A. General. THIS AGREEMENT, AS MAY BE AMENDED FROM TIME TO TIME, CONSTITUTES A LEGAL AGREEMENT BETWEEN YOU ("YOU") AND VidUP, LLC ("VidUP"). YOUR USE OF VidUP SHALL CONSTITUTE YOUR ACCEPTANCE OF AND AGREEMENT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY (OR CANNOT COMPLY WITH) ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ATTEMPT TO ACCESS OR USE VidUP.
By using VidUPor any element thereof, you represent that you have read and understood this Agreement and agree to be bound by its terms and conditions. You acknowledge that this Agreement and its terms herein are solely between VidUP and you. Except as otherwise expressly set forth herein, VidUP, not any of the wireless carriers and/or device manufacturers, is solely responsible for VidUP and the content thereof, subject to the terms and conditions herein.
B. Notice. VidUP may from time to time amend the terms of this Agreement, in its sole discretion, and will notify you by posting such amended Agreement at www.VidUP.com and/or the app store from which you initially accessed VidUP. Your continued use of VidUP following the posting of any amendment will be deemed your acceptance of the amended Agreement. If you do not agree to be bound by (or cannot comply with) the Agreement as amended, your only remedy is to cease to use VidUP.
C. Use of VidUP.
(i) Service. You may use VidUP only in accordance with the terms and conditions of this Agreement and any amendments as well as any additional terms that may be presented in connection with any particular feature or function of VidUP. VidUP is made available to you for your personal use. You understand and agree that you may not transmit or re-
transmit, broadcast or re-broadcast or make any commercial use of VidUP, including the Downloads, for any reason without VidUP's express prior written approval. In addition, you may not attempt (or authorize, encourage or support others' attempts) to circumvent, reverse engineer, decrypt, break or otherwise alter or interfere with VidUP, including the Downloads and underlying platform technology. You agree to advise VidUP promptly of any such unauthorized use(s) or attempt(s). This Agreement and the rights granted to you herein do not permit you to use VidUP on any Wireless Device that you do not own or control, nor shall you distribute or make available VidUP over a network where it may be used by multiple devices at the same time. VidUP DOES NOT PROMOTE, RECOMMEND OR CONDONE USE OF VidUP DURING CERTAIN ACTIVITIES, SUCH AS AUTOMOBILE DRIVING, WHERE THERE IS RISK OF ACCIDENT, PERSONAL INJURY, PROPERTY DAMAGE OR DEATH. YOU AGREE NOT TO USE VidUP DURING SUCH ACTIVITIES, AND WARRANT, REPRESENT AND CERTIFY TO VidUP THAT YOU WILL NOT DO SO.
(ii) Downloads. VidUP may make available to you certain downloadable content, elements, features, information and applications that you may be permitted to download to your Wireless Device throughVidUP(collectively, the "Downloads"). You understand and acknowledge that the Downloads made available as part of VidUP are owned by VidUP, its business partners, affiliates and/or licensors, as applicable, and are protected by intellectual property laws. VidUP grants you a limited, non-exclusive, non- transferable, revocable right to download the Downloads to your compatible Wireless Device solely for your own non-commercial use. You understand and agree that you may not download, reproduce, modify, display, perform, transfer, distribute or otherwise use the Downloads except as expressly provided in this Agreement. You understand and agree that you may not authorize, encourage or allow any Downloads used or obtained by you to be reproduced, modified, displayed, performed, transferred, distributed or otherwise used by any other party, and you agree that you will take all reasonable steps to prevent any unauthorized reproduction and/or other use of them. You further acknowledge that select Downloads may not be available in all areas, and as a result, you may not be able to access all Downloads and related applications that are otherwise available to users of VidUP.
(iii) Availability of VidUP. VidUP is generally available 24 hours a day, 7 days a week. VidUP reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, VidUP (or any element or feature thereof) with or without notice to you. Neither VidUP nor VidUP Entities (defined below) shall be liable for any damages arising from any interruption, suspension, or termination of VidUP. In the event VidUP's right to make certain Downloads, applications and tools available to you over bizCam expires, VidUP is not be required to deliver to you the license necessary to play back, utilize and deploy any such Downloads, applications and tools after the end of the period in which such rights expire. If VidUP ceases making any such rights available, you shall cease to use the applicable Downloads immediately.
(iv) Customer Support. Please direct any questions concerning VidUP to VidUP by e-mail at: help@VidUP.com. You acknowledge that VidUP is solely responsible for addressing any customer and technical support issues that arise in connection with your use of VidUP. The foregoing notwithstanding, you are not entitled to, nor is VidUP warranting that you will receive any updates, upgrades, or corrections to VidUP, nor any particular support services.
(v) Government Users. VidUP and its related documentation and materials are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
(vi)Communicating withVidUP. When you use VidUP and/or communicate with VidUP in any manner, you are communicating electronically. You consent to receive communications from VidUP by electronic means, which may include electronic mail, posting notices on VidUP websites or applications, SMS text messages or other means selected and used by VidUP from time to time. You agree that all agreements, notices,
disclosures and other communications that VidUP provides to you electronically satisfy any legal requirement that such communications be in writing.
(vii) Hardware, Equipment and Internet Access. You are responsible for obtaining and maintaining any equipment or ancillary services needed to connect to, access or otherwise use VidUP, including, without limitation, compatible Wireless Devices and other hardware devices, software, and other Internet, wireless, broadband, phone or other mobile communication device connection services. You are responsible for ensuring that such equipment or ancillary services are compatible with VidUP and you are responsible for all charges incurred in connection with use of VidUP in connection with all such equipment and ancillary services. When Internet access is not available and/or if your Wireless Device is not otherwise compatible for any reason, VidUP will have limited functionality. Without limiting the generality of the foregoing, you acknowledge that your use of VidUP may cause you to incur third party (e.g., your wireless Internet access or telephone provider) fees or charges in connection with your use of data, messaging and other wireless access. Check with your wireless access provider to verify whether any such fees or charges may apply to you. YOU ARE SOLELY RESPONSIBLE FOR ANY COSTS YOU INCUR TO ACCESS OR USE BIZZAM, OR ANY OTHER APPLICATION OR SERVICE THROUGH THE SOFTWARE ON YOUR MOBILE DEVICE.
(viii) Location Based Services. VidUP may access location based services (i.e., GPS location) available on your Wireless Device in the event that application permissions are sufficient to access this information. Location information may be used to suggest restaurants or other information for
D. Objectionable or Explicit Content. VidUP is not responsible to you for any content or materials constituting all or part of VidUP that you might find objectionable.
E. International Considerations. VidUP makes no representations that VidUPis appropriate or available for use in any location outside the United States. Those who access or use VidUP from other jurisdictions are entirely responsible for compliance with all local laws. By using VidUP, you hereby agree to abide by United States, Canadian and other applicable export control laws. You acknowledge that neither VidUP nor any of its underlying information or technology may be downloaded or otherwise exported or re- exported (i) into (or to a national or resident of) any country subject to a United States embargo, or (ii) to anyone on the United States Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Denied Parties List or Entity List. By using VidUP you are agreeing to the foregoing and are representing and warranting that (i) no United States federal agency has suspended, revoked, or denied your export privileges, (ii) you are not located in or under the control of a national or resident of any such country or on any such list, and (iii) you will not export or re-export VidUP to any prohibited country, or to any prohibited person, entity, or end-user as specified by United States export controls. You are further responsible for complying with all trade regulations and laws, both foreign and domestic.
G. Copyright Information
(i) General. VidUP contains or comprises materials protected by copyright and other intellectual property rights that are owned by VidUP and/or one or more of the VidUP Entities. Your rights with respect to your use of the same are governed by all the terms and conditions of this Agreement, all applicable laws, including but not limited to, intellectual property laws, and any applicable end-user license agreements. For the avoidance of doubt, your use of VidUP is strictly under license, and you will not obtain any ownership interest in or to VidUP through this Agreement or otherwise. Nothing in this Agreement constitutes a waiver of VidUP's rights under United States or international copyright law or any other federal or state law. THE USE OF VidUP OR ANY PART THEREOF, EXCEPT FOR USE AS EXPRESSLY PERMITTED IN THIS AGREEMENT, IS STRICTLY PROHIBITED AND INFRINGES ON THE INTELLECTUAL PROPERTY RIGHTS OF OTHERS AND MAY SUBJECT YOU TO CIVIL AND CRIMINAL PENALTIES, INCLUDING POSSIBLE MONETARY DAMAGES, FOR COPYRIGHT INFRINGEMENT.
(ii) Notices. VidUP respects the intellectual property rights of others, and it expects you to do the same. If you know of or suspect that any third party user's use of VidUP constitutes copyright infringement, please send a notice to VidUP via email to [[insert relevant e-mail address]].
H. Trademark. VidUP is a trademark of VidUP, LLC. All other trademarks, service marks, trade names, domain names, slogans, logos, and other indicia of origin that appear on or in connection with VidUP are the property of VidUP and/or the VidUP Entities, or have been properly licensed to VidUP for use in connection with VidUP. Any trademarks, service marks, logos and other indicia of origin that relate to the iPhone or other Apple products are the exclusive property of Apple, and those which relate to Blackberry are the exclusive property of RIM, those which relate to Android are the exclusive property of Google, and those which relate to Bing are the exclusive property of Microsoft. Other trademarks that are adopted from
time to time by VidUP and used in connection with VidUP are those of its rightful owner. You may not copy, display or use any of these marks without prior written permission of the applicable mark owner.
I. Violation of Intellectual Property Rights. If VidUP: (a) receives a notice alleging that you have engaged in any form of infringing behavior, or (b) reasonably suspects that your use of VidUP violates VidUP's or others' intellectual property rights, VidUP may, in its sole discretion, suspend or terminate your use of VidUP with or without notice to you. If VidUP suspends or terminates your access to VidUPunder this paragraph or otherwise, it shall have no liability or responsibility to you. Any unauthorized use terminates the permission or license granted hereunder by VidUP.
J. Promotions and Advertising. VidUP and/or its business partners may present advertisements and promotional materials on or through VidUP. Your participation in any promotional event is subject to the terms and conditions associated with that event. Your correspondence or business dealings with, or participation in promotions of, any third-party advertisers on or through VidUP, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such third party. You agree that neither VidUP nor VidUP Entities or its business partners shall be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third parties on VidUP.
K. Links to Third Party Websites. VidUPmay present links to retailers and/or other third-party websites not owned or operated by VidUP. These links are provided only as a convenience to you. Neither VidUP nor any of the VidUP Entities are responsible for the availability of these outside websites or their contents. You understand and agree that neither VidUP nor VidUP Entities are responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with your use of or reliance on any content of any such website or goods or services available through any such website. You should direct any concerns regarding these third-party websites to those websites' administrators.
L. Remedies. You understand and agree that any unauthorized use of VidUP would result in irreparable injury to VidUP and/or the VidUP Entities
for which money damages would be inadequate, and in such event VidUP and/or the VidUP Entities, as applicable, shall have the right, in addition to other remedies available at law and in equity, to obtain immediate injunctive relief against you. Nothing contained in this paragraph or elsewhere in this Agreement shall be construed to limit remedies or relief available pursuant to statutory or other claims that VidUP and/or the VidUP Entities may have under separate legal authority, including but not limited to, any claim for intellectual property infringement.
M. Indemnity. You agree to indemnify and hold harmless VidUP and the VidUP Entities from and against any and all claims, actions, demands, causes of action and other proceedings arising from or concerning your use and/or alleged use of any aspect of VidUP (collectively "Claims"), and to reimburse VidUP on demand for any losses, costs, judgments, fees, fines and other expenses incurred (including attorneys' fees and court costs) as a result of any Claims.
N. Disclaimer and Limitation of Liability.
(i) Disclaimer. You understand and agree that your use of VidUP is at your own sole risk. VidUP IS PROVIDED "AS IS" AND WITHOUT WARRANTY BY VidUP OR ITS AGENTS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, LICENSORS, BUSINESS PARTNERS, AND/OR SUPPLIERS (COLLECTIVELY, THE "VidUP ENTITIES"), AS APPLICABLE, AND, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, VidUP AND THE VidUP ENTITIES, AS APPLICABLE, EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OF NON- INFRINGEMENT. THERE IS NO WARRANTY THAT VidUP WILL MEET YOUR REQUIREMENTS, OR THAT YOUR ACCESS TO THE SAME WILL BE UNINTERRUPTED OR ERROR-FREE. VidUP AND/OR THE VidUP ENTITIES, AS APPLICABLE, DO NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF VidUP WITH RESPECT TO PERFORMANCE, ACCURACY, RELIABILITY, SECURITY CAPABILITY, CURRENTNESS OR OTHERWISE. YOU WILL NOT HOLD VidUP AND/OR THE VidUP ENTITIES, AS APPLICABLE, RESPONSIBLE FOR ANY DAMAGES THAT RESULT FROM YOU ACCESSING VidUP OR USING VidUP INCLUDING,
BUT NOT LIMITED TO, ANY INFECTIONS OR CONTAMINATIONS OF YOUR DEVICES YOU USE TO ACCESS THE SAME OR TO TRANSFER DOWNLOADS THAT MAY RESULT FROM THAT USE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY PERSON SHALL CREATE A WARRANTY IN ANY WAY WHATSOEVER RELATING TO VidUP AND/OR THE VidUP ENTITIES AS APPLICABLE. IN ADDITION, UNDER NO CIRCUMSTANCES SHALL VidUP AND/OR THE VidUP ENTITIES AS APPLICABLE, BE LIABLE FOR ANY UNAUTHORIZED USE OF VidUP.
(ii) Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL VidUP AND/OR THE VidUP ENTITIES AS APPLICABLE, BE LIABLE TO YOU FOR ANY (i) CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, or (ii) DAMAGES FOR LOSS OF BUSINESS PROFITS OR REVENUE, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR DATA, OR ANY SIMILAR DAMAGES, ARISING OUT OF THE USE OR INABILITY TO USE VidUP, EVEN IF VidUP AND/OR THE VidUP ENTITIES AS APPLICABLE, HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. TO THE EXTENT THAT IN A PARTICULAR CIRCUMSTANCE ANY DISCLAIMER OR LIMITATION ON DAMAGES OR LIABILITY SET FORTH HEREIN IS PROHIBITED BY APPLICABLE LAW, THEN, INSTEAD OF THE PROVISIONS HEREOF IN SUCH PARTICULAR CIRCUMSTANCE, VidUP AND/OR THE VidUP ENTITIES AS APPLICABLE, SHALL BE ENTITLED TO THE MAXIMUM DISCLAIMERS AND/OR LIMITATIONS ON DAMAGES AND LIABILITY AVAILABLE AT LAW OR IN EQUITY BY SUCH APPLICABLE LAW IN SUCH PARTICULAR CIRCUMSTANCE, AND IN NO EVENT SHALL SUCH DAMAGES OR LIABILITY EXCEED $100. IN NO EVENT SHALL VidUP'S AND/OR THE VidUP ENTITIES', AS APPLICABLE, TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT OR OTHERWISE) ARISING FROM OR RELATED TO THIS AGREEMENT, VidUP, OR YOUR INABILITY TO USE VidUP EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING VidUP.
O. Dispute Resolution.
(i) UN Convention of Contracts. This Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.
(ii) Choice of Law; Venue. The laws of the State of Arizona, excluding its conflicts-of-law rules, govern this Agreement and your use of VidUP. You expressly agree that the courts in the State of Arizona have exclusive jurisdiction over any claim or dispute with VidUP or relating in any way to your account or your use of VidUP. You further agree and expressly consent to personal jurisdiction over you in the federal and state courts of Arizona in connection with any such dispute including any claim involving VidUP or any of the VidUP Entities.
P. Miscellaneous. This Agreement and any other terms or documents referred to herein represent your entire agreement with VidUP with respect to your use of VidUP. You understand and agree that, except as expressly set forth herein, this Agreement is not intended to confer and does not confer any rights or remedies upon any person other than the parties to this Agreement. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. VidUP's failure to pursue any available claim or defense pursuant to this Agreement or otherwise will not be a waiver of such claim or defense. The headings used in this Agreement are for convenience only, and will have no effect on the interpretation or legal enforceability of the terms herein.
Copyright (c) 2014 VidUP, LLC. 7502 E. Thomas Rd., Suite 102, Scottsdale, AZ 85251. This product may incorporate one or more pending patents. All rights reserved. VidUP and VidUP are registered trademarks of VidUP, LLC.