBBER, OR FOR ERRORS, MISTAKES, OR OMISSIONS THEREIN, OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA OR INFORMATION STREAM FROM WHATEVER CAUSE.TO THE FULLEST EXTENT PERMITTED BY LAW, AS A VIBBER, YOU AGREE THAT YOU USE THE SERVICE AND ANY CONTENT AT YOUR OWN RISK.
- THE VIBBY PARTIES DO NOT WARRANT THAT THE SERVICE WILL OPERATE ERROR FREE, OR THAT THE SERVICE AND ANY CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES.IF YOUR USE OF THE SERVICE OR ANY CONTENT RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, NO VIBBY PARTY WILL BE RESPONSIBLE FOR THOSE COSTS.
- THE SERVICE AND ALL CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND.TO THE FULLEST EXTENT PERMITTED BY LAW, THE VIBBY PARTIES DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND FITNESS FOR A PARTICULAR PURPOSE.
- IN NO EVENT WILL ANY VIBBY PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM, OR IN CONNECTION WITH, THE USE OR INABILITY TO USE THE SERVICE AND ANY CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH VIBBY PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. VIBBY’S LIABILITY, AND THE LIABILITY OF ANY OTHER VIBBY PARTIES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO $100.
- Third Party Disputes.
- Termination of this Agreement.
- Vibby reserves the right, in its sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Service at any time and for any reason without prior notice or liability.Vibby also reserves the right to change, suspend, or discontinue all or any part of the Service at any time without prior notice or liability.
- Sections 1, 4.b, 4.c, 4.d, 5.d, 5.e, 5.f, 5.g, 5.h, 6, and 8through 14 survive the termination of this Agreement indefinitely.
- Consent to Electronic Communications.
- Contact Us.
The Service may contain links to or the ability to share information with third party websites (“External Sites”).These links are provided solely as a convenience to you and not as an endorsement by us of the content on or the operators of 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 on such External Sites.Vibby is not responsible for the content of any linked External Sites and does 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 websites 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.You agree that Vibby will have no liability to you arising from your use, engagement, exposure to or interaction with any External Sites.
While we are continually working to develop and evaluate our own product ideas and features, we pride ourselves on paying close attention to the interests, feedback, comments, and suggestions we receive from the Vibber community.If you choose to contribute by sending Vibby or our employees any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings (such as audio, visual, games, or other types of content), promotions, strategies, or product/feature names, or any related documentation, artwork, computer code, diagrams, or other materials (collectively “Feedback”), then regardless of what your accompanying communication may say, the following terms will apply, so that future misunderstandings can be avoided.Accordingly, by sending Feedback to Vibby, you agree that:
You should consult with your own lawyer and/or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
Via Email: firstname.lastname@example.org
Via U.S. Mail: Ari Cohen
350 5th Ave, Suite 7610
New York, NY 10118.
A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [Vibby] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
17 U.S.C. § 512(f).
Vibby reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
THE PROVISIONS IN THIS SECTION 11 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW:
VIBBY IS NOT AFFILIATED WITH ANY SERVICE PROVIDER, OR OTHER THIRD PARTY SERVICE, AND ANY DISPUTE YOU HAVE WITH ANY SERVICE PROVIDER, THIRD PARTY SERVICE, OR OTHER THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY OTHER USER OF THE SERVICE IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND, TO THE FULLEST EXTENT PERMITTED BY LAW, YOU IRREVOCABLY RELEASE THE VIBBY PARTIES FROM ANY AND ALL CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
To the fullest extent permitted by law, you agree to defend, indemnify, and hold harmless the Vibby 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 Vibby Content or Service.Vibby will provide notice to you of any such claim, suit, or proceeding.Vibby reserves the right to, at your expense, 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 Vibby’s defense of such matter.You shall at all times have the option to participate in any matter or litigation, including, but not limited to, participation through counsel of your own selection, if desired, at your own expense.
This Agreement is governed by the internal substantive laws of the State of New York without respect to its conflict of laws provisions.Except as expressly set forth elsewhere in this Agreement, you expressly agree to submit to the exclusive personal jurisdiction of the state and federal courts sitting in New York County, New York.You agree that no joint venture, partnership, employment, or agency relationship exists between you and Vibbyas a result of this Agreement or use of the Service.You further acknowledge that by submitting Vibber Content, no confidential, fiduciary, contractually-impliedor other relationship is created between you and Vibbyother than pursuant to this Agreement.If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, then the invalidity of such provision will not affect the validity of the remaining provisions of this Agreement, which will remain in full force and effect.Failure of Vibby to act on or enforce any provision of this Agreement will not be construed as a waiver of that provision or any other provision in this Agreement.No waiver will be effective against Vibby unless made in writing, and no such waiver will be construed as a waiver in any other or subsequent instance.Except as expressly agreed by Vibby and you, this Agreement constitutes the entire agreement between you and Vibby with respect to the subject matter hereof, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter herein.The section headings are provided merely for convenience and will not be given any legal import.This Agreement will inure to the benefit of our successors and assigns.Vibby may assign this Agreement, including all its rights hereunder, without restriction.You may not assign this Agreement or any of the rights or licenses granted hereunder, directly or indirectly, including by sale, merger, change of control, operation of law, or otherwise, without the prior express written consent of Vibby.
If you would like to contact us in connection with your use of the Service, then please contact us by U.S. Mail at Vibby, Inc., 350 5th Ave, Suite 7610, New York, NY 10118.