Last updated: October 25, 2013
Thank you for installing VIDIOLY – Shop with Friends, a service of OpenClove, Inc., a Texas based corporation (collectively, “OpenClove”, “we,” “our,” or “us”). Vidioly is a social video and audio chat application (“Service”) embedded in your store front (“Customer Store”) via Yahoo Commerce Central. The Service is made available for use by end users, visitors or buyers (“Users”) visiting and using the Customer Store for personal communications while utilizing the Customer Store. Vidioly Service is offered as a free subscription with limited usage for a single Customer Store use only.
We may make changes to these Terms from time to time. When we do, we will revise the “last updated” date given above. It is your responsibility to review these Terms frequently and to remain informed of any changes to them. The then-current version of these Terms will supersede all earlier versions. You agree that your continued use of our Services after such changes have been published to our Services will constitute your acceptance of such revised Terms.
License to Use our Services
Subject to these Terms, we grant to you a limited, personal, non-exclusive, non-transferable license to use our Services for your personal use and not for resale or further distribution. Your right to use our Services is limited by all terms and conditions set forth in these Terms.
Except for your pre-existing rights and this license granted to you, we and our licensors retain all right, title and interest in and to our Services, including all related intellectual property rights. Our Services are protected by applicable intellectual property laws, including United States copyright law and international treaties.
Except as otherwise explicitly provided in these Terms or as may be expressly permitted by applicable law, you will not, and will not permit or authorize any third party to: (i) reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer or create derivative works of any of our Services; (ii) rent, lease or sublicense access to any of our Services; or (iii) circumvent or disable any security or technological features or measures of our Services.
Access to our Services
This agreement provides Customer access and usage of the Vidioly Service using OpenClove’s cloud-based video communication platform for the use within the Customer’s store or application (Customer App). OpenClove will provide this functionality through the Internet within a hosted server environment under the terms below. We do not provide you with the equipment to access our Services.
You are responsible for all fees charged by third parties related to your access and use of our Services (e.g., charges by Internet service providers, hosting, store front, development).
We reserve the right to modify or discontinue, temporarily or permanently, all or any portion of our Services without notice. We will not be liable to you or to any third party for any modification, suspension, or discontinuance of all or any portion of our Services.
We also reserve the right, in our sole discretion, to reject, refuse to post, or remove any material that you post or submit for posting, and to restrict, suspend, or terminate your access to our Services at any time, for any or no reason, with or without prior notice, and without liability.
Limited and Fair Use Policy
Subject to this FUP, Vidioly’ free subscriptions allow 2000 calls or 10,000 minutes of video and audio calling per store per month. All calls will be disconnected and require a re-connection after a 30 minute duration or 10 minutes after detection of last activity on the Customer Store. Once the limits are exhausted, OpenClove may not allow further Vidioly Service and may contact the Customer to upgrade to a paid subscription service.
This FUP is also designed to prevent fraud and abuse of our subscriptions by a small number of users. The following is a non-exhaustive list of practices that would not be considered Legitimate Use: (i) Re-selling subscription minutes;
(ii) Sharing subscriptions across multiple Customer App by any means;
(iii) Using subscriptions for business purposes, store marketing, store agent engagement, telemarketing or call center operations;
(iv) Unusual calling patterns inconsistent with normal, individual subscription use, for example, regular calls of short duration or calls to multiple numbers in a short period of time.
Use of Service
Customer Data. Customer grants OpenClove the right to use the binary, text, audio, video (“Customer Data”) processed through the service solely for purposes of performing under this agreement. Customer Data must comply with the Video Privacy Protection Act (VPPA), and obtain any opt-in consent necessary from users so that user data subject to the VPPA may be shared. Any Customer Data which is acquired from 3rd party must carry appropriate content rights, and comply with all necessary laws required for sending and receiving such data (binary, text, audio, video).
Customer Responsibilities. Customer (i) is solely responsible for the Customer Data and all activity in its account in the Service; (ii) is solely responsible for ensuring that Customer has the right to use, transmit and store all Customer Data; (iii) may use the Service only in accordance with applicable law, (iv) Customer will not sell, transfer, or sublicense the Service to any third party.
Customer is solely responsible for payment of all license fees imposed on Customer or OpenClove in connection with the use of any third party software in the Customer Store, or any content.
You must comply with all applicable laws when using our Services. Except as may be expressly permitted by applicable law, or as Lexity may authorize expressly in writing, you will not, and will not permit anyone else to: (i) store, copy, modify, distribute, or resell any of the information; audio, visual, and audiovisual works, or other content made available on our Services (collectively, “Service Content”) or compile or collect any Service Content as part of a database or other work; (ii) use any automated tool (e.g., robots, spiders) to access or use our Services or to store, copy, modify, distribute, or resell any Service Content; (iii) rent, lease, or sublicense your access to our Services to another person; (iv) use any Services or Service Content for any purpose except for your own personal use; (v) circumvent or disable any digital rights management, usage rules, or other security features of our Services; (vi) use our Services in a manner that overburdens, or that threatens the integrity, performance, or availability of, our Services; or (vii) remove, alter, or obscure any proprietary notices (including copyright and trademark notices) on any portion of our Services or any Service Content.
We may collect registration and other information about you and your Users through our Services or third parties (e.g. Yahoo Commerce Central) for the sole purpose of providing the Services. We use information to enhance, improve, operate, and maintain our Services, and our other systems and resources; to bill for our services and collect amounts owed to us; to prevent fraudulent use of our Site and our Services; to tailor your Users experience; to maintain a record of our dealings with you, and for other administrative purposes.
We are not in the business of selling personal information about our users to third parties.
By downloading, installing and using our Service on your Customer Store for your Users, you consent to the collection and use of information in accordance with this policy.
YOUR USE OF THE SERVICES AND SERVICE CONTENT IS AT YOUR SOLE RISK. THE SERVICE AND SERVICE CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
OPENCLOVE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. WE DO NOT GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF THE SERVICES OR THE SERVICE CONTENT, AND YOU RELY ON THE SERVICES AND THE SERVICE CONTENT AT YOUR OWN RISK. ANY MATERIAL OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM OPENCLOVE OR OTHERWISE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. SOME STATES MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE.
DISCLAIMER OF THIRD PARTY ACTIONS. OPENCLOVE DOES NOT CONTROL THE FLOW OF DATA WITHIN THE SERVICE OR THE CUSTOMER STORE, AND THIRD PARTIES CAN IMPAIR OR DISRUPT THE PERFORMANCE OF THE SERVICE. WHILE OPENCLOVE USES COMMERCIALLY REASONABLE EFFORTS TO AVOID SUCH EVENTS, OPENCLOVE CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. AS A RESULT, OPENCLOVE DISCLAIMS ALL LIABILITY RELATED TO SUCH EVENTS.
Restricted Areas of the Services
Certain parts of our Services, including account management features, may be password-restricted to registered users or other authorized persons (“Password-Protected Areas”). If you are authorized to gain access to any Password-Protected Areas, you agree that you are entirely responsible for maintaining the confidentiality of your password, and agree to notify us if the password is lost, stolen, disclosed to an unauthorized third party, or otherwise may have been compromised. You agree that you are entirely responsible for any and all activities that occur under your account, whether or not you are the individual who undertakes such activities. You agree to immediately notify us of any unauthorized use of your account or any other breach of security in relation to your password or our Services that is known to you.
You are solely responsible for any content and other material that you submit, publish, transmit, or display on, through, or with our Services.
You will not use our Services to: (i) upload, post, email, or otherwise transmit any Submission that contains unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; (ii) harm us or third parties in any way; (iii) impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity; (iv) upload, post, email, or otherwise transmit any Submission that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (v) upload, post, email or otherwise transmit any Submission that infringes any patent, trademark, trade secret, copyright, or other right of any party; (vi) upload, post, email, or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other forms of solicitation; (vii) upload, post, email, or otherwise transmit any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (viii) interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services; (ix) intentionally or unintentionally violate any applicable local, state, national or international law or regulation; (x) “stalk” or otherwise harass another; or (xi) collect or store personal data about other users.
a. Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). OpenClove’s Confidential Information includes without limitation the Service, and Licensed Software and Documentation, (including without limitation the Service user interface design and layout, and pricing information).
b. Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.
c. Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser, (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser, (iii) is received from a third party without breach of any obligation owed to Discloser, or (iv) was independently developed by the Recipient without use or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.
a. Reservation of Rights. The software, workflow processes, user interface, designs, know-how, Licensed Software and Documentation (defined below), and other technologies provided by OpenClove as part of the Service are the proprietary property of OpenClove and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with OpenClove. OpenClove reserves all rights unless expressly granted in this agreement.
b. Restrictions. Customer may not (i) sell, resell, rent or lease the Service or use it in a service provider capacity; (ii) use the Service to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise objectionable, unlawful or tortious material, or to store or transmit material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Service or their related systems or networks; (v) reverse engineer the Service or the Licensed Software and Documentation; or (vi) access the Service or use the Licensed Software and Documentation to build a competitive service or product, or copy any feature, function or graphic for competitive purposes.
c. Licensed Software and Documentation. All software provided by OpenClove as part of the Service, and the Service documentation, sample data, marketing materials, training material and other material provided through the Service or by OpenClove (Licensed Software and Documentation) are licensed to Customer as follows: OpenClove grants Customer a non-exclusive, license during the Term, to such Licensed Software and Documentation, for use solely with the Service.
6. TERM AND TERMINATION
a. Term. This agreement continues until the Customer has uninstalled the Service from its Customer Store (Term).
b. Mutual Termination for Material Breach, Bankruptcy. If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 30-day notice/cure period, if the breach has not been cured. If either party becomes the subject of a voluntary or involuntary petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors and such petition or proceeding is not dismissed within 60 calendar days of filing, the other party may terminate this agreement.
c. Return or Destroy OpenClove Property Upon Termination. Upon termination of this agreement for any reason, OpenClove will stop providing the applicable Service and Customer must pay OpenClove for any unpaid amounts, and destroy or return all property of OpenClove. Customer will confirm its compliance with this destruction or return requirement in writing upon request of OpenClove.
d. Suspension of Service for Violations of Law. OpenClove may temporarily suspend the Service if as part of using the Service, if Customer has violated any law. OpenClove will attempt to contact Customer in advance, but no prior notice or consent is required.
EXCLUSION OF INDIRECT DAMAGES. OPENCLOVE IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, COSTS OF DELAY; LOSS OF DATA, RECORDS OR INFORMATION; LOST PROFITS AND ANY FAILURE OF DELIVERY OF THE SERVICE).
TOTAL LIMIT ON LIABILITY. OPENCLOVE’S LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT OR OTHERWISE) DOES NOT EXCEED THE ACTUAL AMOUNT PAID BY CUSTOMER WITHIN THE PRECEDING 12 MONTHS UNDER THIS AGREEMENT.
a. Defense of Third Party Infringement Claims by OpenClove. OpenClove must defend or settle any third party claims against Customer alleging that the Service violates a copyright, patent, trademark or other intellectual property right, if Customer:
• Promptly notifies OpenClove of the claim in writing;
• Cooperates with OpenClove in the defense; and
• Allows OpenClove to solely control the defense or settlement of the claim.
Remedies. If such a claim appears likely, then OpenClove may modify the Service, procure the necessary rights, or replace it with the functional equivalent. If OpenClove determines that none of these are reasonable available, then OpenClove may terminate the Service and refund any prepaid and unused fees.
Exclusions. OpenClove has no obligation for any claim arising from:
• OpenClove’s compliance with Customer’s designs, specification, instructions, or technical information;
• Any of the Customer Data, or the use of Customer Data;
• The Customer Store;
• Any content or information being managed by the Service;
• Any industry standard practices relating to the management, distribution or promotion of web services or Customer Store;
• A combination of the Service with other technology where the infringement would not occur but for the combination; or
• Technology not provided by OpenClove.
This section contains Customer’s exclusive remedies and OpenClove’s sole liability for intellectual property infringement claims.
b. Defense of Third Party Claims by Customer. Customer must defend or settle any third party claims against OpenClove alleging that the Customer Data violates any intellectual property or other third party right if OpenClove
• Promptly notifies Customer of the claim in writing;
• Cooperates with Customer in the defense; and
• Allows Customer to solely control the defense or settlement of the claim.
Customer must pay all claim defense costs, Customer negotiated settlement amounts and court awarded damages.
9. Quality: A number of factors may impact the quality of video communications and use of the Service, and may result in the failure of communications using the Customer App including but not limited to: user’s local network, firewall, internet service provider, the public internet, device performance and its power supply. OpenClove takes no responsibility for any disruption, interruption or delay caused by any failure of or inadequacy in any of these items or any other items over which we have no control.
GOVERNING LAW AND FORUM
This agreement is governed by the laws of the State of Texas, USA, without regard to conflict of law principles. Any dispute arising out of or related to this agreement may only be brought in the state and federal courts for Collin County, TX. Both parties consent to the personal jurisdiction of such courts and waive any claim that it is an inconvenient forum. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys’ fees and costs from the other party.
a. Electronic Notice. For purposes of operational messages and notices about the Service, OpenClove may send email notices to the email address associated with Customer's account.
b. Entire Agreement and Changes. This agreement and the Order Form constitute the entire agreement between the parties, and supersede all prior or contemporaneous negotiations, agreements and representations, whether oral or written, related to this subject matter. No modification of this agreement is effective unless both parties sign it, and no waiver is effective unless the party waiving the right signs a waiver in writing.
c. Marketing. Each party may publicly refer to the other as a customer/vendor of the other and may publish the other’s name and logo on its website or promotional materials. Customer consents to the inclusion of Customer’s logo on OpenClove’s website. Customer will participate in press releases, case studies and other promotional activities as reasonably requested by OpenClove. Any other reference to either party by the other requires the written consent of the party being referred to. All uses of each party’s trademarks must be in compliance with such party’s trademark guidelines and policies.
d. No Assignment. Neither party may assign or transfer this agreement or an Order Form to a third party, except that this agreement with all Order Forms may be assigned as part of a merger, or sale of all or substantially all of the business or assets, of a party.
e. Independent Contractors. The parties are independent contractors with respect to each other.
f. Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Neither party is liable for force majeure events.
g. Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach.
h. No Additional Terms. OpenClove rejects additional or conflicting terms of any Customer form-purchasing document.
i. Order of Precedence. If there is an inconsistency between this agreement and an Order Form, the Order Form prevails.
j. Feedback. By submitting ideas, suggestions or feedback to OpenClove regarding the Service, Customer agrees that: such items submitted do not contain confidential or proprietary information; and Customer hereby grants OpenClove an irrevocable, royalty-free and full paid perpetual license to use such items for any business purpose.
k. Aggregate Data. OpenClove may use, during and after this agreement, all aggregate non-identifiable data in the Services for purposes of enhancing the Services, technical support and other business purposes.
l. Survival of Terms, and CISG Disclaimer and Export Control Compliance. Any terms that by their nature survive termination or expiration of this agreement, will survive. The UN Convention on Contracts for the International Sale of Goods does not apply. Each party will comply with applicable export control laws when performing under this agreement.