Last updated: August 30, 2019
Your use of the software platform and related products and services (collectively, the “Platform”) offered by VidMob, Inc. (“VidMob”, “we,” “us,” or “our”) is governed by these Terms and Conditions (“Terms”).
The Platform is accessible through our mobile application(s) (“App”) and our websites and applications located at vidmob.com and associated subdomains (collectively, the “Site”). Unless specifically indicated otherwise, references to the Platform in these Terms include the App and the Site.
Your use of the Platform may be subject to additional terms, policies, rules, or guidelines applicable to the Platform or certain features of the Platform that we may post on or link to from the Platform or otherwise provide to you (“Additional Terms”). Unless otherwise agreed to in writing, all Additional Terms are incorporated by this reference into, and made a part of, these Terms. If there is a conflict between any Additional Terms and these Terms, the Additional Terms will govern solely to the extent of the conflict.
If you are accessing the Platform on behalf of an entity that has a separate written agreement with VidMob (a “Company Agreement”), the Company Agreement will take precedence if there are any conflicts with these Terms, but solely to the extent of conflict.
THE TERMS CONTAIN A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER COVERING DISPUTES BETWEEN YOU AND VIDMOB (SEE SECTION 1.17). BY ACCEPTING THESE TERMS, YOU AND VIDMOB ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AND TO PARTICIPATE IN A CLASS ACTION.
YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under these Terms (except for matters that may be taken to small claims court or as otherwise set forth in Section 1.17). A NEUTRAL ARBITRATOR will determine your rights – NOT a judge or jury (as set forth in Section 1.17). ADDITIONALLY, THE PROJECT AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION COVERING DISPUTES BETWEEN PROJECT OWNERS AND CREATORS (SEE PROJECT AGREEMENT, SECTION 15).
1. GENERAL TERMS
1.1. Effectiveness; Modification
By clicking on the “I ACCEPT” button (or by providing any other indicia of acceptance), downloading our App, and/or accessing the Platform, you represent that (i) you are at least 18 years of age, (ii) you have read, understand, and agree to be bound by these Terms, and (iii) you have the authority to enter into these Terms on your own behalf or on behalf of any entity identified as the user, and to bind such entity to these Terms. If you do not agree to be bound by these Terms, you may not access or use the Platform.
These Terms will remain in effect for so long as you use the Platform. VidMob reserves the right, in its sole discretion, to change these Terms at any time. VidMob will post any changes to the Terms on this page and will notify existing users through the Platform. Changes to the Terms will be effective immediately for new users and five (5) days after notice of such changes is posted on the Site for existing users.
1.2. The VidMob Platform and VidMob’s Role
The Platform is a content creation marketplace and creative intelligence platform that enables content owners (“Project Owners”) and freelance creative professionals (“Creators”) to find and collaborate with each other on specific content creation projects (“Projects”) and provides data-driven insights to guide and inform the process.
Using the Platform, Project Owners enter agreements directly with Creators and may use for such purpose the form of agreement found here (the “Project Agreement”). Project Owners and Creators may enter into agreements with different terms than those set forth in the Project Agreement, provided, that no terms of any separate agreement shall provide for payment other than via the Platform or shall otherwise be inconsistent with these Terms.
VidMob provides and maintains the Platform. VidMob does not employ the Creators, nor does it act as agent for the Project Owners. VidMob is not a party to the Project Agreement and bears no responsibility for the performance by either party thereto.
1.3. Use and Ownership of the Platform
Subject to your compliance with these Terms, VidMob hereby grants you a limited, revocable, non-sublicensable, non-transferable, non-exclusive license to access and use the Platform, solely for purposes of creating, managing, and optimizing audiovisual content as authorized in these Terms (the “Purpose”).
Additionally, subject to your compliance with these Terms, VidMob hereby grants you a limited, revocable, non-sublicensable, non-transferable, non-exclusive license to install, access, and use our App solely in object code format, solely for the Purpose, on mobile devices that you own or control.
VidMob owns all rights in the Platform, including without limitation all software (including source and object code), creative and usage data, information, graphics, algorithms, modifications, updates, and derivative works thereof.
1.4. Your Account
You are required to set up an account in order to use the Platform (an “Account”). You are responsible for anything that happens through your Account. You may cancel any Account registered to you at any time either via the Platform or by emailing us at email@example.com.
b. Account Information.
c. Access Through a TPP.
You may be able to access the Platform through a third-party platform (ex: a social networking site) (“TPP”) as part of the functionality of the Platform. If you do this, you allow the Company to access your account on the TPP (the “TPP Account”) as permitted under the applicable TPP terms and conditions. You represent that you are entitled to disclose your TPP Account login information to Company and to grant Company access to your TPP Account for the purposes described in these Terms without breach by you of any of the terms and conditions that govern your use of the applicable TPP and without obligating Company to pay any fees or making Company subject to any usage limitations imposed by such TPP providers. By granting Company access to any TPP Accounts, you understand that Company may access, make available, and store any Content (as defined below) posted on, stored in, or available through your TPP Account (“TPP Content”).
Depending on the privacy settings that you have set in your TPP Accounts, personally identifiable information that you post to your TPP Accounts may be available on and through your Account. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE TPP PROVIDERS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH TPP PROVIDERS, AND VIDMOB DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH TPP PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN YOUR TPP ACCOUNTS.
1.5. Your Content
You retain ownership of all rights in all text, images, graphics, creative elements, animations, video, sounds, music, data, information, or other materials (“Content”) you transmit, store, or otherwise use via the Platform.
You hereby grant VidMob a non-exclusive, perpetual, fully paid-up, royalty-free, sublicensable, worldwide license to copy, store, display, modify, create derivative works of, and otherwise use the Content as needed to operate the Platform and provide related products and services.
You are fully responsible for all Content you post to your Account or otherwise transmit, store, or use via the Platform. VidMob has no responsibility for any of your Content, whether from a TPP or otherwise. You agree to retain a copy of all such Content, and that VidMob will not under any circumstances have possession of the only copy of such Content. VidMob will have no liability for inadvertent deletion of any information or Content posted, stored, or transmitted via the Platform.
1.6. Your Conduct
You agree to conduct yourself with courtesy and decorum at all times when using the Platform. In addition, you agree not to do any of the following:
- Distribute, rent, lease, or otherwise sell the Platform to any third party (including on a service bureau or similar basis).
- Modify or create derivative works based on any element of the Platform.
- Decompile, reverse engineer, or translate any portion of the Platform into human-readable form (except to the extent this restriction is prohibited by applicable law).
- Use the Platform in a manner that violates the rights of any third party or applicable law.
- Interfere with or disrupt the operation of the Platform.
- Circumvent or disable any security measures or use restrictions.
- Access the Platform in an unauthorized manner.
- Attempt to re-register with or access the Platform, whether through use of a different member name or otherwise, after your Account has been suspended or terminated.
- Use the Platform to build a competing product or service.
- Distribute or otherwise disclose outside of the Platform any information or data contained within or obtained from the Platform.
- Remove or alter any copyright, trademark, or other rights notices on the Platform or any reports or outputs produced by the Platform.
- Transmit any commercial advertisements, junk e-mail, spam, or repetitive messages.
- Harass, threaten, or abuse others using the Platform.
- Post, store, or transmit any offensive, obscene, or illegal Content on the Platform.
1.7. Violations of the Terms
VidMob may take any actions it deems reasonable, including removing Content or suspending or terminating your Account with or without notice to you, if VidMob believes you have violated these Terms. VidMob will not be liable to you or any third party for any such suspension or termination.
If your Account is terminated or if you cancel your Account, the rights and licenses granted to you in these Terms will immediately terminate.
1.8. Payments and Fees
VidMob receives a fee on Projects completed using the Platform. This fee may be adjusted by VidMob at any time. The Platform interface will indicate to Project Owners the price to be paid by a Project Owner for the Project (the “Project Price”) and will indicate to Creator the fee that Creator will receive on completion of the Project (the “Creator Fee”).
Payments must be made via credit card unless otherwise provided in a Company Agreement (“Payment Method”). If you pay by credit card, you must provide us with a valid credit card that we accept. By providing us with payment information for the applicable Payment Method, you agree that we are authorized to immediately charge your Account for all fees owed by you and payable to us in connection with the Platform and that no additional notice or consent is required. You agree to immediately notify us of any change in your billing address or the credit card account used for payment hereunder.
As of the date set forth above, we use Braintree for payment services (e.g., card acceptance, merchant settlement, and related services). By using the Platform, you agree to be bound by Braintree’s policies (available at https://www.braintreepayments.com/legal) with respect to the processing of payments and the handling of personal information, and authorize us and Braintree to share any information and payment instructions you provide with third parties solely required to complete your transactions. We reserve the right at any time to change our billing methods.
The payments required under this Section do not include any Sales Tax that may be due in connection with the Platform. If VidMob determines it has a legal obligation to collect Sales Tax from you in connection with the Platform, VidMob shall collect such Sales Tax in addition to the payments required under this Section of these Terms. If any services, or payments for any services, under these Terms are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to VidMob, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify and hold harmless VidMob from and against any liability or expense VidMob may incur in connection with such Sales Taxes. Upon VidMob’s request, you will provide official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
You agree to make all payments of fees to VidMob free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to VidMob will be your sole responsibility, and you will provide official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
You and VidMob each retain all right, title and interest in and to their respective trademarks, service marks, logos, name, branding, and equivalent identifiers (“Marks”).
You grant VidMob a limited, non-exclusive, non-transferable, sublicensable right to use your Marks (a) on the Platform, (b) for the purpose of advertising and promoting the applicable Project, the Platform, VidMob, and our products and services generally, (c) as otherwise required to fulfill its obligations hereunder, and (d) for attribution as set forth in Section 1.20(m). You may not use VidMob Marks for any purpose without VidMob’s advance written consent. All permitted use of a party’s Marks will inure to the benefit of the owning party.
1.10. Updates and Maintenance
The Platform is constantly evolving, and VidMob may update the Platform at any time with or without notifying you. You may need to update third-party software from time to time in order to access the Platform. VidMob will attempt to notify you in advance of planned maintenance or other downtime, but cannot guarantee that notice will always be provided.
VidMob reserves the right to stop offering or maintaining all or part of the Platform at any time. VidMob will have no liability in connection with discontinuing or ceasing to maintain the Platform, and will not be required to compensate you in such event.
1.11. Monitoring, Communications, and Feedback
VidMob will have the unlimited right to monitor the Platform, but no obligation to do so. VidMob will have no responsibility to ensure that users of the Platform behave in a courteous way or that all Content is appropriate.
Your communications via the Platform are not confidential, and may be accessed, monitored, used, and disclosed as necessary to provide and run the Platform. When interacting with other users of the Platform, you should exercise common sense to protect your safety, property, and information, just as you would when interacting with other people you don’t know.
If you send VidMob ideas, suggestions, feedback, or other information via the Platform, VidMob reserves the right to use and disclose such communications without any obligation to you.
VidMob takes commercially reasonable measures to ensure the security of the Platform. However, no software is completely secure, and VidMob does not guarantee the security or confidentiality of the Platform, your Account, or any Content.
1.13. Infringement Complaints
VidMob respects the intellectual property rights of others and we expect you to do the same. If you are a copyright owner and believe a user of the Platform is infringing your copyright or the copyright of any third party, please notify our designated copyright agent in writing at the following address: Attn: Brian Keller, VidMob, Inc., 126 Fifth Ave, 4th Floor, New York, NY 10011.
b. Notice Requirements
Each notification must include the following information: (i) a physical or electronic signature of a person authorized to act on behalf of the owner of the right that is allegedly infringed, (ii) a description of the work claimed to have been infringed, or, if multiple works are covered by a single notification, a representative list of such works, (iii) identification of the material that is claimed to be infringing, and information reasonably sufficient to permit VidMob to locate the material, (iv) information reasonably sufficient to permit VidMob to contact you, such as an address, telephone number, and, email address, (v) a written statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law, and (vi) a statement made under penalty of perjury that the information in the notification is accurate and that you are the copyright owner or authorized to act on the owner’s behalf.
The above process may be used to inform us of potential or suspected violations of other intellectual property rights, including unauthorized use of trademarked material.
d. Rights and Remedies
We may remove Content alleged to be infringing from the Platform and terminate or suspend the Account of any user who infringes the intellectual property rights of another person or entity, in each case without prior notice and at our sole discretion.
1.14. Warranties You Make To VidMob
You represent and warrant to VidMob that: (i) you have the legal right to access and use the Platform and to enter into and fully perform your obligations under these Terms, (ii) none of your Content infringes the rights of any third party, violates applicable law, or contains viruses or other malicious or harmful software, (iii) if any payment is to a third party is required in connection with your transmission, posting, storage, or use of any Content on the Platform, you have made such payments and will make any such payments that are required in the future, and (iv) you have the legal right to transmit, post, store, and otherwise use your Content on the Platform as contemplated in these Terms.
You agree to indemnify, defend, and hold harmless VidMob, its affiliated companies, contractors, employees, officers, agents and third-party suppliers, licensors, and partners (the “VidMob Parties”) from and against all third-party claims, expenses, or liabilities of any kind (including legal fees) arising out of your use or misuse of the Platform, any breach of these Terms, and your violation of any applicable laws, rules or regulations. Your foregoing obligation to indemnify, defend, and hold harmless the VidMob Parties will survive any expiration or termination of these Terms, as well as any termination of your Account or of the Platform.
1.16. DISCLAIMERS AND LIMITATION OF LIABILITY
THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND YOU USE THE PLATFORM AT YOUR OWN RISK. THE VIDMOB PARTIES DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES REGARDING THE PLATFORM, INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE.
THE VIDMOB PARTIES DO NOT WARRANT THAT THE PLATFORM WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, ERROR-FREE, OR SECURE.
THE FOREGOING DISCLAIMERS ARE MADE THE FULLEST EXTENT PERMITTED BY LAW.
b. LIMITATION OF LIABILITY
EXCEPT IN THE CASE OF GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY, IN NO EVENT WILL (i) THE LIABILITY OF ANY OF THE VIDMOB PARTIES, WHETHER INDIVIDUALLY OR IN THE AGGREGATE, RELATING TO THESE TERMS EXCEED FIVE HUNDRED DOLLARS ($500), OR (ii) EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR RELATED TO THESE TERMS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
NONE OF THE VIDMOB PARTIES SHALL BE LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD ANY OF THE VIDMOB PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER USERS OF THE PLATFORM AND OPERATORS OF THIRD-PARTY SERVICES.
THE FOREGOING LIMITATIONS OF LIABILITY ARE MADE TO THE FULLEST EXTENT PERMITTED BY LAW.
1.17. Dispute Resolution
PLEASE READ THIS SECTION (“ARBITRATION AGREEMENT”) CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHTS TO FILE A LAWSUIT IN COURT AND TO BE PART OF A CLASS ACTION.
If a dispute arises between you and VidMob relating to the Platform, our goal is to provide you with a neutral and cost-effective means of quickly resolving the dispute. Accordingly, we strongly encourage you to first contact us directly to seek an informal resolution through our customer support team. The customer support team can be contacted via email at firstname.lastname@example.org or via letter by physical mail at 126 Fifth Ave, 4th Floor, New York, NY 10011.
b. Applicability of Arbitration Agreement
You agree that any dispute or claim relating in any way to your access or use of the Platform, to any products, services or content relating to the Platform, or to any aspect of your relationship with VidMob, will be resolved by binding arbitration, rather than in court, except that (i) you may assert claims in small claims court if your claims qualify, and (ii) you or VidMob may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement will apply, without limitation, to all claims that arose or were asserted before the effective date of this Arbitration Agreement or any prior version of this Arbitration Agreement.
c. Arbitration Rules and Forum
The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent, Harvard Business Services, Inc., at 16192 Coastal Highway, Lewes, Delaware 19958. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, will be subject to JAMS’ most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims will be subject to JAMS’ most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’ rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’ filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, VidMob will pay them for you. In addition, VidMob will reimburse all such JAMS’ filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
d. Authority of Arbitrator
The arbitrator will have exclusive authority to (i) determine the scope and enforceability of this Arbitration Agreement and (ii) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including, but not limited to, any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator will decide the rights and liabilities, if any, of you and VidMob. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and these Terms (including the Arbitration Agreement). The arbitrator will 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 us.
e. Waiver of Jury Trial
YOU AND VIDMOB HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and VidMob are instead electing that all claims and disputes will be resolved by arbitration under this Arbitration Agreement, except as specified in Section 1.17(b) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is very limited.
f. Waiver of Class or Other Non-Individualized Relief
ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought into the State or Federal Courts located in the State of New York. All other claims will be arbitrated.
g. 30-Day Right to Opt Out
You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: email@example.com within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your username (if any), the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
Except as provided in Section 1.17(f), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts will be of no force and effect and will be severed and the remainder of the Arbitration Agreement will continue in full force and effect.
i. Survival of Agreement
This Arbitration Agreement will survive the expiration or any termination of your relationship with VidMob.
Notwithstanding any provision in this Arbitration Agreement to the contrary, the parties agree that if VidMob makes any future material change to this Arbitration Agreement, you may reject that change within 30 days of such change becoming effective by writing VidMob at the following address: firstname.lastname@example.org.
1.18. Third-Party Services
These Terms do not apply to any third-party websites, services and applications (“Third-Party Services”) that you may access through the Platform, such as payment processors, content library providers, or social media platforms.
You agree to comply with all terms of service or other agreements applicable to such Third-Party Services. We are not responsible for the content or practices of Third-Party Services and provide links to Third-Party Services only for your convenience. We encourage you to carefully review the terms of service of any Third-Party Service you access through the Platform.
If VidMob is required to remove a Third-Party Service, or is notified that certain Third-Party Service may violate applicable law or third-party rights, VidMob may remove such Third-Party Service without notice.
VidMob has the right to, immediately and without notice, suspend or terminate any portion of the Platform provided to you. VidMob shall not be liable to you or any third party for any suspensions or terminations of your Account or you access to any portion of the Platform. You will not be entitled to receive a refund for fees related to those areas of the Platform to which your access has been terminated.
b. Effects of Termination
Upon termination of these Terms, Sections 1.3 (last sentence only), 1.5, 1.8, 1.11 (last sentence only), 1.14 through 1.17, 1.20, 3.4, 4.1(b), 4.2, 4.3, 4.5, and any other provisions, that by their nature, are intended to survive, will survive.
1.20. General Provisions
a. Governing Law
These Terms are governed by the laws of the State of New York without regard to conflict of law principles. You and VidMob submit to the exclusive personal jurisdiction of the state and federal courts located within New York, New York for resolution of any lawsuit or court proceeding permitted under these Terms.
b. Independent Contractor Relationship
You acknowledge that Creators and Project Owners (defined below) are independent contractors and not employees of VidMob.
You agree not to circumvent the Platform’s workflow and payment procedures, including by making or accepting payment for a Project other than through the Platform’s payment processing system. You agree to notify VidMob immediately at email@example.com if another person suggests making or receiving payments outside of the Platform or otherwise acts in violation of this paragraph.
You may not assign or delegate any rights or obligations under the Terms without VidMob’s prior written consent, and any unauthorized assignment and delegation by you is void.
e. Supplemental Terms
VidMob may publish additional terms related to specific services or products. Your right to use such services or products is subject to those specific policies and these Terms.
f. Entire Agreement
These Terms, together with any Company Agreement, contain the entire understanding between you and VidMob, and supersede all prior understandings of the parties hereto relating to the subject matter hereof, whether electronic, oral or written, or whether established by custom, practice, policy or precedent, between you and us with respect to the Platform.
g. No Waiver
VidMob’s failure to require or enforce strict performance of any provision of these Terms or failure to exercise any right under them will not be construed as a waiver or relinquishment of VidMob’s right to assert or rely upon any such provision or right in that or any other instance.
VidMob will notify you of changes to the Terms as set forth in Section 1.1. All other notices will be provided via e-mail to the address associated with your Account.
All notices from you to VidMob under these Terms will be in writing and addressed to: VidMob, Inc., Attn: Legal Department, 126 Fifth Ave, New York, NY 10011 or will be sent via email to firstname.lastname@example.org.
Any notices that you provide without compliance with this paragraph will have no legal effect.
You and VidMob agree that if any portion of these Terms is found to be unenforceable by any court of competent jurisdiction, such provision will be ineffective solely to the extent of such unenforceability and solely in such jurisdiction, and the remaining terms will continue in full force and effect.
j. Force Majeure
VidMob 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.
k. No Third-Party Beneficiaries
Except with respect to the VidMob Parties, there will be no third-party beneficiaries of these Terms.
l. Electronic Signature Consent
You agree that any electronic signature, including any action such as clicking a checkbox or other icon indicating agreement, that you provide via the Platform constitutes your acceptance and agreement as if actually signed by you in writing.
m. Open Source Software
Certain items of code provided with or accessed via the Platform are subject to open source licenses (“OSS”). OSS is not subject to these Terms, except as it relates to Sections 1.15 and 1.16, and is licensed under the terms of the license that accompanies such OSS.
We may identify you as a client in standard marketing materials, including the customer page of the Site.
If you encounter any problems using the Platform, please let us know at email@example.com.
You may also contact us using the contact form on the Platform or write us at VidMob, Inc., 126 Fifth Ave, 4th Floor, New York, NY 10011 with any questions you have about these Terms, the Platform, or our other services.
1.21. Notices Regarding Apple
With respect to any App accessed through or downloaded from the iOS App Store (“App Store”), you will only use such App (i) on an Apple-branded product that runs iOS (Apple’s proprietary operating system); and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
You acknowledge and agree that the availability of the App is dependent on the App Store. You acknowledge that these Terms are between you and us and not with the App Store. We, not the App Store, are solely responsible for the Platform, including the App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance, or intellectual property infringement). In order to use the App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Platform, including the App. You agree to comply with, and your license to use the App is conditioned upon your compliance with, all terms of agreement imposed by the applicable App Store when using the Platform, including the App. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of and will have the right to enforce these Terms.
You acknowledge that these Terms are between you and us only, not with Apple, and Apple is not responsible for the App or the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, then you may notify Apple and Apple will refund the purchase price for the App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the App. Apple is not responsible for addressing any claims by you or any third party relating to the App or your possession and/or use of the Platform, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights. You agree to comply with any applicable third party terms, when using the App. Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms. You hereby 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. If we provide a translation of the English language version of these Terms, the translation is provided solely for convenience, and the English version will prevail.
2. PROJECT OWNER TERMS
This Section 2 of the Terms contains terms that will apply specifically to you if you use of the Platform as a Project Owner.
2.1. Posting a Project and Selecting a Creator
When you post a Project on the Platform, the Platform will indicate the Project Price and suggest one or more Creators to work on the Project. You may select the Creator(s) suggested by the Platform or may use the Platform to find a different Creator.
By selecting a Creator, you are making an offer to engage the Creator to work on your Project. No Creator is obligated to accept a given Project. If a Creator does accept, you will be deemed to have entered into a binding agreement with the Creator for the Project, whether on the terms set out in the Project Agreement or upon other terms and conditions that you and such Creator might separately negotiate, so long as such other terms and conditions are not inconsistent with the Terms.
2.2. Your Content
Creators who work on your Projects will be permitted to incorporate your Content from completed Projects into their portfolio on the Platform, and VidMob will also be permitted to incorporate Content from completed Projects in marketing materials relating to VidMob and to the Platform.
In order to effect the foregoing rights, you hereby grant VidMob a non-exclusive, perpetual, fully paid-up, royalty-free, sublicensable, worldwide license to copy, store, display, modify, create derivative works of, and otherwise use the Content from completed Projects for marketing and promotional purposes.
2.3. The Creative Process
You understand that the services you obtain through the Platform involve a creative process and there is no guarantee that you will like the work done by the Creator on your Project. VidMob makes no warranties about the suitability, reliability, timeliness, or accuracy of the work product provided by Creators.
2.4. VidMob Is Not Responsible For Creators
VidMob does not guarantee any Creators will accept your Projects. Creators are not employees of VidMob, and VidMob is not responsible for any aspect of the work performed by Creators on any particular Project. Similarly, VidMob is not responsible for the actions or behavior of Creators or for your experience in working with them.
2.5. Payments & Delivery
You will be charged the Project Price at the commencement of each Project.
If VidMob determines that a Project has ended but has not been officially accepted by Project Owner and no dispute has been submitted, VidMob reserves the right to deem the Project accepted and to process payment to the Creator.
3. CREATOR TERMS
This Section 3 of the Terms contains terms that will apply specifically to you if you use of the Platform as a Creator.
3.1. Accepting a Project
The Platform interface will display Projects that may be available to you and will indicate the applicable Creator Fee for each. You have the ability to accept, reject, or ignore any requests for Projects.
By accepting a Project, you will be deemed to have entered a binding agreement with the Project Owner for the Project on the terms set forth in the Project Agreement.
3.2. Your Account Portfolio
You represent and warrant that any Content uploaded to your Account’s portfolio for any purpose represents your own work, or work on which you substantially contributed, and is a fair representation of your skills.
3.3. VidMob Is Not Responsible For Project Owners
You are not an employee of VidMob, and VidMob does not guarantee that Project Owners will offer you any Projects. VidMob is not responsible for the actions or behavior of Project Owners, the number or quality of Projects available on the Platform, or for your experience in working with Project Owners using the Platform.
3.4. Payments & Delivery
You will be paid the applicable Creator Fee upon Project Owner’s acceptance of the completed Project.
3.5. Illegal or Explicit Content
Should a Creator see any objectionable Content (including but not limited to child pornography, videos featuring illegal drug use, or animal cruelty), the Creator must flag the Content and report it to VidMob immediately by email at firstname.lastname@example.org.
4. CREATIVE INTELLIGENCE TERMS
This Section 4 of the Terms will apply specifically to your use of the Creative Intelligence features of the Platform (the “CI Features”).
4.1. Access and Fees
In order to access and use the CI Features, you must link at least one of your accounts on the TPPs listed on the Creative Intelligence signup page (each, a “Linked TPP Account”) and pay the applicable license fee (the “CI Fee”). Your CI Fee will entitle you to a specified period of access (the “Subscription Period”). You must accept the CI Fee and associated Subscription Period either via click-through on the Platform or via Company Agreement. VidMob reserves the right to adjust the CI Fee for any future Subscription Periods in its sole discretion. All fees for the CI Features are non-refundable.
b. Authorized Users
During the Subscription Period, only you and any individuals who are authorized to access all Linked TPP Accounts will have the right to access and use CI Features via your Account (“Authorized Users”). You agree not to permit anyone other than Authorized Users to access the CI Features through your Account, and you will be responsible for all activities of all Authorized Users.
c. Additional Restrictions
In addition to all other restrictions on your use of the Platform as set forth in the Terms, you will not use the CI Features or any CI Data (as defined below) to compete with the CI Features, the Platform, or any other VidMob products or services.
4.2. Ownership Rights
Except for the limited licenses granted to VidMob in these Terms, you retain all rights in and to your Linked TPP Accounts and all associated TPP Content (the “Linked Content”).
4.3. CI Data
You hereby grant VidMob a non-exclusive, transferable, sub-licensable, fully-paid, perpetual, worldwide license during the Subscription Period to use, copy, and create derivative works of the Linked Content for purposes of creating anonymized, aggregated data (the “CI Data”) and to retain and use the CI Data in connection with VidMob’s business in perpetuity, provided that no CI Data could reasonably be used by a third party to identify you or your Linked Content.
For the avoidance of doubt, CI Data is not intended to include any personally identifiable information. You agree not to knowingly provide VidMob with access to any personally identifiable information.
You have the right to terminate your Subscription Period at any time upon 30 days written notice to VidMob. Upon expiration or termination of the Subscription Period for any reason, your right to access and use the CI Features will automatically cease. You will remain obligated to make all payments, including without limitation CI Fees, incurred prior to the termination date.
You agree not to disclose, disseminate, or otherwise make available the CI Features, any associated reports and documentation, or any CI Data outside of the Platform.
You represent and warrant that you have the full right and authority to link the Linked TPP Accounts to the Platform, and that neither the linking of the Linked TPP Accounts to the Platform nor the rights granted herein to VidMob will violate the terms of any agreements between you and any third party.