End User Agreement
Voomly

PLEASE READ THIS END USER AGREEMENT (“USER AGEEMENT”) CAREFULLY BEFORE DOWNLOADING, ACCESSING OR USING THE VOOMLY PRODUCT OR ANY UPDATES, MODIFICATIONS OR ENHANCEMENTS TO THE VOOMLY PRODUCT (ANY OR ALL OF THE FOREGOING, THE “SOFTWARE”). BY SUBSCRIBING TO, DOWNLOADING OR USING THE SOFTWARE, YOU ARE ENTERING INTO A CONTRACT AND AGREEING TO BE BOUND BY THE TERMS OF THIS USER AGREEMENT. YOU AGREE THIS IS A CONTRACT BETWEEN YOU AND BRYXEN, INC., THE OWNER OF THE SOFTWARE OR ITS SUCCESSOR (THE “COMPANY” OR “WE”).

IF YOU DO NOT AGREE TO THE TERMS OF THIS USER AGREEMENT DO NOT SUBSCRIBE TO, ACCESS OR USE THE SOFTWARE.

COMPANY MAY MODIFY OR AMEND THE TERMS OF THIS USER AGREEMENT BY POSTING A COPY OF THE MODIFIED OR AMENDED USER AGREEMENT ON THE COMPANY SOFTWARE WEBSITE. YOU WILL BE DEEMED TO HAVE AGREED TO THESUCH MODIFICATION OR AMENDMENT BY YOUR DECISION TO CONTINUE USING THE SOFTWARE FOLLOWING THE DATE IN WHICH THE MODIFIED OR AMENDED USER AGREEMENT IS POSTED ON THE COMPANY SOFTWARE WEBSITE IN THE END USER AGREEMENT LINK. PLEASE CHECK FREQUENTLY FOR UPDATES TO THESE TERMS. IF YOU DO NOT AGREE WITH ANY UPDATED TERMS, (i) YOU MUST NOTIFY THE COMPANY AT SUPPORT@VOOMLY.COM WITHIN THREE (3) DAYS FROM THE POSTING DATE, (ii) YOU MUST STOP USING THE SOFTWARE PERMANENTLY, AND (iii) YOUR SUBSCRIPTION WILL TERMINATE.

REFERENCES TO “YOU”, “YOUR” AND VARIATIONS OF IT REFER TO EACH PERSON DOWNLOADING OR USING THE SOFTWARE. EACH INDIVIDUAL USER REQUIRES A SEPARATE USER AGREEMENT TO ACCESS AND USE THE SOFTWARE. IF YOU ARE SUBSCRIBING TO THE SOFTWARE ON BEHALF OF YOUR COMPANY OR BUSINESS ENTITY, “YOU” ALSO REFERS TO SUCH ENTITY OR BUSINESS, AND YOU WARRANT YOU HAVE AUTHORITY TO BIND THE ENTITY OR BUSINESS TO THIS USER AGREEMENT.

1. General

Conditioned on your payment of the applicable subscription or licensee fees, access to the Software is licensed to You (whether on a software-as-a-service basis or for download to Your desktop) for use only in accordance with the terms and conditions of this User Agreement, our Terms of Use & Sale, Privacy Policy, and any license or usage rules and restrictions established by any other third party and vendors who provide software, content or other property that we provide to You for use with the Software (“Third-party Usage Rules”), which are incorporated herein by this reference. Please note the Terms of Use & Sale include a mandatory arbitration provision that applies to this User Agreement.

2. Rights Granted and Restrictions on Use

i. Limited License Grant

Subject to your payment of the applicable subscription or licensee fees and the other terms of this User Agreement, Company grants You during the subscription term a personal, revocable, non-exclusive, non-transferable, limited right for You to access and use the Software on a computing device owned and controlled by You (“Device”), for You to upload, store in the cloud and manage Your online videos and other user content and related data expressly permitted by Company (“Content”) strictly in accordance with the terms and conditions of this User Agreement, the Third-party Usage Rules and any agreement associated with Your Device. The use of the Software is subject to any storage, bandwidth, video and user limits that are part of Your subscription from time to time, as identified in the Voomly website.

You can only use the Software to store and manage Content for Your own personal use (including for You to store, upload and manage videos You create for others in Your capacity as an agency or online marketer) but You cannot resell or sublicense the access or use of the Software to any other person or business. Third parties will need to obtain their own Software subscription from us if they would like to use the Software to store and manage their videos. You must not use the Software to store and manage videos libraries that are sold, licensed or made available to others on a title-by-title or subscription basis.

You must not give a copy of or access to the Software to others or incorporate any part of the Software in any other software, product or service. Your Software password is personal to You and must not be shared by various users or used for the benefit of other persons or companies.

You are responsible for any activities or use or misuse of the Software and Content that takes place through Your passwords or account or from the systems or networks You use. You agrees to use reasonable efforts to prevent any unauthorized access to, or use of, the Software and Content and, in the event of any suspected unauthorized access or use, You agree to promptly notify Company and provide reasonable cooperation in the mitigation and resolution of the matter. Company may audit or monitor the use under this Agreement to determine compliance with this Agreement.

ii. Your Responsibility for Content

You are solely responsible for the Content and must obtain at Your expense for all necessary rights and licenses from third-parties for creating, using, storing, copying, transferring, streaming, displaying, transmitting, playing, broadcasting, publishing and performing any and all elements of the Content. The Company does not make any warranty with respect to the need for third party rights with respect to Your use and distribution of Content and disclaims all liability with respect to Your Content.

Company will not edit, modify or monitor Your Content and You are solely responsible for the accuracy and legality of the Content.

As a condition to the rights granted to You to use the Software, You warrant to Company that You have all necessary rights and authority to upload, store, copy, transmit and distribute any and all Content and that You are solely responsible for any liability or claims resulting from the Content or from the products and services depicted there, and will ensure and warrant that Your use of such Content is lawful and complies at all times with the laws.

You grant Company the right to copy, store, access and use the Content in order to provide the Softare and related services to You.

We reserve the right to suspend or terminate Your access and use of the Software and may without liability to You delete from the Software the relevant Content if we receive third-party demands or allegations challenging Your rights to any of the Content or alleging the Content infringes or misappropriates any intellectual property right. You are solely responsible for resolving those claims and allegations. If you provide us written documentation that it has been satisfactorily resolved, we will if You request reactivate Your subscription for the remaining unexpired term You have paid for.

You must immediately remove from the Software all Content that You know or reasonably believe infringes or misappropriates the intellectual property rights of a third-party or violates applicable laws.

This Section survives termination or expiration of this User Agreement.

iii. Restrictions on Use

You agree to use the Software strictly in accordance with the terms of this User Agreement and not to:

This Section survives termination or expiration of this User Agreement.

iii. Restriction on Assignment, Sublicense and Transfer

You cannot rent, lease, lend, sublicense, assign or transfer the Software, this User Agreement or any of the rights granted hereunder, except with the express prior written consent of the Company in Company’s sole discretion. Any attempted rental, lease, lending, sublicensing, assignment or transfer in contravention of this provision shall be null and void and of no force or effect and is grounds for early termination of Your subscription. This Section survives termination or expiration of this User Agreement.

3. Term and Termination

i. Term

This User Agreement will be in effect for the period of time to which You subscribed and have paid for (including renewals of the subscriptions), subject to early termination as provided in this User Agreement or in the Terms of Use & Sale, and subject to the provisions that survive termination. If You are on a payment plan, this User Agreement shall terminate at the end of the Term or if You fail to make a payment when due. Fees paid for Your subscription are non-refundable once any applicable “money back” period expires or upon payment of the subscription fee, whichever is later.

ii. Termination

Company may, in its sole and absolute discretion, at any time, suspend or terminate this User Agreement and the subscription rights afforded to You hereunder with or without prior notice. Furthermore, if You fail to comply with any terms and conditions of this User Agreement, then this User Agreement and any rights afforded to You hereunder shall terminate automatically, without a requirement of any notice or other action by Company. Upon termination of this User Agreement, You must permanently cease all access and use of the Software, and delete all copies of the Software. This Section survives termination or expiration of this User Agreement.

You may terminate this User Agreement at any time by providing written notice to us at support@voomly.com .

4. Third-party Usage Rules

The Software may utilize or include third party software, code and files that are subject to open source or third party license terms and restrictions (“Third Party Software”). You acknowledge and agree that Your right to access and use such Third Party Software as part of the Software is subject to and governed by the terms and conditions of the open source or third party license applicable to such Third Party Software, including, without limitation, any applicable acknowledgements, license terms, restrictions and disclaimers contained therein. In the event of a conflict between the terms of this User Agreement and the terms of such open source or third party licenses, the terms of the open source or third party licenses shall control with regard to Your use of the relevant Third Party Software. In no event shall the Software or components thereof not provided to the public under third-party open source licenses be deemed to be “open source” or “publicly available” software.

The Company does not make any warranty whatsoever regarding any Third Party Software, or whether there are sufficient intellectual property rights for You to use any of it in connection with the Software or the Content. Any claims regarding Third Party Software are solely between You and any applicable third party licensor or intellectual property owner, and Company disclaims all liability for it.

Please review and comply with the Open Source Licenses terms. Check this link regularly as we will post there any updated or new open source license terms that apply to components of the Software. Contact us if you need more information on where to access the applicable open source licenses or download the original open source code. The applicable open source licenses may give you rights to modify and distribute the original open source code as may be expressly stated in the applicable open source license. Nothing herein limits the rights available to You under applicable open source licenses.

The third-party licensors reserve all right and title to their licensed works, including all intellectual property rights, subject only to the limited licensed rights granted to You in this User Agreement or the applicable third-party end user license agreement. You warrant to comply with the applicable terms, only use third-party property accessible through the Software in connection with Your use of the Software under this User Agreement, and agree not to claim ownership of any such third-party property.

This Section survives termination or expiration of this User Agreement.

5. Intellectual Property Rights

You own the Content you upload to the Software and we will not claim any rights to it. When the User Agreement ends or Your rights are suspended, You have the right to download a copy of Your Content within five (5) days of the termination or suspension date. After five days from any termination or if a suspension continues for more than thirty (30) days, Company has the right to delete and purge Your Content from the Software and the related systems. It is Your responsibility to download a copy and otherwise ensure that You have a copy of Your Content before we delete it.

You acknowledge and agree that the Software, all documentation and materials provided to You as part of the subscription, and all copyrights, patent rights, trademarks, trade secrets and other intellectual property rights associated therewith are (except for Third Party Software), and shall remain, the sole and exclusive property of Company. You further acknowledge and agree that the source and object code of the Software, Software documentation, and the format, directories, queries, algorithms, structure and organization of the Software are the intellectual property and proprietary and confidential information of Company and its affiliates, licensors and suppliers, as applicable.

Except as expressly stated in this User Agreement and the applicable open source and other third-party licenses, You are not granted any intellectual property rights in or to the Software by implication, estoppel or other legal theory, and all rights in and to the Software not expressly granted in this User Agreement are hereby reserved and retained by Company. The ownership of the Third-Party Software and licensed Audio Files is retained by their respective licensors.

The Company retains all rights and title to its and its product trademarks, names and logos. You are not authorized to use the Company trademarks, names and logos in any advertising, publicity or in any other manner without the prior written consent of Company, in its sole discretion.

This Section survives termination or expiration of this User Agreement.

6. Indemnification

You agree to indemnify, defend and hold harmless Company and its affiliates, partners, suppliers and licensors, and each of their respective officers, directors, agents and employees (the “Indemnified Parties”) from and against any claim, proceeding, liability, damage, fine, penalty, interest and expense (including, without limitation, fees for attorneys) arising out of, related to or in connection with the following: (i) Your Content; (ii) access to or use of the Software or Third-Party Software by You or using your password and access credentials; (iii) Your breach of this User Agreement or Your violation of law; (iv) Your negligence or willful misconduct; or (v) Your violation of the rights of a third party, including the infringement by You of any intellectual property or misappropriation of any right of any person or entity.

i. Other Claims

You acknowledge that You (not Company) are responsible for addressing any third party claims relating to Your access or use of the Software, and agree to notify Company of any written third party claims relating to the Software or Your Content stored on the Software of which You become aware. Furthermore, to the fullest extent permitted by law, You hereby release Company from any liability resulting from Your access or use of the Software, including, without limitation, the following: (i) any product liability claims; (ii) any claim that the Software fails to conform to any applicable legal or regulatory requirement; and (iii) any claim arising under consumer protection or similar legislation.

These obligations and exclusions in this Section 5 will survive any termination of the User Agreement or any subscriptions.

7. Consent to Use Information

You must not provide or transfer to Company or upload to the Software any personal data of Yourself or any other individual or identifiable to a household unless You have secured all necessary consents and authorizations and You have complied with applicable laws with respect thereto.

You hereby consent to Company’s (directly or through its affiliates and contractors) collection, transfer to the United States and processing, storing and accessing of any personal and household data You submit to us either during registration or in connection with the access or use of the Software, for purposes of providing the Software and related services and as noted below.

Company has the right to conduct analysis, benchmarking and data aggregation with respect to all usage of and content in the Software for purposes of improving the Software and developing, using and making available to others new products and services and data, provided the later will not individually identify You. The results of any such efforts and all aggregated or de-identified data shall be the sole property of Company.

You hereby authorize and consent to the collection, storage and use, by Company and its affiliates, partners and agents, of any information and data related to or derived from Your use of the Software, and any information or data that You provide to Company and its affiliates, partners and licensors (“Information”). Without limiting the generality of the foregoing, the Information shall include, without limitation, the following types of information or data, in an aggregate (not user level) form: search requests, patterns, data and suggestions based on user actions, types of content stored, usage. Notwithstanding the foregoing, You shall not provide or disclose, and the Information shall not include, any information or data that is personally identifiable to You except only to the extent required for registration to the Software. The Information will be treated as being non-confidential and nonproprietary, and Company assumes no obligation to protect confidential or proprietary information (other than personally identifiable information, as set forth in our Privacy Policy ) from disclosure and will be free to reproduce, use, and distribute the Information to others without restriction. Company will also be free to use any ideas, concepts, know- how or techniques contained in the Information for any purpose whatsoever including, without limitation, developing, manufacturing and marketing products and services incorporating such information. This Section survives termination or expiration of this User Agreement.

8. Third Party Content and Services

The Software may permit access to products, services, websites, advertisements, promotions, recommendations, advice, information, and materials created and provided by advertisers, publishers, content partners, marketing agents, vendors and other third parties (“Third Party Content and Services”). We are not liable for any such Third Party Content and Services, and the applicable third parties are solely responsible for them. You acknowledge that Company does not investigate, monitor, represent or endorse the Third Party Content and Services (including any third party websites available through the Software). Your access to and use of the Third Party Content and Services is at Your sole discretion and risk, and Company and its affiliates, partners, suppliers and licensors shall have no liability to You arising out of or in connection with Your access to and use of the Third Party Content and Services. Company disclaims any representation, warranty or legal duty regarding the Third Party Content and Services, whether express, implied or statutory, including, without limitation, the implied warranties of merchantability, quality, reliability, features, appropriates, accuracy, completeness, or legality of the Third Party Content and Services.

Your access to and use of the Third Party Content and Services and any correspondence or business dealings between You and any third party using the Software are governed by and require Your acceptance of the terms of service of such third party including, without limitation, any terms, privacy policies, conditions, representations, warranties or disclaimers contained therein. The Third Party Content and Services and any related third party terms of service are subject to change by the applicable third party at its sole discretion and without any notice. You assume all risks arising out of or resulting from Your transaction of business over the Internet and with any third party, and You agree that Company and its affiliates, partners, suppliers and licensors are not responsible or liable for any loss or result of the presence of information about or links to such advertisers, service providers or third parties.

You are not being granted a license to (i) the Third Party Content and Services; (ii) any products, services, processes or technology described in or offered by the Third Party Content and Services; or (iii) any copyright, trademark, patent or other intellectual property right in the Third Party Content or Services or any products, services, processes or technology described or offered therein. You acknowledge and agree that the provision of access to any Third Party Content and Service shall not constitute or imply any endorsement by Company or its affiliates of such Third Party Content and Services, although Company has no obligation to restrict or deny access even if requested by You.

You understand that by accessing and using the Third Party Content and Services, You may encounter information, materials and subject matter (i) that You or others may deem offensive, indecent, or objectionable; (ii) which may or may not be identified as having explicit language; and (iii) that automatically and unintentionally appears in search results, as a link or reference to objectionable material. Notwithstanding the foregoing, You agree to use the Third Party Content and Services at Your sole.

You agree not to copy, modify, rent, lease, loan, sell, distribute, or create derivative works based on the Third Party Content and Services in any manner, and You shall not exploit the Third Party Content and Services in any unauthorized way whatsoever, including, without limitation, by trespass or burdening network capacity. You agree that You will not use any Third Party Content and Services in a manner that would infringe or violate the rights of any other party, and that Company is not in any way responsible for any such use by You.

This Section survives termination or expiration of this User Agreement.

9. Disclaimer of Warranties and Limitations of Damages and Liability

i. Disclaimer of Warranties

YOU ACKNOWLEDGE AND AGREE THAT THE SOFTWARE AND THE RELATED SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND THAT YOUR ACCESS, USE OF OR RELIANCE UPON THE SOFTWARE, ANY THIRD-PARTY SOFTWARE, AND THIRD PARTY CONTENT AND SERVICES ACCESSED THEREBY IS AT YOUR SOLE RISK AND DISCRETION. COMPANY AND ITS AFFILIATES, PARTNERS, SUPPLIERS AND LICENSORS HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES AND GUARANTIES REGARDING THE SOFTWARE AND RELATED SERVICES, YOUR CONTENT, ANY THIRD-PARTY SOFTWARE, AND THIRD PARTY CONTENT AND SERVICES, WHETHER EXPRESS, IMPLIED OR STATUTORY, AND INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

COMPANY AND ITS AFFILIATES, PARTNERS, SUPPLIERS AND LICENSORS MAKE NO WARRANTY THAT (I) THE SOFTWARE, THIRD PARTY SOFTWARE OR THIRD PARTY CONTENT AND SERVICES WILL MEET YOUR REQUIREMENTS OR WILL BE UNINTERRUPTED, ACCURATE, RELIABLE, SECURE OR ERROR-FREE; (II) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL ACCESSED OR OBTAINED BY YOU THROUGH THE SOFTWARE WILL BE AS REPRESENTED OR MEET YOUR EXPECTATIONS; OR (III) ANY ERRORS IN THE SOFTWARE, THIRD-PARTY SOFTWARE, OR THIRD PARTY CONTENT AND SERVICES WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR FROM THE SOFTWARE SHALL CREATE ANY REPRESENTATION, WARRANTY OR GUARANTY.

ii. Limitations of Liability and Damages

TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AND COMPANY AGREE THAT UNDER NO CIRCUMSTANCES SHALL COMPANY OR ITS AFFILIATES, PARTNERS, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES) ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, CONTENT, YOUR ACCESS OR USE OF OR INABILITY TO ACCESS OR USE THE SOFTWARE, ANY THIRD-PARTY SOFTWARE OR THIRD PARTY CONTENT AND SERVICES, WHETHER OR NOT THE DAMAGES WERE FORESEEABLE AND WHETHER OR NOT COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY’S AGGREGATE LIABILITY TO YOU (WHETHER UNDER CONTRACT, TORT, STATUTE OR OTHERWISE) SHALL NOT EXCEED. AND IS LIMITED TO, AN AMOUNT EQUAL TO THREE (3) TIMES THE PAYMENTS MADE BY YOU TO COMPANY FOR THE SUBSCRIPTION PERIOD DURING WHICH THE FACTS GIVING RISE TO A CLAIM AGAINST COMPANY OCCURRED OR ONE THOUSAND DOLLARS ($1,000.00), WHICHEVER IS GREATER.

THE FOREGOING LIMITATIONS AND EXCLUSIONS ARE A MATERIAL CONDITION OF THIS USER AGREEMENT AND WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

iii. Compatibility

Company does not warrant that the Software will be compatible or interoperable with Your Device or any other piece of hardware, software, equipment or device installed on or used in connection with Your Device. Furthermore, You acknowledge that compatibility and interoperability problems can cause the performance of Your Device to diminish or fail completely, and may result in permanent damage to Your Device, loss of the data located on Your Device, and corruption of the software and files located on Your Device. Company and its affiliates, partners, suppliers, and licensors shall have no liability to You for any losses arising in connection with compatibility or interoperability problems. You are solely responsible for ensuring the security of Your Devices and protecting them against computer viruses and other malware.

This Section survives termination or expiration of this User Agreement.

10. Miscellaneous

i. Governing Law

To the fullest extent permitted by law, this User Agreement shall be deemed to take place in the State of Ohio and shall be governed by and construed in accordance with the laws of the State of Ohio, excluding its conflicts of law principles. The parties agree that this User Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods or any State law adopting the Uniform Computer Information Transactions Act (UCITA), the application of which is expressly excluded in each case.

ii. Severability

If any provision of this User Agreement is held to be invalid or unenforceable with respect to a party, the remainder of this User Agreement, or the applicability of such provision to persons other than those to whom it is held invalid or unenforceable shall not be affected and each remaining provision of this User Agreement shall be valid and enforceable to the fullest extent permitted by law.

iii. Waiver

Except as provided herein, the failure to exercise a right or require performance of an obligation under this User Agreement shall not effect a party’s ability to exercise such right or require such performance at any time thereafter, nor shall the waiver of a breach constitute waiver of any subsequent breach.

iv. Entire Agreement

This User Agreement, including the documents incorporated hereby reference, and the Terms of Use & Sale constitute the entire agreement with respect the Software and related services and supersedes all prior or contemporaneous understanding regarding such subject matter. Any legal terms or conditions in any purchase order or other document You provide us are ineffective.

For any questions, please contact us at:

Bryxen, Inc
6724 Perimeter Loop Road #257
Dublin OH 43017

support@voomly.com