VYTL Terms of Service Agreement
Please read this Terms of Service Agreement (“Terms of Service”) fully and carefully before using the VYTL mobile application (the “Mobile App”) and the services, features, content or applications offered by Crowd Media Inc. in connection therewith (“VYTL”, “VYTL Fitness”, “we”, “us” or “our”), including the member dashboard (together with the Mobile App, the “Services”). These Terms of Service set forth the legally binding terms and conditions for your use of the Mobile App and the Services.
1. Acceptance of Terms of Service.
IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS OF SERVICE, YOU MAY NOT ACCESS OR USE THE MOBILE APP OR ANY SERVICES.
- By registering for and/or using the Services in any manner, including but not limited to downloading the Mobile App, or clicking on a button or taking similar action to signify your affirmative acceptance of these Terms of Service, you agree to these Terms of Service and all other operating rules, policies and procedures that may be published from time to time on the Mobile App by us, each of which is incorporated by reference and each of which may be updated from time to time without notice to you.
Certain Services may be subject to additional terms and conditions specified by us from time to time; your use of such Services is subject to those additional terms and conditions, which are incorporated into these Terms of Service by this reference.
There are three types of users of the Services: (i) contributors who submit User Content through the Services; (ii) members who pay a Subscription to access premium User Content (as designated by us in our sole discretion); and (iii) browsers of the Services who may perform limited searches of User Content and who have access to certain limited User Content, subject in certain instances, to payment of a fee. These Terms of Service apply to all users of the Services, including contributors, members, and browsers.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
2. Health Care Disclaimer.
ALL ASPECTS OF THE SERVICES, INCLUDING WITHOUT LIMITATION ALL CONTENT (AS DEFINED BELOW), ARE FOR INFORMATIONAL PURPOSES ONLY. NO INFORMATION PROVIDED THROUGH THE SERVICES IS INTENDED TO BE, AND MUST NOT TAKEN TO BE, FACTUAL OR ACCURATE KNOWLEDGE, ADVICE, DIAGNOSIS OR TREATMENT. NO ASPECT OF THE SERVICES SHOULD BE CONSIDERED, OR USED AS A SUBSTITUTE FOR, PROFESSIONAL MEDICAL KNOWLEDGE, ADVICE, DIAGNOSIS, OR TREATMENT. THE SERVICES DO NOT CONSTITUTE THE PRACTICE OF ANY MEDICAL, NURSING OR OTHER PROFESSIONAL HEALTH PROVIDER, KNOWLEDGE, ADVICE, DIAGNOSIS OR TREATMENT. YOU CANNOT USE THE SERVICES AS A DIAGNOSIS, TREATMENT OR PRESCRIPTION. RELIANCE ON ANY INFORMATION PROVIDED THROUGH THE SERVICES IS SOLELY AT YOUR OWN RISK. NO PATIENT/DOCTOR RELATIONSHIP OF ANY KIND IS ESTABLISHED THROUGH USE OF THE SERVICES. THE SERVICES ARE NOT A SUBSTITUTE FOR EMERGENCY MEDICAL HELP AND CANNOT BE USED IN THE EVENT OF A MEDICAL EMERGENCY. You should always seek the advice of your physician or other qualified health provider, with any questions you may have regarding personal health or a medical condition, including diagnosis and treatment for your specific medical needs. You should never disregard or delay in seeking professional medical advice due to information you have obtained from the Services.
You represent and warrant that you are at least 13 years of age, provided that if you are under 18 years of age, your use of the Services is subject to requirements of parental consent, in which case your supervising parent or legal guardian is considered the user under these Terms of Service and is responsible for any and all activity. If you are under age 13, you may not, under any circumstances or for any reason, use the Services. We may, in our sole discretion, refuse to offer the Services to any person or entity and change its eligibility criteria at any time. You are solely responsible for ensuring that these Terms of Service are in compliance with all laws, rules and regulations applicable to you and the right to access the Services is revoked where these Terms of Service or use of the Services is prohibited or to the extent offering, sale or provision of the Services conflicts with any applicable law, rule or regulation. Further, the Services are offered only for your use, and not for the use or benefit of any third party (unless you are a parent or legal guardian using the Services for your minor child).
5. Registration and Access through Third Party Accounts.
- Account. In order to contribute Content or become a member of the Services to access premium Content or to access certain other features and functions of the Services, you must register for an account on the Services (an “Account”) with your name and phone number. You must provide accurate and complete information and keep your Account information updated. You shall not use any other person’s phone number to register for an Account. You are solely responsible for the activity that occurs on your Account, and for keeping your Account password secure. You may never use another person’s user account or registration information for the Services without permission. You must notify us immediately of any change in your eligibility to use the Services (including any changes to or revocation of any licenses from state authorities), breach of security or unauthorized use of your Account. You should never publish, distribute or post login information for your Account. You shall have the ability to delete your Account by following the instructions on the Mobile App or through the Services. We will have the right to terminate your Account at any time in the event we believe you are in violation of the Terms of Service.
Access Through a Third Party Account. If you access the Services through a third-party account (“Third-Party Account”), such as Apple Music or Spotify, as part of the functionality of the Services, you may link or sync your Account with such Third-Party Accounts by allowing Company to access your Third-Party Account, as permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Company and/or grant Company access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Company to pay any fees or making Company subject to any usage limitations imposed by such third-party service providers. By granting Company access to any Third-Party Accounts, you understand that Company may access, make available and store (if applicable) any Content accessible through Company Properties that you have provided to and stored in your Third-Party Account so that it is available on and through the Services via your Account. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on the Services. Please note that if a Third-Party Account or associated service becomes unavailable or Company’s access to such Third-Party Account is terminated by the third-party service provider, then related content will no longer be available on and through the Services. You have the ability to disable the connection between your Account and your Third-Party Accounts at any time by accessing the “Settings” section of the Services. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND VYTL DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. Company makes no effort to review any Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Company is not responsible for any Content, whether accessed, submitted or used through a Third-Party Account.
6. Accessing and Download the Application from iTunes.
The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
- You acknowledge and agree that (i) the Terms of Service are concluded between you and VYTL only, and not Apple, and (ii) VYTL, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between VYTL and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of VYTL.
You and VYTL acknowledge that, as between VYTL and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
You and VYTL acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between VYTL and Apple, VYTL, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms of Service.
You and VYTL acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms of Service as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms of Service as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
Without limiting any other terms of the Terms of Service, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
- Definition. For purposes of these Terms of Service, the term “Content” includes, without limitation, information, data, text, photographs, videos, audio clips, written posts and comments, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Services. For the purposes of this Agreement, “Content” also includes all User Content (as defined below).
User Content. All fitness videos (which must be between thirty seconds (00:30) and five minutes (5:00)) added, created, uploaded, submitted, distributed, or posted to the Services by contributors to the Services (collectively “User Content”) is the sole responsibility of the person who originated such User Content. You shall be responsible for paying any and all royalties and securing any licenses or other rights in any User Content necessary to grant the rights granted hereunder. You represent that all User Content provided by you is accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations. You acknowledge that all Content, including User Content, accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. We do not guarantee that any Content you access on or through the Services is or will continue to be accurate.
Notices and Restrictions. The Services may contain Content specifically provided by us, our partners or our users and such Content is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. You shall abide by and maintain all copyright notices, information, and restrictions contained in any Content accessed through the Services.
Use License. Subject to these Terms of Service, we grant each user of the Services a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to stream and/or download, as applicable, and display locally), truncate, and aggregate with other Content, the Content, solely for personal, non-commercial use of the Services. Use, reproduction, modification, distribution or storage of any Content for other than personal, non-commercial use of the Services is expressly prohibited without prior written permission from us. You shall not sell, license, rent, or otherwise use or exploit any Content for commercial use or in any way that violates any third party right.
License Grant. By submitting User Content through the Services or otherwise to us, you hereby grant us a worldwide, non-exclusive, perpetual, fully paid (subject to the royalties set forth herein), sublicensable and transferable license to use, edit, modify, truncate, aggregate, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit the User Content in connection with the Mobile App, the Services and our (and our successors’ and assigns’) businesses, including without limitation for promoting and redistributing part or all of the Mobile App or the Services (and derivative works thereof) in any media formats and through any media channels (including, without limitation, third party webMobile Apps and feeds), and including after your termination of your Account or the Services. You also hereby do and shall grant each user of the Mobile App and/or the Services a non-exclusive, perpetual license to access your User Content that is publicly available to such user through the Mobile App and/or the Services, and to use, edit, modify, reproduce, distribute, prepare derivative works of, display and perform such User Content, including after your termination of your Account or the Services. For clarity, (i) any information you submit to the Services that you do not publicly post through the Services will not be shared with other users (for example, your Subscription information will not be shared with other users), and (ii) the foregoing license grants to us and our users does not affect your other ownership or license rights in your User Content, including the right to grant additional licenses to your User Content, unless otherwise agreed in writing. You represent and warrant that you have all rights to grant such licenses to us without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.
Availability of Content. We do not guarantee that any Content will be made available on the Mobile App or through the Services. We reserve the right to, but do not have any obligation to, (i) remove, edit or modify any Content in our sole discretion, at any time, without notice to you and for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if we are concerned that you may have violated these Terms of Service), or for no reason at all and (ii) to remove or block any Content from the Services.
Ownership. Except for User Content, you acknowledge that VYTL and its licensors own the Services and all intellectual property rights and moral rights therein, including without limitation all copyrights, trademarks and trade dress. Except for the limited access expressly provided in these Terms of Service, neither these Terms of Service nor your access to the Services transfers to you any right, title or interest in or to such intellectual property rights. No rights or licenses are granted except as expressly and unambiguously set forth in these Terms of Service. Except as expressly provided by us, none of the Services may be copied, displayed or transmitted in any way.
Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to us through email, mail, phone or its suggestion, feedback, wiki forum or similar pages (“Feedback”) is at your own risk and that we have no obligations (including without limitation obligations or confidentiality) with respect to such Feedback and are free to use or disseminate that feedback. You hereby grant to us 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, any and all Feedback, and to sublicense the foregoing rights.
8. Rules of Conduct.
- As a condition of use, you promise not to use the Services for any purpose that is prohibited by these Terms of Service. You are responsible for all of your activity in connection with the Services, including all User Content uploaded by you to or through the Services.
- You shall not (and shall not permit any third party to) either (a) take any action or (b) upload, download, post, submit or otherwise distribute or facilitate distribution of any Content on or through the Service, including without limitation any User Content, that:
- infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any law or contractual duty (see our DMCA Copyright Policy in Section 18 below) or promotes an illegal or unauthorized copy of another person’s copyrighted work;
you know is false, misleading, untruthful or inaccurate;
is unlawful, threatening, abusive, harassing, defamatory, inaccurate, abusive, illegal, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, vulgar, pornographic, offensive, profane, contains or depicts nudity, contains or depicts sexual activity, or is otherwise inappropriate as determined by us in our sole discretion;
provides instructional information about illegal activities;
provides material that exploits people under the age of 18 in a sexual or violent manner;
constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (“spamming”);
contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of ours or of any third party;
impersonates any person or entity, including any of our employees or representatives; or
includes anyone’s identification documents or sensitive financial information.
- You shall not: (i) take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third party providers’) infrastructure; (ii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (iii) bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services); (iv) run any form of auto-responder or “spam” on the Services; (v) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Mobile App; (vi) harvest or scrape any Content from the Services; or (vii) otherwise take any action in violation of our guidelines and policies.
- You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services (including without limitation any application), except to the limited extent applicable laws specifically prohibit such restriction, (ii) modify, translate, or otherwise create derivative works of any part of the Services, or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national and international laws and regulations.
- We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms of Service, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of us, our users and the public.
9. Third Party Services.
The Services may permit you to link to other websites, services or resources on the Internet, and other websites, services or resources may contain links to the Services. When you access third party resources on the Internet, you do so at your own risk. These other resources are not under our control, and you acknowledge that we are not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link does not imply our endorsement or any association between us and their operators. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such websites or resource.
10. VYTL Subscriptions and Purchases.
- Subscriptions; Automatic Renewal; Changes. Please see our Mobile App for a current description of the member subscriptions we offer through the Services (“Subscriptions”), how to place an order for a Subscription and our policies with respect to changing or cancelling a Subscription. Note that Subscriptions are automatically renewed and will continue for renewal periods of the same duration as the Subscription term originally selected at the then-current price (or for the term and price as subsequently modified by you), unless you have cancelled such Subscription. You acknowledge that Subscriptions have an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation.
One-Time Purchases. As a member, you may also purchase User Content on a one-time basis. If you choose to make such a purchase, such User Content will be made available via download or stream (as applicable) to you promptly following processing of your payment.
- Payment. In order to submit an order through the Services, you must use a valid credit card or other payment method accepted by the Services (which may change from time to time in VYTL’s sole discretion) (your “Payment Method”), with full authority to use it. VYTL reserves the right, in its sole discretion, to take steps to verify your identity and/or eligibility to process your order. Please note that any payment terms presented to you in the process of placing an order through the Services are deemed part of this Agreement. We use a third-party payment processor (the “Payment Processor”) to allow you to pay for orders through the Services. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. We are not responsible for error by the Payment Processor. By choosing to purchase products through the Services, you agree to pay us, through the Payment Processor, all charges at the prices then in effect for your purchase in accordance with your Payment Method and you authorize us, through the Payment Processor, to charge your Payment Method. Such charges for your purchase may include shipping fees and state and local sales tax, the amount of which varies due to factors including the type of item purchased and the shipping destination. You agree to make payment using that selected Payment Method. We reserve the right to correct any errors or mistakes that it makes even if it has already requested or received payment. FOR SUBSCRIPTIONS, WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION, SUSPEND THE SUBSCRIPTION (FOR NO MORE THAN THREE MONTHS), OR CHANGE YOUR PAYMENT METHOD, GO TO YOUR ACCOUNT.
- Payment Method. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your applicable order upon demand.
- Current Information Required. YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR PAYMENT METHOD. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR PAYMENT METHOD CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSOR IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE THROUGH YOUR ACCOUNT. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR YOUR SUBSCRIPTION UNLESS YOU HAVE TERMINATED YOUR SUBSCRIPTION THROUGH THE SERVICES.
- Change in Amount Authorized. If the amount to be charged to your Payment Method varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Payment Method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
- Reaffirmation of Authorization. Your non-termination of a Subscription reaffirms that we are authorized to charge your Payment Method for that Subscription. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to order the Subscription.
We may terminate your access to all or any part of the Services at any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information associated with your membership. If you wish to terminate your Account, you may do so by following the instructions on the Mobile App or through the Services. Any fees paid hereunder are non-refundable. All provisions of these Terms of Service which by their nature should survive termination shall survive termination, including, without limitation, licenses of User Content, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
12. Warranty Disclaimer.
- THE SERVICES AND CONTENT ARE PROVIDED “AS IS”, “AS AVAILABLE” AND WITHOUT WARRANTIES, OF ANY KIND. VYTL, ON BEHALF OF ITSELF AND ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, SUPPLIERS, PARTNERS, SUCCESSORS, ASSIGNS AND CONTENT PROVIDERS (COLLECTIVELY THE “VYTL PARTIES”), TO THE MAXIMUM EXTENT PERMITTED BY LAW, (A) EXPRESSLY DISCLAIMS ALL WARRANTIES WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, DEALING OR USAGE OF TRADE; (B) DOES NOT WARRANT THAT THE SERVICES OR CONTENT WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED, STABLE OR SECURE; (C) DOES NOT WARRANT THE SERVICES WILL BE ERROR-FREE OR THAT ANY DEFECTS WILL BE CORRECTED; AND (D) DOES NOT MAKE ANY WARRANTIES REGARDING THE USE OF THE SERVICES OR CONTENT WITH RESPECT TO THEIR ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE.. TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOUR USE OF THE SERVICES AND CONTENT IS ENTIRELY AT YOUR OWN RISK.
- THE DISCLAIMER OF WARRANTIES SET FORTH IN THIS SECTION IS PART OF THE BARGAIN BETWEEN YOU AND VYTL.
- NOTHING IN THIS SECTION SHALL EXCLUDE OR LIMIT VYTL PARTIES’ WARRANTIES, TO THE EXTENT THEY MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW, IN WHICH CASE, SUCH WARRANTIES WILL BE EXCLUDED AND LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, SOME OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU AND YOU MAY HAVE ADDITIONAL IMPLIED WARRANTY RIGHTS.
You shall defend, indemnify, and hold harmless the VYTL Parties from all liabilities, claims, and expenses, including reasonable attorneys’ fees, that arise from your misuse of the Services; your violation of these Terms of Service; your User Content, including any physical injury or death that arises from your User Content; your user of other users’ User Content; or your infringement of any intellectual property or other right of any person or entity. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses. This provision does not require you to indemnify any VYTL Parties for any unconscionable commercial practice by such party or for such party’s negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact.
14. Limitation of Liability.
- TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE VYTL PARTIES BE LIABLE TO YOU FOR ANY PUNITIVE OR EXEMPLARY DAMAGES OR FOR ECONOMIC DAMAGES ARISING FROM YOUR USE OF THE SERVICES, CONTENT OR PRODUCTS, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, DAMAGES EVEN IF A VYTL PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- IF, NOTWITHSTANDING THE FOREGOING, A VYTL PARTY IS FOUND TO BE LIABLE FOR ANY ECONOMIC DAMAGE OR LOSS WHICH ARISES UNDER OR IN CONNECTION WITH YOUR USE OF THE SERVICES, PRODUCTS OR CONTENT, THE RELEVANT VYTL PARTY’S TOTAL CUMULATIVE LIABILITY SHALL NOT EXCEED THE GREATER OF: (A) THE AMOUNT YOU PAID VYTL FOR THE SUBSCRIPTION OR PURCHASES, AS APPLICABLE, OR (B) THE SUM OF ONE HUNDRED DOLLARS (US $100). THIS LIMITATION EXPRESSLY APPLIES ONLY TO ECONOMIC DAMAGES ARISING FROM THE USE OF THE SERVICES OR CONTENT AND DOES NOT APPLY TO PERSONAL INJURY OR ANY INJURY CAUSED BY ALLEGED FRAUD.
- THE FOREGOING DISCLAIMER OF PUNITIVE AND EXEMPLARY DAMAGES SHALL NOT APPLY TO RESIDENTS OF THE STATE OF NEW JERSEY. THIS SECTION 14 DOES NOT APPLY TO CLAIMS OF FRAUD OR PERSONAL INJURY.
15. ARBITRATION CLAUSE & CLASS ACTION WAIVER – IMPORTANT – PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS
- Arbitration. YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND US (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) WITH REGARD TO YOUR RELATIONSHIP WITH US, INCLUDING WITHOUT LIMITATION DISPUTES RELATED TO THESE TERMS OF SERVICE, YOUR USE OF THE SERVICES, AND/OR RIGHTS OF PRIVACY AND/OR PUBLICITY, WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION UNDER THE AMERICAN ARBITRATION ASSOCIATION'S RULES FOR ARBITRATION OF CONSUMER-RELATED DISPUTES AND YOU AND WE HEREBY EXPRESSLY WAIVE TRIAL BY JURY; PROVIDED, HOWEVER, THAT TO THE EXTENT THAT YOU HAVE IN ANY MANNER VIOLATED OR THREATENED TO VIOLATE OUR INTELLECTUAL PROPERTY RIGHTS, WE MAY SEEK INJUNCTIVE OR OTHER APPROPRIATE RELIEF IN ANY STATE OR FEDERAL COURT IN THE STATE OF NEW YORK. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND WE WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. The location of the arbitration shall be New York, New York. As an alternative, you may bring your claim in your local “small claims” court, if permitted by that small claims court's rules and if within such court’s jurisdiction, unless such action is transferred, removed or appealed to a different court. You may bring claims only on your own behalf. Neither you nor we will participate in a class action or class-wide arbitration for any claims covered by this agreement to arbitrate. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person's account, if we are a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. In the event the American Arbitration Association is unwilling or unable to set a hearing date within one hundred and sixty (160) days of filing the case, then either we or you can elect to have the arbitration administered instead by the Judicial Arbitration and Mediation Services. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms of Service. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Services or these Terms of Services must be filed within one (1) year after such claim of action arose or be forever banned.
- Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration section will be null and void. This arbitration agreement will survive the termination of your relationship with us.
16. Governing Law and Jurisdiction.
These Terms of Service shall be governed by and construed in accordance with the laws of the State of New York, without regard to the conflict of laws provisions thereof, and the United States of America. You agree that any dispute arising from or relating to the subject matter of these Terms of Service shall be governed by the exclusive jurisdiction and venue of the state and Federal courts located in Delaware.
We reserve the right, in our sole discretion, to modify or replace any of these Terms of Service, or change, suspend, or discontinue the Services (including without limitation, the availability of any feature, database, or content) at any time by posting a notice on the Mobile App or by sending you notice through the Services, via e-mail or by another appropriate means of electronic communication. We may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability. While we will timely provide notice of modifications, it is also your responsibility to check these Terms of Service periodically for changes. Your continued use of the Services following notification of any changes to these Terms of Service constitutes acceptance of those changes, which will apply to your continued use of the Services going forward. Your use of the Services is subject to the Terms of Service in effect at the time of such use.
18. DMCA Copyright Policy.
- VYTL has adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act. The address of the Designated Agent to Receive Notification of Claimed Infringement (“Designated Agent”) is listed at the end of this policy.
- Procedure for Reporting Copyright Infringement. If you believe that material or content residing on or accessible through the Services infringes a copyright, please send a notice of copyright infringement containing the following information to the Designated Agent listed below:
- A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
- Identification of works or materials being infringed;
- Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that Company is capable of finding and verifying its existence;
- Contact information about the notifier including address, telephone number and, if available, e-mail address;
- A statement that the notifier has a good faith belief that the material is not authorized by the copyright owner, its agent, or the law; and
- A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
- Please contact the Designated Agent to Receive Notification of Claimed Infringement for VYTL at [email protected] or at:
245 5th Avenue
New York, NY 10016
19. International Use.
The Mobile App can be accessed from countries other than the United States, but may contain services and/or references that are not available outside of the United States. Any such references do not imply that such products will be made available outside the United Sates. If you access and use the Mobile App and/or Services outside the United States you are responsible for complying with your local laws and regulations.
- Entire Agreement. These Terms of Service are the entire agreement between you and us with respect to the Services, including use of the Mobile App, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and us with respect to the Services.
- Severability. If any provision of these Terms of Service is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms of Service will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder
- Force Majeure. We shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
- Assignment. These Terms of Service are personal to you, and are not assignable, transferable or sublicensable by you except with our prior written consent. We may assign, transfer or delegate any of our rights and obligations hereunder without consent.
- Agency. No agency, partnership, joint venture, or employment relationship is created as a result of these Terms of Service and neither party has any authority of any kind to bind the other in any respect.
- Notices. Unless otherwise specified in these Term of Service, all notices under these Terms of Service will be in writing and will be deemed to have been duly given when received, if delivered via push notification within the Application or e-mail. Electronic notices should be sent to [email protected]
- No Waiver. Our failure to enforce any part of these Terms of Service shall not constitute a waiver of our right to later enforce that or any other part of these Terms of Service. Waiver of compliance in any particular instance does not mean that we will waive compliance in the future. In order for any waiver of compliance with these Terms of Service to be binding, we must provide you with written notice of such waiver through one of our authorized representatives.
- Headings. The section and paragraph headings in these Terms of Service are for convenience only and shall not affect their interpretation.
You may contact us at [email protected] or the following address: VYTL, Inc., 245 5th Avenue, Suite 1102, New York, New York 10016.