TERMS OF SERVICE
THESE TERMS OF SERVICE (“TERMS”) ARE A LEGAL CONTRACT BETWEEN YOU AND TURING VIDEO, A CALIFORNIA CORPORATION (“COMPANY”, “WE”, OR “US”). THESE TERMS EXPLAIN HOW YOU ARE PERMITTED TO USE COMPANY’S VSAAS SERVICES (“VSAAS SERVICES”). UNLESS OTHERWISE SPECIFIED, ALL REFERENCES TO “VSAAS SERVICES” INCLUDE ANY SOFTWARE THAT COMPANY PROVIDES TO YOU THAT ALLOWS YOU TO ACCESS THE VSAAS SERVICES FROM A MOBILE DEVICE (“MOBILE APPLICATION”). BY USING OUR VSAAS SERVICES, YOU ARE AGREEING TO ALL THE TERMS. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THE VSAAS SERVICES.
IN THESE TERMS, “YOU” REFERS TO YOU. IF YOU ARE CREATING AN ACCOUNT IN ORDER TO USE THE VSAAS SERVICES ON BEHALF OF AN ORGANIZATION, THEN YOU ARE AGREEING TO THESE TERMS FOR THAT ORGANIZATION AND PROMISING TO US THAT YOU HAVE THE AUTHORITY TO BIND THAT ORGANIZATION TO THESE TERMS (AND, IN WHICH CASE, “YOU” REFERS TO THAT ORGANIZATION). THE EXCEPTION TO THIS IS IF THAT ORGANIZATION HAS A SEPARATE WRITTEN AGREEMENT WITH US COVERING THE USE OF THE VSAAS SERVICES, IN WHICH CASE THAT SEPARATE WRITTEN AGREEMENT WILL GOVERN SUCH USE.
WE MAY MAKE CERTAIN VSAAS SERVICES AVAILABLE TO YOU ON AN UNPAID OR FREE BASIS (“FREE SERVICES”). ALL OTHER VSAAS SERVICES (“PAID SERVICES”) REQUIRE THAT YOU PAY FEES SET FORTH IN AN ORDERING DOCUMENT (“ORDER FORM”) ENTERED INTO BETWEEN YOU AND EITHER COMPANY OR A THIRD-PARTY DEALER, RESELLER OR DISTRIBUTOR WHO HAS BEEN AUTHORIZED BY COMPANY TO RESELL VSAAS SERVICES (“COMPANY AUTHORIZED DEALER”).
Company may make changes to the VSaaS Services at any time. In addition, Company can change, update, or add or remove provisions of these Terms, at any time, by posting the updated Terms on the VSaaS Services or otherwise providing notice to you, provided that, if you purchase Paid Services, any changes that materially reduce Company’s obligations under these Terms with respect to those Paid Services do not apply during the then-current term of the applicable Order Form. By using the VSaaS Services after Company has updated the Terms, you are agreeing to all the updated Terms; if you do not agree with any of the updated Terms, you must stop using the VSaaS Services.
Subject to the terms and conditions of these Terms, and your compliance with these Terms, Company hereby grants you a non-exclusive and non-transferable right to access the VSaaS Services, during the term of these Terms, solely for your internal business purposes. Except for the foregoing right, you have no other rights in the VSaaS Services. All rights not expressly granted by Company to you are reserved.
Using the VSaaS Services
In order to use the VSaaS Services, you must register with Company for an account. You are responsible for maintaining the confidentiality of your login and password (“Access Credentials”), and you are responsible for all activities that occur using your Access Credentials. You agree not to share your Access Credentials, let others access or use your Access Credentials or do anything else that might jeopardize the security of your Access Credentials. You agree to promptly notify Company if your Access Credentials are lost, stolen, if you are aware of any unauthorized use of your Access Credentials on the VSaaS Services or if you know of any other breach of security in relation to the VSaaS Services.
All the information that you provide when registering for an account and otherwise through the VSaaS Services must be accurate, complete and up to date. You may change, correct or remove certain information from your account by logging into your account directly and making the desired changes.
You shall not, directly or indirectly, and you shall not permit any third party to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the VSaaS Services; (b) modify, translate, or create derivative works based on any element of the VSaaS Services; (c) rent, lease, distribute, sell, resell, assign, or otherwise transfer your rights to use the VSaaS Services; (d) use the VSaaS Services for timesharing purposes or otherwise for the benefit of any person or entity other than for the benefit you; (e) remove any proprietary notices from the VSaaS Services; (f) use the VSaaS Services for any purpose other than its intended purpose; (g) interfere with or disrupt the integrity or performance of the VSaaS Services; or (h) attempt to gain unauthorized access to the VSaaS Services or their related systems or networks.
You shall: (a) be solely responsible for all use of the VSaaS Services under your account; (b) use the VSaaS Services only in accordance with these Terms; (c) use the VSaaS Services only in accordance with all applicable laws and regulations, including all Data Protection Laws and Biometric Privacy Laws; and (d) provide Company with reasonable cooperation regarding information requests from law enforcement or regulators. “Data Protection Laws” include, without limitation, (i) the California Consumer Privacy Act of 2018 (CCPA), as amended and replaced by the California Privacy Rights Act of 2020, (ii) the Virginia Consumer Data Protection Act (VCDPA), (iii) the Colorado Privacy Act (CPA), (iv) the Canada Personal Information and Electronic Documents Act (PIPEDA), (v) the Alberta Personal Information Protection Act (Alberta PIPA), (vi) the British Columbia Personal Information Protection Act (BC PIPA), (vii) the Quebec Act Respecting the Protection of Personal Information in the Private Sector, (viii) the Quebec Information Technology Act and (ix) such other comprehensive data protection laws that may be enacted during your use of the VSaaS Services and would apply to your use of the VSaaS Services. “Biometric Privacy Laws” include, without limitation, (i) the Illinois Biometric Information Privacy Act (BIPA), (ii) Washington statute RCW 19.375, (iii) the Texas Capture or Use of Biometric Identifiers (CUBI), and (iv) such other biometric privacy laws that may be enacted during your use of the VSaaS Services and would apply to your use of the VSaaS Services.
In addition, you are solely responsible for all information, data, photos, videos, graphics, sounds, text, messages, and other content and materials submitted, stored, posted, displayed, or otherwise transmitted by or on behalf of you and received and stored by the VSaaS Services. (“Customer Data”). You may not submit, store, post, display, or otherwise transmit to the VSaaS Services any Customer Data that is protected by any intellectual property rights, privacy rights, publicity rights or other rights of any third party without the express permission of the third party. Without limiting the foregoing, you represent, warrant and covenant that you have provided, and will continue to provide, adequate notices and have obtained, and will continue to obtain, the necessary rights, permissions and consents, including those required under any applicable Data Protection Laws and Biometric Privacy Laws, to provide Customer Data to Company for use in accordance with these Terms.
The VSaaS Services utilize software and technology that may be subject to United States and foreign export controls. You acknowledge and agree that the VSaaS Services shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the VSaaS Services, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The VSaaS Services may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. You agree to comply strictly with all applicable export laws.
You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of Company in connection with these Terms. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If you learn of any violation of the above restriction, you will use reasonable efforts to promptly notify Company. You represent and warrant to Company that you are not currently identified on the Specially Designated Nationals and Blocked Persons List maintained by the Office of Foreign Assets Control, U.S. Department of the Treasury (“OFAC”) or on any other similar list maintained by OFAC pursuant to any authorizing statute, executive order or regulation, and you are not a person or entity with whom a citizen of the United States is prohibited to engage in transactions by any trade embargo, economic sanction, or other prohibition of United States law, regulation, or Executive Order of the President of the United States.
Company is entitled to delete any Customer Data or suspend your access to the VSaaS Services: (a) where you are in breach of these Terms; (b) where removal or blocking of the Customer Data is necessary to protect the security, or integrity of the VSaaS Services, the Company, or any third party; or (c) in order to respond to law enforcement or any other governmental authority.
You shall defend Company and its officers, directors, employees, affiliates, agents, licensors, and business partners from and against any and all actions, proceedings, claims and demands by a third party which arise out of or relate to (a) your use of the VSaaS Services or the use of the VSaaS Services by any person using your Access Credentials other than as authorized hereunder, (b) your Customer Data, or (c) any claim or demand from a third party that your use of the VSaaS Services or the use of the VSaaS Services by any person using your Access Credentials violates any applicable law or regulation, including any Data Protection Laws or Biometric Privacy Laws, or the intellectual property rights, privacy rights, publicity rights or other rights of any third party. You shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) paid to the third party bringing any such third-party claim. Your obligations under this paragraph are conditioned upon (x) you being promptly notified in writing of any claim under this paragraph, (y) you having the sole and exclusive right to control the defense and settlement of the claim, and (z) Company providing all reasonable assistance (at your expense and reasonable request) in the defense of such claim. In no event shall Company settle any claim without your prior written approval. Company may, at its own expense, engage separate counsel to advise Company regarding a third-party claim and to participate in the defense of the claim, subject to your right to control the defense and settlement.
Company IP Indemnity
If you purchase Paid Services directly from Company (as opposed to purchasing Paid Services from a Company Authorized Dealer or using Free Services), Company shall defend you from and against any and all actions, proceedings, claims and demands by a third party alleging that the Paid Services infringe any intellectual property rights of any third party. Company shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) paid to the third party bringing any such third-party claim. Company’s obligations under this paragraph are conditioned upon (x) Company being promptly notified in writing of any claim under this paragraph, (y) Company having the sole and exclusive right to control the defense and settlement of the claim, and (z) you providing all reasonable assistance (at Company’s expense and reasonable request) in the defense of such claim. In no event shall you settle any claim without Company’s prior written approval. You may, at your own expense, engage separate counsel to advise you regarding a third-party claim and to participate in the defense of the claim, subject to Company’s right to control the defense and settlement. If any claim which Company is obligated to defend has occurred, or in Company’s determination is likely to occur, Company may, in its sole discretion and at its option and expense (a) obtain for you the right to use the Paid Services, (b) substitute a functionality equivalent, non-infringing replacement for such the Paid Services, (c) modify Paid Services to make it non-infringing and functionally equivalent, or (d) terminate these Terms and your Order Form and refund to you on a pro-rated basis any pre-paid and unused fees for the Paid Services. Notwithstanding anything to the contrary in these Terms, the foregoing obligations shall not apply with respect to a claim of infringement if such claim arises out of (i) your use of infringing Customer Data, (ii) use of the Paid Services in combination with any software, hardware, network or system not supplied by Company where the alleged infringement relates to such combination, (iii) any modification or alteration of the Paid Services other than by Company, (iv) your continued use of the Paid Services after Company notifies you to discontinue use because of an infringement claim, or (v) your violation of applicable law. THE FOREGOING STATES THE ENTIRE LIABILITY OF COMPANY WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS BY THE VSAAS SERVICES OR OTHERWISE, AND YOU HEREBY EXPRESSLY WAIVE ANY OTHER LIABILITIES OR OBLIGATIONS OF COMPANY WITH RESPECT THERETO.
You agree to pay all fees set forth in any Order Form entered into by you.
Except as otherwise expressly stated in the Order Form, all fees are exclusive of any applicable taxes, levies, duties, or other similar exactions imposed by a legal, governmental, or regulatory authority in any applicable jurisdiction, including, without limitation, sales, use, value-added, consumption, communications, or withholding taxes (collectively, “Taxes”). You will pay all Taxes associated with your order, except such Taxes imposed on or measured by Company’s net income.
Except as otherwise expressly stated in the Order Form, payment obligations are non-cancelable and non-refundable.
If you do not pay on time or if Company cannot charge your payment method for any reason, and you do not pay within 60 days after receiving written notice of such failure to pay, Company reserves the right to either suspend or terminate your access to the VSaaS Services and account and terminate these Terms.
As between you and Company, all right, title and interest in the VSaaS Services, and all modifications and enhancements thereof, including all copyright rights, patent rights and other intellectual property rights in each of the foregoing, belong to and are retained solely by Company or Company’s licensors and providers, as applicable. You hereby grant Company a royalty-free, fully paid-up, worldwide, transferable, irrevocable, perpetual license (with rights to sublicense through multiple tiers of sublicensees) to make, use, sell, have made, offer to sell, import, reproduce, publicly display, distribute, modify, publicly perform, practice and exploit all evaluations, ideas, feedback and suggestions made by you to Company regarding the VSaaS Services (collectively, “Feedback”) and all intellectual property rights in the Feedback.
You acknowledge and agree that the VSaaS Services provided to you include the improvement of such VSaaS Services, and accordingly, Company may use Customer Data for the purposes of improving the VSaaS Services. Company may, unless prohibited by applicable law, de-identify and/or anonymize Customer Data and any other data and information relating to your use of the VSaaS Services (with the resulting de-identified or anonymized data and information being referred to herein as “De-identified Data”) and aggregate such De-identified Data, including without limitation aggregation with other information received by Company from its other customers and from other data sources (collectively, “Aggregated Data”) for the purpose of providing the VSaaS Services and enhancing the features, functions, and performance of the VSaaS Services. All De-identified Data and Aggregated Data shall be owned solely and exclusively by Company. You further acknowledge and agree that De-identified Data and Aggregated Data cease to be personal information, and Company may, during and after the term of these Terms, use, reproduce, disclose, distribute, sell and otherwise commercialize such De-identified Data and Aggregated Data.
Your Company Authorized Dealer may assist you with technical support. You acknowledge and agree that Company may give your Company Authorized Dealer access to your contact information and your device information.
Automatic Software Updates
Company may, from time to time, develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the VSaaS Services and/or the hardware products with which you use the VSaaS Services (“Updates”). These may be automatically installed, including, without limitation, installation on the hardware products with which you use the VSaaS Services, without providing any additional notice or receiving any additional consent. You consent to this automatic update. If you do not want such Updates, your remedy is to terminate your account and stop using the VSaaS Services.
The Mobile Application and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, if you are a government entity, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
If you purchase Paid Services directly from Company (as opposed to purchasing Paid Services from a Company Authorized Dealer or using Free Services), the Company represents and warrants to you as follows:
- The Paid Services will conform to Company’s published end user documentation in all material respects during your term of access thereto as set forth in your Order Form.
- Company will provide Paid Service in a manner that complies with applicable law in all material respects.
- Company will use commercially reasonable efforts to prevent the transmission of viruses or similar malicious software to you via the Paid Services.
- Company is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National.
- Company will comply with all applicable export laws.
- Company has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of yours in connection with these Terms. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
- Company is not currently identified on the Specially Designated Nationals and Blocked Persons List maintained by OFAC or on any other similar list maintained by OFAC pursuant to any authorizing statute, executive order or regulation, and Company is not a person or entity with whom a citizen of the United States is prohibited to engage in transactions by any trade embargo, economic sanction, or other prohibition of United States law, regulation, or Executive Order of the President of the United States.
Disclaimer of Warranties
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY, FOR ITSELF AND ITS LICENSORS, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THE VSAAS SERVICES, INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO QUALITY, SUITABILITY, ACCURACY OR COMPLETENESS. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE VSAAS SERVICES ARE PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” AND “WHERE-IS” BASIS WITH NO WARRANTY OF ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, COMPANY DOES NOT WARRANT THAT: (A) THE USE OF THE VSAAS SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE VSAAS SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY INFORMATION OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE VSAAS SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (E) THE VSAAS SERVICES WILL BE ERROR-FREE OR THAT ERRORS OR DEFECTS IN THE VSAAS SERVICES WILL BE CORRECTED; OR (F) THE SERVER(S) THAT MAKE THE VSAAS SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE VSAAS SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF COMPANY KNOWS THERE IS A POSSIBILITY OF SUCH DAMAGE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING ANYTHING TO THE CONTRARY, COMPANY SHALL NOT BE LIABLE TO YOU FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY YOU DIRECTLY TO COMPANY FOR THE VSAAS SERVICES IN THE TWELVE MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IF YOU PURCHASE PAID SERVICES, WITH RESPECT TO SUCH PAID SERVICES:
- THE FOREGOING LIMITATION OF LIABILITY PROVISIONS IN FAVOR OF COMPANY WILL NOT APPLY TO COMPANY’S INDEMNIFICATION OBLIGATIONS AND TO COMPANY’S FRAUD, WILLFUL MISCONDUCT OR GROSS NEGLIGENCE.
- EXCEPT FOR YOUR INDEMNIFICATION OBLIGATIONS AND YOUR FRAUD, WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL YOU BE LIABLE TO COMPANY FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF YOU KNOW THERE IS A POSSIBILITY OF SUCH DAMAGE.
- EXCEPT FOR YOUR INDEMNIFICATION OBLIGATIONS, YOUR FRAUD, WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, AND YOUR OBLIGATION TO PAY FEES UNDER ORDER FORMS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING ANYTHING TO THE CONTRARY, YOU SHALL NOT BE LIABLE TO COMPANY FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS AGAINST YOU BY COMPANY, EXCEED THE AGGREGATE OF FEES PAID AND PAYABLE BY YOU FOR THE VSAAS SERVICES IN THE TWELVE MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT YOU HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Termination and Survival
If you use Free Services, with respect to such Free Services, either party may terminate these Terms for any reason or for no reason upon written notice to the other party.
If you purchase Paid Services, these Terms continue for the duration of the Order Form, except that either party may terminate these Terms (including any and all Order Forms) upon written notice to the other party in the event the other party commits a material breach of these Terms and fails to remedy such material breach within 30 days of written notice of such material breach.
Upon any termination of these Terms, your account terminates, and you must cease any further use of the VSaaS Services. If you purchase Paid Services, Company will make Customer Data available to you through the VSaaS Services, solely for purposes of you retrieving Customer Data, for a period of 30 days after termination of these Terms.
The termination or expiration of these Terms for any reason shall not affect a party’s rights or obligations that expressly or by their nature continue and survive (including, the provisions concerning ownership, license to use Feedback, right to use De-identified Data and Aggregated Data, warranties, warranty disclaimers, indemnities, and limitation of liability).
Company makes available Mobile Applications to access the VSaaS Services via a mobile device. To use the Mobile Application, you must have a mobile device that is compatible with the mobile service. Company does not warrant that the Mobile Application will be compatible with your mobile device. Company hereby grants to you a non-exclusive, non-transferable, revocable license to use an object code copy of the Mobile Application for one registered account on one mobile device owned or leased solely by you, during the term of these Terms, solely for your internal business purposes.
The foregoing license grant is not a sale of the Mobile Application or any copy thereof, and Company and its third-party licensors or suppliers retain all right, title, and interest in and to the Mobile Application (and any copy of the Mobile Application). Standard carrier data charges may apply to your use of the Mobile Application.
The following additional terms and conditions apply with respect to any Mobile Application that Company provides to you designed for use on an Apple iOS-powered mobile device (an “iOS App”):
- You acknowledge that these Terms are between you and Company only, and not with Apple, Inc. (“Apple”).
- Your use of Company’s iOS App must comply with Apple’s then-current App Store Terms of Service.
- Company, and not Apple, is solely responsible for our iOS App and the services and content available thereon. You acknowledge that Apple has no obligation to provide maintenance and support services with respect to our iOS App. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to our iOS App.
- You agree that Company, and not Apple, are responsible for addressing any claims by you or any third-party relating to our iOS App or your possession and/or use of our iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, and all such claims are governed solely by these Terms and any law applicable to us as provider of the iOS App.
- You agree that Company, and not Apple, shall be responsible, to the extent required by these Terms, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to our iOS App or your possession and use of our iOS App.
- You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.
- You agree to comply with all applicable third-party terms of agreement when using our iOS App (e.g., you must not be in violation of your wireless data service terms of agreement when using the iOS App).
- The parties agree that Apple and Apple’s subsidiaries are third-party beneficiaries to these Terms as they relate to your license of Company’s iOS App. Upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as they relate to your license of the iOS App as a third-party beneficiary thereof.
The following additional terms and conditions apply with respect to any Mobile Application that Company provides to you designed for use on an Android-powered mobile device (an “Android App”):
- You acknowledge that these Terms are between you and Company only, and not with Google, Inc. (“Google”).
- Your use of Company’s Android App must comply with Google’s then-current Google Play Terms of Service.
- Google is only a provider of Google Play where you obtained the Android App. Company, and not Google, is solely responsible for Company’s Android App and the services and content available thereon. Google has no obligation or liability to you with respect to Company’s Android App or these Terms.
- You acknowledge and agree that Google is a third-party beneficiary to the Terms as they relate to Company’s Android App.
California state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. Foreign laws do not apply. The United Nations on Contracts for the International Sale of Goods and any laws based on the Uniform Computer Information Transactions Act (UCITA) shall not apply to these Terms. Any disputes relating to these Terms or the VSaaS Services will be heard in the courts located in the federal courts of the Northern District of California or the state courts located in San Mateo County, California, as applicable. If any of these Terms is found to be inconsistent with applicable law, then such term shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. Company’s failure to enforce any of these Terms is not a waiver of such term. Neither party may assign its rights under these Terms without the prior written consent of the other party. Any assignment permitted hereunder will be subject to the written consent of the assignee to all of the terms and provisions of these Terms. Any attempted assignment in derogation of this section will be null and void. Notwithstanding the foregoing, either party may, without the other party’s consent, assign its rights under these Terms to any person or entity in connection with a merger or an acquisition, divestiture, or sale of all or substantially all of its assets to which these Terms relates. If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be limited or eliminated to the minimum extent necessary to make it enforceable and, in any event, the rest of these Terms will continue in full force and effect. Company shall not be liable for any failure or delay in performance under these Terms or any Order Form due to fire, explosion, earthquake, storm, flood or other weather; unavailability of necessary utilities or raw materials; Internet service provider failures or delays, or denial of service attacks; war, civil unrest, acts of terror, insurrection, riot, acts of God or the public enemy; epidemics or pandemics; strikes or other labor problems; any law, act, order, proclamation, decree, regulation, ordinance, or instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction; or any other event beyond the reasonable control of Company. These Terms and any Order Forms are the entire agreement between you and Company regarding the use of VSaaS Services and supersede all prior or contemporaneous negotiations, discussions or agreements between you, on the one hand, and Company or any third party (including, without limitation, any Company Authorized Dealer), on the other hand, about your use of the VSaaS Services.
If you have any questions about these Terms or otherwise need to contact Company for any reason, you can reach us at email@example.com.