Platform and Services

• Services. Subject to the terms and conditions of this Agreement, Vm-content hereby grants Customer a limited, nonexclusive, nonsublicensable, nontransferable, revocable right to access and use Services during the Term solely for Customer’s own personal or internal business purposes. Vm-content will use commercially reasonable efforts to provide Customer with access to the Services via the Internet for use by Customer subject to the terms and conditions of this Agreement. Vm-content offers a Pro Plan, which, if purchased by Customer, provides Customer with unlimited credits, subject to reasonable and fair use at Vm-content’s sole discretion (“Fair Use Policy”).
• Customer Responsibilities. “Content” means any and all writings, content, social media posts, blog posts, marketing materials, information, data and works of authorship. “Customer Content” means all Content supplied by or on behalf of Customer for use on or distribution through the Services. “Customer Data” means the electronic information or data submitted or made available by or on behalf of Customer that is received, processed or stored by Vm-content or the Services. Customer is responsible for access to the Services, Customer Content and Customer Data by other persons as a result of Customer’s failure to comply with the terms of this Agreement or use reasonable precautions to secure its own systems or credentials for access to the Services. Customer will prevent unauthorized access to or use of the Platform, and notify Vm-content immediately of any such unauthorized access or use. Customer will be solely responsible and liable for the collection, storage and processing of information and/or sensitive information by Vm-content according to Customer’s instructions.
• Use Restrictions. Customer will not, directly or indirectly through any third party: (i)use the Services for any purpose other than its own personal or business purposes; (ii) use or access the Services in violation of any applicable law, rule or regulation; (iii) sell, resell, license, lease, transfer, distribute, redistribute, assign, transmit, publish, display, disclose or otherwise commercially exploit or make available (collectively, “Distribute”) the Platform to any third party; (iv) Distribute libelous, defamatory, pornographic, obscene, invasive of privacy, publicity or intellectual property rights, abusing, inciting, harassing, threatening, unlawful, tortious, misleading, false or fraudulent Customer Content or Customer Data on, to or through the Services; (v) Distribute Customer Content or Customer Data on, to or through the Services that violates the rights of any party or infringes upon or misappropriates the patent, trademark, trade secret, copyright, or other intellectual property right of any party; (vi) Distribute malicious or harmful computer code on, to or through the Services; or (vii) duplicate or reverse engineer the Platform, in whole or in part. Use of the Services in an automatic way violates the Fair Use Policy and will subject Customer’s account to suspension and/or termination.
• Upgrades and Modifications. Customer agrees that Vm-content may remove, update, upgrade, enhance or modify the Services or any functionality thereof, at any time, including the removal or modification of previously available functionality. All updates, upgrades, enhancements or modifications to the Services made available to Customer by Vm-content will automatically be considered part of the Services and will be subject to the terms and conditions of this Agreement.
• Suspension. Vm-content may suspend or interrupt the provision of the Services, in whole or in part, at any time immediately upon notice to Customer if Vm-content determines that: (i) Customer are using or intend to use the Services in violation of this Agreement or in violation of any applicable law, rule or regulation; (ii) any computer system of Customer has been compromised or unlawfully accessed; (iii) suspension of the Services is necessary to protect the infrastructure of Vm-content or its affiliates, the environment in which the Services is deployed, or Vm-content’s other customers; (iv) suspension is required under law, rule or regulation; or (v) Customer has failed to pay Fees when due. All of the aforementioned remedies are in addition to, and not in lieu of, other remedies available to Vm-content.

CONTENT

• Customer’s Right to Create or Post Content. Customer is solely responsible for the Content generated by Customer using Services or by the Platform in connection with Customer’s use of the Services (“Output Content”), including its legality, reliability, appropriateness, or infringement on a third party’s intellectual property rights. VM-Content MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE OUTPUT CONTENT. ALL OUTPUT CONTENT IS PROVIDED “AS-IS.” VM-Content DOES NOT REPRESENT OR WARRANT THAT THE OUTPUT CONTENT, OR ANY PORTION THEREOF, DOES NOT OR WILL NOT INFRINGE UPON OR MISAPPROPRIATE ANY RIGHT OF ANY PARTY.
• Customer Representations. Customer represents and warrants that: (i) the Customer owns the Customer Content or has a right to use the Customer Content and grant VM-Content the rights to license and use the Customer Content as provided in this Agreement and (ii) Customer’s posting of Customer Content and Output Content on or through the Services does not violate the privacy rights, publicity rights, intellectual property rights, contract rights, or any other right of any party.
• Content Restrictions. VM-Content is not responsible for Customer Content or Output Content. Customer acknowledges and agrees that Customer is solely responsible for the Customer Content and Output Content and all activity that is posted or occurs under Customer’s Platform account, whether done so by Customer or any third party using the account. Customer may not and shall not generate or transmit any Content that is unlawful, offensive, upsetting, intended to disgust, threatening, defamatory, libelous, obscene, or otherwise objectionable. Examples of such Content include, but are not limited to, the following:
• Content that is unlawful or promotes unlawful activity;
• automated article spinning and bot-like generation;
• defamatory, discriminatory, or mean-spirited, including references or commentary about religion, race, sexual orientation, gender, national or ethnic origin, or other targeted groups;
• restricted verticals such as substance use, adult services, etc.;
• spam, including both machine or randomly generated, constituting unauthorized or unsolicited advertising, chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling;
• containing or installing any viruses, worms, malware, Trojan horses, or other material or Content that is designed or intended to disrupt, damage, or limit the functioning of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of a third party;
• infringing on any proprietary rights of any party including patent, trademark, trade secret, copyright, right of publicity, or other rights;
• impersonating any person or entity including the VM-Content or its employees and representatives;
• giving the impression that VM-Content or another person or entity endorses the content endorses, if that is not the case;
• violating the privacy of any third person; and
• false information and features.
• Certain Content. VM-Content does not permit the generation of sexual, religious or political content and hence Customer is strictly prohibited from generating any such Content. If even by mistake, Customer attempts to generate such Content, the Platform will give Customer an error message of “Unsafe Content” the first time and this is to be considered the final warning. If Customer attempts to generate such Content again, Customer’s rights to access and use the Services will be terminated and Customer will be barred from using the Services again and no refunds will be issued.
• e. Content Moderation. VM-Content may, but is not obligated to, in its sole discretion determine whether or not any Content or use of app is appropriate and complies with this Agreement and may refuse to remove Content in VM-Content’s sole discretion. VM-Content further reserves the right to make formatting or editing changes at its sole discretion. VM-Content reserves the right to limit or revoke Customer’s use of Services if VM-Content determines that Customer violated any term of this Agreement. Customer acknowledges that VM-Content cannot control all Content posted by users and/or third parties on the Services and use of the Services is at Customer’s own risk; Customer may be exposed to offensive, indecent, incorrect or otherwise objectionable Content to which VM-Content is in no way liable for, including errors or omissions in any Content, or any loss or damage of any kind incurred as a result of Customer’s use of any Content.

Fees and Payment

• Terms of Payment; Method. Customer shall pay to VM-Content all fees set forth at the time of registration for the provision of Platform (“Fees”). Customer agrees that all payments of Fees are nonrefundable, except as expressly set forth in this Agreement.
• Late Payments. All late payments will bear interest at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly.
• Taxes. Fees are exclusive of Taxes, and Customer will be solely responsible for the payment of all such Taxes (other than Taxes computed on the basis of the net income of VM-Content).“Taxes” means all of the following: sales, use or privilege taxes, excise or similar taxes, value added taxes, import and export taxes, duties or assessments, shipping, handling, insurance, brokerage, and other related charges levied by any jurisdiction (including penalties and interest) and any costs associated with the collection and withholding of any of the foregoing items.
• Refund Policy. Since VM-Content offers a free trial before any purchase, it will not process refunds for new plans or recurring payments, except where Customer has canceled its plan before being charged for a recurring payment. Customer must provide written proof that Customer had canceled prior to the recurring charge. If Customer is a yearly plan customer, Customer is eligible for a 50% refund if for cancellations within seven (7) calendar days of the initial purchase date and the account will remain active for six (6) consecutive months from the initial purchase date.

Fees and Payment

• Terms of Payment; Method. Customer shall pay to VM-Content all fees set forth at the time of registration for the provision of Platform (“Fees”). Customer agrees that all payments of Fees are nonrefundable, except as expressly set forth in this Agreement.
• Late Payments. All late payments will bear interest at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly.
• Taxes. Fees are exclusive of Taxes, and Customer will be solely responsible for the payment of all such Taxes (other than Taxes computed on the basis of the net income of VM-Content).“Taxes” means all of the following: sales, use or privilege taxes, excise or similar taxes, value added taxes, import and export taxes, duties or assessments, shipping, handling, insurance, brokerage, and other related charges levied by any jurisdiction (including penalties and interest) and any costs associated with the collection and withholding of any of the foregoing items.
• Refund Policy. Since VM-Content offers a free trial before any purchase, it will not process refunds for new plans or recurring payments, except where Customer has canceled its plan before being charged for a recurring payment. Customer must provide written proof that Customer had canceled prior to the recurring charge. If Customer is a yearly plan customer, Customer is eligible for a 50% refund if for cancellations within seven (7) calendar days of the initial purchase date and the account will remain active for six (6) consecutive months from the initial purchase date.

Termination

• Term; Renewal. This Agreement shall commence on the when you first access or use the Services and remain in full force and effect for the term set forth when the Customer signs up for the Platform (the “Initial Term”), unless and until earlier terminated in accordance with this Agreement. Upon expiration of the Initial Term, this Agreement shall automatically renew for successive periods of time equal to the Initial Term (each a “Renewal Term”, together with the Initial Term, the “Term”), unless Customer provides the other Party written notice of nonrenewal no less than sixty (60) days prior to the expiration of the then-current term, VM-Content determines at its sole discretion without notice to not renew the the Agreement or earlier terminated in accordance with this Agreement.
• Termination for Breach. Either Party may terminate this Agreement if the other Party fails to cure any material breach of this Agreement within ten (10) days (or one (1) day if such breach is a breach by Customer of any payment obligation under this Agreement) after written notice of such breach.
• Immediate Termination. Either Party may terminate this Agreement immediately upon notice to the other Party if: (a) the other Party (i) is adjudged insolvent or bankrupt, (ii) institutes or has instituted against it any proceeding seeking relief, reorganization or arrangement under any laws relating to insolvency (and, in the case of any such proceeding instituted against it, the proceeding is not dismissed within thirty (30) days after the filing), (iii) makes any assignment for the benefit of creditors, (iv) appoints a receiver, liquidator or trustee of any of its property assets, or (v) liquidates, dissolves or winds up its business; or (b) if any change occurs in any applicable laws or regulations that would, in that Party’s reasonable opinion, render the Party’s performance hereunder illegal. VM-Content may terminate this Agreement or suspend Customer’s account immediately, without prior notice or liability, if VM-Content determines or believes in good faith that Customer has violated any term of this Agreement.
• Effect of Termination. Upon expiration or termination of this Agreement: (i) all rights granted to Customer to access and use the Services shall terminate immediately; (ii) VM-Content’s obligation to provide Services shall terminate immediately; (iii) each Party shall destroy all copies of the Confidential Information of the other Party on tangible media in such Party’s possession or control or return such copies to the other Party; (iv) Customer shall certify in writing to VM-Content that it has satisfied all obligations in this section, and (v) Customer shall pay all Fees incurred as of the date of termination or expiration. Customer acknowledges and agrees that VM-Content has no obligation to retain Customer Data or Customer Content after termination or expiration of this Agreement, and may delete such Customer Data and Customer Content thirty (30) days after termination or expiration of this Agreement.

Intellectual Property

• VM-Content Materials. Except for the limited rights expressly granted to Customer in this Agreement, VM-Content retains all right, title and interest (including all intellectual property rights) in and to the Services (including all updates, upgrades, enhancements or modifications to or of the Services), all VM-Content information, software, text, displays, images, video, and audio included in or published or displayed via the Services, and the design, selection, and arrangement thereof, the solutions provided thereby, all software and technology underlying the Services, all VM-Content documentation relating to the Services, all content or works of authorship created, licensed or provided by VM-Content, and all Output Content (collectively, “VM-Content Materials”). Title to and ownership of any VM-Content Materials created by VM-Content in the course of providing Services shall be held exclusively by VM-Content, whether such VM-Content Materials were requested by or on behalf of Customer or incorporate ideas, feedback or comments provided by or on behalf of Customer. Customer will not acquire any rights in or to the VM-Content Materials by implication, estoppel or otherwise. Customer hereby irrevocably assigns to VM-Content all rights, title and interest in and to the VM-Content Materials.
• Customer Content and Customer Data. Customer hereby grants VM-Content a perpetual, irrevocable, fully paid, royalty-free, worldwide license to reproduce, create derivative works from, distribute, publicly display, publicly perform, use, make, have made, offer for sale, sell or otherwise dispose of, and import the Customer Content and Customer Data, with the right to sublicense each and every such right, for the purposes of providing the Services and related services to Customer and for all purposes permitted in this Agreement or VM-Content’s privacy policy, as amended from time to time.
• Output Content. VM-Content hereby grants Customer a limited, revocable, non-exclusive, non-transferrable, non-assignable, non-sublicensable license to use, reproduce, and distribute the Output Content solely for Customer’s own personal or business purposes.
• Feedback. Customer hereby grants VM-Content a perpetual, irrevocable, worldwide license to use any Feedback (as defined below) Customer communicates to VM-Content during the Term, without compensation, without any obligation to report on such use, and without any other restriction. VM-Content’s rights granted in the previous sentence include, without limitation, the right to exploit Feedback in any and every way, as well as the right to grant sublicenses under copyright, patent, and any other form of intellectual property. Notwithstanding anything to the contrary in this Agreement, Feedback will not be considered Customer’s Confidential Information or its trade secret. “Feedback” refers to any suggestion or idea for modifying any of the Services or any of VM-Content’s other technology, products or services.

Customer must not:

• Modify copies of any materials from the Site;
• Use any illustrations, photographs, video or audio sequences, or any graphics separately from the accompanying text; or
• delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from the site.

If Customer prints, copies, modifies, downloads, or otherwise uses or provides any other person with access to any part of the Site in breach of this Agreement, Customer’s right to use the Site will stop immediately and Customer must, at VM-Content’s option, return or destroy any copies of the materials Customer has made. No right, title, or interest in or to the Site or any content on the Site is transferred to Customer, and all rights not expressly granted are reserved by the VM-Content. Any use of the Website not expressly permitted by this Agreement of Use is a breach of this Agreement of Use and may violate copyright, trademark, and other laws.

Confidentiality

• Confidential Information. From time to time during the Term, either Party (as the “Discloser”) may disclose or make available to the other Party (as the “Recipient”), non-public, proprietary, or confidential information of Discloser, including all user names, passwords, or any other piece of information as part of VM-Content’s security procedures (“Confidential Information”). Confidential Information does not include any information that: (i) is or becomes generally available to the public other than as a result of Recipient’s breach of this Confidentiality Section; (ii) is or becomes available to the Recipient on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (iii) was in Recipient’s possession prior to Discloser’s disclosure hereunder; or (iv) was or is independently developed by Recipient without using any Confidential Information of the Discloser. The Recipient shall: (1) protect and safeguard the confidentiality of the Discloser’s Confidential Information with at least the same degree of care as the Recipient would use to protect its own Confidential Information, but in no event with less than a reasonable degree of care; (2) not use the Discloser’s Confidential Information, or authorize it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (3) not disclose Discloser’s Confidential Information to any person or entity, except to the Recipient’s Group who need to know the Discloser’s Confidential Information to assist the Recipient, or act on its behalf, to exercise its rights or perform its obligations under this Agreement and who have agreed to confidentiality terms at least as restrictive as those set forth in this Confidentiality Section. If the Recipient is required by applicable law or legal process to disclose any Confidential Information of the Discloser, Recipient may disclose such portion of the Confidential Information required to be disclosed by applicable law or legal process if Recipient, prior to making such disclosure, uses reasonable efforts to notify Discloser of such requirements to afford Discloser the opportunity to seek, at Discloser’s sole cost and expense, a protective order or other remedy. “Recipient’s Group” means the Recipient’s employees, officers, directors, agents, independent contractors, subcontractors, attorneys, accountants, and financial advisors. Recipient will cause all members of its Recipient’s Group to comply with Recipient’s obligations under this Confidentiality Section. Recipient shall be responsible and liable for any and all breaches of this Confidentiality Section by, or caused by, its Recipient’s Group.

Privacy and Data Collection

• Privacy and Data Collection In addition to the rights and licenses granted in the Intellectual Property Section (b), Customer hereby grants to VM-Content a nonexclusive, worldwide, royalty-free, irrevocable, perpetual right and license to (i) aggregate Customer Data and information or data that is derived by or through Customer’s use of the Services with other data to create Anonymous Aggregated Data; and (ii) use, reproduce, modify, distribute, display and create derivative works of Anonymous Aggregated Data. VM-Content may use Anonymous Aggregated Data to benchmark, operate and improve the Services and other VM-Content goods and services, and market VM-Content products and services. “Anonymous Aggregated Data” means data that has been aggregated with other data and anonymized to exclude data that identifies any individual, company, or organization.
Data Protection Addendum. Customer shall provide VM-Content written notice before uploading, transmitting, making available or otherwise publishing on, to or through the Services any Customer Content or Customer Data that is subject to the General Data Protection Regulation (EU 2016/679). Upon VM-Content’s request, Customer shall enter into VM-Content’s then standard GDPR Data Protection Addendum.

Indemnification

• Customer shall indemnify, defend, release and hold VM-Content, its affiliates, and its and their respective directors, officers, employees, agents, successors and permitted assigns harmless from and against any and all claims, actions, causes of action, suits, proceedings, investigations, losses, damages, liabilities, settlements, awards, judgments, fines, fees, penalties, costs and expenses of any nature whatsoever (including reasonable attorneys’ fees), in each case whether first-party or third-party, that arise from, result from, relate to, are based upon or allege: (i) Customer’s actual or alleged breach of this Agreement; (ii) Output Content, Customer Content or Customer Data, or any use or distribution thereof by or on behalf of VM-Content or Customer; (iii) Customer’s actual or alleged negligence or more culpable conduct; or (iv) Customer’s actual or alleged violation of any law, rule or regulation or any right of any party. Customer shall not enter into any settlement or compromise in connection with any claim subject to indemnification under this Indemnification Section that requires VM-Content or any other indemnified party under this Indemnification Section to admit wrongdoing or liability, make any payments, comply with any ongoing affirmative obligations or comply with any restrictive covenants.
Data Protection Addendum. Customer shall provide VM-Content written notice before uploading, transmitting, making available or otherwise publishing on, to or through the Services any Customer Content or Customer Data that is subject to the General Data Protection Regulation (EU 2016/679). Upon VM-Content’s request, Customer shall enter into VM-Content’s then standard GDPR Data Protection Addendum.

Limitation of Liability

• Consequential Damages Disclaimer. IN NO EVENT SHALL VM-Content OR ITS AFFILIATES BE LIABLE TO THE OTHER PARTY, ITS AFFILIATES OR ANY THIRD PARTY FOR LOST PROFITS, LOSS OF DATA, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, OR INDIRECT DAMAGES OR COSTS (INCLUDING LEGAL FEES AND EXPENSES) IN CONNECTION WITH THE SUPPLY, USE OR PERFORMANCE OF, OR INABILITY TO USE, THE SERVICES, OR IN CONNECTION WITH ANY CLAIM ARISING FROM OR RELATED TO THIS AGREEMENT (INCLUDING BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE) AND WHETHER OR NOT SUCH PARTY SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS.
• Liability Cap. THE TOTAL CUMULATIVE LIABILITY OF VM-Content AND ITS AFFILIATES FOR ALL DAMAGES AND LIABILITIES ARISING UNDER ALL CLAIMS IN CONNECTION WITH OR RELATED TO THE SERVICES OR THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION (INCLUDING ACTIONS FOR BREACH OF CONTRACT, INDEMNITY, NEGLIGENCE, STRICT LIABILITY, RESCISSION, MISREPRESENTATION AND BREACH OF WARRANTY) SHALL NOT IN THE AGGREGATE EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO VM-Content UNDER THIS AGREEMENT IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT WHICH CAUSED THE DAMAGE RELATING TO CUSTOMER’S FIRST CLAIM MADE UNDER THIS AGREEMENT. THE LIABILITY CAP SHALL APPLY EVEN IF AN EXCLUSIVE REMEDY OF CUSTOMER UNDER THIS AGREEMENT HAS FAILED OF ITS ESSENTIAL PURPOSE.

Warranty Disclaimer

• Customer. Customer represents and warrants that: (i) it is permitted to provide to VM-Content the Customer Content and Customer Data for all purposes related to this Agreement; (ii) VM-Content’s possession, reproduction, use or disclosure (separately and together) of the Customer Content or Customer Data in accordance with this Agreement will not infringe upon, misappropriate or violate any right of any third party or any federal, state, local or foreign law, rule, regulation, or statute; (iii) it has and will collect the Customer Data and Customer Content in compliance with all applicable laws, rules and regulations; (iv) it has and will obtain such consents as are required by applicable law, rule or regulation for VM-Content to access and process the Customer Data and Customer Content as authorized in this Agreement and VM-Content’s privacy policy; and (v) all Customer Data and Customer Content will be free from viruses and other harmful computer code.
• Warranty Disclaimer; No-Reliance. THE SERVICES AND ALL RELATED SERVICES AND OUTPUT CONTENT ARE PROVIDED “AS-IS” AND “AS-AVAILABLE.” VM-ContentVM-Content DOES NOT WARRANT THAT ITS SERVICES WILL FUNCTION FREE OF ANY INTERRUPTIONS, MISTAKES, ERRORS, PERFORMANCE ISSUES, DELAYS, OR SECURITY ISSUES. VM-Content DOES NOT WARRANT ANY RESULTS FROM THE USE OF ITS SERVICES, INCLUDING, BUT NOT LIMITED TO, FUNCTIONALITY, COMPATIBILITY WITH CUSTOMER’S CURRENT WRITING TOOLS, OR ANY OTHER TYPE OF GUARANTEE. CUSTOMER’S USE OF THE SERVICES IS AT CUSTOMER’S OWN RISK; VM-Content IS NOT LIABLE FOR ANY NEGATIVE CONSEQUENCES CAUSED BY THE USE OF ITS SERVICES BY CUSTOMER IN ANY WAY, UNLESS OTHERWISE DETERMINED BY LAW. BEFORE USING THE SERVICES, CUSTOMER AGREES TO DETERMINE IF THE CONTENT BEING POSTED IS ORIGINAL AND DOES NOT INFRINGE A THIRD PARTIES’ INTELLECTUAL PROPERTY OR COPYRIGHT. CUSTOMER IS SOLELY RESPONSIBLE FOR ALL CONTENT PUBLISHED UNDER THEIR ACCOUNT. EXCEPT AS MAY BE EXPRESSLY SET FORTH IN THIS WARRANTY DISCLAIMER SECTION, THE SERVICES AND ALL SERVICES RELATED THERETO ARE PROVIDED "AS IS" AND “AS AVAILABLE”, AND VM-Content MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, QUALITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. CUSTOMER ACKNOWLEDGES AND AGREES THAT IN ENTERING INTO THIS AGREEMENT IT HAS NOT RELIED AND IS NOT RELYING ON ANY REPRESENTATIONS, WARRANTIES OR OTHER STATEMENTS WHATSOEVER, WHETHER WRITTEN OR ORAL (FROM OR BY VM-Content OR ANY OF ITS AFFILIATES OR REPRESENTATIVES) OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT AND THAT IT WILL NOT HAVE ANY RIGHT OR REMEDY RISING OUT OF ANY REPRESENTATION, WARRANTY OR OTHER STATEMENT NOT EXPRESSLY SET FORTH IN THIS AGREEMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR ELSEWHERE, ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND “AS AVAILABLE” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS (IF ANY) IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY PROVIDER, OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS. VM-Content HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THIRD-PARTY MATERIALS. “THIRD-PARTY MATERIALS” MEANS ALL GOODS, SERVICES, TECHNOLOGY, MATERIALS OR INFORMATION, IN ANY FORM OR MEDIUM, INCLUDING ANY OPEN-SOURCE OR OTHER SOFTWARE, DOCUMENTS, DATA, CONTENT, SPECIFICATIONS, PRODUCTS, EQUIPMENT, OR COMPONENTS, OF OR RELATING TO THE SERVICES THAT ARE NOT PROPRIETARY TO VM-Content.

Links to other Websites

• Services may contain links to third party web sites or services that are not owned or controlled by VM-Content. VM-Content has no control over, and assumes no responsibility for the content, privacy policies, or practices of any third party web sites or services. VM-Content does not warrant the offerings of any of these entities/individuals or their websites. Customer acknowledges and agrees that VM-Content shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such third party web sites or services. VM-Content strongly advises Customer to read the terms of services and privacy policies of any third party web sites or services that Customer visits.

DMCA Notice and Procedure for Copyright Infringement Claims

Customer may submit a notification pursuant to the Digital Millennium Copyright Act (DMCA) by providing VM-Content’s copyright agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):

• an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright's interest;
• a description of the copyrighted work that Customer claims has been infringed, including the URL (i.e., web page address) of the location where the copyrighted work exists or a copy of the copyrighted work;
• identification of the URL or other specific location on the Services where the material that Customer claims is infringing is located;
• Customer’s address, telephone number, and email address;
• a statement by Customer that Customer has a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
• a statement by Customer, made under penalty of perjury, that the above information in Customer’s notice is accurate and that Customer is the copyright owner or authorized to act on the copyright owner's behalf.

Miscellaneous

This Agreement: (a) is governed by, and will be interpreted, construed and enforced in accordance with, the laws of the State of Florida without giving effect to Florida’s conflict of laws rules; (b) is binding upon, and will inure to the benefit of, the Parties and their respective successors and permitted assigns; and (c) constitutes the sole and entire agreement of the Parties with respect to the subject matter herein, and supersedes all prior and contemporaneous written or oral negotiations, understandings, agreements, representations, and warranties, with respect to the subject matter herein. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion shall not be deemed a waiver of any other provision or of such provision on any other occasion. Customer may not, directly or indirectly, assign, transfer, or delegate any of or all of its rights or obligations under this Agreement (whether by operation of law, merger or otherwise), without the prior written consent of VM-ContentVM-Content. Any purported assignment or delegation in violation of this Miscellaneous Section shall be null and void. Subject to the Arbitration Agreement, each Party expressly consents to the exclusive jurisdiction of the federal, state and local courts serving Miami, Florida to govern all disputes arising out of or relating to this Agreement. Notwithstanding the foregoing, subject to the Arbitration Agreement, either Party may seek injunctive relief against the other Party from any other judicial or administrative authority pending the resolution of such dispute. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY KNOWINGLY, VOLUNTARILY, IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY DISPUTE, CONTROVERSY, CLAIM OR LEGAL ACTION ARISING OUT OF, OR RELATING TO, THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining portions hereof or affecting the validity or enforceability of such provision in any other jurisdiction. If any legal action is brought to enforce this Agreement, the prevailing Party shall be entitled to receive its reasonable attorneys’ fees, court costs, and other collection expenses. There are no third-party beneficiaries to or under this Agreement. All references to and mentions of the words “including”, “include” or “includes” shall be deemed to be followed by “without limitation.” “Or” is not exclusive. All provisions which by their nature should survive such termination or expiration shall survive termination or expiration, including, without limitation, ownership provisions, warranty disclaimers, indemnity, limitations of liability, and miscellaneous provisions. VM-Content shall not be liable for failure or delay in performing its obligations under this Agreement if such failure is a result of any event outside of the reasonable control of VM-Content. Except for exclusive remedies expressly set forth in this Agreement (if any) , each Party’s rights and remedies under this Agreement are cumulative.

Arbitration Agreement

This Arbitration Agreement section is the “Arbitration Agreement.”

By agreeing to this Agreement, Customer agrees that Customer is required to resolve any claim that Customer may have against VM-Content on an individual basis in arbitration as set forth in this Arbitration Agreement, and not as a class, collective, coordinated, consolidated, mass and/or representative action. This Arbitration Agreement will preclude Customer from bringing any class, collective, coordinated, consolidated, mass and/or representative action against VM-Content, and also preclude Customer from participating in or recovering relief in any current or future class, collective, coordinated, consolidated, mass and/or representative action brought against VM-Content by someone else. Thus, the Parties agree that the Arbitrator shall not conduct any form of class, collective, coordinated, consolidated, mass and/or representative arbitration, nor join, coordinate, or consolidate claims of multiple individuals against VM-Content in a single proceeding. For the avoidance of doubt, this Arbitration Agreement precludes Customer from bringing or participating in any kind of class, collective, coordinated, consolidated, mass and/or representative or other kind of group, multi-plaintiff or joint action against VM-Content, other than participating in a classwide, collective, coordinated, consolidated, mass and/or representative settlement of claims.

(a) Agreement to Binding Arbitration Between Customer and VM-Content.

(1) Covered Disputes: Except as expressly provided below in this Arbitration Agreement, Customer and VM-Content agree that any dispute, claim, or controversy in any way arising out of or relating to (i) this Agreement and prior versions of this Agreement, or the existence, breach, termination, enforcement, interpretation, scope, waiver, or validity thereof; (ii) Customer’s access to or use of the Services at any time; (iii) incidents or accidents resulting in personal injury to Customer or anyone else that Customer alleges occurred in connection with Customer’s use of the Services, regardless whether the dispute, claim, or controversy occurred or accrued before or after the date Customer agreed to this Agreement, and regardless whether Customer alleges that the personal injury was experienced by Customer or anyone else; and (iv) Customer’s relationship with VM-Content, will be settled by binding individual arbitration between Customer and VM-Content, and not in a court of law. This Arbitration Agreement survives after Customer’s relationship with VM-Content ends.

(2) Class Action Waiver: Customer acknowledges and agrees that any and all disputes, claims, or controversies between the Parties shall be resolved only in individual arbitration. The Parties expressly waive the right to have any dispute, claim, or controversy brought, heard, administered, resolved, or arbitrated as a class, collective, coordinated, consolidated, and/or representative action, and neither an arbitrator nor an arbitration provider shall have any authority to hear, arbitrate, or administer any class, collective, coordinated, consolidated, and/or representative action, or to award relief to anyone but the individual in arbitration. The Parties also expressly waive the right to seek, recover, or obtain any non-individual relief. Notwithstanding anything else in this agreement, this Class Action Waiver does not prevent Customer or VM-Content from participating in a classwide, collective, and/or representative settlement of claims. The Parties further agree that if for any reason a claim does not proceed in arbitration, this Class Action Waiver shall remain in effect, and a court may not preside over any action joining, coordinating, or consolidating the claims of multiple individuals against VM-Content in a single proceeding, except that this Class Action Waiver shall not prevent Customer or VM-Content from participating in a classwide, collective, and/or representative settlement of claims. If there is a final judicial determination that any portion of this Class Action Waiver is unenforceable or unlawful for any reason, (i) any class, collective, coordinated, consolidated, and/or representative claims subject to the unenforceable or unlawful portion(s) shall proceed in a court of competent jurisdiction; (ii) the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration; (iii) the unenforceable or unlawful portion(s) shall be severed from this Arbitration Agreement; and (iv) severance of the unenforceable or unlawful portion(s) shall have no impact whatsoever on the enforceability, applicability, or validity of the Arbitration Agreement or the arbitrability of any remaining claims asserted by Customer or VM-Content.

(3) Delegation Clause: Only an arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute arising out of or relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement, including without limitation any claim that all or any part of this Arbitration Agreement is void or voidable. An arbitrator shall also have exclusive authority to resolve all threshold arbitrability issues, including issues relating to whether this Agreement are applicable, unconscionable, or illusory and any defense to arbitration, including without limitation waiver, delay, laches, or estoppel. However, only a court of competent jurisdiction, and not an arbitrator, shall have the exclusive authority to resolve any and all disputes arising out of or relating to the Class Action Waiver, including, but not limited to, any claim that all or part of the Class Action Waiver is unenforceable, unconscionable, illegal, void, or voidable.

(4) Application to Third Parties: This Arbitration Agreement shall be binding upon, and shall include any claims brought by or against any third parties, including but not limited to Customer’s spouses, heirs, third-party beneficiaries and assigns, where their underlying claims arise out of or relate to Customer’s use of the Services. To the extent that any third-party beneficiary to this agreement brings claims against the Parties, those claims shall also be subject to this Arbitration Agreement.

(b) Exceptions to Arbitration.

Notwithstanding the foregoing, this Arbitration Agreement shall not require arbitration of the following claims: (i) individual claims brought in small claims court so long as the matter remains in such court and advances only on an individual basis; and/or (ii) injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights.

Such claims may be brought and litigated in a court of competent jurisdiction by Customer on an individual basis only. On an individual basis means that Customer cannot bring such claims as a class, collective, coordinated, consolidated, mass and/or representative action against VM-Content. For the avoidance of doubt, this precludes Customer from bringing claims as or participating in any kind of any class, collective, coordinated, consolidated, mass and/or representative or other kind of group, multi-plaintiff or joint action against VM-Content and no action brought by Customer may be consolidated or joined in any fashion with any other proceeding. Where Customer’s claims are brought and litigated to completion on such an individual basis in a court of competent jurisdiction, VM-Content agrees to honor Customer’s election. The Parties’ agreement not to require arbitration in these limited instances does not waive the enforceability of this Arbitration Agreement as to any other, or the enforceability of this Arbitration Agreement as to any other controversy, claim, or dispute.

(c) Rules and Governing Law.

The Parties shall be required to meet and confer to select a neutral arbitration provider. Such an arbitration provider shall have operations in Florida. If the Parties are unable to mutually agree upon an arbitration provider, then either Party may invoke 9 U.S.C. § 5 to request that a court of competent jurisdiction appoint an arbitration provider with operations in Florida. Any arbitration provider appointed by a court under 9 U.S.C. § 5 shall conduct arbitration solely on an individualized basis as set forth in this Arbitration Agreement. Once the Parties mutually agree upon a neutral arbitration provider, or an arbitrator provider is appointed under 9 U.S.C. § 5, the ensuing arbitration shall commence pursuant to the rules of the designated arbitration provider, except as designated herein. Once an arbitration provider is agreed upon or appointed, an Arbitrator shall be appointed. The Arbitrator will be either (1) a retired judge or (2) an attorney licensed to practice law in Florida with experience in the law underlying the dispute. The Arbitrator will be selected by the Parties from the applicable arbitration provider’s roster of arbitrators. If the Parties are unable to agree upon an Arbitrator after a good faith meet and confer effort, then the applicable arbitration provider will appoint the Arbitrator in accordance with its rules.

Notwithstanding any choice of law or other provision in this Agreement, the Parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the Parties to be bound by the provisions of the FAA for all purposes, including, but not limited to, interpretation, implementation, enforcement, and administration of this Arbitration Agreement, and that the FAA and the applicable arbitration provider’s rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and applicable arbitration provider’s rules are found to not apply to any issue regarding the interpretation or enforcement of this Arbitration Agreement, then that issue shall be resolved under the laws of Florida.

(d) Process.

Pre-Arbitration Dispute Resolution and Notification. The Parties agree that good-faith informal efforts to resolve disputes often can result in a prompt, low-cost, and mutually beneficial outcome. The Parties therefore agree that, before either Party demands arbitration against the other, we will personally meet and confer, via telephone or videoconference, in a good-faith effort to resolve informally any claim covered by this Arbitration Agreement. Multiple individuals initiating claims cannot participate in the same informal telephonic dispute resolution conference. If Customer is represented by counsel, Customer’s counsel may participate in the conference, but Customer shall also fully participate in the conference. The Party initiating the claim must give notice to the other Party in writing of their intent to initiate an informal dispute resolution conference, which shall occur within 60 days after the other Party receives such notice, unless an extension is mutually agreed upon by the Parties. To notify VM-Content that Customer intends to initiate an informal dispute resolution conference, write to VM-Content, providing Customer’s name, the telephone number(s) associated with Customer’s VM-Content account (if any), the email address(es) associated with Customer’s VM-Content account, and a description of Customer’s claim. Engaging in an informal dispute resolution conference is a condition precedent that must be fulfilled before commencing arbitration, and the Arbitrator shall dismiss any arbitration demand filed before completion of an informal dispute resolution conference. The statute of limitations and any filing fee deadlines shall be tolled while the Parties engage in the informal dispute resolution process required by this paragraph.

Initiating Arbitration. In order to initiate arbitration following the conclusion of the informal dispute resolution process required by this Arbitration Agreement, a Party must provide the other Party with a written demand for arbitration and file the demand with the applicable arbitration provider, as determined by this Arbitration Agreement. A Party initiating an arbitration against VM-Content must send the written demand for arbitration to VM-Content, or serve the Demand on VM-Content’s registered agent for service of process. Additionally, a Party initiating arbitration against VM-Content must send an electronic version of the demand for arbitration to the Arbitration Provider, and must send an electronic version of the as-filed demand to VM-Content.

By signing the demand for arbitration, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that (i) the demand for arbitration is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (ii) the claims 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 (iii) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery. The Arbitrator shall be authorized to afford any relief or impose any sanctions available under Federal Rule of Civil Procedure 11 or any applicable state law for either Party’s violation of this requirement.

(e) Location.

Unless Customer and VM-Content otherwise agree, the arbitration will be conducted in Miami, Florida. Customer’s right to a hearing will be determined by the applicable arbitration provider’s rules. Subject to the applicable arbitration provider’s rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the Parties, consistent with the expedited nature of the arbitration.

(f) Offers of Judgment.

At least 10 days before the date set for the arbitration hearing, any Party may serve an offer in writing upon the other Party to allow judgment on specified terms. If the offer is accepted, the offer with proof of acceptance shall be submitted to the arbitrator, who shall enter judgment accordingly. If the offer is not accepted prior to the arbitration hearing or within 30 days after it is made, whichever occurs first, it shall be deemed withdrawn, and cannot be given in evidence upon the arbitration. If an offer made by one Party is not accepted by the other Party, and the other Party fails to obtain a more favorable award, the other Party shall not recover their post-offer costs and shall pay the offering Party’s costs from the time of the offer.

(g) Arbitrator’s Decision.

The Arbitrator will render an award within the time frame specified in the applicable arbitration provider’s rules. Judgment on the arbitration award may be entered in any court of competent jurisdiction. The Arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. An Arbitrator’s decision shall be final and binding on all Parties.

The Arbitrator is not bound by decisions reached in separate arbitrations, and the Arbitrator’s decision shall be binding only upon the Parties to the arbitration that are the subject of the decision.

The Arbitrator shall award reasonable costs incurred in the arbitration to the prevailing Party in accordance with the law(s) of the state in which arbitration is held.

(h) Fees.

With the exception of the provisions governing payment of arbitration costs set forth above, Customer’s responsibility to pay any filing, administrative, and arbitrator fees will be solely as set forth in the applicable arbitration provider’s rules and shall be up to the amount Customer would be required to pay if Customer filed a claim in court.

If Customer has a gross monthly income of less than 300% of the federal poverty guidelines, Customer is entitled to a waiver of arbitration fees and costs, exclusive of arbitrator fees. If Customer believes that Customer meets the requirements to obtain a fee waiver, and Customer’s demand for arbitration arises outside of California, then Customer may request a fee waiver only by submitting to the arbitration provider AO 240, Application to Proceed in District Court Without Prepaying Fees or Costs (found here), or a declaration under oath containing all the information required by AO 240; if Customer’s demand for arbitration arises in California, then Customer must submit a declaration under oath providing Customer’s monthly income and the number of persons in Customer’s household.

Any and all disputes regarding a Party’s obligation to pay any arbitration fees or costs that arise after an arbitrator is appointed shall be determined solely by the arbitrator. If such a dispute arises before an arbitrator has been appointed, the Parties agree that (i) the due date for any disputed fees shall be stayed pending resolution of the Parties’ dispute, (ii) a panel of three arbitrators shall be appointed to resolve the Parties’ dispute concerning a Party’s obligation to pay fees or costs of arbitration, (iii) the panel of arbitrators shall be appointed by each Party selecting one arbitrator from the arbitration provider’s roster to serve as neutral arbitrators, and these arbitrators shall appoint a third neutral arbitrator. If the Parties’ arbitrators cannot agree on a third arbitrator, the arbitration administrator will select the third arbitrator, (iv) VM-Content shall pay any administrative fees or costs incidental to the appointment of a panel of arbitrators under this provision, as well as any fees or costs that would not be incurred in a court proceeding, such as payment of the fees of the arbitrator(s), as well as room rental, and (v) the arbitrator(s) shall issue a written decision with findings of fact and conclusions of law. If two or more fee disputes between a claimant and VM-Content arise at or around the same time, the disputes may be consolidated for resolution by a single arbitrator or panel of arbitrators either at the agreement of the Parties or the election of the Party common to all such disputes.

(i) Severability and Survival.

If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason, (i) the unenforceable or unlawful provision shall be severed from this Agreement; (ii) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Arbitration Agreement or the Parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement; and (iii) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the Parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.