Last Updated: AUGUST 19, 2015
The mobile application called "Vidku" (the "App") and the services offered through the App (the "Services") are copyrighted works belonging to Vidku, Inc. ("Vidku", "us", "our", and "we"). Certain features of the App or Services may be subject to additional guidelines, terms, or rules, which will be posted on the App or Services in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference into these Terms. In the event of a conflict between the additional terms and any provision in these Terms, the additional terms will prevail, but only with respect to the Service to which the additional terms apply.
THESE TERMS INCLUDE A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIALS, REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
1. SERVICES; ACCOUNTS
1.1. Services. Vidku provides an online service designed to allow users to create and share videos (each a "Vidku")
1.2. Account Creation. In order to use certain features of the Site or Services, you must register for an account ("Account") and provide certain information about yourself as prompted by the account registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information. You may delete your Account at any time, for any reason, by following the instructions on the App or Services or uninstalling the App. You agree not to create an Account or use the App or Services if you have been previously removed by us or banned from any of the Services. Vidku reserves the right in its sole discretion to suspend or terminate your Account and/or refuse any and all current or future use of the App or Services (or any portion thereof) at any time for any reason. You agree that Vidku will not be liable to you or to any third party for any suspension or termination of your Account or any refusal of any use of the App or Services (or any portion thereof). Vidku reserves the right in its sole discretion to remove any content that you provide and/or upload to the App or Services at any time for any reason, including, but not limited to, information you provide for your user profile. You agree that Vidku will not be liable to you or to any third party for such removal.
1.3. Account Responsibilities. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You are solely responsible for any use of the App or Services by your child user. You agree to immediately notify Vidku of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Vidku cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
1.4. Social Networking Sites. The Services may allow users to connect with various social networking sites, such as Facebook (each an "SNS"). By connecting your SNS account, you represent that you are entitled to grant us access to your SNS account without breach by you of any SNS terms and conditions and without obligating us to pay any fees or making us subject to any usage limitations. By granting us access to your SNS account, you understand that we may access, make available, and store any information, content, or other materials that you have provided to or stored in your SNS account ("SNS Content") accessible through the Site and Services so that it is available on your Account. Unless otherwise specified in the Terms, all SNS Content will be deemed your User Content (as defined below) for all purposes of the Terms. PLEASE NOTE THAT YOUR RELATIONSHIP WITH EACH SNS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH SNS, AND WE DISCLAIM ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO US BY AN SNS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN THE SNS. Vidku makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and we are not responsible for any SNS Content.
2. ACCESS TO THE APP AND SERVICES
2.1. License. Subject to these Terms, Vidku grants you a non-transferable, non-exclusive, revocable, limited license to use and access, (a) the App on any compatible device that you own or control, and (b) the other aspects of App and Services. Furthermore, with respect to any App accessed through or downloaded from the Apple App Store or Google Play Store (each an "App Store" and references to the App Store include the corporate entity and its subsidiaries making the App Store available to you), you agree to comply with all applicable third party terms of the App Store (i.e., Apple App Store's "Usage Rules") (the "Usage Rules") when using the App. To the extent the terms of these Terms provide for usage rules that are less restrictive than or otherwise in conflict with the Usage Rules, the more restrictive term applies.
2.2. Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the App or Services, whether in whole or in part, or any content displayed on the App or Services; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the App or Services; (c) you shall not access the App or Services in order to build a similar or competitive website, product, or service; and (d) except as expressly stated herein, no part of the App or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the App or Services shall be subject to these Terms. All copyright and other proprietary notices on the App or Services (or on any content displayed on the App or Services) must be retained on all copies thereof. Vidku makes no representation that the App or Services are appropriate for use in locations other than the United States.
2.3. Modification. Vidku reserves the right, at any time, to modify, suspend, or discontinue the App or Services (in whole or in part) with or without notice to you. You agree that Vidku will not be liable to you or to any third party for any modification, suspension, or discontinuation of the App or Services or any part thereof.
2.4. No Support or Maintenance; Updates. You acknowledge and agree that Vidku will have no obligation to provide you with any support or maintenance in connection with the App or Services. You agree that Vidku is not obligated to create or provide any corrections, updates, upgrades, bug fixes, and/or enhancements of the App or Services (each an "Update"). However, in the event Vidku decides to offer an Update, you agree that Vidku may amend these Terms in connection with such Update without specific notice to you and that your use of the App or Services following such Update is conditioned upon your acceptance of any revised Terms. By using the App or Services following an Update, you are representing that you have reviewed the then-current version of these Terms and agree to be bound by such version. All Updates will be governed by the version of these Terms published by Vidku as of the date you use the App or Services following such Update.
2.5. Ownership. Excluding any User Content that you may provide (defined below), you acknowledge that (a) the App and Services are and will remain the sole property of Vidku and are subject to protection under U.S. and foreign copyright laws and (b) all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the App and Services are owned by Vidku or Vidku’s suppliers. Vidku’s name, logo, and the product names associated with the App or Services belong to Vidku (or its suppliers, where applicable), and no right or license is granted to use them by implication, estoppel or otherwise. Neither these Terms nor your access to the App or Services transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 2.1. Vidku and its suppliers reserve all rights not granted in these Terms. There are no implied licenses granted under these Terms.
2.6. Feedback. You agree that submission of any ideas, suggestions, and/or proposals to us ("Feedback") is at your own risk and that Vidku has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Vidku a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner it deems appropriate, any and all Feedback, and to sublicense the foregoing rights. Vidku will treat any Feedback you provide to Vidku as non-confidential and non-proprietary. You agree that you will not submit to Vidku any information or ideas that you consider to be confidential or proprietary.
3. USER CONTENT GENERALLY
3.1. User Content. "User Content" means any and all information and content that a user submits to, or uses with, the App or Services. You are solely responsible for your User Content and the consequences of submitting and publishing your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that personally identifies you or any third party. You understand that Vidku does not guarantee any confidentiality with respect to your User Content. You hereby represent and warrant that your User Content does not violate our Acceptable Use Policy (defined in Section 3.3). You may not represent or imply to others that your User Content is in any way provided, sponsored or endorsed by Vidku. Because you alone are responsible for your User Content, you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. Vidku is not obligated to backup any User Content, and your User Content may be deleted at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of your User Content if you desire. Vidku has no responsibility or liability for the deletion or accuracy of any User Content; the failure to store, transmit, or receive transmission of User Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the App or Services. You acknowledge that Vidku has no obligation to pre-screen User Content, although Vidku reserves the right in its sole discretion to pre-screen, refuse, or remove any User Content at any time for any reason. PLEASE MAKE SURE THAT YOU ONLY PROVIDE INFORMATION TO THE SERVICES THAT YOU ARE ALLOWED TO PROVIDE WITHOUT VIOLATING ANY OBLIGATIONS YOU MIGHT HAVE TOWARDS A THIRD PARTY, INCLUDING ANY CONFIDENTIALITY OBLIGATIONS. PLEASE DO NOT PROVIDE ANY INFORMATION THAT YOU ARE NOT ALLOWED TO SHARE WITH OTHERS, INCLUDING BY CONTRACT OR LAW; PLEASE NOTE THAT ANY INFORMATION YOU PROVIDE MAY BE ACCESSIBLE BY USERS OF THE APP AND SERVICES.
3.2. Acceptable Use Policy. The following terms constitute our "Acceptable Use Policy":
(a) You agree not to post, upload, or transmit to the App or Services any User Content that:
(i) Violates any third-party intellectual property or proprietary right (i.e. trademark, privacy right, etc.);
(ii) Contains defamatory, harassing, threatening or discriminatory content or incites hatred against any individual or group
(iii) Exploits or harms minors;
(iv) Violates any law; or
(v) Depicts or promotes unlawful acts, self-harm, animal cruelty, real-life or extreme violence.
(b) In using the App or Services, you agree to behave in a civil and respectful manner at all times. In addition, you agree not to:
(i) Transmit any viruses or harmful code;
(ii) Send spam through the App or Services;
(iii) Advertise or solicit others to purchase any product or service within the App or Services (unless you are an official Vidku partner or advertiser and have a written agreement with Vidku);
(iv) Act in a deceptive manner by, among other things, impersonating any person
(v) Harass or stalk any other person;
(vi) Exploit or harm minors;
(vii) Collect information regarding other users without their consent;
(viii) Disrupt the servers or networks connected to the App or Services;
(ix) Attempt to gain unauthorized access to the App or Services; or
(x) Strip, scrape, or mine data from the App or Services.
3.3. Enforcement. We reserve the right (but have no obligation) to review any User Content, and to investigate and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of these Terms or otherwise create liability for us or any other person. Such action may include removing or modifying your User Content, terminating your Account, and/or reporting you to law enforcement authorities.
4. USER CONTENT PROPRIETARY RIGHTS: VERSION 1
With respect to User Content you make available in Version 1 of Vidku, the following terms apply:
4.1. Ownership. Each user owns its own User Content. By making available your User Content on or in the App or Services (or permitting a child user to do the same), you affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish your User Content; and you license to Vidku all proprietary rights in and to such User Content for publication on the App and Services pursuant to these Terms.
4.2. General License. By making available User Content on or in the App or Services, (or permitting a child user to do the same), you hereby grant (and you represent and warrant that you have the right to grant) to Vidku an irrevocable, nonexclusive, transferable, royalty-free and fully paid, worldwide license to use, reproduce, distribute, display and perform prepare derivative works of, incorporate into other works, and otherwise use and exploit such User Content, and to grant sublicenses of the foregoing rights, solely for the purposes of including such User Content in the App and Services and operating, improving, and providing the App and Services. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content. You also hereby grant each user of the App or Services a non-exclusive license to access your User Content through the App and Services, and to use, reproduce, distribute, display and perform such User Content as permitted through the functionality of the App and Services and under these Terms. The above licenses granted by you in Vidkus you submit to the App or Services terminate within a commercially reasonable time after your Vidkus are removed or deleted from the App and Services. You understand and agree, however, that Vidku may retain, but not display, distribute, or perform, server copies of your Vidkus that have been removed or deleted. The above licenses granted by you in other User Content you submit are perpetual. You further agree that User Content you submit to the App or Services will not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant Vidku all of the license rights granted herein.
4.3. License to Vidkus Shared with User “Vidku Team” and its Groups. By sharing your Vidkus with the user, “Vidku Team”, or with groups created by “Vidku Team” (or permitting a child user to do the same), you hereby grant (and you represent and warrant that you have the right to grant) to Vidku (in addition to the rights granted in Section 4.2 above) an irrevocable, nonexclusive, transferable, royalty-free and fully paid, worldwide license to use, reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use and exploit the User Content in such Vidkus, and to grant sublicenses of the foregoing rights, to market and promote the App and Services. The above licenses granted by you in the Vidkus you share with the user, “Vidku Team” or with groups created by “Vidku Team” terminate within a commercially reasonable time after your Vidkus are removed or deleted from the App and Services. You understand and agree, however, that Vidku may retain, but not display, distribute, or perform, server copies of your Vidkus that have been removed or deleted.
5. APP STORES. You acknowledge and agree that the availability of the App is dependent on the App Store from which you received the App. You and Vidku acknowledge that these Terms are between you and Vidku and not with the App Store and that Vidku, and not the App Store, is responsible for the App and the content thereof. Vidku is responsible for providing any maintenance and support services with respect to the App and the App Store has no obligation whatsoever to furnish any maintenance and support services with respect to the App. Vidku is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the App to conform to any applicable warranty, you may notify the App Store, and the App Store may refund the purchase price for the App to you; and to the maximum extent permitted by applicable law, the App Stores will not have any other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Vidku’s sole responsibility. You and Vidku acknowledge that Vidku, and not the App Store, is responsible for addressing any claims relating to the App or your possession and/or use of that App, including, but not limited to: (1) product liability claims; (2) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation. You and Vidku acknowledge that, in the event of any third party claim that the App infringes or your possession and use of that App that third party’s intellectual property rights, Vidku, and not the App Store, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You agree to comply with, and your license to use the App is conditioned upon your compliance with, all applicable third party terms of agreement (e.g., the App Store’s terms and policies and the Usage Rules) when using the App. Vidku and you acknowledge and agree that the App Stores and their subsidiaries, are third party beneficiaries of these Terms, and that, upon your acceptance of the terms and conditions of these Terms, the App Stores will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary thereof.
6. INDEMNIFICATION. You agree to indemnify and hold Vidku (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of your (or your Child user’s) (a) use of, or inability to use, the App or Services; (b) violation of these Terms; (c) violation of applicable laws or regulations; (d) User Content; (e) violation of any rights of another party, including any users; or (f) interaction with any other user. Vidku reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Vidku. Vidku will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
7. OTHER USERS
7.1. Third-Party Links & Ads. The App or Services may contain links to third-party websites and services, and/or display advertisements for third parties (collectively, “Third-Party Links & Ads”). Such Third-Party Links & Ads are not under the control of Vidku, and Vidku is not responsible for any Third-Party Links & Ads. Vidku provides access to these Third-Party Links & Ads only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links & Ads. You use all Third-Party Links & Ads at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links & Ads, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Links & Ads.
7.2. Other Users. Each user of the App or Services is solely responsible for any and all of its own User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content, whether provided by you or by others. We make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content. Your interactions with other users of the App or Services are solely between you and such users. You agree that Vidku will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any user of the App or Services, we are under no obligation to become involved.
7.3. Release. You hereby release and forever discharge the Vidku (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the App or Services (including any interactions with, or act or omission of, other users of the App or Services). IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE APP AND SERVICES IS AT YOUR SOLE RISK AND THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APP AND SERVICES AND ANY CONTENT, PRODUCTS, SERVICES OR INFORMATION PROVIDED BY THE APP OR SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, , WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND VIDKU (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE APP AND SERVICES AND ANY CONTENT, PRODUCTS, SERVICES OR INFORMATION PROVIDED BY THE APP OR SERVICES EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE APP OR SERVICES WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE APP OR SERVICES, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
9. LIMITATION ON LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL VIDKU (OR OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE APP OR SERVICES , HOWEVER CAUSED, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PROPRIETARY RIGHTS INFRINGEMENT, PRODUCT LIABILITY OR OTHERWISE, EVEN IF VIDKU HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE APP AND SERVICES IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR (AND OUR SUPPLIERS’) LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THESE TERMS (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) THE FEES PAID TO VIDKU BY YOU IN THE PRECEDING TWELVE (12) MONTHS AND (B) FIFTY US DOLLARS (U.S. $50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THESE TERMS.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN VIDKU AND YOU.
10. TERM AND TERMINATION. Subject to this Section, these Terms will remain in full force and effect while you use the App or Services. You may terminate your Account at any time, for any reason, by following the instructions on the App or Services or uninstalling the App. We may suspend or terminate your rights to use the App and/or Services (including your Account) at any time for any reason at our sole discretion, including for any use of the App or Services in violation of these Terms. Upon termination of your rights under these Terms, your Account and right to access and use the App and Services will terminate immediately. You understand that any termination of your Account may involve deletion of your User Content associated with your Account from our live databases. Vidku will not have any liability whatsoever to you for any termination of your rights under these Terms, including for termination of your Account or deletion of your User Content. Even after your rights under these Terms are terminated, all provisions of these Terms which by their nature should survive, will survive, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
11. COPYRIGHT POLICY. Vidku respects the intellectual property of others and asks that users of our App and Services do the same. In connection with our App and Services, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our App or Services who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our App or Services, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent:
1. your physical or electronic signature;
2. identification of the copyrighted work(s) that you claim to have been infringed;
3. identification of the material on our services that you claim is infringing and that you request us to remove;
4. sufficient information to permit us to locate such material;
5. your address, telephone number, and e-mail address;
6. a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
7. a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
The designated Copyright Agent for Vidku is: Vidku Inc.
Designated Agent: Patrick Johnson
Address of Agent: 251 First Avenue North, Suite 500, Minneapolis, MN 55401
Telephone: (612) 440-6016
12.1. Changes. These Terms are subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any), and/or by prominently posting notice of the changes on our App or Services. We will notify you of any changes to our Terms by posting the new Terms here: >vidku.com/legal/#terms. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to these Terms will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our App or Services. These changes will be effective immediately for new users of our App or Services. Continued use of our App or Services following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
12.2. Arbitration Agreement; Class Waiver; Waiver of Trial by Jury. Please read this Section (“Arbitration Agreement”) carefully. It is part of your contract with Vidku and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
(a) Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by the Vidku that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and the Vidku, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
(b) Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute ("Notice") describing the nature and basis of the claim or dispute, and the requested relief. A Notice to the Vidku should be sent to: Vidku Inc., c/o President, 251 First Avenue North, Suite 500, Minneapolis, MN 55401. After the Notice is received, you and the Vidku may attempt to resolve the claim or dispute informally. If you and the Vidku do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
(c) Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association ("AAA"), an established alternative dispute resolution provider ("ADR Provider") that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules ("Arbitration Rules") governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S. the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that the Vidku made to you prior to the initiation of arbitration, the Vidku will pay you the greater of the award or $2,500.00. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
(d) Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
(e) Time Limits. If you or the Vidku pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
(f) Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and the Vidku, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and the Vidku.
(g) Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and the Vidku in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND THE VIDKU WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
(h) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
(i) Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
(j) Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of this Arbitration Agreement shall continue in full force and effect.
(k) Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
(l) Survival. This Arbitration Agreement will survive the termination of your relationship with Vidku.
(m) Small Claims Court. Notwithstanding the foregoing, either you or the Vidku may bring an individual action in small claims court.
(n) Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
(o) Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
(p) Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Hennepin County, Minnesota, for such purpose.
(q) Governing Law. These Terms and any action related thereto will be governed and interpreted by and under the laws of the State of Minnesota, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
12.3. Export. The App and Services may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Vidku, or any products utilizing such data, in violation of the United States export laws or regulations.
12.4. Disclosures. Vidku is located at the address set forth below. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
12.5. Electronic Communications. The communications between you and Vidku use electronic means, whether you use the App or Services or send us emails, or whether Vidku posts notices on the App or Services or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Vidku in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Vidku provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
12.6. Miscellaneous. These Terms constitute the entire agreement between you and us regarding the use of the App and Services. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation”. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Vidku is that of an independent contractor, and neither party is an agent or partner of the other. These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Vidku’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Vidku may freely assign these Terms. The terms and conditions set forth in these Terms shall inure to the benefit of and be binding upon permitted assignees.
12.7. Force Majeure. Vidku shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
12.8. Copyright/Trademark Information. Copyright © 2015 Vidku, Inc. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the App or Services are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
12.9. Contact Information:
Address: 251 First Avenue North, Suite 500, Minneapolis, MN 55401
Last Updated: AUGUST 19, 2015
WHAT WE COLLECT
We get information about you in a range of ways.
Information You Give Us.
Information We Get From Others. We may get information about you from other sources. We may add this to information we get from the App. If another user allows us to collect information regarding his or her Facebook Friends – and you are one of that user’s Facebook Friends – we may combine the information we collect from that user with other information we have collected about you.
Information Automatically Collected.
Generally. When you use our Services, some information is automatically collected. For example, when you use our Services, your geographic location, how you use the Services, information about the type of device you use, your Open Device Identification Number (“ODIN”), date/time stamps for your visit, your unique device identifier (“UDID”), and your browser type, operating system, Internet Protocol (IP) address, and domain name are all collected. This information is generally used to help us deliver the most relevant information to you and administer and improve the App. In addition, in the event our App crashes on your mobile device, we will receive information about your mobile device model software version and device carrier, which allows us to identify and fix bugs and otherwise improve the performance of our App.
Log Files. We gather certain information automatically and store it in log files, including IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp, and clickstream data. We use this information to improve the content of the App, market research purposes, to communicate information to visitors and to better tailor our Services to our users’ needs.
Cookies. We may log information using “Cookies.” Cookies are small data files stored on your hard drive by a website. We may use both session Cookies (which expire once you close your web browser) and persistent Cookies (which stay on your computer until you delete them) to provide you with a more personal and interactive experience on our App. This type of information is collected to make the App more useful to you and to tailor the experience with us to meet your special interests and needs.
Inviting Friends. If you choose, you can use our "Invite friends" feature to locate other people through an SNS, by allowing the App to access the contact list on your device, or manually entering another’s phone number or email address. If you choose to find your friends through an SNS, then you will be prompted to set up a link to the SNS. We will collect your friends’ names and their Vidku Account information. You understand that any information that such SNS may provide to us will be governed by this Policy. If you allow the App to access your device’s contact list, we will access your contacts’ names, email addresses and phone number. In addition, you will create a unique username that when shared with, and used by, others makes them pending friends of yours within the App.
Location Information. . If you have enabled location services on your mobile device, we collect your location information. If you do not want this information collected by us, you can disable location services on your mobile device.
USE OF PERSONAL INFORMATION
We use your personal information as follows:
We may store and process your personal information in the United States and other countries.
We may also create anonymous and/or deidentified data records from your personal information by excluding information (such as your name) that makes the data personally identifiable to you. We use this anonymous data to enhance the content of our Services and improve the App. We reserve the right to use anonymous data for any purpose and disclose anonymous data to third parties in our sole discretion.
User Testimonials and Feedback. We may receive testimonials and comments from users who have had positive experiences with our Services. We may publish such content. When we publish this content, we may identify our users by their first and last name. We obtain the user’s consent prior to posting his or her name along with the testimonial. We may post user feedback on the App from time to time. We will share your feedback with your first name and last initial only. If we choose to post your first and last name along with your feedback, we will obtain your consent prior to posting you name with your feedback.
SHARING OF PERSONAL INFORMATION
Information You Share. Our App and Services allow you to connect and share content and information, including your Vidkus. Any information or content that you voluntarily disclose for posting, such as Vidkus, may become available to the public, as controlled by any applicable privacy settings that you set. Please be mindful of your own privacy needs as you choose whom to connect with and what to share and make public. We cannot control the privacy or security of information you choose to make public on the App. If you share information about others, we suggest you get consent for any information you may share about them.
Information We Share. We may share personal information that you provide or we collect as follows:
Vidkus. You can share your Vidkus within a group or with specific friends you identify from time to time. Vidkus will be displayed in groups to which you post the Vidku and will be visible to all users who have joined that group. Once you have posted a Vidku publicly, while you will still be able to edit and delete it on the Services, you will not be able to edit or delete such information cached, collected, and stored elsewhere by others (e.g., search engines). Vidkus you share with friends are only shared with each friend individually.
INFORMATION CHOICES AND CHANGES
You may opt-out of providing your personal information to the App at any time by uninstalling the App.
Our marketing emails explain how to “opt-out.” If you opt out, we may still send you non-marketing emails. Non-marketing emails include emails about your accounts and our business dealings with you.
You may send requests about personal information to our Contact Information below. You can request to change contact choices, opt-out of our sharing with others, and review, update, correct or delete your personal information. We will use commercially reasonable efforts to honor your request. We may retain an archived copy of your records as required by law or for legitimate business purposes.
You chose whether and with whom your Vidkus are shared. You can share your Vidkus within a group or with specific friends you identify from time to time or chose not to share your Vidkus at all.
You can update your Account at any time by logging in and changing your profile settings.
You can remove and/or edit Vidkus created by you at any time through the App.
THIRD PARTY WEBSITES. Our App may contain links to third party websites. When you click on a link to any other website or location, you will leave our App and go to another site and another entity may collect information from you. We have no control over, do not review, and cannot be responsible for, these outside websites or their content. Please be aware that the terms of this Policy do not apply to these outside websites or content, or to any collection of data after you click on links to such outside websites. We encourage you to read the privacy policies of every website you visit. The links to third party websites or locations are for your convenience and do not signify our endorsement of such third parties or their products, content, or websites.
INFORMATION SECURITY. We are committed to protecting the security of your personal information. We use a variety of industry-standard security technologies and procedures to help protect your personal information from loss, misuse and unauthorized access, use, disclosure, alteration, and destruction. While we use reasonable efforts to protect your personal information, we cannot guarantee its absolute security.
HOW WE RESPOND TO DO NOT TRACK SIGNALS. We do not currently respond to “do not track” signals or other mechanisms that might enable consumers to opt out of tracking on our App.
A NOTE ABOUT CHILDREN. We do not intentionally gather personal information from users who are under the age of 13. If a child under 13 submits personal information to us and we learn that the personal information is the information of a child under 13, we will attempt to delete the information as soon as possible. If you believe that we might have any personal information from a child under 13, please contact us at firstname.lastname@example.org.
USERS OUTSIDE OF THE UNITED STATES. If you are a non U.S. user of the Services, by using our Services, you acknowledge and agree that your personal information may be processed for the purposes identified in the Policy. In addition, your personal information may be processed in the country in which it was collected and in other countries, including the United States, where laws regarding processing of personal information may be less stringent than the laws in your country. By providing your data, you consent to such transfer.
CONTACT INFORMATION. We welcome your comments or questions about this Policy. You may contact us at:
Address: 251 First Avenue North, Suite 500, Minneapolis, MN 55401
CHANGES TO THIS POLICY. We may change this Policy from time to time for any reason. If we make any changes, we will change the Last Updated date above and post the new Policy here: vidku.com/legal/#privacy. You should consult this Policy regularly for any changes.