Last Updated: October 9, 2013
Welcome to vizify.com (the "Site") provided by SteamFunk Labs Inc. (doing business, and hereinafter referred to as, "Vizify"). Any person who wishes to access the Site to submit, review or retrieve any content or to otherwise use any services or offerings made available through the Site (collectively, the "Services") must accept the terms and conditions of these Terms of Service (this "Agreement") without change.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE YOU USE THE SITE OR SERVICES. BY CLICKING ON THE "NEXT" BUTTON OR BY ACCESSING OR USING THE SITE OR SERVICES, YOU ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SITE OR SERVICES.
Vizify reserves the right to change any of the terms and conditions contained in this Agreement at any time and in our sole discretion. If we make changes to this Agreement, we will provide notice of such changes, such as by sending an email, posting a notice on the Site or updating the “Last Updated” date above. Your continued use of the Site and the Services following any revision to this Agreement will constitute your acceptance of the changes or modifications to the Agreement. If you do not agree to any changes to this Agreement, do not continue to use the Services or this Site.
This Agreement commences on the date you click "Next" or first access or use the Services, whichever occurs first (the "Effective Date"). You have the option of using a free version of the Services or a premium version.
If you sign up for the premium version of our Services, you will have access to additional features and functionality (for more details, see the pricing page). We reserve the right to charge fees for the premium version of the Services and to change the amount of, or basis for determining, such fees in our sole discretion. For more information about our fees, see the pricing page. Note that all prices are shown in U.S. dollars and that you will be responsible for any applicable sales taxes, duties or other governmental taxes or fees payable in connection with your purchase of a premium subscription. If you do not pay such taxes or fees, you will be responsible for such taxes or fees in the event that they are later determined to be payable. We reserve the right to collect such taxes or other fees from you at any time.
You have the option of paying for the premium version of our Services on a monthly or annual basis. If we discontinue or modify a subscription payment option, we will provide notice of such discontinuance or modification. You must affirmatively consent to the new payment terms in order to continue receiving the premium version of the Services. If you do not affirmatively consent, your subscription will be cancelled.
You agree to pay the subscription fees in advance of using the premium version of the Services, and we reserve the right to deactivate your subscription if payment is past due.
If you choose a payment plan that automatically renews at the end of a defined term, you hereby grant Vizify (or our designated payment processor) permission to automatically charge the subscription fee to your chosen payment method at the beginning of each applicable payment period (e.g., at the beginning of each month). Your subscription will continue until you notify Vizify of your desire to cancel by contacting us at [insert phone number, email address, postal address or some other cost-effective and easy-to-use mechanism for users to cancel their subscriptions].
You are required to keep your billing information current, complete and accurate and to notify Vizify if your selected payment method is cancelled (e.g., for loss or theft). In the event that the payment information you provide cannot be verified, is invalid or is otherwise not acceptable, we reserve the right to suspend or terminate your access to the premium version of our Services and any of your content stored therein. You are solely responsible for resolving any problem we encounter in order to proceed with your payment.
Use of the Site and the Services is limited to persons authorized to use the Services or the Site under the terms of this Agreement ("Users") that lawfully can enter into and form contracts under applicable law. Without limiting the generality of the foregoing, every person who uses the Services hereby represents to Vizify that he or she is at least eighteen (18) years old and may otherwise enter into and form binding contracts under applicable law. In addition, you are not permitted to make purchases from Vizify if you are (a) located in, under the control of, or a national or resident of any country to which the United States has embargoed goods or services, (b) identified as a "Specially Designated National," or (c) placed on the U.S. Department of Commerce's Denied Persons List or Entity List or any other U.S. export control list.
In some cases, such as when you sign up for the premium version of our Services, you may be asked to provide contact information about yourself (“Registration Data”). You agree to provide true, accurate, current and complete Registration Data and to maintain and promptly update such Registration Data, as necessary. If you provide any Registration Data that is untrue, inaccurate, not current or incomplete, or Vizify has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Vizify has the right to suspend or terminate your account and refuse you any and all current or future use of the Services (or any portion thereof).
Unless otherwise indicated, the Site, the Services and all content and other materials therein, including, without limitation, the Vizify logo, and all designs, text, graphics, pictures, information, data, software, music, sound files, other files and the selection and arrangement thereof (collectively, the "Vizify Materials") are the proprietary property of Vizify or our licensors or users, as applicable, and are protected by U.S. and international copyright laws. Vizify hereby grants you a limited, non-exclusive, non-transferable, worldwide right to access and use the Site, the Services and the Vizify Materials for your own internal benefit, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by Vizify. You may not access the Site or Services if you are a competitor of Vizify or for purposes of monitoring the availability, performance or functionality of the Site or Services, or for any other benchmarking or competitive purpose. You also agree not to: (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Site, the Services or the Vizify Materials in any way, including, without limitation, providing your User ID (as defined below) and password to any third party to allow such party to access and use the Site or Services; (b) modify or make derivative works based upon the Site, the Services or the Vizify Materials; (c) download or reproduce (other than the page caching) any portion of the Site, the Services or the Vizify Materials or any information contained therein, except as expressly permitted on the Site; (d) create Internet "links" to the Site or "frame" or "mirror" any portion of the Site on any other server or wireless or Internet-based device; (e) reverse engineer or access the Site, the Services or the Vizify Materials in order to (i) build a competitive product or service, or (ii) build a product using similar ideas, features, functions or graphics of the Site or Services; (f) use any data mining, robots or similar data gathering or extraction methods; or (g) use the Site, the Services or the Vizify Materials other than for their intended purpose. Any use of the Site, the Services or the Vizify Materials other than as specifically authorized herein, without the prior written permission of Vizify, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws including without limitation copyright and trademark laws and applicable communications regulations and statutes. Except for the limited license set forth in this paragraph, nothing in this Agreement shall be construed as conferring any license to or other rights in the Site, the Services, the Vizify Materials or any other intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time.
To use the Services, you must register to create an account with Vizify. To create an account, (a) you may be asked to establish a password and user name, or (b) alternatively, if supported by Vizify, you may be required to login using your account credentials from third party social network and/or identity providers (any such account credentials described in (a) or (b), your "User ID"). Your User ID is for your personal use only and you may not allow any other party to use your User ID. You are responsible for maintaining the confidentiality of your password, and are fully responsible for all activities that occur under your User ID. You agree to immediately notify Vizify of any unauthorized use of your password or User ID or any other breach of security of which you are aware. Vizify is not liable for any loss or damage arising from your failure to comply with this Section 5. You agree not to create multiple User IDs in an effort to obtain multiple rights to use the Services.
Vizify shall own all right, title and interest, including all related patents, patent applications, mask works, copyrights, moral rights, trade secrets, know-how and other proprietary rights ("Proprietary Rights"), in and to all of Vizify's proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by Vizify in providing the Site, the Services and the Vizify Materials. "Vizify," "Vizume," the Vizify logos and any other Vizify product or service name or slogan contained on the Site or Services are trademarks of Vizify (the "Vizify Marks"). Without Vizify's prior written permission, you agree not to display or use in any manner, the Vizify Marks.
Vizify does not claim ownership of any materials displayed or performed on the Site or Services by you, including, but not limited to text, graphics, news articles, photographs, images, illustrations, audio clips and video clips that you submit to the Site in the course of using the Services (including personal data obtained by or otherwise transferred to Vizify from any third party social network and/or identity providers) (collectively, "Submitted Content"). You, and not Vizify, shall have sole responsibility for backing up any Submitted Content and for the accuracy, quality, integrity, legality, reliability, appropriateness and Proprietary Rights or right to use all Submitted Content, and Vizify shall not be responsible for the deletion, correction, destruction, damage, loss or failure to store any Submitted Content. However, with respect to any Submitted Content, you hereby grant Vizify a worldwide, royalty-free, non-exclusive, perpetual, irrevocable and fully sublicensable license to use, store, distribute, reproduce, modify, adapt, publish, translate, create derivative works from, publicly perform and publicly display such Submitted Content (in whole or in part) and to incorporate such Submitted Content into other works throughout the world in any format or medium now known or later developed for the purposes of providing the Services to you, including without limitation the right to use your name, likeness, voice or identity.
In the event this Agreement is terminated (other than by reason of your breach), Vizify may allow you to retrieve any applicable Submitted Content upon written request within thirty (30) days following such termination. However, Vizify may in our sole discretion refuse any such requests and remove or discard any Submitted Content at any time without notice and in our sole discretion. Vizify shall not be liable or responsible for any losses or damages caused by removal or deletion of Submitted Content.
You shall at all times comply with any Vizify guidelines communicated or made available to you related to the Site or Services. You understand that all Submitted Content, whether publicly posted or privately transmitted, is the sole responsibility of the person from whom such Submitted Content originated. This means that you, and not Vizify, are entirely responsible for all Submitted Content that you upload, post, transmit, or otherwise make available via the Site or Services. Vizify does not control the Submitted Content posted via the Services and, as such, does not guarantee the accuracy, integrity, or quality of such Submitted Content. You understand that by using the Services, you may be exposed to Submitted Content that is offensive, indecent, or objectionable. Under no circumstances will Vizify be liable in any way for any Submitted Content, including, but not limited to, for any errors or omissions in any Submitted Content, or for any loss or damage of any kind incurred as a result of the use of any Submitted Content posted, transmitted or otherwise made available via the Site or the Services.
In addition to any additional restrictions communicated or made available to you by Vizify, you also agree to not use the Services to:
Enforcement of the user conduct rules set forth in this Section is solely at Vizify's discretion, and failure to enforce such rules in some instances does not constitute a waiver of our right to enforce such rules in other instances. In addition, these rules do not create any private right of action on the part of any third party or any reasonable expectation that the Site or Services will not contain any Submitted Content that is prohibited by such rules. You acknowledge, consent and agree that Vizify may access, preserve and disclose your account information and Submitted Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the terms of this Agreement; (c) respond to claims that any Submitted Content violates the rights of third parties; (d) respond to your requests for customer service; or (e) protect the rights, property or personal safety of Vizify, our users and the public.
Separate and apart from Submitted Content, you may submit questions, comments, suggestions, ideas, plans, notes, drawings, original or creative materials or other information about Vizify, the Site or the Services (collectively, "Feedback"). Feedback, whether posted to the Site or the Services or provided to Vizify by email or otherwise, are non-confidential and shall become the sole property of Vizify. Vizify shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
During your use of the Site or Services, you may enter into correspondence or agreements with, purchase goods and/or services from, or participate in promotions of other third parties. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third party. Vizify shall not be liable or responsible for any losses or damages caused by such activity.
Either you or Vizify may terminate this Agreement at any time by notifying the other party in writing (including via email communication). Vizify shall be entitled to terminate this Agreement, and also terminate or suspend any and all Services and your access to the Site immediately in Vizify's reasonable discretion, without prior notice or liability, if you fall under any of the following items:
Upon termination of your account, your right to access the Site and use the Services will immediately cease. Sections 4, 6, 7, 9 through 19 shall survive termination of this Agreement for any reason.
The Site may provide, or third parties may provide, links to or portions of other third party sites, content or resources ("Third Party Content"). Because Vizify has no control over Third Party Content, you acknowledge and agree that Vizify is not responsible for the availability of such Third Party Content, and does not endorse and is not responsible or liable for any advertising, products, or other materials on or available from such Third Party Content. You further acknowledge and agree that Vizify shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Third Party Content.
You agree to indemnify and hold Vizify, and our subsidiaries, affiliates, shareholders, officers, agents, and employees, harmless from any claims, damages, costs, liabilities, expenses or demands, including without limitation reasonable attorneys' fees, made by any third party due to or arising out of (a) Submitted Content and Feedback you submit, post, transmit or otherwise make available, (b) your access or use of the Site, the Services or the Vizify Materials, (c) your violation of this Agreement, including, without limitation, the restrictions in Section 8 above, (d) your conduct in connection with the Site or the Services, or (e) your violation of any applicable law or infringement of any intellectual property or other right of any other person or entity.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
(a) YOUR USE OF THE SITE AND THE SERVICES IS AT YOUR SOLE RISK. THE SITE, THE SERVICES AND THE VIZIFY MATERIALS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. VIZIFY 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 AND NON-INFRINGEMENT.
(b) VIZIFY MAKES NO WARRANTY THAT (I) THE SERVICES WILL MEET YOUR REQUIREMENTS, (II) THE SERVICES WILL BE UNINTERRUPTED, AVAILABLE, TIMELY, SECURE, OR ERROR-FREE, OR (III) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS.
(c) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH YOUR USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
(d) VIZIFY MAKES NO WARRANTY THAT ANY OF YOUR SUBMITTED CONTENT WILL NOT BE LOST OR BECOME IRRETRIEVABLE. FOR THIS AND OTHER REASONS, YOU ACKNOWLEDGE AND UNDERSTAND THE IMPORTANCE OF BACKING UP ALL SUBMITTED CONTENT AND FILES TO ANOTHER STORAGE MECHANISM PRIOR TO USE OF THE SERVICES. YOU UNDERSTAND AND ACCEPT THE RISKS IF YOU DECIDE NOT TO BACK UP SUBMITTED CONTENT AND FILES. NEITHER VIZIFY NOR OUR AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS OR CONTRACTORS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OF ANY SUBMITTED CONTENT, FILES OR DATA.
Electronic Communications Privacy Act Notice (18 U.S.C. §§2701-2711): VIZIFY MAKES NO GUARANTY OF CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION TRANSMITTED ON THE SITE OR ANY WEB SITE LINKED TO THE SITE. Vizify will not be liable for the privacy of email addresses, registration and identification information, disk space, communications, confidential or trade-secret information, or any other Submitted Content stored on Vizify's equipment, transmitted over networks accessed by the Site, or otherwise connected with your use of the Services.
The Services may be subject to limitations, delays and other problems inherent in the use of the Internet and electronic communications. Vizify is not responsible for any delays, delivery failures, or other damages resulting from such problems, including, without limitation, problems in the transmission of data between the Site and your web browser.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT VIZIFY SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE (EVEN IF VIZIFY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SITE OR THE SERVICES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE; OR (v) ANY OTHER MATTER RELATING TO THE SITE OR THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
You agree that, except as otherwise expressly provided in this Agreement, there shall be no third-party beneficiaries to this Agreement.
Vizify respects the intellectual property of others, and we ask our Users to do the same. In accordance with the Digital Millennium Copyright Act ("DMCA") and other applicable law, Vizify has adopted a policy of terminating, in appropriate circumstances and at Vizify's sole discretion Users who are deemed to be repeat infringers. Vizify may also in our sole discretion limit access to the Site and/or terminate the accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
If you believe that anything on the Site or the Services infringes upon any copyright which you own or control, you may file a notification of such infringement with our Designated Agent as set forth below:
Attn: Legal Support, DMCA Notices STEAMFUNK LABS INC. 812 SW Washington St. Suite 800 Portland, OR 97205 503.893.9078 firstname.lastname@example.org
Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. You should note that if you knowingly misrepresent in your notification that the material or activity is infringing, you will be liable for any damages, including costs and attorneys' fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
19.1 Entire Agreement. This Agreement constitutes the entire agreement between you and Vizify and governs your use of the Site and the Services, superseding any prior agreements between you and Vizify with respect to the Site and the Services.
19.2 Arbitration and Choice of Law . PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH VIZIFY AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM VIZIFY.
You and Vizify agree to arbitrate any dispute arising from this Agreement or your use of the Site or Services, except that you and Vizify are not required to arbitrate any dispute in which either party seeks equitable and other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. ARBITRATION PREVENTS YOU FROM SUING IN COURT OR FROM HAVING A JURY TRIAL. You and Vizify agree that you will notify each other in writing of any dispute within thirty (30) days of when it arises. Notice to Vizify shall be sent to: Vizify, 812 SW Washington St, Suite 800, Portland, OR 97205. You and Vizify further agree: to attempt informal resolution prior to any demand for arbitration; that any arbitration will occur in Multnomah County, Oregon; that arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of JAMS; and that the state or federal courts in Multnomah County, Oregon have exclusive jurisdiction over any appeals of an arbitration award and over any suit between the parties not subject to arbitration. Other than class procedures and remedies discussed below, the arbitrator has the authority to grant any remedy that would otherwise be available in court. Any dispute between the parties will be governed by this Agreement and the laws of the State of Oregon and applicable United States law, without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction. Whether the dispute is heard in arbitration or in court, you and Vizify will not commence against the other a class action, class arbitration or other representative action or proceeding.
19.3 Waiver and Severability of Terms. The failure of Vizify to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
19.4 Assignment. This Agreement is not assignable, transferable or sublicensable by you except with Vizify's prior written consent. Any attempt to assign or transfer in violation of the foregoing shall be null and void. Vizify shall be entitled to transfer this Agreement and/or any rights and obligations under this Agreement for any reason including, without limitation, in connection with the acquisition of all or substantially of our capital stock or assets, whether by merger, operation of law or otherwise.
19.5 Force Majeure. Vizify shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond Vizify's reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including "line-noise" interference), fire, power cut, hacking, attack of computer virus, earthquake, flood, war, embargo, strike, riot, inability to secure materials and transportation facilities, or the intervention of any governmental authority.