Vyou Channel: Terms of Service
PLEASE READ THE TERMS AND CONDITIONS DESCRIBED BELOW CAREFULLY BEFORE USING THE SERVICE. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE VYOU CHANNEL. In particular, please note that: (1) you are agreeing that you may be asked to pay optional subscription fees or other charges which may be subject to automatic renewal terms in order to view content and, also as detailed in these Terms (2) your Vyou device software may be automatically updated; and (3) any disputes between us will be settled by binding arbitration and you are giving up your right to go to court as detailed in these Terms.
1. Description of Service. Vyou Channel (also referred to herein as the "Vyou Service" or "Service") is a streaming video service operated by Vyou Inc. ("Vyou," "we", or "us") which permits users to access programming and other content made available by means of the Service (collectively, the "Content"). The Service includes all aspects of Vyou Channel, including all Content, tools, features, products, software and services offered by Vyou via Vyou Channel.
2. Your Acceptance.
2.1. Terms. By using or visiting the Service, you are agreeing to be bound by these terms and conditions (the "Terms of Service" or "Terms"). If you do not wish to be bound by any of these Terms, then you should not use the Service. In addition, if you access any Content via a streaming video device, you agree to be bound by any corresponding Account Terms and Conditions related to operating streaming video services on that device.
2.2. Eligibility. You affirm that you are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms of Service, and to abide by and comply with these Terms of Service. If you are under 13 years of age, then you may not use the Service without the consent of your parent or legal guardian.
3. Privacy Policy and Use of Data. The use of the Service is subject to Vyou's Privacy Policy available at http://channel.vyouhdr.com/vyou-privacy-policy-en-us.html which explains Vyou's policies regarding the collection, use, transmission and disclosure of information provided by or collected from you in connection with your use of the Service. By agreeing to be bound by these Terms, you are agreeing that you have read the Privacy Policy and understand the collection, use, transmission and disclosure of your information and data as described in the Privacy Policy (and as amended from time to time). You should review Vyou's Privacy Policy before using the Service.
4. Changes to Terms. Vyou may amend these Terms at any time in its discretion. Such amendments will be effective immediately upon posting of the amended Terms on Vyou's website or via the Service, whichever occurs first. At its option, Vyou may also notify you of an amendment to the Terms by sending a notice to the last email address you provided to Vyou. Following the posting or notice by any of the methods described above, continued use of the Service means you accept and agree to the amended Terms. If you do not wish to be bound by the amended Terms, then you should not use the Service.
5. Third Party Services.
5.1. Third Party Properties. The Service may contain links to, or be made available through, third party websites, applications or platforms that are not owned or controlled by Vyou. Vyou has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites, applications or platforms. In addition, Vyou will not and cannot censor or edit the content of any third-party site, application or platform. You expressly relieve Vyou from any and all liability arising from your use of any third-party website, application or platform.
5.2. Third Party Terms. Accordingly, we encourage you to be aware when you leave the Service and to read the terms and conditions and privacy policy of each other digital property that you visit.
6. Permissions and Restrictions.
6.1. Grant. Vyou hereby grants you permission to access and use the Service as set forth in these Terms of Service.
6.2. Ownership. You agree that Vyou owns and retains all rights to the Service. You further agree that the Content you access as part of the Service is owned or controlled by Vyou and Vyou's content programmers. The Service and the Content are protected by copyright, trademark, other intellectual property laws and treaties. You may access Content solely for your personal use and as intended through the provided functionality of the Service and as permitted under these Terms of Service. Any rights not expressly granted to you are reserved by Vyou and Vyou's content providers.
6.3. Restrictions. Except as authorized by these Terms of Service you may not: (a) use, copy, record, download, stream capture, reproduce, duplicate, archive, distribute, upload, publish, modify, translate, broadcast, perform, display, sell, transmit, retransmit or otherwise exploit the Service (including the Content), (b) incorporate the Service (including the Content) into, or stream or retransmit the Service (including the Content), via any hardware or software application or make it available via frames or in-line links, (c) create, recreate, distribute or advertise an index of any significant portion of the Service (including the Content), (d) create derivative works, or materials that otherwise are derived from or based on in any way the Service (including the Content), or (e) operate a business utilizing the Service (including the Content), whether or not for profit. This prohibition applies even if you intend to give away the derivative materials free of charge.
6.4. Automated Access. You agree not to use or launch any automated system, including without limitation, "robots," "spiders," or "offline readers," that accesses the Service in a manner that sends more request messages to the Vyou servers during a given period of time than would reasonably be expected from a human using a conventional Device user interface to access the Service solely for personal entertainment purposes. Notwithstanding the foregoing, Vyou grants the operators of public search engines permission to use spiders to copy materials from the site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials. Vyou reserves the right to revoke these exceptions either generally or in specific cases.
6.5. Viruses. You agree not to use the Service to (a) introduce viruses, malware or other malicious code to, or (b) harm, delete or destroy, any system, service, software, hardware or telecommunications equipment.
6.6. Advertising. You agree not to impair the delivery of any advertising in connection with the Service (including the Content).
6.7. Trademarks. Vyou, the Vyou logo, and other Vyou marks, graphics, logos, scripts, and sounds are trademarks of Vyou. You may not copy, download or otherwise exploit any of the Vyou trademarks without our prior written consent in each instance.
6.8. Unauthorized Access. You may not engage in or facilitate unauthorized access to or use of the Service or Content, including by removing, altering, interfering with or circumventing any copyright, trademark, or other proprietary notices marked on the Content or any digital rights management mechanism, device or other content protection or access control measure (including geofiltering and/or encryption) associated with the Content.
6.9. Compliance with Law. In your use of the Service, you will comply with all applicable laws. You will not use the Service in any manner that violates the rights of others, including patent, trademark, trade secret, copyright, privacy, publicity, or other proprietary rights. You will not use the Service to encourage conduct that would constitute a criminal offense or give rise to civil liability. You will not use the Service to interfere with any other party's use and enjoyment of the Service.
6.10. Right to Discontinue. Vyou reserves the right to discontinue any aspect of the Service at any time, including (without limitation) the Content available therein and/or the platforms or devices on which the Service is available, with or without notice to you.
7. Your Access to the Service and Content.
7.1. Disclaimer. Content is provided AS IS and AS AVAILABLE. Vyou and its content providers may add or remove Content from time to time without notice to you. Similarly, the platforms and/or devices on which the Service is available may change from time to time without notice to you.
7.2. Uptime. You understand that Content availability (including the number of simultaneous streams of Content that you may access) may vary by from title to title, device to device, and platform to platform, and may be affected by many factors, including terms set by Vyou's licensors and Vyou's content providers.
7.3. Quality. You understand that the display quality of the Content being streamed by your device may vary from device to device, and may be affected by many factors, including your Internet speed and your location. As a result, Vyou makes no warranties about the Content in these respects.
7.4. Offensive Content. You may come across Content that you find offensive, indecent, explicit or objectionable. Also, Content types, genres, categories, and descriptions may be provided as suggestions to help with navigation, and Vyou does not guarantee that you will agree with them. You acknowledge these risks. You are responsible for ensuring that any age-restricted Content is not viewed by any person not meeting the applicable age limits, as specified by law, regulation or Vyou or by Vyou's content providers.
7.5. Connectivity. Access to the Service requires Internet connectivity. Depending on your contract with your Internet provider or mobile carrier, you may incur additional data charges from your provider/carrier when you use the Service.
7.6. Cancellation. Vyou Service subscriptions may be cancelled at any time, either directly via the Service app and/or via the payments administration of the streaming device supplier, as applicable.
8. Restricting or Terminating Your Access to the Service.
8.1. Suspension of Service. From time to time, Vyou may temporarily suspend your use of some or all of the Service for maintenance and repair, with or without notice to you.
8.2. Suspension of Access. Vyou reserves the right to immediately terminate, suspend or restrict your use of the Service and access to the Content, without notice or liability, if you violate these Terms or any law. Vyou may also terminate, suspend or restrict your use of the Service and access to Content in order to protect itself and its partners from what it believes to be fraudulent or illegal activity, or for any other reason in Vyou's sole discretion.
9. Claimed Copyright Infringement. If you believe that any Content or other material provided through the Service infringes your copyright, you should notify Vyou of your infringement claim via one of the methods described in Section 17.
10. Software Updates. Vyou reserves the right to automatically update the Service, including bug fixes and updates, changes in the user interface or how you access content, and other changes that may add, alter or remove functionalities and features, and you consent to Vyou providing automatic background upgrades and updates to Vyou Channel applications installed on your devices for those purposes. You acknowledge that these updates may happen automatically at any time (and that they cannot be disabled by you). You understand that these updates may be necessary to maintain compatibility with other updates to our products or services and may be required for security reasons. By using the Service, you hereby agree to receive such updates. You may withdraw your consent at any time to automatic background upgrades and updates by uninstalling or removing Vyou Channel from your devices.
11. Advertising and Promotional Messages.
11.1. Third Party Platforms. Without limiting Sections 5.1 or 5.2 of these Terms, Vyou takes no responsibility for third-party platforms or devices (including websites and other applications) that make the Service available ("Third-Party Platforms"), including for the content, materials, advertisements or activities thereon, or for the activities of their operators. These Terms do not govern your use of any Third-Party Platforms. By using the Service, you expressly relieve Vyou from any and all liability arising from your use of any Third-Party Platforms.
11.2. Advertising and Promotional Messages. Vyou's Content providers and operators of Third-Party Platforms may deliver and display advertising and promotional messages to you in connection with the Service, and may include such advertising and promotional messages in or with any user interface, notice, or Content that is displayed on the Service. Any interaction, transaction or agreement you have with third parties as a result of the advertising and promotional messages displayed to you is entirely between you and such third parties. Vyou is not responsible or liable for any claims, damages, losses or injuries arising from your interactions with such third parties.
11.3. Disclaimer. Vyou takes no responsibility for the products or services provided by advertisers. Any dealings you have with advertisers while using the Service, including through engaging with interactive advertisements, are between you and the advertiser, and you agree that Vyou is not liable for any loss or claim that you may have against an advertiser. If you provide any confidential or personal information or engage in any transaction through an advertisement, Vyou is not responsible for such information or transaction.
12. Warranty Disclaimer; Limitation on Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW:
12.1. Warranty Disclaimer. THE SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE" WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. VYOU DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT THE SERVICE WILL BE: (a) UNINTERRUPTED, SECURE, VIRUS-FREE OR ERROR-FREE, OR (b) FREE FROM ATTACK OR SECURITY INTRUSION;
12.2. Limitation of Liability. IN NO EVENT SHALL VYOU, ITS DIRECTORS, OFFICERS OR EMPLOYEES BE LIABLE TO YOU FOR PERSONAL INJURY OR PROPERTY DAMAGE, OR ANY DIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF YOUR USE OF THE VYOU SERVICE, HOWEVER CAUSED (INCLUDING NEGLIGENCE). IN ADDITION, THE TOTAL CUMULATIVE LIABILITY OF VYOU, ITS DIRECTORS, OFFICERS AND EMPLOYEES UNDER THESE TERMS OF SERVICE, INCLUDING LIABILITY RELATING TO THE SERVICE, SHALL NOT EXCEED THE GREATER OF (A) US $25 AND (B) THE AMOUNTS PAID BY YOU FOR THE SERVICE DURING THE SIX MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE REMEDY PROVIDED HEREIN FAILS ITS ESSENTIAL PURPOSE AND EVEN IF VYOU ITS DIRECTORS, OFFICERS OR EMPLOYEES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY.
12.3. SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS OF CERTAIN WARRANTIES OR LIMITATIONS OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SO SOME OF THE ABOVE LIMITATIONS IN THIS SECTION 12 MAY NOT APPLY. NOTHING IN THESE TERMS OF USE SHALL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU, AND YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
13. Choice of Law; Dispute Resolution.
13.1. California Law. In all cases, including if you are a resident of the United States (and its possessions and territories) or Canada, you agree that these Terms of Service shall be governed by the laws of the State of California without regard to any conflict of laws principles that may provide the application of the law of another jurisdiction.
13.2. Claims. You and Vyou agree to be bound by the procedures set forth below to resolve any and all claims arising out of or relating to any aspect of these Terms of Service, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory. Each such claim is referred to individually as "Claim" and collectively as "Claims".
13.3. Agreement to Arbitrate. You and Vyou agree that, except for the Claims identified in Section 13.5 of these Terms, any and all Claims shall be finally settled by binding arbitration. The arbitration shall take place in Santa Clara County, California and shall be administered by the American Arbitration Association ("AAA") pursuant to the AAA's then-current Consumer Arbitration Rules, which can be found at www.adr.org or by calling 800-778-7879. The arbitrator has the authority to decide all issues of arbitrability. Please be aware there is no judge or jury in arbitration. Arbitration procedures are often simpler and more limited than the rules applicable in court, and review of the arbitrator's decision by a court is limited. YOU AND VYOU FURTHER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. The arbitrator may not consolidate or join more than one person's claim and may not preside over any consolidated, representative or class proceeding. Also, the arbitrator may award relief (including monetary, injunctive or declaratory relief) only on an individual basis and may not award any form of consolidated, representative or class-wide relief. Notwithstanding any provision in these Terms to the contrary, if the class-action waiver in this provision is deemed invalid or unenforceable, or if an arbitration is allowed to proceed on a class basis, then neither you nor Vyou are entitled to arbitrate the Claims. This arbitration provision is subject to the Federal Arbitration Act. The arbitrator's award shall be binding on you and Vyou, and may be entered in any court of competent jurisdiction.
13.4. Fees and Costs. Information on AAA and how arbitration is initiated can be found at www.adr.org or by calling 800-778-7879. For Claims of $75,000 or less, you will be responsible for the initial arbitration filing fee, up to the amount of the initial filing fee if you were to initiate a lawsuit against Vyou based on such Claims in court. If the arbitrator finds such Claims to be non-frivolous, Vyou will pay any difference in such filing fees plus the arbitrator fees. For Claims in excess of $75,000, if you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Vyou will pay as much of your actual filing fees and the arbitrator fees for the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation.
13.5. Exclusions. This agreement to arbitrate does not apply to any Claim (a) in which a party is attempting to protect its intellectual property rights (such as its patent, copyright, trademark, trade secret, or moral rights, but not including its privacy or publicity rights), or (b) that may be brought in small-claims court.
13.6. Jurisdiction. If the agreement to arbitrate in this provision is found to be invalid, unenforceable or inapplicable to a given Claim, then any and all proceedings to resolve such Claim must be brought exclusively in a federal court of competent jurisdiction in the Northern District of California or in a state court in Santa Clara County, California. You hereby irrevocably consent to the exclusive jurisdiction and venue of such courts.
13.7. 30-Day Right to Opt Out. You have the right to opt out of this agreement to arbitrate by sending a written notice of your decision to opt out to the following address: Legal Department, Vyou Inc., 950 Battery Street, Floor 2, San Francisco, CA 94111; provided that, such notice must be postmarked on or before the 30th day after the date you create your Vyou Account if you do not already have one. If you have an existing Vyou account, all devices you choose to link to your Vyou account, and all Vyou Services accessed using these devices, will be subject to this agreement to arbitrate. Your notice should include your full name, your current postal address, telephone number and email address, the product name and serial number for your Vyou device, and a copy of the original proof of purchase for such Vyou device. For the avoidance of doubt, you agree to be bound by this agreement to arbitrate unless you timely send a notice in compliance with this Section 13.7. If you do timely send such a notice, then neither you nor Vyou will be bound by this arbitration agreement.
13.8. Changes. Notwithstanding any provision in this Agreement to the contrary, you agree that, if Vyou seeks to delete or materially modify the agreement to arbitrate described herein, any such deletion or modification will not apply to any individual Claim that has accrued prior to such modification.
14. Term for Causes of Action. Except where prohibited by applicable law, any claim or cause of action arising out of or relating to these Terms or your use of the Service must be commenced, either by you or Vyou (as applicable), within one year after such claim or cause of action arose or be forever barred.
15. Third-Party Beneficiaries. You acknowledge that each of Vyou's Content providers and each operator of a Third-Party Platform is a third-party beneficiary of the provisions under Sections 12, 13 and 14 of these Terms, with the right to enforce those provisions against you as a third-party beneficiary thereof.
16. General Legal Provisions.
16.1. Software and the transmission of applicable technical data, if any, in connection with the Service are subject to export controls. You agree to comply with all applicable laws regarding software and the transmission of technical data exported from the United States or the country in which you reside.
16.2. Vyou may transfer its rights and obligations under these Terms of Service to another organization. You may only transfer your rights or your obligations under these Terms of Service to another person if Vyou agrees in writing. These Terms of Service are between you and Vyou. No other person shall have any rights to enforce these terms. Each of the provisions of these Terms of Service operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining provisions will remain in full force and effect. If Vyou fails to insist that you perform any of your obligations under these Terms of Service, or if Vyou does not enforce its rights against you, or if Vyou delays in doing so, that will not mean that Vyou has waived its rights against you, or that you do not have to comply with those obligations. If Vyou does waive a default by you, Vyou will only do so in writing, but that will not mean that Vyou will automatically waive any later default by you. Except as otherwise explicitly stated in these Terms, nothing in these Terms shall be deemed to confer any third-party rights or benefits.
16.3. The Service is controlled and offered by Vyou from its facilities in the United States of America, and is being made available to users in the United States and Canada. The Service may be available in other countries, subject to change at any time.
17. Contact Information. If you wish to contact Vyou, please send your correspondence by mail to Vyou Inc., 950 Battery Street, Floor 2, San Francisco, CA 94111, USA, or by email to vyou@vyouhdr.com. From time to time, we may communicate with you about the Service and these Terms electronically (e.g., emails to your registered email address, notices on the Vyou's site or the Service). You consent to receive electronic communications from Vyou and further agree that any notices, agreements, disclosures, and other communications that we send to you electronically will satisfy any applicable legal notification requirements.