VIDMOB PLATFORM TERMS AND CONDITIONS

Last updated:  October 8, 2024

Your use of the software platform, mobile apps, and any related content, software, products or services (collectively, the “Platform”) offered by VidMob, Inc. (“VidMob,” “we,” “us” or “our”) is governed by these Terms and Conditions (“Terms”).

These Terms include and incorporate the VidMob Privacy Policy (“Privacy Policy”), found at https://www.vidmob.com/privacy-policy/, and any other terms relating to the Platform to which you and VidMob have separately agreed in writing (“Additional Agreements”).

IMPORTANT NOTICE: 

THESE TERMS CONTAIN A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER COVERING DISPUTES BETWEEN YOU AND VIDMOB (SEE SECTION 17).  BY ACCEPTING THESE TERMS, YOU AND VIDMOB ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AND TO PARTICIPATE IN A CLASS ACTION.

YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under these Terms (except for matters that may be taken to small claims court or as otherwise set forth in Section 17).  A NEUTRAL ARBITRATOR will determine your rights – NOT a judge or jury (as set forth in Section 17).  ADDITIONALLY, THE PROJECT AGREEMENT (DEFINED BELOW) CONTAINS A BINDING ARBITRATION PROVISION COVERING DISPUTES BETWEEN CUSTOMERS AND CREATORS (SEE PROJECT AGREEMENT, SECTION 10).

1. Acceptance

By clicking the “I accept” button or by otherwise using the Platform, you indicate that you accept these Terms.  If you do not accept these Terms, you cannot use the Platform.

VidMob reserves the right to update these Terms at any time.  VidMob will post any changes to these Terms on this page and will update the “Last Updated” date at the top of these Terms.  Changes to these Terms will be effective for existing users five (5) days after notice of such changes is posted on the Platform.  If you do not agree to any change(s) after receiving notice of such change(s), you must stop using the Platform immediately.  

2. The VidMob Platform

The Platform provides a variety of digital marketing tools to subscribers and other paid users (“Customers”), including data-driven analytics for creative content (“Creative Analytics”), scalable content scoring features (“Creative Scoring”), and creative workflow tools (“Creative Studio”) enabling Customers to find and collaborate with freelance creative professionals (“Creators”) on content creation projects (“Projects”).  VidMob may also provide you with certain related support, analytics, or other services (the “Services”) in connection with your use of the Platform.

Customers and Creators contract directly for Projects using the Platform and may use for such purpose the form of agreement found at https://www.vidmob.com/project-agreement/ (the “Project Agreement”).

VidMob does not employ Creators or act as agent for Customers.  VidMob is not a party to the Project Agreement, and each party to a Project Agreement is solely responsible for the performance of its own obligations thereunder.

3. Your Account

a. General.

Each individual user is required to set up an account in order to use the Platform (an “Account”).  By creating an Account, you represent and warrant that you have the authority to enter into these Terms personally or on behalf of the entity identified in the registration process.  If you are using the Platform on behalf of a Customer, your Account will be associated with the relevant Customer organization account (each, an “Organization”).  If at any time you believe your Account has been associated with the incorrect Organization, you must contact VidMob at support@vidmob.com immediately.

Each Organization will have at least one dashboard through which the products, features, and services are made available (a “Workspace”), and each Organization and Workspace will be managed by one or more administrators (“Admins”).  Admins may be designated by the Customer using the Platform’s access control features or in writing to VidMob via email, Additional Agreement, or the Platform’s messaging features.

You are responsible for anything that happens through your Account, including any intentional or unintentional access granted to anyone through your Account (e.g., inadvertently granting access to a Workspace or Content to unauthorized individuals).  You covenant that all information you provide during Account setup is complete and accurate.  You agree to maintain and promptly update any data associated with your Account such that it remains true, accurate, current, and complete.  Do not share your Account login and password.  If you have questions about your Account, or if you suspect any unauthorized use of your password or any other breach of security of your Account, please contact support@vidmob.com.

b. Content.

As between you and VidMob, you retain ownership of the images, audio, video, text, data, information, or other materials you upload or otherwise transmit to the Platform (“Content”).  Regardless of anything to the contrary herein, you acknowledge and agree that VidMob may share your Content with VidMob’s third-party service providers (collectively, “Third-Party Providers”) as necessary to provide the Platform and exercise its rights and obligations under these Terms.

c. Access.

You are the only one with authority to access your Account.  The Admins of each Organization have authority to manage the Organization, including access to all Workspaces and Content within the Organization.  Admins of a given Workspace have authority to manage access to the Workspace and Content displayed within it.

When you upload Content to the Platform, including without limitation Connected Content as described below, Admins within your Organization will have authority to share and display such Content across the Workspaces within your Organization.  By uploading Content to the Platform or otherwise providing it to VidMob, you grant VidMob the non-exclusive, transferable, sublicensable, worldwide, fully-paid, royalty-free right and license to use, reproduce, share, distribute, and manage such Content as described in these Terms.

4. Creative Analytics & Creative Scoring

To access Creative Analytics or Creative Scoring, you must connect at least one ad manager account provided by a supported third-party social media platform (an “Ad Account”).  You retain ownership of the Ad Accounts you connect to the Platform and all Content contained therein (the “Connected Content”).  You may be permitted to manually upload Content in order to access Creative Scoring without connecting Ad Accounts, and all such Content will be deemed Connected Content for purposes of these Terms.

VidMob will not be obligated to provide Creative Scoring or Creative Analytics with respect to any Ad Accounts that are not connected to the Platform, and no failure to connect Ad Accounts nor any disconnections will delay or extend the relevant Subscription Term or affect Customer’s payment obligations.

5. Creative Studio

a. Creators Are Not Obligated to Accept Projects.

Creators have the ability to accept, reject, or ignore any Project requests made through Creative Studio.  VidMob does not guarantee that Projects will ultimately be accepted by Creators.

b. Pricing.

The price to be paid by the Customer for a given Project (the “Project Price”) will be indicated in the Platform or in an Additional Agreement, if applicable, and the fee to be paid to the Creator for such Project (the “Creator Fee”) will be indicated to the Creator via the Platform.  VidMob receives a fee on all Projects.

c. Project Posting and Acceptance.

Each Project description uploaded or otherwise entered into the Platform by or on behalf of a Customer (a “Brief”) constitutes an offer by Customer to engage a Creator to work on the Project.  Customer will use the Platform’s briefing functionality to submit Briefs.  If a Creator accepts, the Customer and the Creator will be deemed to have entered into a binding agreement on the terms set out in the Project Agreement or such other terms as Creator and Customer may separately agree in writing, provided such other terms are not inconsistent with these Terms, do not affect any right or obligation of VidMob, and VidMob is notified within three days of execution.

d. Execution of Projects.

Customer will provide and clearly organize all required source assets and information for the Project using the Platform’s asset management functionality.  Failure to do so may delay commencement of the Project and/or result in additional fees.  During the course of the Project, Customer and Creator will use the Platform’s communications functionality to collaborate.  VidMob is not responsible for collecting or delivering Project communications provided off-Platform.

e. Turnaround Times.

The Brief may specify the required turnaround times for the Project.  If no turnaround times are provided in the Brief the following standard times will apply:  7 business days after Project commencement for the first draft and 3 business days for each subsequent revision cycle.  If a Brief specifies a faster turnaround time than the standard times, an additional fee equal to 50% of the Project Price will apply unless otherwise provided in the Order Form.

f. Payment Timing & Completion.

The Customer will be charged the Project Price at the commencement of each Project and Creator will receive the Creator Fee within 60 days after completion of the Project and delivery of invoice.  Changes to a Brief after acceptance by Creator may result in additional fees.  If a Project has been delivered by Creator but not accepted by the Customer and no dispute has been submitted within 30 days after the Creator delivers the work, VidMob may deem the Project complete.

g. Third-Party Content.

Creators may use images, video, sounds, fonts, graphics or other content owned by third parties (“Third-Party Content”) in certain Projects.  If Third-Party Content is used in a Project, Creator must notify Customer and provide a copy of the applicable license terms.  By accepting a delivered Project, Customer accepts any Third-Party Content incorporated therein and agrees to comply with the applicable license terms.  Customer will be responsible for all costs related to Third-Party Content.

h. The Creative Process.

Projects involve the creative process and the results are inherently subjective.  You understand that there is no guarantee that you will be happy with the results of any given Project.

VidMob makes no warranties about the work product provided by Creators and is not responsible for their actions.  VidMob will have the right to remove Creators from Projects if VidMob learns of inappropriate behavior, failures of performance, or violations of the Terms.

6. Subscriptions

a. Order Forms.

You may purchase a subscription to the Platform (a “Subscription”) and/or credits applicable towards Services provided by VidMob or creative production Projects via Creative Studio (“Flex Credits”), either via click-through using the Platform’s self-serve features (where available) or by entering into a written order form with VidMob (an “Order Form”).  Specific details of a given Subscription will be set forth in the relevant Order Form.  Order Forms are Additional Agreements and will take precedence over these Terms only to the extent of any direct conflict.

b. Subscription Packages.

Subscriptions provide Customers with access to packages of products, features, and/or services available via the Platform.  Specific details of a given Subscription will be set forth on the “Subscription Packages” page within the Platform or in the relevant Order Form.

c. Subscription Term.

The term of each Subscription will be 12 months (the “Subscription Term”) unless otherwise agreed in the Order Form.  All 12-month Subscription Terms will automatically renew for successive 12-month periods on the same terms unless either party provides at least 30 days written notice of nonrenewal (email acceptable) before the end of the then-current Subscription Term.  Subscription Terms other than 12 months will not auto-renew unless provided in the Order Form.

Subscriptions may not be terminated early by the Customer except that, if the Order Form provides for a right to opt out within a certain time (an “Opt-Out Period”), Customer may terminate the Subscription upon written notice to VidMob at any point between the start of the Subscription Term and the end of the Opt-Out Period.

Customer will remain obligated to pay a prorated portion of the Fee for such Subscription based on the full length of the Opt-Out Period, regardless of when during the Opt-Out Period the Customer provides notice of termination.

d. Processing Limits for Creative Analytics and Creative Scoring.

Only paid media under two minutes (2:00) in duration will be processed for analysis via Creative Analytics and Creative Scoring unless Customer and VidMob agree otherwise in writing.

e. Usage-Based Pricing.

To the extent set forth in an applicable Order Form, Subscriptions may incorporate usage-based pricing and fee structures (e.g., progressive fee tiers based on a maximum number of asset scores produced or impressions analyzed).  An Order Form may further specify usage limits (“Usage Limits”) and Fees corresponding to overages exceeding same.  No refunds will be due where actual usage is less than the applicable Usage Limit.

All assets run and/or impressions occurring within connected Ad Accounts during the Subscription Term will be analyzed and counted toward the applicable Usage Limits.

Historical assets run and impressions occurring within connected Ad Accounts before a Customer’s initial Subscription Term may be analyzed but will not count toward applicable Usage Limits except to the extent they exceed the Usage Limits for the Subscription Term.

if Customer’s actual usage exceeds the applicable Usage Limits, Customer will pay overage rates equal to $.10 per thousand impressions (“CPM”) and/or $10 per scored asset, as applicable, unless otherwise stated in the Order Form.  Overages will be invoiced at VidMob’s discretion as they are incurred, regardless of the billing cycle stated in the Order Form.

f. Onboarding and Implementation.

VidMob may provide onboarding and implementation services (“Onboarding Services”) upon the commencement of a new Subscription in exchange for a Fee set forth in the applicable Order Form.  Renewals or extensions of existing Subscriptions will not receive additional Onboarding Services unless mutually agreed.

g. Professional Services.

Professional Services including analysis and enhanced support services (“Professional Services”) may be purchased with a new Subscription or added to an active Subscription.  When Customer purchases Professional Services, VidMob will make available the Professional Services set forth in the Order Form during the applicable Subscription Term.   Vidmob reserves the right to use its discretion in the performance of the Professional Services and to reject unreasonable or excessive requests.

Subject to VidMob’s rights in the VidMob Property (as defined below), Customer will own any written reports or analyses created by VidMob for Customer as part of the Professional Services and specifically identified in an Order Form (the “Work Product”).  All Work Product will be provided in VidMob’s standard form and format unless otherwise specified in the Order Form.

h. Flex Credits.

Flex Credits can only be used with an active Subscription and will be applied against the rates shown on the Rate Cards page within the Platform or as otherwise set forth in the applicable Order Form (the “Rate Cards”).  Flex Credits purchased may be used solely during the corresponding Subscription Term, so long as no Fees from Customer are past due.

Flex Credits will expire if unused at the end of the associated Subscription Term.  Flex Credits do not roll over into any Subscription extensions or renewals and are not redeemable for cash.

i. Rate Cards.

The cost of products and services available via the Platform will be as set forth on the Rate Cards or as otherwise provided by VidMob in writing.  VidMob reserves the right to modify the Rate Cards at any time.

7. Invoicing and Payment.

The applicable fees for Subscriptions and/or Flex Credits will be set forth in the applicable Order Form (the “Fees”).  Customer will pay all Fees within 30 days after the date of invoice.  Amounts paid by Customers are nonrefundable.

Beginning at the start of the Subscription Term, VidMob will invoice the Fees for each Subscription and any initial Flex Credits together in equal installments according to the billing cycle set forth on the Order Form.  If no billing cycle is stated, the Fees will be invoiced in full upon execution of the Order Form.

Fees for any Flex Credits added to a Subscription after the start of the Subscription Term will be invoiced in full upon execution of the relevant Order Form.  Fees for overages in Subscriptions under usage-based fee structures will be invoiced in full at the time of the overage.

VidMob will have the right to modify Fees for any renewal or extension of a Subscription as of the start date of the renewal term, and the Fees for each renewing 12-month Subscription will include at minimum an increase equal to the maximum published CPI percentage over the preceding Subscription Term.     VidMob will notify you in writing (e.g., via email or via notice published via the Platform) at least thirty (30) days in advance of such modified Fees taking effect.  In the event you do not agree to pay any such modified Fees, you have the right, as your sole and exclusive remedy therefor, to terminate your Subscription prior to such modification taking effect in accordance with Section 19 of these Terms.

If Customer fails to pay any Fees when due, Customer will pay all costs incurred by Vidmob in connection with collecting such Fees, including without limitation reasonable attorney fees, regardless of whether a claim is ultimately filed.

8. Rights

a. VidMob Property.

Regardless of anything to the contrary herein, VidMob owns all rights in the following (the “VidMob Property”): (i) the Platform, including without limitation all related source and object code, creative and usage data, information, graphics, features, algorithms, modifications, updates, and derivative works thereof, (ii) all best practices information, benchmarks, norms, creative tags, general reference data, usage and performance data, and statistical information about your use of the Platform (“Platform Data”), and (iii) all VidMob names, trademarks, logos, service marks, and equivalent identifiers (“Marks”).  You may not use VidMob Marks for any purpose without VidMob’s advance written consent.

b. VidMob Output

The Platform generates certain Customer-specific data, analytics, and other outputs analyzing the Customer Content that is displayed to Customer via use of Creative Analytics and Creative Scoring during the relevant Subscription Term (collectively, the “VidMob Output”).

Subject to VidMob’s rights in the VidMob Property, Customer will own the VidMob Output and VidMob shall have the perpetual, irrevocable, worldwide, royalty-free right to use the VidMob Output for any lawful purpose provided no such use could reasonably be used by a third party to identify Customer.

c. Customer Content.

Customer grants VidMob a non-exclusive, worldwide, royalty-free, transferable and sublicensable license, during the Subscription Term, to use, copy, and create derivative works of the Customer Content and use the Customer Marks in connection with operating the Platform and providing Services.

Customer grants VidMob a perpetual, irrevocable, non-exclusive, worldwide, royalty-free, transferable and sublicensable license, during and after the Subscription Term, to retain and use the Customer Content for any lawful purpose, including without limitation: (i) to develop and improve VidMob’s products and services and those of third parties, including without limitation to train, develop, and operate artificial intelligence technologies and models, and (ii) as part of Platform Data; provided in each case that no such use could reasonably enable a third party to identify Customer or the Customer Content.

d. Platform and Platform Data.

Subject to your compliance with these Terms, VidMob grants you a limited, revocable, non-sublicensable, non-transferable, non-exclusive license to access and use the Platform solely for purposes of creating and analyzing audiovisual content.

To the extent you receive Platform Data as part of a Subscription or via related Services, VidMob grants you a worldwide, revocable, non-exclusive, non-transferable, non-sublicensable license to access and use the Platform Data during the Subscription Term solely for your internal business purposes.

e. Feedback.

If you send VidMob ideas, suggestions, or feedback relating to the Platform or VidMob’s other products and services, VidMob will have the right to freely use and disclose that information, in perpetuity, without compensation to you.

f. Marketing.

VidMob may create customer success stories using your Marks and Content, provided VidMob will not disparage or negatively portray you in any such material.

9. Your Conduct

You agree to conduct yourself courteously and in a professional manner at all times when using the Platform, and you agree not to:

• Distribute, rent, lease, or otherwise sell the Platform or any Content or data produced by the Platform to any third party (including on a service bureau or similar basis).
• Modify or create derivative works based on any element of the Platform.
• Decompile, reverse engineer, or translate any portion of the Platform into human-readable form (except to the extent this restriction is prohibited by applicable law).
• Use the Platform in a manner that violates the rights of any third party, any contract to which you are bound, or applicable law.
• Interfere with or disrupt the operation of the Platform.
• Circumvent or disable any security measures or use restrictions.
• Access the Platform in an unauthorized manner.
• Use the Platform for purposes of competing with VidMob.
• Post, store, or transmit any illegal Content or Content deemed by VidMob to be offensive, obscene, or unethical.
• Harass, mistreat, or abuse any employee of VidMob or user of the Platform.

1. 10. Violations

VidMob may take any actions it deems reasonable if VidMob believes you have violated these Terms, including suspension or termination of your Account, without liability to you.

11. Maintenance and Monitoring

VidMob may update the Platform or perform maintenance at any time.  VidMob has the unlimited right, but does not assume any obligation, to monitor all activities on the Platform.  Communications made via the Platform are not confidential.

12. Payments

a. Processing.

All payments must be made in U.S. Dollars, and you will be responsible for any associated currency exchange fees.  Payments may be processed through the Platform via credit card or may be invoiced as set forth in an Additional Agreement (“Payment Method”).  By providing us with payment information for the applicable Payment Method, you agree that we are authorized to charge you for all Fees. You agree to immediately notify us of any change in relevant information for your Payment Method.

VidMob currently uses Braintree for payment services (e.g., card acceptance, merchant settlement, and related services).  By using the Platform, you agree to be bound by Braintree’s policies (available at https://www.braintreepayments.com/legal) with respect to the processing of payments and the handling of personal information, and authorize us and Braintree to share any information and payment instructions you provide with third parties solely as required to complete your transactions.  We reserve the right at any time to change our billing methods and payment services providers.

b. Sales Tax.

If VidMob determines it has a legal obligation to collect Sales Tax from you in connection with the Platform, VidMob shall collect such Sales Tax in addition to the Fees.  If any Services, or payments for any Services, under these Terms are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to VidMob, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify and hold harmless VidMob from and against any liability or expense VidMob may incur in connection with such Sales Taxes.  Upon VidMob’s request, you will provide official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes.

For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.

c. Withholding and Other Taxes.

You agree to pay all Fees to VidMob free and clear of, and without reduction for, any withholding taxes.  Any such taxes imposed on payments of fees to VidMob will be your sole responsibility, and you will provide official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.

13. Infringement Complaints

a. General.

VidMob respects the intellectual property rights of others and we expect you to do the same.  If you are a copyright owner and believe a user of the Platform is infringing your copyright or the copyright of any third party, please notify our designated copyright agent in writing at the following address: VidMob, Inc., Attn: Brian Keller, 126 Fifth Ave, 4^th Floor, New York, NY 10011.

b. Notice Requirements.

Each notification must include the following information: (i) a physical or electronic signature of a person authorized to act on behalf of the owner of the right that is allegedly infringed, (ii) a description of the work claimed to have been infringed, or, if multiple works are covered by a single notification, a representative list of such works, (iii) identification of the material that is claimed to be infringing, and information reasonably sufficient to permit VidMob to locate the material, (iv) information reasonably sufficient to permit VidMob to contact you, such as an address, telephone number, and, email address, (v) a written statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law, and (vi) a statement made under penalty of perjury that the information in the notification is accurate and that you are the copyright owner or authorized to act on the owner’s behalf.

c. Trademarks.

The above process may be used to inform us of potential or suspected violations of other intellectual property rights, including unauthorized use of trademarked material.

d. Rights and Remedies.

We may remove Content alleged to be infringing from the Platform and terminate or suspend the Account of any user who infringes the intellectual property rights of another person or entity, in each case without prior notice and at our sole discretion.

14. Your Representations and Warranties

a. You represent and warrant to VidMob that (i) you are at least 18 years of age and have the authority to enter into these Terms on your own behalf or, if you are acting on behalf of an entity, on behalf of that entity, (ii) you have the authority to grant all rights and fully perform all applicable obligations under these Terms, (iii) no Content you transmit, store, or otherwise use in connection with the Platform will infringe the rights of any third party, violate applicable law, or contain viruses or other malicious or harmful software, (iv) your use of the Platform as contemplated in these Terms does not violate any agreements between you and any third parties, (v) you have the legal right to transmit, share, store, and otherwise use your Content on the Platform as contemplated in these Terms without approval of or payment to any third party, and (vi) you have fully complied with all applicable privacy laws with respect to all personal data you use, upload, or transmit in connection with the Platform, including without limitation any personal data contained in any Connected Content.

b. If you are a Creator, you further represent and warrant that any Content uploaded to your portfolio on the Platform represents your own work and is a fair representation of your skills.

c. If you have connected Ad Accounts to the Platform, you further represent and warrant that (i) you have full right and authority to link the Ad Accounts to the Platform, (ii) you have full right and authority to share the Content within the Ad Accounts with VidMob and the Organization to which your Account is linked, and (iii) none of the actions described in the foregoing clauses (i) and (ii) will violate the terms of any agreements between you and any third party.

15. Indemnification

You agree to indemnify, defend, and hold harmless VidMob, its affiliated companies, contractors, employees, officers, agents and third-party suppliers, licensors, and partners (the “VidMob Parties”) from and against all third-party claims, expenses, or liabilities of any kind (including legal fees) arising out of your use or misuse of the Platform, any breach of these Terms, and your violation of any applicable laws, rules or regulations.  The foregoing obligation to indemnify, defend, and hold harmless the VidMob Parties will survive any expiration or termination of these Terms, as well as any termination of your Account or of the Platform.

16. DISCLAIMERS AND LIMITATION OF LIABILITY

a. DISCLAIMERS.

THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND YOU USE THE PLATFORM AT YOUR OWN RISK.  THE VIDMOB PARTIES DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES REGARDING THE PLATFORM, INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.  THE VIDMOB PARTIES DO NOT WARRANT THAT THE PLATFORM WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE, OR THAT CREATIVE ANALYTICS, CREATIVE SCORING, OR ANY OTHER VIDMOB OUTPUT WILL BE ACCURATE, COMPLETE, TRUTHFUL, OR SUITABLE.  ALL VIDMOB OUTPUT IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY, AND YOU RELY ON THE VIDMOB OUTPUT AT YOUR OWN RISK.  THE VIDMOB PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THIRD-PARTY PROVIDERS.  THE VIDMOB PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE BUSINESS RESULTS PRODUCED BY ADVERTISING CONTENT BASED ON OR INCORPORATING INFORMATION GENERATED BY THE PLATFORM OR THE VIDMOB PARTIES.

THE FOREGOING DISCLAIMERS ARE MADE TO THE FULLEST EXTENT PERMITTED BY LAW.

b. LIMITATION OF LIABILITY.

EXCEPT IN THE CASE OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT: (i) THE LIABILITY OF THE VIDMOB PARTIES RELATING TO THESE TERMS WILL NOT EXCEED FIVE HUNDRED DOLLARS ($500), AND (ii) THE VIDMOB PARTIES WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR RELATED TO THESE TERMS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

NONE OF THE VIDMOB PARTIES SHALL BE LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD ANY OF THE VIDMOB PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES.

THE FOREGOING LIMITATIONS OF LIABILITY ARE MADE TO THE FULLEST EXTENT PERMITTED BY LAW.

17. Dispute Resolution

PLEASE READ THIS SECTION (“ARBITRATION AGREEMENT”) CAREFULLY.  IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHTS TO FILE A LAWSUIT IN COURT AND TO BE PART OF A CLASS ACTION.

a. Resolution.

If a dispute arises between you and VidMob relating to the Platform, our goal is to provide you with a neutral and cost-effective means of quickly resolving the dispute.  Accordingly, we strongly encourage you to first contact us directly to seek an informal resolution through our customer support team.  The customer support team can be contacted via email at support@vidmob.com or via letter by physical mail at 126 Fifth Ave, 4^th Floor, New York, NY 10011.

b. Applicability of Arbitration Agreement.

You agree that any dispute or claim relating in any way to your access or use of the Platform, to any products, services or content relating to the Platform, or to any aspect of your relationship with VidMob, will be resolved by binding arbitration, rather than in court, except that (i) you may assert claims in small claims court if your claims qualify, and (ii) you or VidMob may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents).  This Arbitration Agreement will apply, without limitation, to all claims that arose or were asserted before the effective date of this Arbitration Agreement or any prior version of this Arbitration Agreement.

c. Arbitration Rules and Forum.

The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.  To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent, Harvard Business Services, Inc., at 16192 Coastal Highway, Lewes, Delaware 19958.  The arbitration will be conducted by JAMS, an established alternative dispute resolution provider.  Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, will be subject to JAMS’ most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims will be subject to JAMS’ most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/.  JAMS’ rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267.  If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum.  If the arbitrator finds that you cannot afford to pay JAMS’ filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, VidMob will pay them for you.  In addition, VidMob will reimburse all such JAMS’ filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous.

You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location.  Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

d. Authority of Arbitrator.

The arbitrator will have exclusive authority to (i) determine the scope and enforceability of this Arbitration Agreement and (ii) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including, but not limited to, any claim that all or any part of this Arbitration Agreement is void or voidable.  The arbitrator will decide the rights and liabilities, if any, of you and VidMob.  The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties.  The arbitrator will have the authority to grant motions dispositive of all or part of any claim.  The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and these Terms (including the Arbitration Agreement).  The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded.  The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have.  The award of the arbitrator is final and binding upon you and us.

e. Waiver of Jury Trial.

YOU AND VIDMOB HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY.  You and VidMob are instead electing that all claims and disputes will be resolved by arbitration under this Arbitration Agreement, except as specified in Section 17.b above.  An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms as a court would.  However, there is no judge or jury in arbitration, and court review of an arbitration award is very limited.

f. Waiver of Class or Other Non-Individualized Relief.

ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.  If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought into the State or Federal Courts located in the State of New York.  All other claims will be arbitrated.

g. 30-Day Right to Opt Out.

You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: arbitrationoptout@vidmob.com within 30 days after first becoming subject to this Arbitration Agreement.  Your notice must include your name and address, your username (if any), the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement.  If you opt out of this Arbitration Agreement, all other parts of the Terms will continue to apply to you.  Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.

h. Severability.

Except as provided in Section 17.f, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts will be of no force and effect and will be severed and the remainder of the Arbitration Agreement will continue in full force and effect.

i. Survival of Arbitration Agreement.

This Arbitration Agreement will survive the expiration or any termination of your relationship with VidMob.

j. Modification.

Notwithstanding any provision in this Arbitration Agreement to the contrary, the parties agree that if VidMob makes any future material change to this Arbitration Agreement, you may reject that change within 30 days of such change becoming effective by writing VidMob at the following address:  arbitrationoptout@vidmob.com.

18. Third-Party Services

These Terms do not apply to any third-party websites, services and applications (“Third-Party Services”) that you may access through or connect to the Platform, such as payment processors, content library providers, or social media platforms.

You agree to comply with all terms of service or other agreements applicable to such Third-Party Services, which we encourage you to review carefully.  We are not responsible for the content or practices of Third-Party Services and provide links to Third-Party Services only for your convenience.

19. Termination

a. You may terminate any Account registered to you at any time via the Platform or by emailing us at support@vidmob.com. VidMob has the right, immediately and without notice, to suspend or terminate your Account if VidMob believes you have violated the Terms.  VidMob will not be liable to you or any third party for any suspensions or terminations of your Account or your access to any portion of the Platform.

b. If your Account is terminated for any reason, the rights and licenses granted to you in these Terms will immediately terminate. Termination of your Account will not relieve you of any payment obligations hereunder existing at the time of termination, and you will not be entitled to receive a refund for any Fees already paid.

c. Following the expiration or any termination of these Terms, Sections 8(a), 8(b), 8(d), 12-22, and any other provisions that, by their nature, are intended to survive, will survive.

20. Notices Regarding Apple

With respect to any application (each, an “App”) accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use such App (i) on an Apple-branded product that runs iOS (Apple’s proprietary operating system); and (ii) as permitted by the “Usage Rules” set forth in the Apple Media Terms of Service, except that such App Store Sourced Application may be accessed, acquired, and used by other accounts associated with the purchaser via Apple’s Family Sharing function, volume purchasing, or Legacy Contacts function.

(a) You acknowledge and agree that (i) these Terms are concluded between you and VidMob only, and not Apple, and (ii) VidMob, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.

(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.

(c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between VidMob and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of VidMob.

(d) You and VidMob acknowledge that, as between VidMob and Apple, Apple is not responsible for addressing any claims you have or of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

(e) You and VidMob acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between VidMob and Apple, VidMob, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.

(f) You and VidMob acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.

(g) Without limiting any other terms of these Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.

21. Notices Regarding the Google Play Store

With respect to any App accessed through or downloaded from the Google Play Store, you acknowledge that the availability of the App and the Platform is dependent on the Google Play Store.  VidMob, not the Google Play Store, is solely responsible for the App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement).  In order to use the App, you must have access to a wireless network, and you agree to pay all fees associated with such access.  You also agree to pay all fees (if any) charged by the Google Play Store in connection with the App.  You agree to comply with, and your license to use the App is conditioned upon your compliance with, all terms of agreement imposed by the Google Play Store when using VidMob’s App. You acknowledge that the Google Play Store (and its subsidiaries) are third-party beneficiaries of these Terms and will have the right to enforce it.

You may have additional license rights with respect to use of the App on a shared basis within your designated family group.

22. General Provisions

a. Governing Law.

These Terms are governed by the laws of the State of New York without regard to conflict of law principles.  You and VidMob submit to the exclusive personal jurisdiction of the state and federal courts located within New York, New York for resolution of any court proceeding permitted under these Terms.

b. Entire Agreement.

These Terms, together with any Additional Agreements, contain the entire understanding between you and VidMob, and supersede all prior understandings or agreements of any kind between you and us with respect to the Platform.  Solely to the extent of any direct conflict between an Additional Agreement and these Terms, the Additional Agreement will take precedence, provided that Sections 7(d)(iii) and 8(b) will take precedence over contrary terms in any Additional Agreements other than Order Forms.

c. Notices.

All required notices from VidMob to you will be provided via e-mail to the address associated with your Account.  All notices from you to VidMob under these Terms must be in writing and addressed to:  VidMob, Inc., Attn: Legal Department, 126 Fifth Ave, New York, NY 10011 or will be sent via email to legal@vidmob.com.

Any notices that you provide without compliance with this paragraph will have no legal effect.

d. Force Majeure.

VidMob shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, epidemics, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials, or governmental action relating to the foregoing.

e. Open Source Software.

Certain items of code provided with or accessed via the Platform are subject to open source licenses.  Open source software is not subject to these Terms, except as it relates to Sections 15 and 16, and is licensed under the terms of the license that accompanies such software.  You may also write us at support@vidmob.com with any questions you have about VidMob’s use of open source software.

f. Contact.

If you encounter any problems using the Platform, you may use the contact form on the Platform or email us at support@vidmob.com.  You may also write us at VidMob, Inc., 126 Fifth Ave, 4^th Floor, New York, NY 10011 with any questions you have about these Terms, the Platform, or our other services.

g. Miscellaneous.

You affirm that you have the full legal right and authority to enter into these Terms and to fully perform all applicable obligations and grant all applicable rights described herein.  If you are acting on behalf of an entity in your use of the Platform, you affirm that you have the authority to take all such actions on behalf of that entity.  You acknowledge that you and VidMob are independent contractors.  VidMob’s failure to enforce any provision or exercise any right under these Terms will not be construed as a waiver of such provision or right.  You and VidMob agree that if any portion of these Terms is found to be unenforceable by any court of competent jurisdiction, such provision will be ineffective solely to the extent of such unenforceability and solely in such jurisdiction, and the remaining terms will continue in full force and effect.  Except with respect to the VidMob Parties, there will be no third-party beneficiaries of these Terms.  You may not assign or delegate any rights or obligations under the Terms without VidMob’s prior written consent.  You agree that any electronic signature, including any action such as clicking a checkbox or other icon indicating agreement, that you provide via the Platform constitutes your acceptance and agreement as if actually signed by you in writing.  All required notices from VidMob to you will be provided via e-mail to the address associated with your Account.