LAST REVISED ON: MARCH 14TH, 2023
IF YOU SUBSCRIBE TO A PREMIUM ACCOUNT (DEFINED IN SECTION 2) OR OTHER SUBSCRIPTIONS WE MAKE AVAILABLE TO YOU, THEN YOUR SUBSCRIPTION WILL BE AUTOMATICALLY RENEWED ON A MONTHLY, YEARLY, OR ANY OTHER BASIS DEPENDING ON THE SUBSCRIPTION YOU SELECT AT VIZCOM’S THEN-CURRENT SUBSCRIPTION FEE FOR THE SUBSCRIBED SERVICES, UNLESS YOU OPT OUT OF THE AUTO-RENEWAL IN ACCORDANCE WITH THE SUBSCRIPTION TERMS IN SECTION 5 BELOW.
IMPORTANT INFORMATION ABOUT ARBITRATION, CONSENTS, AND UPDATES TO THE AGREEMENT
PLEASE BE AWARE THAT SECTION 16 OF THESE TERMS CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND VIZCOM HAVE AGAINST EACH OTHER WILL BE RESOLVED, INCLUDING WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THE AGREEMENT. SECTION 16 CONTAINS, AMONG OTHER THINGS, AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND VIZCOM BE RESOLVED BY BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE AGREEMENT TO ARBITRATE WITHIN THIRTY (30) DAYS OF THE EFFECTIVE DATE OF THE AGREEMENT: (I) YOU AND VIZCOM WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST THE OTHER PARTY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND EACH OF US WAIVES OUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (II) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
PLEASE BE AWARE THAT SECTION 8 OF THE AGREEMENT BELOW CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING VIA E-MAILS, TEXT MESSAGES, CALLS, AND PUSH NOTIFICATIONS.
CHANGES TO THESE TERMS
PLEASE NOTE THAT THE AGREEMENT IS SUBJECT TO CHANGE BY VIZCOM IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Vizcom will make a new copy of the Terms available on the Site and within the App, and any new Supplemental Terms will be made available from within, or through, the affected Service on the Site or within the App. We will also update the “Last Revised” date at the top of the Terms. If we make any material changes, and you have registered with us to create an Account (as defined in Section 2.1), we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Agreement. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of receiving the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to the Agreement will be effective immediately for new users of the Site, the App, and/ or Services and will be effective thirty (30) days after posting notice of such changes on the Site for existing users, provided that any material changes shall be effective for users who have an Account with us upon the earlier of thirty (30) days after posting notice of such changes on the Site or thirty (30) days after dispatch of an e-mail notice of such changes to registered users. Vizcom may require you to provide consent to the updated Agreement in a specified manner before further use of the Site, the App, and/ or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Site, the App and/or the Services. Otherwise, your continued use of the Site, the App and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
1. HOW THE SERVICES WORK. Vizcom offers a platform that is designed to allow users to draw or import content, such as a line drawing or a sketch, and generate 2D or 3D designs by utilizing Vizcom’s AI technology (“Designs”).
1.1 Teams. Users may create shared, virtual workspaces on the App (“Teams”) and invite other users on the Apps to view and collaborate on content within the Team (“Collaborators”). Users may organize Designs by creating “Projects” and share Projects with Collaborators within their Teams.
1.2 Premium Accounts. Certain features of the Service, such as additional drawing tools and unlimited Teams, are only available to Premium Accounts (defined below) for additional fees as described in Section 5.
1.3 Beta Services. Vizcom may, from time to time, offer access to services that are classified as a trial or beta version (“Beta Services”). Access to and use of Beta Services may be subject to additional agreements. Vizcom makes no representations that Beta Services will ever be made generally available and reserves the right to discontinue or modify Beta Services at any time without notice. Beta Services are provided AS IS and WITH ALL FAULTS, and may contain bugs, errors, or other defects. Your use of any Beta Services is at your sole risk.
2. REGISTRATION AND ACCOUNTS
2.2 Third-Party Service. If you access the Services through a third-party service, such as a Google account, (“TPS”) as part of the functionality of the Services, you may link your Account with a TPS by allowing Vizcom to access your TPS, as is permitted under the applicable terms and conditions that govern your use of each TPS. You represent that you are entitled to grant Vizcom access to your TPS account (including, for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable TPS. By granting Vizcom access to any TPS accounts, you understand that Vizcom may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags, and/or other materials accessible through the Services (collectively, “Content”) that you have provided to and stored in your TPS account (“TPS Content”) so that it is available on and through the Services. Unless otherwise specified in this Agreement, all TPS Content shall be considered to be User Content (as defined below). Depending on the TPS account you choose and subject to the privacy settings that you have set in such TPS account, personally identifiable information that you post to your TPS account may be available on and through the Services.
2.3 Account Responsibilities. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Vizcom of any unauthorized use, suspected unauthorized use of your Account, or any other breach of security. You agree not to create an Account using a false identity or false information or on behalf of an individual other than yourself. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Services by minors. Vizcom cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
3. ACCESS TO THE SERVICE
3.1 Access and Use. Subject to this Agreement, Vizcom grants you a non-transferable, non-exclusive, revocable, limited right to access and use the Services solely for your own personal or internal business use.
3.2 Application License. Subject to your compliance with the Agreement, Vizcom grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install, and use a copy of the desktop application on a reasonable number of computers that you own or control and to run such copy or copies of the desktop application solely for your own personal or internal business purposes.
3.3 Certain Restrictions. By accessing and using the Services you agree that you will not, and will not permit any third party to: (i) license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services, whether in whole or in part, or any content displayed on the Services; (ii) frame or utilize framing techniques to enclose any trademark, logo, or other Vizcom Content (including images, text, page layout, or form); (iii) modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Services; (iv) access or use the Services in order to build a similar or competitive website, product, or service; and (v) copy, reproduce, distribute, republish, download, display, post, or transmit in any form or by any means any part of the Services, except as expressly permitted herein. Unless otherwise indicated, any future release, update, or other addition to the functionality of the Services shall be subject to this Agreement. All copyright and other proprietary notices on the Services (or on any content displayed on the Services) must be retained on all copies thereof.
3.4 Modification and Suspension. Vizcom reserves the right, at any time, to modify, suspend, or discontinue the Services (in whole or in part) with or without notice to you. You agree that Vizcom will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Services or any part thereof.
3.5 No Support or Maintenance; Necessary Equipment. You acknowledge and agree that Vizcom will have no obligation to provide you with any support or maintenance in connection with the Site or Services. You are solely responsible for any fees, including Internet connection fees, that you incur when accessing the Services.
3.6 Updates. You understand that the Services are evolving. As a result, Vizcom may require you to accept updates to the App that you have installed on your computer. You acknowledge and agree that Vizcom may update the Services with or without notifying you. You may need to update third-party software from time to time in order to use the Services.
4. OWNERSHIP. Excluding any User Content that you may provide (defined in Section 6 below) and Designs created through use of the Services, you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets in the Services and its content are owned by Vizcom or Vizcom’s suppliers. Neither this Agreement (nor your access to the Services) transfers to you or any third party any rights, title, or interest in or to such intellectual property rights, except for the limited access and download rights expressly set forth in Section 3.1 and 3.2. Vizcom and its suppliers reserve all rights not granted in this Agreement. There are no implied licenses granted under this Agreement.
5. SUBSCRIPTION TERMS.
5.1 Payment. If you have a Premium Account or register for a subscription, you agree to pay all fees associated with the Premium Account or subscription, including but not limited to any applicable subscription fees (“Subscription Fees”), any service fees imposed by Vizcom, and any other fees posted to your Account (each, as defined herein and collectively, the “Fees”). The total Fees owed by you in connection with a subscription will be presented to you at the time of purchase and available for viewing through the App. You are responsible for selecting your desired subscription option, and you are responsible for payment of the applicable Subscription Fees at the time you elect to create a Premium Account or otherwise select your subscription. All Fees are non-refundable. You may be required to provide your credit card or other accepted payment method (each a “Payment Method”) when you subscribe to the Services or register for a Premium Account. Company reserves the right at any time to change its prices and billing methods, either immediately upon posting on Apps or by e-mail delivery to you.
5.2 AUTOMATIC RENEWAL. Your subscription will continue indefinitely until terminated in accordance with the Agreement. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period at Vizcom’s then-current price for such subscription. You agree that your account will be subject to this automatic renewal feature unless you cancel your subscription at least one (1) day prior to the Renewal Commencement Date via your Account page. If you do not wish for your subscription to renew automatically, or if you want to change or terminate your subscription, please log in to your Account and change or terminate your subscription via the Account page. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the Subscription Fee paid for the then-current subscription period. By subscribing, you authorize Vizcom to charge your Payment Method now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if Vizcom does not receive payment from you, (i) you agree to pay all amounts due on your Account upon demand and/or (ii) you agree that Vizcom may either terminate or suspend your subscription and continue to attempt to charge your Payment Method until payment is received (upon receipt of payment, your account will be activated and, for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).
5.3 Cancellation Period. If you are a consumer who is a resident of the EU or the UK, you have a legal right to cancel your subscription until 14 days after the day on which the subscription was entered into. This means that during that period if you change your mind or decide for any other reason that you do not want to continue receiving the Services, you can notify us of your decision to cancel your subscription and receive a refund. Advice about your legal right to cancel your subscription terms is available from your local Citizens’ Advice Bureau or Trading Standards office. To cancel a subscription, you just need to let us know that you have decided to cancel. The easiest way to do this is to cancel the subscription on your Account page. If you cancel your subscription, we will refund you the price paid for the subscription.
5.4 Taxes. The payments required under Section 5 of this Agreement do not include any Sales Tax that may be due in connection with the Services provided under this Agreement. If Vizcom determines it has a legal obligation to collect a Sales Tax from you in connection with this Agreement, Vizcom shall collect such Sales Tax in addition to the payments required under Section 5 of this Agreement. If any services or payments for any services, under this Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Vizcom, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Vizcom for any liability or expense Vizcom may incur in connection with such Sales Taxes. Upon Vizcom’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales, use, excise, services, or other tax measured by the value of sales.
5.6 Free Trials and Other Promotions. Any free trial or other promotion that provides Premium Account features or any other additional features on the Services must be used within the specified time of the trial. At the end of the trial period, these additional features expire and any further use of the features is prohibited unless you pay the applicable subscription fee. If you are inadvertently charged for a subscription, please contact Company to have the charges reversed.
6. USER CONTENT; DESIGNS
6.1 User Content. “User Content” means all Content that you upload, post, e-mail, transmit, or otherwise make available through the Services, including any Content you submit for purposes of rendering a Design. You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that personally identifies you or any third party. You hereby represent and warrant that your User Content does not violate Section 7. You further represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform, and display your User Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed for the full term of any worldwide intellectual property right that may exist in your User Content. You may not represent or imply to others that your User Content is in any way provided, sponsored, or endorsed by Vizcom. Because you alone are responsible for your User Content, you may expose yourself to liability if, for example, your User Content violates Section 7.
6.2 Designs. You are solely responsible for your use of your Designs created through the Services. You assume all risks associated with your use of your Designs, including any potential copyright infringement claims from third parties or any disclosure of your Designs that personally identifies you or any third party. Because you alone are responsible for your Designs, you may expose yourself to liability if, for example, your Design violates Section 7.
6.3 License. You hereby grant (and you represent and warrant that you have the right to grant) to Vizcom an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use and exploit your User Content and Designs for the purposes of providing, promoting, and improving the Services. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content and Designs.
6.4 No Obligation to Pre-Screen Content. You acknowledge that Vizcom has no obligation to pre-screen Content (including, but not limited to, User Content and Designs) that you upload, create, or download, although Vizcom reserves the right in its sole discretion to pre-screen, refuse, or remove any Content. By entering into the Agreement, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of your User Content. In the event that Vizcom pre-screens, refuses, or removes any Content, you acknowledge that Vizcom will do so for Vizcom’s benefit, not yours. Without limiting the foregoing, Vizcom shall have the right to remove any Content that violates the Agreement or is otherwise objectionable.
6.5 Enforcement. We reserve the right (but have no obligation) to review any User Content and Designs, and to investigate and/or take appropriate action against you if you, in our sole discretion, violate Section 7 or any other provision of this Agreement or otherwise create liability for us or any other person. Such action may include removing or modifying your User Content and Designs, terminating your Account in accordance with Section 13, and/or reporting you to law enforcement authorities.
6.6 Feedback. If you provide Vizcom with any feedback or suggestions regarding the Services (“Feedback”), you hereby assign to Vizcom all rights in such Feedback and agree that Vizcom shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. Vizcom will treat any Feedback you provide to Vizcom as non-confidential and non-proprietary. You agree that you will not submit to Vizcom any Feedback that you consider to be confidential or proprietary.
6.7 Storage. Unless expressly agreed to by Vizcom in writing elsewhere, Vizcom has no obligation to store any of your User Content or Designs. Vizcom has no responsibility or liability for the deletion or accuracy of any Content, including your User Content and Designs; the failure to store, transmit, or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of Vizcom Apps. Certain Services may enable you to specify the level at which such Services restrict access to your User Content and Designs. You are solely responsible for applying the appropriate level of access to your User Content or Designs. If you do not choose, the system may default to its most permissive setting. You agree that Vizcom retains the right to create reasonable limits on Vizcom’s use and storage of the Content, including your User Content and Designs, such as limits on file size, storage space, processing capacity, and similar limits described on the Site and as otherwise determined by Vizcom in its sole discretion. Vizcom is not obligated to backup any User Content or Designs, and your User Content and Designs may be deleted at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of your User Content and Designs if you desire.
7. ACCEPTABLE USE POLICY. You agree not to: (i) use the Services to upload, transmit, display, or distribute any User Content or Designs that (a) violate 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; or (b) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party, or is otherwise objectionable; (ii) upload, transmit, or distribute to or through the Services any computer viruses, worms, or any software intended to damage or alter a computer system or data; (iii) send through the Services unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iv) abuse other users’ personal information that you receive through the Services, such as to harvest, collect, gather, or assemble information or data regarding other users, including e-mail addresses, without their consent; (v) interfere with, disrupt, or create an undue burden on servers or networks connected to the Services, or violate the regulations, policies, or procedures of such networks; (vi) attempt to gain unauthorized access to the Services (or to other computer systems or networks connected to or used together with the Services), whether through password mining or any other means; (vii) interfere with any other user’s use and enjoyment of the Services; (viii) upload, draw, share, or otherwise provide Content that violates any of the terms set forth herein; (ix) impersonate any person or entity, including any employee or representative of Vizcom; or (x) use software or automated agents or scripts to produce multiple accounts on the Services, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Services (provided, however, that we conditionally grant to the operators of public search engines revocable 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).
8. VIZCOM COMMUNICATIONS.
8.1 Generally. You may have the opportunity to provide us with your e-mail address. By providing your email address to us, you consent to receiving email communications from Vizcom for administrative or operational purposes related to your Account. Communications from us may include communications about your use of the Services.
8.2 Promotional Email Communications. If you opt-in to receive marketing or promotional email communications from us, you will have the ability to opt out of receiving such communications by following the unsubscribe instructions in the communication itself. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL EMAILS AS A CONDITION OF USING THE SERVICES. CONSENT TO THESE PROMOTIONAL MESSAGES IS NOT REQUIRED TO ACCESS THE SITE OR SERVICES.
8.3 Electronic Communications. The communications between you and Vizcom use electronic means, whether you use the Services or send us emails, or whether Vizcom posts notices on the Services or communicates with you via email. For contractual purposes, you (i) consent to receive communications from Vizcom in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Vizcom provides to you electronically satisfy any legal requirement that such communications would satisfy if they were to be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
9. INDEMNIFICATION. You agree to indemnify and hold Vizcom (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (i) your use of the Services, (ii) your User Content or use of your Designs, (iii) your violation of this Agreement; or (iv) your violation of applicable laws or regulations. Vizcom 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 without the prior written consent of Vizcom. Vizcom will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
10. THIRD-PARTY LINKS, APPLICATIONS; OTHER USERS AND THIRD PARTIES
10.1 Third-Party Links, Applications. The Services may contain links to third-party websites and services, and applications for third parties (collectively, “Third-Party Links & Applications”). For example, we provide you with the ability to join the Vizcom Discord via a link to Discord’s website or application, accessible through the Services. Such Third-Party Links & Applications are not under the control of Vizcom, and Vizcom is not responsible for any Third-Party Links & Applications. Vizcom provides access to these Third-Party Links & Applications only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links & Applications. You use all Third-Party Links, & Applications at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links & Applications, the applicable third-party’s terms and policies apply, including the third-party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Links & Applications.
10.2 Other Users and Third Parties. Each user of the Services is solely responsible for any and all of its own User Content and Designs. Because we do not control User Content or the use of Designs, you acknowledge and agree that we are not responsible for any User Content or use of Designs, whether provided by you or by others. We make no guarantees regarding the accuracy, suitability, or quality of any User Content or Designs. Your interactions with other users, including any interactions with Collaborators or third parties, are solely between you and such users and third parties. You agree that Vizcom will not be responsible for any loss or damage incurred as the result of any such interactions. We do not oversee the collaborations or interactions that take place in Teams nor do we oversee the use of the Designs by users. If there is a dispute between you and any user of the Services or you and any third party, we are under no obligation to become involved. Provided, however, we reserve the right to intercede in such disputes at our sole discretion.
THE SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS, WITH ALL FAULTS AND NO GUARANTEES REGARDING OUTCOMES OR PERFORMANCE. WE HAVE NO LIABILITY FOR RESULTS IN CONNECTION WITH THE SERVICES, INCLUDING BUT NOT LIMITED TO, THE ADEQUACY OF ANY DESIGN OR CONTENT, OR THE ACTIONS OR OMISSIONS OF A USER, INCLUDING BUT NOT LIMITED TO THE USER’S USE OF THE DESIGNS. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT WHETHER PROVIDED BY VIZCOM OR ANOTHER USER OF THE SERVICES. YOU ACKNOWLEDGE AND AGREE THAT WHEN USING OUR SERVICES, YOU WILL BE EXPOSED TO CONTENT FROM A VARIETY OF SOURCES, AND THAT VIZCOM IS NOT RESPONSIBLE FOR THE ACCURACY, USEFULNESS, SAFETY, LEGALITY, OR INTELLECTUAL PROPERTY RIGHTS OF OR RELATING TO ANY SUCH CONTENT. YOU FURTHER UNDERSTAND AND ACKNOWLEDGE THAT YOU MAY BE EXPOSED TO CONTENT THAT IS INACCURATE, OFFENSIVE, INDECENT, OBJECTIONABLE, OR HARASSING, AND YOU AGREE TO WAIVE, AND HEREBY DO WAIVE, ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST VIZCOM WITH RESPECT THERETO.
VIZCOM (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SITE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.
FROM TIME TO TIME, VIZCOM MAY OFFER BETA SERVICES. SUCH BETA SERVICES ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT VIZCOM’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO BETA SERVICES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
12. LIMITATION ON LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL VIZCOM (OR OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF, OR INABILITY TO USE, THE SERVICES, EVEN IF VIZCOM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO AND USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (I) THE TOTAL AMOUNT PAID BY YOU OR PAYABLE TO YOU ON OR THROUGH THE SERVICE DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; OR (II) ONE HUNDRED ($100) DOLLARS. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN VIZCOM AND YOU. FOR USERS IN THE EU, COMPANY DOES NOT IN ANY WAY SEEK TO EXCLUDE OR LIMIT LIABILITY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY COMPANY’S NEGLIGENCE; (ii) FRAUD OR FRAUDULENT MISREPRESENTATION; OR (iii) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY ENGLISH OR EU LAW.
13. TERM AND TERMINATION. Subject to this Section, this Agreement will remain in full force and effect while you use the Services. We may suspend or terminate your rights to access and use the Services (including your Account) at any time for any reason at our sole discretion, including for any use of the Services in violation of this Agreement. Upon termination of your rights under this Agreement, your Account will be deleted and your right to access and use the Services will terminate immediately. You understand that any termination of your Account may involve deletion of your User Content associated with your Account from our live databases. Vizcom will not have any liability whatsoever to you for any termination of your rights under this Agreement, including for termination of your Account or deletion of your User Content. Even after your rights under this Agreement are terminated, the following provisions of this Agreement will remain in effect: Sections 1, 3.3 - 3.6, and 4-17.
14. COPYRIGHT POLICY
Vizcom respects the intellectual property of others and asks that users of our Services do the same. In connection with our Services, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online Services who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Services, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent:
1. your physical or electronic signature;
2. identification of the copyrighted work(s) that you claim to have been infringed;
3. identification of the material on our services that you claim is infringing and that you request us to remove;
4. sufficient information to permit us to locate such material;
5. your address, telephone number, and e-mail address;
6. a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
7. a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs, and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
The designated Copyright Agent for Vizcom is:
Designated Agent: Kaelan Richards
Address of Agent: 2989 Harrison Ave, Rochester Hills MI
15. INTERNATIONAL USERS AND PROVISIONS. The Services can be accessed from countries around the world and may contain references to services and content that are not available in your country. These references do not imply that Vizcom intends to announce such services or content in your country. The Services are controlled and offered by Vizcom from its facilities in the United States of America. Vizcom makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law. The following provisions shall apply only if you are located in the countries listed below:
15.1 United Kingdom. A third party who is not a party to the Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of the Agreement, but this does not affect any right or remedy of such third party which exists or is available apart from that Act.
15.2 Germany. Notwithstanding anything to the contrary in Section 12 (Limitation of Liability), Vizcom is also not liable for acts of simple negligence (unless they cause injuries to or death of any person), except when they are caused by a breach of any substantial contractual obligations (vertragswesentliche Pflichten).
16. ARBITRATION CLAUSE AND CLASS ACTION WAIVER. Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires that you and Vizcom arbitrate disputes against one another.
Dispute Resolution: PLEASE BE AWARE THAT THIS SECTION 16 CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND VIZCOM HAVE AGAINST EACH OTHER WILL BE RESOLVED. AMONG OTHER THINGS, THIS SECTION 16 INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND VIZCOM BE RESOLVED BY BINDING AND FINAL ARBITRATION. THIS SECTION 16 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ THIS SECTION 16 CAREFULLY.
16.1 Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and Vizcom agree that any dispute, claim, or disagreement arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Services, or the Terms, including claims and disputes that arose between us before the effective date of these Terms (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (i) you and Vizcom may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (ii) you or Vizcom may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Terms as well as claims that may arise after the termination of these Terms.
16.2 Informal Dispute Resolution. There may be instances when a Dispute arises between you and Vizcom. If that occurs, Vizcom is committed to working with you to reach a reasonable resolution. You and Vizcom agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and Vizcom therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you also agree to participate in the conference.
The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within 45 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties in writing. Notice to Vizcom that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to email@example.com or regular mail to our offices located at 1950 Cambridge Dr, Mountain View, CA 94043 The Notice must include: (i) your name, telephone number, mailing address, e‐mail address associated with your account (if you have one); (ii) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (iii) a description of your Dispute.
The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
16.3 Waiver of Jury Trial. YOU AND VIZCOM HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Vizcom are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the subsection entitled “Applicability of Arbitration Agreement” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
16.4 Waiver of Class and Other Non-Individualized Relief. YOU AND VIZCOM AGREE THAT, EXCEPT AS SPECIFIED IN SUBSECTION 16.9 (BATCH ARBITRATION), EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under the subsection 16.9 (Batch Arbitration) entitled “Batch Arbitration.” Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this subsection, “Waiver of Class and Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Vizcom agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in San Francisco, California All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or Vizcom from participating in a class-wide settlement of claims.
16.5 Rules and Forum. These Terms evidence a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution process described above does not resolve satisfactorily within sixty (60) days after receipt of Notice, you and Vizcom agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitratio n/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any JAMS fees and costs will be solely as set forth in the applicable JAMS rules.
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (i) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable account; (ii) a statement of the legal claims being asserted and the factual bases of those claims; (iii) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (iv) a statement certifying completion of the Informal Dispute Resolution process as described above; and (v) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.
If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (a) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (b) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (c) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
Unless you and otherwise agree, or the Batch Arbitration process discussed in subsection 16.9 (Batch Arbitration) is triggered, the arbitration will be conducted in the county where you reside. Subject to the applicable JAMS rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration.
You and Vizcom agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
16.6 Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the JAMS roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then JAMS will appoint the arbitrator in accordance with the applicable JAMS rules, provided that if the Batch Arbitration process under subsection 16.9 (Batch Arbitration) is triggered, JAMS will appoint the arbitrator for each batch.
16.7 Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (i) all Disputes arising out of or relating to the subsection entitled “Waiver of Class and Other Non-Individualized Relief,” including any claim that all or part of the subsection entitled “Waiver of Class and Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such subsection entitled “Waiver of Class and Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (ii) except as expressly contemplated in the subsection entitled “Batch Arbitration,” all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (iii) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (iv) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in the subsection entitled “Batch Arbitration.” The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
16.8 Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Vizcom need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
16.9 Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Vizcom agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against Vizcom by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), JAMS shall (i) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (ii) appoint one arbitrator for each batch; and (iii) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise JAMS, and JAMS shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Vizcom.
You and Vizcom agree to cooperate in good faith with JAMS to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (a) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (b) the adoption of an expedited calendar of the arbitration proceedings. This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
16.10 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: 1950 Cambridge Dr, Mountain View, CA 94043 within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your Vizcom account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of these Terms will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
16.11 Invalidity, Expiration. Except as provided in the subsection entitled “Waiver of Class and Other Non-Individualized Relief”, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Vizcom as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
16.12 Modification. Notwithstanding any provision in these Terms to the contrary, we agree that if Vizcom makes any future material change to this Arbitration Agreement, it will notify you. Unless you reject the change within thirty (30) days of such change becoming effective by writing to Vizcom at: 1950 Cambridge Dr, Mountain View, CA 94043. your continued access and use of the Services, including the acceptance of products and services offered on or through the Services, following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of these Terms and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Services or the Agreement, the provisions of this Arbitration Agreement as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms) remain in full force and effect. Vizcom will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of these Terms.
17.1 Generally. Your relationship to Vizcom is that of an independent contractor, and neither party is an agent or partner of the other. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Vizcom’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Vizcom may freely assign this Agreement. The terms and conditions set forth in these Agreement shall be binding upon assignees.
17.2 Export. The Services may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to directly or indirectly export, reexport, or transfer any U.S. technical data acquired from Vizcom, or any products utilizing such data, in violation of the United States export laws or regulations.
17.3 Exclusive Venue and Governing Law. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Vizcom agree that all claims and disputes arising out of or relating to this Agreement will be litigated exclusively in the state or federal courts located in California. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT.
17.4 Disclosures. Vizcom is located at the address in Section 17.9. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
17.5 Entire Agreement. This Agreement constitutes the entire agreement between you and us regarding the use of the Services. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation.” If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
17.6 Copyright/Trademark Information. Copyright © 2023, Vizcom. All rights reserved. All trademarks, logos, and service marks (“Marks”) displayed on the Services are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party that may own the Marks. All goodwill generated from the use of any Vizcom Marks will inure to Vizcom’s benefit.
17.7 Force Majeure. Vizcom shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor, or materials. If a force majeure event occurs that affects Vizcom’s performance of its obligations under the Agreement: (a) Vizcom will contact you as soon as reasonably possible to notify you; and (b) Vizcom’s obligations under the Agreement will be suspended and the time for Vizcom’s performance of its obligations will be extended for the duration of the force majeure event. You may cancel the Services affected by a force majeure event which has continued for more than 60 days. To cancel please contact Vizcom at the information provided below.
17.8 Choice of Language. It is the express wish of the parties that the Agreement and all related documents have been drawn up in English. This Agreement, and any contract between you and Vizcom, are only in the English language. C’est la volonté expresse des parties que la presente convention ainsi que les documents qui s’y rattacent soient rediges en anglaise.
17.9 Contact Information:
Vizcom Technologies, Inc.
Address: 1950 Cambridge Dr, Mountain View, CA 94043