Last Updated: Jan 21, 2020 – 12:15 AM EST
1 – ACCEPTABLE USE
1.1 Services Terms and Conditions. If You are using the Services as an employee, contractor or other permitted user of a subscription client for the Solution or other Services, You agree to comply with the Services access and use terms and conditions binding on such client. You further agree to not disclose or share Your Services user ID or password with any third party. You acknowledge that in order to provide improved customer experience VidaNyx may make changes to the Services from time to time.
1.2 General Restrictions. You agree to not: (a) rent, lease, copy, sell, provide access to or sublicense the Services to a third party, (b) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or APIs to any software used to operate the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to VidaNyx), (c) modify such software or the Services, or create any derivative product from any of the foregoing, (d) remove or obscure any product identification, proprietary, copyright or other notices contained in such software, the Services or related documentation (including any reports or data printed via the use of the Services), (e) incorporate any of such software, the Services or portion thereof into any other offering (whether software as a service or otherwise), (f) use the Services to develop a product or service which is competitive with the Services or any other VidaNyx product or service offering or (g) publicly disseminate information or analysis regarding the performance of the Services.
1.3 Third Party Content. The Services may include or provide access to third party audio recordings photographs, videos, data, information and content (collectively the “Third Party Content”). VidaNyx does not control, endorse or adopt any Third Party Content and makes no representation or warranties of any kind regarding the Third Party Content, including regarding its accuracy or completeness or non-infringement. You acknowledge and agree that VidaNyx is not responsible or liable in any manner for any Third Party Content, or for any use thereof in connection with the Services, and undertakes no responsibility to update or review any Third Party Content. In addition, VidaNyx does not grant any rights to You with respect to such Third-Party Content. Your access and use of such Third Party Content is at Your own risk.
1.4 Your User Content. In Your use of the Service, You may be provided with the ability to upload, store, post, transmit or share audio recordings photographs, videos, data, messages, text, information or documents for use in connection with the Services (the “User Content”). You are solely responsible for all User Content, including the accuracy, quality, integrity, completeness, legality, reliability, appropriateness, and intellectual property ownership of such User Content. You acknowledge and agree that VidaNyx shall not be responsible or liable in any manner for any User Content or for any unauthorized access, deletion, correction, destruction, damage, or loss thereof. You agree to not use the Services to upload, store, post, transmit or share any User Content or other content that:
(a) is or may be unlawful or infringes upon or misappropriate any trade secret, copyright or other intellectual or proprietary right of any third party;
(b) is or may be libelous, defamatory, discriminatory, obscene, pornographic, harassing, invasive of privacy or publicity rights or fraudulent; except to the extent contained within information or materials obtained from a minor in the context of a forensic investigation into abuse or assault committed against such minor (“Victim Report”), but provided further that: (1) the Victim Report is uploaded, stored, posted, transmitted or shared via the Services solely for the purpose of managing and protecting that Victim Report; and (2) in no event will You upload, store, post, transmit or share any User Content (including any Victim Report) via the Services that contains any “child pornography” or any other “visual depiction” of “sexually explicit conduct” by or with a “minor,” as such terms are defined under 18 U.S.C. § 2256.
(c) contains software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs, cancelbots, spyware, keystroke loggers or adware, or is used to initiate a denial of service attack; or
(d) contains any personally identifiable information regarding any individual not residing within the United States, if, in connection with processing such information via the Services, VidaNyx would be subject to any compliance requirements under the law of any jurisdiction outside of the United States.
1.5 Prohibited Actions. You agree not to share Your Services user id or password or to access or use, or to encourage, promote, facilitate or instruct others to access or use the Services to:
(a) engage in, promote or encourage activities in violation of any applicable law, contracts or VidaNyx’s published policies;
(b) breach any security or authentication measures used by the Services, including attempting to gain unauthorized access to, or read, alter, destroy, or damage, the passwords or accounts of, or data or other information of other users stored through, the Services or access any feature or area of the Services that You are not authorized to access or discover;
(c) access or probe any network, computer or communications system, software application, or network or computing device systems without authorization, including breaches, vulnerability scans or penetration testing; or
(d) disable, interfere with, disrupt, intercept, circumvent or otherwise violate the integrity, security, functionality, proper working or any other aspect of the Services or impair use of the Services by others.
2 – VIDANYX RIGHTS
2.1 Usage Statistics; Aggregated Anonymous Data. VidaNyx has the right to (a) monitor, collect, use and store usage statistics regarding Your access and use of the Services, the Third Party Content and the User Content and (b) generate translations and transcriptions of any audio content included in any Third Party Content and User Content. VidaNyx may conduct analytical analysis of such translations and transcriptions and usage statistics metadata; provided that VidaNyx and its personnel shall have no access to and shall not use any unencrypted personally identifiable information that may be included therein and provided further that the analysis results shall not include any personally identifiable information or be identifiable with respect to You being the source of the underlying User Content (“Aggregated Anonymous Data”). VidaNyx may use the Aggregated Anonymous Data (i) for its own internal, statistical analysis, (ii) to develop and improve the Services, (iii) to create and distribute reports and other materials regarding use of the Services and (iv) to provide trends and other analytical data and reports derived from usage of the Services by You and other users and their respective uploaded data and content.
2.3 Service Provider Commitment. VidaNyx will not: (a) collect, retain, use, disclose or otherwise process any personal information contained within User Content for any purpose other than as necessary for the specific purpose of performing Services on behalf of Client; (b) collect, retain, use or disclose such personal information for a commercial purpose other than providing the Services on behalf of Client; or (c) sell such personal information. This Section shall not limit VidaNyx’s rights with respect to Aggregated Anonymous Data.
2.3 VidaNyx IP. You acknowledge that no ownership rights to the Services, the related and underlying software or related intellectual property rights are being conveyed to You and agree that VidaNyx or its suppliers retain all right, title and interest (including all patent, copyright, trade secret and other intellectual property rights) in and to the Services, such software (including interfaces), databases (including data models, structures and any other non-client specific data and statistical data), technology, reports and documentation, the Aggregated Anonymous Data, and all copies, modifications and derivative works of the foregoing (including any changes which incorporate any Feedback (defined below)).
2.4 Feedback. If You submit comments, information, questions, data, ideas, descriptions of processes, or other information to VidaNyx (excluding User Content, the “Feedback”), VidaNyx may in connection with the Services or any of its other products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise.
3 – WARRANTY DISCLAIMER; LIMITATION OF REMEDIES AND DAMAGES
3.1 Disclaimer. EXCEPT FOR ANY EXPRESS WARRANTY WHICH MAY HAVE BEEN PROVIDED BY VIDANYX TO YOUR CLIENT ORGANIZATION IN A SEPARATE SERVICES ACCESS AND USE TERMS AND CONDITIONS, THE SERVICES ARE PROVIDED “AS IS” AND YOUR USE OF THE SERVICES SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER VIDANYX NOR ANY OF ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT, IN CONNECTION WITH THE SERVICES OR YOUR USE THEREOF. VIDANYX MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SERVICES AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICES, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF VIDANYX’S SECURE SERVERS OR ANY AND ALL THIRD PARTY CONTENT, USER CONTENT, PERSONAL INFORMATION, FINANCIAL INFORMATION OR OTHER CONTENT STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY, OR (V) ANY ERRORS OR OMISSIONS IN ANY THIRD PARTY CONTENT, USER CONTENT OR OTHER CONTENT ACCESSIBLE THROUGH THE SERVICES OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY SUCH CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES. VIDANYX DOES NOT GUARANTEE ANY RESULTS FROM USING THE SERVICES. VIDANYX DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR MEET YOUR REQUIREMENTS; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, ANY STATUTORILY REQUIRED WARRANTIES SHALL BE LIMITED AS PROVIDED HEREIN. VIDANYX SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF VIDANYX OR DUE TO UNFORESEEN EVENTS SUCH AS STRIKE, WAR. ACT OF TERRORISM, NATURAL DISASTER OR FAILURE OR DIMINISHMENT OF POWER.
3.2 Limitations. SUBJECT TO SECTION 3.3 (EXCEPTIONS TO LIMITATIONS):
VIDANYX WILL HAVE NO LIABILITY ARISING OUT OF OR RELATING TO THE SERVICES FOR: (1) YOUR OR YOUR CLIENT ORGANIZATION’S LOST REVENUES OR PROFITS; (2) FOR SERVICES ERRORS OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF USER CONTENT OR OTHER DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, DATA, SERVICES OR TECHNOLOGY; (3) INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSSES (WHETHER OR NOT FORESEEABLE OR CONTEMPLATED BY VIDANYX); OR (4) EXEMPLARY OR PUNITIVE DAMAGES; EVEN IF VIDANYX HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING TYPES OF LOSSES OR DAMAGES.
VIDANYX’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THE SERVICES WILL NOT EXCEED THE GREATER OF (1) THE AMOUNT YOU OR YOUR CLIENT ORGANIZATION HAS PAID TO VIDANYX FOR USE OF THE SERVICES FOR THE 12 MONTHS PRECEDING THE SUBJECT CLAIM OR (2) THE AMOUNT PAYABLE BY YOUR OR YOUR CLIENT ORGANIZATION TO VIDANYX DURING THE INITIAL 12 MONTH SUBSCRIPTION PERIOD; AND
For purposes of this Section 3, “LIABILITY” means any liability, whether arising under contract, tort or otherwise.
4 – GENERAL TERMS
4.6 Export Control. In Your use of the Services, You agree to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) You represent and warrant that You are not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) 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 shall not access or use the Services in violation of any U.S. export embargo, prohibition or restriction.