Terms of Service
This is the Terms of Service Agreement (the “Terms of Service” or “Agreement”) for all Web sites and mobile Web sites owned or operated by Vixlet CA LLC (“Vixlet” or “we” or “us”) including the Web site currently located at www.vixlet.com (the “Site”), any Vixlet applications that may be offered by Vixlet, and any other applications, interactive features, widgets and resources offered by Vixlet through traditional internet websites, mobile devices or other platforms and any and all associated services provided by Vixlet in connection with any of the foregoing (all of which, together with the Site, are collectively referred to as the “Vixlet Universe” or the “Service”). Among other things, the Service allows users to share and discover media relating to their passions and to connect and interact with individuals who share similar passions through the Vixlet Universe. The Vixlet Universe also includes “Branded Worlds,” which are communities each devoted to a shared passion for a brand (the owners of such brands being “Vixlet Brand Partners”).
Please read these Terms of Service carefully before using the Service offered by Vixlet or entering the Vixlet Universe.
BY USING THE SERVICE IN ANY MANNER, INCLUDING BUT NOT LIMITED TO ACCESSING, VISITING, BROWSING, SCRAPING OR CRAWLING THE VIXLET UNIVERSE, YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE.
We reserve the right, in our sole discretion, to change these Terms of Service at any time, and will publish a revised version of these Terms of Service on the Vixlet Universe with the new “Last Updated” date as indicated at the end of this Agreement. You are responsible for regularly reviewing these Terms of Service. Continued access to and use of the Vixlet Universe following any such change means you accept and will abide by the changes. In the event of a material change that may directly affect your account, we will notify you via the most recent e-mail address that you have provided to us in conjunction with your account.
1. Acceptance of Terms
The Service is available only to individuals who are at least 13 years old. You represent and warrant (i) that you are 13 years of age or older, (ii) that you are either more than the age of majority in your jurisdiction of residence, or an emancipated minor, or possess legal or guardian consent and are competent to enter into an agreement to accept these Terms of Service and to use the Service;(iii) that all registration information you submit is accurate and truthful; and (iv) that your use of the Service does not violate any applicable law or regulation. Vixlet may, in its sole discretion, refuse to offer the Service to any person or entity and change its eligibility criteria at any time. This provision is void where prohibited by law and the right to access the Service is revoked in such jurisdictions.
If you open an account on behalf of a company, organization, or other entity, then (a) “you” includes you and that entity, and (b) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to these Terms of Service, and that you agree to these Terms of Service on the entity’s behalf.
As a condition to using certain aspects of the Service, you may be required to register with Vixlet and select a password and screen name (“Vixlet Username”). You shall provide Vixlet with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of the Terms of Service, which may result in immediate termination of your Vixlet account. You shall not (i) select or use as an Vixlet Username a name of another person with the intent to impersonate that person;(ii) use as a Vixlet Username a name subject to any rights of a person or entity other than you without appropriate authorization; or (iii) use as a Vixlet Username a name that is otherwise offensive, vulgar or obscene. Vixlet reserves the right to refuse registration of, or cancel a Vixlet Username in its sole discretion. You are solely responsible for activity that occurs on your account and shall be responsible for maintaining the confidentiality of your Vixlet password. You shall never use another user’s account without such other user’s express permission. You will immediately notify Vixlet in writing of any unauthorized use of your account, or other account related security breach of which you are aware.
Although Vixlet will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of Vixlet or others due to unauthorized use.
4. Ownership of Vixlet Universe and Vixlet Universe Content
You agree that the Service contains Vixlet Universe Content specifically provided by Vixlet, its business partners and other users and that such Vixlet Universe Content (as defined below) is protected, (individually or as a collective work or compilation) by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. The elements of the Vixlet Universe Content (collectively, “Vixlet Universe Content ”)include without limitation, the user interface, interactive features, content, software, code, data, art, graphics, animation, photographs, images, text, music, sound effects, all audio and audiovisual elements, look-and-feel, design, layout, organization, presentation, navigation, compilation, trade dress and stylistic convention of the Vixlet Universe and other materials you may view on or access through the Vixlet Universe. Vixlet Universe Content also includes all communication and comments made by users and any other information or material uploaded by users on the Vixlet Universe. Your use of the Vixlet Universe does not give you ownership of any Vixlet Universe Content.
5. Use of Vixlet Universe Content
You shall not sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, create derivative works from, or otherwise exploit any Vixlet Universe Content or third party submissions or other proprietary rights not owned by you, (i)without the consent of the respective owners or other valid right, and (ii) in any way that violates any third party right.
However, you may, to the extent the Vixlet Universe expressly authorizes you to do so, download or copy the Vixlet Universe Content, and other items displayed on the Vixlet Universe for download, for personal, non-commercial use only, provided that you maintain all copyright and other notices contained in such Vixlet Universe Content. Notwithstanding the foregoing, you shall not store any significant portion of any Vixlet Universe Content in any form. Copying or storing of any Vixlet Universe Content for other than personal, noncommercial use is expressly prohibited without prior written permission from Vixlet, or from the copyright holder identified in such Vixlet Universe Content’s copyright notice.
All trademarks, logos, service marks and trade names, which includes “Vixlet,” “vixlet.com,” the hexagon shape, and the “V” logo (collectively, the “Trademarks”) displayed on the Vixlet Universe or on Vixlet Universe Content are registered or unregistered Trademarks of Vixlet, its business partners and/or others, and may not be used unless authorized by the Trademark owner. All Trademarks not owned by us that appear on the Vixlet Universe or on the Vixlet Universe Content, if any, are the property of their respective owners. Nothing contained on the Vixlet Universe should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on the Vixlet Universe.
You acknowledge and agree that your access to and use of the Vixlet Universe, the Vixlet Universe Content and the services provided through the Vixlet Universe are valuable benefits that you receive by agreeing to and complying with the terms and conditions of this Agreement.
8. User Submissions
The Service will provide you with the ability to upload, submit, disclose, share, distribute or otherwise post (hereafter, “posting”) content such as images, videos, blogs, links to third party sites, message, comments and communications, to the Service (the “ User Submissions”).
(i) By posting User Submissions on the Vixlet Universe or otherwise through the Service, you represent and warrant that:
a. You own, or have the necessary licenses, rights, consents, and permissions to use and authorize Vixlet to use, all patent, trademark, copyright, or other proprietary rights in and to any and all User Submissions to enable inclusion and use of User Submissions in the manner contemplated by Vixlet and these Terms of Service, and to grant the rights and license set forth in this Section;
b. Your User Submissions, Vixlet's use of such User Submissions pursuant to these Terms of Service, and Vixlet's exercise of the license rights set forth in this Section, do not and will not: (A) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right;(B) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (C) violate any applicable law or regulation.
c. There is no need for any permission from or payment to any other person or entity, to use, and to authorize us to use, your User Submission in all manners contemplated by these Terms of Service (including the Submissions License set forth below);
d. You are authorized to grant all of the aforementioned rights to the User Submissions to Vixlet and all users of the Service; and
e. Your User Submission and your communication thereof does not fall under Prohibited User Conduct (set forth below) and other requirements of these Terms of Service.
(ii) Submissions License. You grant to Vixlet and its affiliates a non-exclusive, fully-paid, royalty-free, unrestricted, perpetual, irrevocable, fully transferable (in whole or in part), assignable and worldwide right and license, with the right to grant and authorize sublicenses(including, without limitation, to its Vixlet Brand Partners), under all copyrights, trademarks, patents, trade secrets, privacy and publicity rights and other intellectual property rights you own or control, to use, reproduce, transmit, perform, display, exhibit, distribute, index, comment on, modify, reformat, create derivative works based upon, perform and otherwise exploit your User Submission, in whole or in part, alone or in combination with other content or material, in all media formats and channels now known or hereafter devised (including by way of example but in no way a limitation, the internet, mobile devices, and through any future means or methods of downloading and/or streaming now known or hereinafter devised) in connection with the Vixlet Universe and Vixlet's (and its successor's, transferees', sublicensees' and their respective affiliates') business, including without limitation for promoting, advertising and redistributing part or all of the Vixlet Universe (and derivative works thereof) and/or the Vixlet Brand Partners, all without further notice to you, with or without attribution, and without the requirement of any permission from or payment to you or to any other person or entity (the " Submissions License"). We cannot be responsible for maintaining your User Submission that you provide to us, and we may delete or destroy your User Submission at any time. You grant Vixlet and its affiliates, transferees and sublicensees (and their respective affiliates) the right to use your name and Vixlet Username that you submit in connection with such User Submission if they choose. You also agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Submission. You also hereby grant to each user of the Vixlet Universe a non-exclusive license to access your User Submission through the Vixlet Universe, and to use, reproduce, distribute, modify, adapt, translate, prepare derivative works of, display, and perform such User Submission as permitted by the functionality of the Vixlet Universe and these Terms of Service.
(iii) No Responsibility for User Submission. With the exception of the limited license granted above, we do not obtain or control any rights in, and do not exert editorial control over, User Submission. Nothing herein obligates us to verify, and we have not necessarily verified, the representations and warranties made by Users with respect to such User Submission.
You understand that Vixlet shall have the right to reformat, excerpt, or translate any materials, content or information submitted by you; and that all information publicly posted or privately transmitted through the Vixlet Universe or otherwise through the Service is the sole responsibility of the person from which such content originated and that Vixlet will not be liable for any errors or omissions in any content; and that Vixlet cannot guarantee the identity of any other users with whom you may interact in the course of using the Service.
You hereby appoint us as your agent with full power to enter into and execute any document and/or do any act we may consider appropriate to confirm the grant of rights, consents, agreements, assignments and waivers set forth in these Terms of Service.
9. Public Forums and Communication
“Public Forum” means any area, site or feature that may be offered as part of any Vixlet Universe that offers the opportunity for you to submit your User Submissions for viewing by one or more Vixlet Universe users, such as a profile page and the social wall.
You acknowledge that Public Forums and features offered therein are for public and not private communications, and you have no expectation of privacy with regard to your User Submission to a Public Forum. We cannot guarantee the security of any information you disclose through any of these media, nor that your User Submissions will remain available via the Vixlet Universe at all times; you make such disclosures at your own risk.
You are and shall remain solely responsible for your User Submission you submit on or through any Vixlet Universe under your Vixlet Username or otherwise by you in any Public Forum and for the consequences of submitting and posting same. We have no duty to monitor any Public Forum. You understand that when using the Vixlet Universe, you will be exposed to User Submissions from a variety of sources, and that Vixlet is not responsible for the appropriateness, accuracy, usefulness, safety, or intellectual property rights of or relating to such User Submissions. You further understand and acknowledge that you may be exposed to User Submissions that are inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Vixlet with respect thereto, and agree to indemnify and hold Vixlet, its parent, subsidiaries, affiliates, and/or business partners, harmless to the fullest extent allowed by law regarding all matters related to your use of the Vixlet Universe.
Vixlet does not endorse any User Submission or any opinion, recommendation, or advice expressed therein, and Vixlet expressly disclaims any and all liability in connection with User Submissions.
We owe you no obligation, and therefore may refuse, to post, deliver, remove, modify or otherwise use or take any action, with respect to your User Submission which you submit.
Please keep in mind that you are solely responsible for your interactions with other users. We reserve the right, but have no obligation, to monitor disputes between you and other users. Vixlet will have no liability for your interactions with other users.
10. Prohibited User Conduct
You warrant and agree that, while accessing or using the Vixlet Universe, you will not:
(i) Impersonate any person or entity or misrepresent your affiliation with any other person or entity, whether actual or fictitious, including anyone from the Vixlet Universe or Vixlet;
(ii) Submit any materials or communicate any information that is (a) is defamatory, abusive, harassing, threatening, or an invasion of a right of privacy of another person;(b) is bigoted, hateful, or racially or otherwise offensive;(c) is violent, vulgar, obscene, pornographic or otherwise sexually explicit; or (d) otherwise harms or can reasonably be expected to harm any person or entity;
(iii) Use the Vixlet Universe or its Service in violation of the intellectual property or other proprietary or legal rights of Vixlet or any third party;
(iv) Post content that actively promotes or glorifies self-harm. This includes content that urges or encourages others to: cut or injure themselves, embrace anorexia, bulimia, or other eating disorders, or commit suicide rather than, e.g., seeking counseling or treatment, or joining together in supportive conversation with those suffering or recovering from depression or other conditions.
(v) Submit any materials or communicate any information that is illegal or encourages or advocates illegal activity or the discussion of illegal activities with the intent to commit them, including your User Submission that is, or represents an attempt to engage in, terrorism, child pornography, stalking, sexual assault, fraud, trafficking in obscene or stolen material, drug dealing and/or drug abuse, harassment, theft, or conspiracy to commit any criminal activity. Illegal activities includes any activities that would pose a direct threat to public safety;
(vi) Submit any materials or communicate any information that is commercial, business-related or advertises or offers to sell any products, services or otherwise (whether or not for profit), or solicits others (including solicitations for contributions or donations);
(vii) Use the Vixlet Universe or Service, Vixlet’s resources or User Submissions in a manner that Vixlet finds, in its sole discretion, to have the effect of displacing the market for the Vixlet Universe;
(viii) Post any links or content that contains pirated software, hacker programs or archives and warez sites;
(ix) Obtain or attempt to gain unauthorized access to other computer systems, materials, information or any services available on or through the Vixlet Universe through any means, including through means not intentionally made publicly available or provided for through the Vixlet Universe;
(x) Engage in “spidering,” “screen scraping,” “database scraping,” or” harvesting” of content, e-mail addresses or other personal information, or any other automatic or unauthorized means of accessing, logging-in or registering on the Vixlet Universe, or obtaining lists of users or other information from or through the Vixlet Universe, including, without limitation, any information residing on any server or database connected to the Vixlet Universe;
(xi) Use the Vixlet Universe or its features and services in any manner that could interrupt, damage, disable, overburden or impair the Vixlet Universe or interfere with any other party's use and enjoyment of the Vixlet Universe, including, without limitation, spamming, pinging, “flooding” servers with requests, mail bombing and piracy of software;
(xii) Use the Vixlet Universe or its services in violation of any applicable law; or
(xiii) Attempt (or encourage or support anyone else’s attempt) to circumvent, reverse engineer, disassemble, decompile, decrypt, or otherwise alter or interfere with the Vixlet Universe or its Service or try to influence/modify the voting system that is an integral part of the competitive system on Vixlet.
You alone are responsible for the content and consequences of any of your activities while you are visiting or using the Vixlet Universe.
11. Third Party Advertising and Sponsorship
You understand and agree that third-party advertising or sponsorship, in any commercially reasonable format, may be made available to users of the Vixlet Universe, including in connection with uploaded entries or your User Submissions. You expressly agree that you shall not be entitled to any sharing or other compensation whatsoever for any revenue generated by (or received by Vixlet for) the display of any such advertisements or sponsorships.
12. Links From The Vixlet Universe to Third Party Site
13. Links To The Vixlet Universe From Third Party Site
You agree that if you include a link from any other web site to the Vixlet Universe, such link shall open in a new browser window and shall link to the full version of an HTML formatted page of the Vixlet Universe. You are not permitted to link directly to any image hosted on the Vixlet Universe, such as using an “in-line” linking method to cause the image hosted by us to be displayed on another web site. You agree not to link from any other website to the Vixlet Universe in any manner such that the Vixlet Universe, or any page of the Vixlet Universe, is “framed,” surrounded or obfuscated by any third party content, materials or branding. We may require that any link to the Vixlet Universe be discontinued, and to revoke your right to link to the Vixlet Universe from any other web site at any time.
14. Right to Monitor and Editorial Control
Vixlet reserves the right, but does not have an obligation, to monitor and/or review all User Submissions posted to the Vixlet Universe or through the Vixlet Universe’s services or features by users, and Vixlet is not responsible for any such materials posted by users. However, Vixlet reserves the right at all times to disclose any information as necessary to satisfy any law, regulation or government request. Vixlet shall have the right (but not the obligation) in their sole discretion to refuse to post or remove any User Submission that is available on the Vixlet Universe in whole or in part at any time for any reason or no reason, with or without notice and with no liability of any kind. We may also impose limits on certain features or restrict your access to part or all of the features or services without notice or penalty if we believe you are in breach of the guidelines set forth in this paragraph, our terms and conditions or applicable law, or for any other reason without notice or liability. If at any time Vixlet chooses, in its sole discretion, to monitor the User Submissions, Vixlet nonetheless assumes no responsibility for such User Submissions, no obligation to modify or remove any inappropriate User Submission, and no responsibility for the conduct of the user or other person or entity submitting any such User Submission.
YOU AGREE TO INDEMNIFY AND HOLD HARMLESS VIXLET, AND ITS PARENT, SUBSIDIARIES, AFFILIATES AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SPONSORS,ADVERTISERS AND REPRESENTATIVES OF ANY OF THEM FROM ANY AND ALL CLAIMS, LOSSES, OBLIGATIONS, DAMAGES, LIABILITIES, COSTS, DEBT, AND EXPENSES (INCLUDING ATTORNEYS’FEES) ARISING OUT OF (I) YOUR USE OR MISUSE OF THE VIXLET UNIVERSE;(II) YOUR USER SUBMISSION, INCLUDING VIXLET'S USE, DISPLAY OR OTHER EXERCISE OF ITS LICENSE RIGHTS GRANTED HEREIN WITH RESPECT TO YOUR USER SUBMISSION;(III) YOUR VIOLATION OF THESE TERMS OF SERVICE;(IV) YOUR VIOLATION OFTHE RIGHTS OF ANY OTHER PERSON OR ENTITY, INCLUDING CLAIMS THAT ANY USER SUBMISSION INFRINGES OR VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS;(V)YOUR BREACH OF THE FOREGOING REPRESENTATIONS, WARRANTIES, AND COVENANTS;AND (VI) ANY UNAUTHORIZED USE OF YOUR ACCOUNT NOT CAUSED BY VIXLET. VIXLET RESERVES THE RIGHT, AT YOUR EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER FOR WHICH YOU ARE REQUIRED TO INDEMNIFY US AND YOU AGREE TO COOPERATE WITH OUR DEFENSE OF THESE CLAIMS. YOU AGREE NOT TO SETTLE ANY MATTER GIVING RISE TO YOUR INDEMNIFICATION OBLIGATIONS WITHOUT THE PRIOR WRITTEN CONSENT OF VIXLET. VIXLET WILL USE REASONABLE EFFORTS TO NOTIFY YOU OF ANY SUCH CLAIM, ACTION, OR PROCEEDING UPON BECOMING AWARE OF IT.
16. Digital Millenium Copyright Act Take-Down Notice
Vixlet has adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act(http://lcweb.loc.gov/copyright/legislation/dmca.pdf). The address of the designated Copyright Agent to receive Notification of Claimed Infringement(“Copyright Agent”) is listed at the end of this Section.
(i) Reporting Copyright Infringement. If you are a copyright owner or an agent thereof, and believe that any User Submission or other Vixlet Universe Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail).
a. A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
b. Identification of works or materials being infringed;
c. 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 Vixlet is capable of finding and verifying its existence;
d. Contact information about the notifier including address, telephone number and, if available, e-mail address;
e. 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
f. 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.
(ii) Vixlet’s Action. Upon receipt of proper notification of claimed copyright infringement, Vixlet will:
a. Remove or disable access to the infringing material;
b. Notify the content provider or user that it has removed or disabled access to the material; and
c. That repeat offenders will have the infringing material removed from the system and that Vixlet will terminate such content provider's or user's access to the Service.
(iii) Copyright Counter-Notice. If the content provider or user believes that the material that was removed or to which access was disabled is either not infringing, or the content provider or user believes that it has the right to post and use such material from the copyright owner, the copyright owner's agent, or pursuant to the law, the content provider or user must send a counter-notice containing the following information to the Copyright Agent listed below:
a. A physical or electronic signature of the content provider or user;
b. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or disabled;
c. A statement that the content provider or user has a good faith belief that the material was removed or disabled as a result of mistake or a mis-identification of the material ;and
d. Content provider's or user's name, address, telephone number, and, if available, e-mail address and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the content provider's or user's address is located, or if the content provider's or user's address is located outside the United States, for any judicial district in which Vixlet is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, Vixlet may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider or user, the removed material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the counter-notice, at Vixlet's discretion.
(iv) Foreign Counter-Notification. If you reside outside of the United States, please understand that filing a counter-notice may lead to legal proceedings between you and the complaining party to determine ownership. Be aware that there may be adverse legal consequences in your country and/or the United States of America if you make a false or bad faith allegation by using this process. Please also be advised that we enforce a policy that provides for the termination in appropriate circumstances of access privileges for users who are infringers. So, if you are not sure whether content you posted on the Vixlet Universe is being infringed, or are otherwise unsure of whether to file a counter-notification using these procedures, we strongly recommend you first contact a lawyer knowledgeable in the laws of the United States and the State of California. If you do wish to file a counter-notice, you should follow the process set forth above under the heading “Copyright Counter-Notification.”
Vixlet’s designated Copyright Agent to receive notification of claimed infringement is:
ATTN: Copyright Agent
555 West 5th Street 50th Floor
Los Angeles, CA 90013
17. Void Where Prohibited
Vixlet controls and operates the Vixlet Universe from offices in the United States of America. We make no representation that Vixlet Universe Content is appropriate or authorized for use in all countries, states, provinces, counties or any other jurisdictions. Not all products or services mentioned on the Vixlet Universe are available to all persons or in all geographic locations or jurisdictions Vixlet, its business partners and vendors reserve the right to limit the provision of their products or services to any person, geographic area, or jurisdiction they so desire and to limit the quantities of any products or services that they provide. Any content, offer or service on the website is void where prohibited and the user automatically indemnifies Vixlet from any legal or statutory outcomes resulting from their decision or action. Vixlet reserves the right to block access to the Vixlet Universe by certain international users. When you access the Vixlet Universe, you are responsible for compliance with all applicable local laws.
18. Warranty Disclaimer
YOU AGREE THAT YOUR USE OF THE VIXLET UNIVERSE SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, VIXLET, ITS PARENT, SUBSIDIARY,AFFILIATES AND EACH OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, MEMBERS AGENTS AND SUBCONTRACTORS DISCLAIM ALL WARRANTIES AND CONDITIONS,WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED, LEGAL, STATUTORY, CONTRACTUAL, EXTRA-CONTRACTUAL, DELICTUAL OR IN TORT, AND WHETHER ARISING BY LAW, STATUTE, USAGE OF TRADE, CUSTOM, COURSE OF DEALING OR PERFORMANCE, OR THE PARTIES' CONDUCT OR COMMUNICATION WITH ONE ANOTHER, OR AS A RESULT OF THE NATURE OF THESE TERMS AND CONDITIONS, THE VIXLET UNIVERSE AND YOUR USE THEREOF OR IN CONFORMITY WITH USAGE, EQUITY OR LAW OR OTHERWISE. VIXLET MAKES NO WARRANTIES, CONDITIONS OR REPRESENTATIONS ABOUT THE ACCURACY, CORRECTNESS, RELIABILITY OR COMPLETENESS OF THIS VIXLET UNIVERSE'S CONTENT, THE CONTENT OF ANY SITES LINKED TO THIS VIXLET UNIVERSE, AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF THE VIXLET UNIVERSE CONTENT, (II) PERSONAL INJURY, PROPERTY, BODILY, MORAL OR MATERIAL DAMAGE OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF VIXLET UNIVERSE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM VIXLET UNIVERSE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH VIXLET UNIVERSE BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY VIXLET UNIVERSE CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY VIXLET UNIVERSE CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE VIXLET UNIVERSE.
VIXLET, ITS PARENT, SUBSIDIARY, AFFILIATES AND EACH OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, MEMBERS AGENTS AND SUBCONTRACTORS EXPRESSLY DISCLAIM ANY WARRANTY OR CONDITION OF ANY KIND OF FITNESS FOR A PARTICULAR OR GENERAL PURPOSE, QUALITY, MERCHANTABILITY, WORKMANSHIP, NON-INFRINGEMENT, OR TITLE AND OWNERSHIP.
VIXLET DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE VIXLET UNIVERSE OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND VIXLET WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE PROVISIONS OFTHE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS ARE HEREBY DISCLAIMED.
YOU EXPRESSLY AGREE THAT THE USE OF THE VIXLET UNIVERSE IS AT YOUR SOLE RISK. THE VIXLET UNIVERSE, VIXLET UNIVERSE CONTENT, AND ANY OTHER THIRD-PARTY MEDIA, CONTENT, SOFTWARE, GOODS, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE VIXLET UNIVERSE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.
SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
VIXLET DOES NOT WARRANT THAT YOUR ACTIVITIES IN CONNECTION WITH OR USE OF THE CONTENT IS LAWFUL IN ANY PARTICULAR JURISDICTION AND, IN ANY EVENT, VIXLET SPECIFICALLY DISCLAIMS SUCH WARRANTIES TO THE FULLEST EXTENT PERMITTED BY LAW. YOU UNDERSTAND THAT BY USING ANY OF THE FEATURES OF THE CONTENT, YOU ACT ATYOUR OWN RISK, AND YOU REPRESENT AND WARRANT THAT YOUR ACCESS AND ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE VIXLET UNIVERSE,THE SERVICES OR THE CONTENT.
19. Limitation of Liability
IN NO EVENT SHALL VIXLET, OR ITS THIRD PARTY PARTNERS, LICENSORS OR SUPPLIERS BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF THE VIXLET UNIVERSE CONTENT, (II) PERSONAL INJURY, PROPERTY,BODILY, MORAL OR MATERIAL DAMAGE OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF VIXLET UNIVERSE, (III) ANY UNAUTHORIZED ACCESS TO OR USEOF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM VIXLET UNIVERSE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH VIXLET UNIVERSE BY ANYTHIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY VIXLET UNIVERSE CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE VIXLET UNIVERSE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER ARISING BY LAW, STATUTE, USAGE OF TRADE, CUSTOM, COURSE OF DEALING OR PERFORMANCE, OR THE PARTIES' CONDUCT OR COMMUNICATION WITH ONE ANOTHER, OR AS A RESULT OF THE NATURE OF THESE TERMS OF SERVICE OR IN CONFORMITY WITH USAGE, EQUITY OR LAW OR OTHERWISE, AND WHETHER OR NOT THE VIXLET IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. YOU SPECIFICALLY ACKNOWLEDGE THAT VIXLET SHALL NOT BE LIABLE FOR USER SUBMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANYTHIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU. HOWEVER, IN NO EVENT SHALL THE TOTAL LIABILITY OF VIXLET FORALL DAMAGES, LOSSES AND CAUSES OF ACTION AND COSTS AND EXPENSES (INCLUDING LEGAL FEES) WHETHER IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE),OR OTHERWISE, RELATED TO YOUR USE OF, OR THE INABILITY TO USE, THE VIXLET UNIVERSE OR ANY OF THE VIXLET UNIVERSE CONTENT OR FUNCTIONS AT THE VIXLET UNIVERSE, EXCEED THE GREATER OF (I) THE AMOUNT, IF ANY, PAID BY YOU IN CONNECTION WITH YOUR ACCESS, USE AND/OR PURCHASES MADE IN THE VIXLET UNIVERSE IN THE PAST THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE THAT SUCH CLAIM AROSE OR (II) USD$50.
The Vixlet Universe is operated by Vixlet from its facilities in the United States of America. Vixlet makes no representations that the Vixlet Universe is appropriate or available for use in other locations. Those who access or use the Vixlet Universe from other jurisdictions do so at their own volition and are responsible for compliance with local law.
YOU RECOGNIZE AND CONFIRM THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF VIXLET’S ACTS OR OMISSIONS, THE DAMAGES, IFANY, CAUSED TO YOU ARE NOT IRREPARABLE, OR OF A NATURE OR OTHERWISE SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT,PROGRAM, USER SUBMISSION OR OTHER TEXT/AUDIO/VISUAL CONTENT OWNED OR CONTROLLED BY OR LICENSED TO VIXLET AND/OR ITS PARENTS, SUBSIDIARIES, AND/OR AFFILIATES AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY VIXLET UNIVERSE, SERVICES, CONTENT, PRODUCT, PROGRAM, MUSIC, YOUR USER SUBMISSION OR OTHER TEXT/AUDIO/VISUAL CONTENT OR ANY AND ALL ACTIVITIES OR ACTIONS RELATED THERETO.
20. Interstate Nature of Communications
When you visit our Vixlet Universe, you acknowledge that in using the Service to send electronic communications (including but not limited to email, search queries, uploading videos, photos and files to Vixlet Universe and other Internet activities), you will be causing communications to be sent through VIXLET’s computer networks, portions of which may be located in various locations in the United States and portions of which are located abroad. As a result, and also as a result of VIXLET’s network architecture and business practices and the nature of electronic communications, even communications that seem to be intrastate in nature can result in the transmission of interstate communications, and communications that seem domestic in nature may be in part international in nature, in either case regardless of where you are physically located at the time of transmission. Accordingly, by agreeing to this Terms of Service, you acknowledge that use of the service results in interstate and international data transmissions.
21. Special Note to International Users
Vixlet may terminate, change, limit, suspend or discontinue any aspect of the Vixlet Universe at any time. Vixlet may restrict, suspend or terminate your access to the Vixlet Universe and/or this Agreement if we reasonably believe or suspect you have acted inappropriately on the Vixlet Universe or you are in breach of these Terms of Service or applicable law, or for any other reason without notice or liability. Additionally, Vixlet may terminate or limit use or access privileges to the Vixlet Universe of users who are repeat infringers of intellectual property rights and third party rights. You may terminate this Agreement by contacting us at firstname.lastname@example.org. Upon any termination of this Agreement, you agree to discontinue your use and access of the Vixlet Universe and to immediately destroy all materials obtained from it.
In event that the account is terminated, we will retain and use your information as necessary to comply with our legal obligations, resolve disputes, and enforce our agreements. We may retain and continue to display Information that you post in areas of the Service that are accessible by others. Also, information that you post in such areas may be retained, copied, reposted and distributed by others even after termination of your account.
All provisions of the Terms of Service which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitation of liability.
23. Arbitration; Consent to Jurisdiction in California; Attorney Fee
(i) Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court without the posting of a bond), any and all disputes, claims or controversies arising out of or relating to this Agreement, the breach thereof, or any use of the Service (including commercial transactions conducted through the Service) (“Claims”) except for claims filed in a small claims court that proceed on an individual (non-class, non-represented) basis, shall be settled by binding arbitration (in English) before a single arbitrator appointed by the American Arbitration Association (“AAA”) in accordance with its then governing rules and procedures, including the Supplementary Procedures for Consumer-Related Disputes, where applicable. In agreeing to arbitrate all Claims; the arbitration shall be held in Los Angeles, California and judgment on the award rendered by the arbitrator may be entered by any court having jurisdiction thereof. This arbitration undertaking is made pursuant to and in connection with a transaction involving interstate commerce, and shall be governed by and construed and interpreted in accordance with Federal Arbitration Act at 9 U.S.C, Section 1, et seq. This arbitration provision shall survive termination of this Agreement.
(ii) Subject to the limitations set forth below in this section, the arbitrator shall have authority to award legal and equitable relief available in the courts of California, provided that: (a) the arbitrator shall not have authority to award punitive damages; and (b) any and all claims shall be arbitrated on an individual basis only, and shall not be consolidated or joined with or in any arbitration or other proceedings involving a Claim of any other party. You and Vixlet agree that the arbitrator shall have no authority to arbitrate any Claim as a class action or in any other form other than on an individual basis.
(iii) For any Claims that are not subject to arbitration: (a) the exclusive jurisdiction and venue for proceedings involving Claims shall be the courts of competent jurisdiction sitting within Los Angeles County, California (the “Forum”), and the parties hereby wave any argument that any such court does not have personal jurisdiction or that the Forum is not appropriate or convenient;(b) you and Vixlet waive any and all rights to trial by jury with respect to any Claims.
(iv) In the event that either party initiates a proceeding involving any Claim other than an arbitration in accordance with this section, or initiates a proceeding involving a Claim other than in a Forum, the other party shall recover all attorneys’ fees and expenses reasonably incurred in enforcing this Agreement to arbitrate in the Forum to which the parties have herein agreed.
YOU AGREE THAT ANY CAUSE OF ACTION YOU MAY HAVE ARISING OUT OF OR RELATED TO THESE TERMS OF SERVICE OR THE VIXLET UNIVERSE MUST COMMENCE WITHIN ONE (1)YEAR AFTER THE CAUSE OF ACTION ACCRUES;OTHERWISE, SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.
You agree that Vixlet may assign any of its rights and licenses granted hereunder and/or transfer, sub-contract or delegate any of its obligations under this Agreement without restriction. This Agreement is personal to you and you may not transfer or assign it to a third party.
Our failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
If any part of this Agreement is determined to be invalid or unenforceable under applicable law including but not limited to the warranty disclaimers and liability limitations stated above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall continue in effect.
Vixlet may provide you with notices, including those regarding changes to these Terms of Service, by email or postings on the Vixlet Universe. If Notice is by e-mail, it will be provided to the e-mail provided by you with your account information and it is your responsibility to update such account information for any changes. Notice to you will be deemed given twenty- four hours after an email is sent, unless Vixlet is notified that the email address is invalid. You may provide Vixlet with notices only by mail to the address indicated below:
Vixlet 555 West 5th Street 50th Floor Los Angeles, CA, 90013
Along with any Master License Agreement you have executed with Vixlet, this Agreement constitutes the entire agreement between you and Vixlet with respect to the Vixlet Universe and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and Vixlet with respect to the Vixlet Universe. A printed version of this Agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent as other business documents and records originally generated and maintained in printed form.
Any rights not expressly granted in this Agreement are reserved to Vixlet.
Last Updated: May 15, 2015