Effective Date: June 2018
USE OF OUR SERVICE
DESCRIPTION OF SERVICE
Vyng allows its Users to use existing third party or record their own video and audio messages (referred to as “vyngs”) and use or share them with other Users to use as ring tones for the mobile phones.
You must create an account at Vyng in order to gain access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. You may never use another User’s account without permission. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify Vyng immediately of any breach of security or unauthorized use of your account. Vyng will not be liable for any losses caused by any unauthorized use of your account.
By providing Vyng your email address, you consent to our using that email address to send you Vyng Service-related notices, including any notices required by law, in lieu of communication by snail mail.
You agree not to engage in any of the following prohibited activities in connection with the Vyng Service: (i) copying, distributing, or disclosing any part of the Vyng Service in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Vyng Service in a manner that sends more request messages to the Vyng servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser; (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Vyng Service; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure or that could disable, overburden, or impair the proper operation of the Vyng Service, such as a denial of service attack; (vi) uploading invalid data, viruses, worms, or other software agents through the Vyng Service; (vii) collecting or harvesting any personally identifiable information, including account names, from the Vyng Service; (viii) using the Vyng Service for any commercial purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Vyng Service; (xi) accessing any content on the Vyng Service through any technology or means other than those provided or authorized by the Vyng Service; (xii) bypassing the measures we may use to prevent or restrict access to the Vyng Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Vyng Service or the content therein, or (xiii) decompiling, reverse engineering, or otherwise attempting to obtain the source code of the Vyng Service.
You may not use the Vyng Services to share music recordings, whether or not you own or have a license to these recordings; unless such music recording is the original work by you.
You may not access or use the Vyng Service if you work with or for a competitor, except with Vyng’s prior written consent. In addition, you may not use or access the Vyng Service for purposes of monitoring the performance or functionality for a competitor or for any third party, or for any other benchmarking or competitive purposes and you may not share any benchmarking data regarding the Vyng Service usage with any third party without Vyng’s prior written consent.
We may, without prior notice, change the Vyng Service, stop providing the Vyng Service or features of the Vyng Service (to you or generally), or create usage limits for the Vyng Service. We may permanently or temporarily terminate or suspend your access to the Vyng Service without notice or liability to Vyng, for any reason or for no reason, including if in our sole determination you violate any provision of this Agreement. Upon termination of this Agreement or your access to the Vyng Service for any reason or no reason, you will continue to be bound by the terms of this Agreement which, by their nature, should survive termination, including without limitation ownership provisions, warranty disclaimers, indemnity, and limitations of liability.
You are solely responsible for your interactions with other Vyng Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. Vyng shall have no liability for your interactions with other Users, or for any User’s action or inaction.
Vyng Service allows Users to (i) exchange information, messages, images, photos, videos and other content by recording messages (“vyngs”) and sharing them with each other, (ii) otherwise send information, messages, images, photos, videos and other content to other Users of the Vyng Service; (iii) send information, messages, images, photos, videos and other content to a computer or other browser-enabled device and receive similar types of content and information from such devices; and (iv) use existing videos as ringtones. Any information, messages, images, photos, videos, files, personal or technical data, or any other type of information that you transmit using the Vyng Service shall be referred to as “User Content” for the purposes of this Agreement.
You agree not to transmit User Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, obscene, pornographic, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contains any information or content that you know is not correct and current; Do anything that could disable, overburden, or impair the proper operation of the Application, the Vyng Services or the Site, such as a denial of service attack.
You agree that any User Content that you post does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights (as defined below) or rights of privacy. Vyng reserves the right, but is not obligated, to reject and/or remove any User Content that Vyng believes, in its sole discretion, violates these provisions.
For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
Vyng takes no responsibility and assumes no liability for any User Content that you or any other User or third party posts or sends over the Vyng Service. You shall be solely responsible for your User Content and the consequences of posting or publishing it, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that Vyng shall not be liable for any damages you incur or allege to incur as a result of User Content.
We may use your User Content (including, but not limited, to the vyngs you create) in a number of different ways, including publicly displaying it, reformatting it, incorporating it into advertisements and other works, creating derivative works from it, promoting it, distributing it, and allowing others to do the same in connection with their own websites and media platforms. As such, you hereby irrevocably grant us world-wide, non-exclusive, royalty-free, sublicensable, transferable right to use, host, store, reproduce, modify, create derivative works, communicate, publish, publicly perform, publicly display and distribute Your Content for any purpose. You irrevocably waive, and cause to be waived, against us any claims and assertions of moral rights or attribution with respect to your User Content. By “use” we mean use, copy, publicly perform or display, distribute, modify, translate, and create derivative works of your User Content.
By sharing your User Content (i.e., sharing a vyng) with another User, you grant such User a perpetual, non-exclusive, world-wide, fully-paid and royalty-free, irrevocable right and license to (i) edit, reproduce, modify, tag, create derivative works of, or otherwise manipulate such User Content, and (b) download, distribute, and store such User Content for non-commercial, personal use.
By using the Vyng Service, you are granted the license rights described in the paragraph above with respect to any other User’s User Content shared with you. You do not acquire ownership rights to any User Content except for those limited license rights granted herein.
ONCE USER CONTENT HAS BEEN SHARED WITH ANOTHER USER, SUCH USER HAS A COPY OF SUCH USER CONTENT. DELETING YOUR USER CONTENT WILL NOT HAVE ANY EFFECT ON YOUR USER CONTENT THAT HAS BEEN SHARED PRIOR TO REMOVAL. IF YOU DO NOT WANT OTHER USERS TO COPY, MANIPULATE, DISTRIBUTE, EDIT, DISPLAY, OR OTHERWISE USE YOUR USER CONTENT, DO NOT USE THE VYNG SERVICE TO SHARE IT WITH ANOTHER USER.
END USER LICENSE GRANT
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Vyng Service for your personal, non-commercial use, as permitted by the features of the Vyng Service. Vyng reserves all rights not expressly granted herein in the Vyng Service and the Vyng Content (as defined below). Vyng may terminate this license at any time for any reason or no reason.
We make available software to access the Vyng Service via a mobile device (“Mobile Software”). To use the Mobile Software you must have a mobile device that is compatible with the Mobile Vyng Service. Vyng does not warrant that the Mobile Software will be compatible with your mobile device. Vyng hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Software for one Vyng account on one mobile device owned or leased solely by you, for your personal, non-commercial use. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Software, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Software to any third party or use the Mobile Software to provide time sharing or similar services for any third party; (iii) make any copies of the Mobile Software; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Software, features that prevent or restrict use or copying of any content accessible through the Mobile Software, or features that enforce limitations on use of the Mobile Software; or (v) delete the copyright and/or other Vyng rights notices on the Mobile Software. You acknowledge that Vyng may from time to time issue upgraded versions of the Mobile Software, and may automatically electronically upgrade the version of the Mobile Software that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of this Agreement will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Software is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Software or any copy thereof, and Vyng or its third party partners or suppliers retain all right, title, and interest in the Mobile Software (and any copy thereof).
MOBILE SOFTWARE FROM GOOGLE ANDROID MARKET
This paragraph is intended to apply to you if you have downloaded the Mobile Software on a device powered by the Android operating system. Vyng and you, the end‐user of the Mobile Software and Vyng Services, acknowledge that the Agreement is entered into by and between Vyng and you. Vyng is solely responsible for the Software and Vyng Services. Should you have downloaded the Software from the Google Android Market located online at http://www.android.com/market/. You acknowledge that you have reviewed the Android Market Terms of Service (located online at http://www.google.com/mobile/android/market‐tos.html) and the Android Market Business and Program Policies (located online at http://www.google.com/mobile/android/market‐policies.html). You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government “watch list” of prohibited or restricted parties, including the Specially Designated Nationals list published by the Office of Foreign Assets Control of the U.S. Treasury or the Denied Persons List published by the U.S. Department of Commerce.
VYNG VYNG RIGHTS
Except for your User Content, the Vyng Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content (the “Vyng Content”), and all Intellectual Property Rights related thereto, are the exclusive property of Vyng and its licensors. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any materials or content accessible on the Vyng Service. Use of the Vyng Content or materials on the Vyng Service for any purpose not expressly permitted by this Agreement is strictly prohibited.
You may choose to or we may invite you to submit comments or ideas about the Bmbshell Service, including without limitation about how to improve the Bmbshell Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Company under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Company does not waive any rights to use similar or related ideas previously known to Company, or developed by its employees, or obtained from sources other than you.
A. Billing Policies. Certain aspects of the Vyng Service may be provided for a fee or other charge (e.g, vyngs created by celebrities). If you elect to use such paid aspects of the Vyng Service, you agree to the pricing and payment terms, as displayed in the Vyng Service and as may be updated from time to time. Company may add new Vyng Services for additional fees and charges, add or amend fees and charges for existing Vyng Services, at any time in its sole discretion.
B. No Refunds. There are no refunds for any purchases under the Vyng Service. In the event that Company suspends or terminates your account or this Agreement for your breach of this Agreement, you understand and agree that you shall receive no refund or exchange for any Company Property, any unused time on a subscription, any license or subscription fees for any portion of the Vyng Service, any content or data associated with your account, or for anything else.
C. Payment Information; Taxes. All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with the Vyng Service must be accurate, complete, and current. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with the Vyng Service at the prices in effect when such charges are incurred. You will pay any applicable taxes, if any, relating to any such purchases, transactions or other monetary transaction interactions.
D. California Residents. Under California Civil Code Section 1789.3, California users of the Vyng Service receive the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Vyng Services of the California Department of Consumer Affairs may be contacted in writing at 1020 N Street, #501, Sacramento, California 95814, or by telephone at 1-916-445-1254.
Vyng cares about the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
YOUR INTERACTIONS WITH OTHER USERS
You are solely responsible for your interactions with other Users. You understand that we do not in any way screen our Users, nor do we inquire into the backgrounds of our Users or attempt to verify the statements of our Users. You agree to take reasonable precautions in all interactions with other Users, particularly if you decide to meet offline or in person.
THIRD PARTY LINKS
You agree to defend, indemnify and hold harmless Vyng and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors (collectively, the “Vyng Parties”), from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Vyng Service, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties you make in this Agreement; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) any claim or damages that arise as a result of any of your User Content or any that is submitted via your account; or (vi) any other party’s access and use of the Vyng Service with your username, password or other appropriate security code.
THE VYNG SERVICE AND ANY PRODUCT OR SERVICE YOU PURCHASE THROUGH THE VYNG SERVICE (“PRODUCT”) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE VYNG SERVICE AND THE PRODUCTS ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, VYNG, ITS SUBSIDIARIES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE VYNG SERVICE OR THE PRODUCTS WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE VYNG SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE VYNG SERVICE.
VYNG DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE VYNG SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND VYNG WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
IF YOU DOWNLOADED THE MOBILE SOFTWARE FROM THE APPLE APP STORE, YOU FURTHER ACKNOWLEDGE THAT APPLE HAS NO RESPONSIBILITY FOR ADDRESSING ANY CLAIMS RELATING TO THE SOFTWARE OR VYNGSERVICES OR YOUR POSSESSION AND/OR USE OF THE SOFTWARE OR VYNG SERVICES, INCLUDING, BUT NOT LIMITED TO: (I) PRODUCT LIABILITY CLAIMS; (II) ANY CLAIM THAT THE SOFTWARE OR VYNGSERVICES FAIL TO CONFORM TO ANY APPLICABLE LEGAL OR REGULATORY REQUIREMENT; AND (III) CLAIMS ARISING UNDER CONSUMER PROTECTION OR SIMILAR LEGISLATION.
LIMITATION OF LIABILITY
THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR VYNG SERVICES SOLD OR PROVIDED BY THIRD PARTIES OTHER THAN VYNG AND RECEIVED THROUGH OR ADVERTISED ON ANY OF THE VYNG SERVICES. YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF VYNG ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER MATERIALS OWNED OR CONTROLLED BY THE VYNG PARTIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER MATERIALS OWNED OR CONTROLLED BY THE VYNG PARTIES.
SOME COUNTRIES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU.
As required by the Digital Millennium Copyright Act of 1998, the following individual is designated for notification of potential copyright infringement regarding the Vyng Service:
Vyng Copyright Agent
Email: [email protected]
Please visit http://vyng.me/dmca/ for more information.
If you believe the Vyng Service infringes a copyright, please provide the following information to the person identified above (17 U.S.C. § 512):
A physical or electronic signature of the copyright owner or authorized agent;
Identification of the copyrighted work(s) claimed to have been infringed;
Identification of the material that is claimed to be infringing or to be the subject of the infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
Information regarding how we may contact you (e.g., mailing address, telephone number, e-mail address);
A 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
A statement by you that the information in your notification is accurate, and, under penalty of perjury, that you are the copyright owner or authorized to act on behalf of the copyright owner.
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS FEES.
Please note that this procedure is exclusively for notifying Company and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with Company’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, Company has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. Company may also at its sole discretion limit access to the Vyng Service and/or terminate the accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
Binding Arbitration and Class Action Waiver
You and Vyng agree to arbitrate all disputes between you and Vyng or its affiliates. “Dispute” includes any dispute, action or other controversy between you and us concerning the Vyng Service or these terms, whether in contract, tort, warranty, statute or regulation, or other legal or equitable basis. You and Vyng empower the arbitrator with the exclusive authority to resolve any dispute relating to the interpretation, applicability or enforceability of these terms or formation of this contract, including the arbitrability of any dispute and any claim that all or any part of these terms are void or voidable.
In the event of a dispute, you or Vyng must send to the other party a notice of dispute, which is a written statement that sets forth the name, address and contact information of the party giving the notice, the facts giving rise to the dispute and the relief requested. You must send any notice of dispute to Vyng, Inc., 929 Colorado Ave., Santa Monica, CA 90401, Attention: Legal/Arbitration Notice. We will send any notice of dispute to you at the contact information we have for you. You and Vyng will attempt to resolve a dispute through informal negotiation within sixty (60) days from the date the notice of dispute is sent. After sixty (60) days, you or we may commence arbitration. You may also litigate a dispute in small claims court if the dispute meets the requirements to be heard in small claims court, whether or not you negotiated informally first.
If you and Vyng do not resolve a dispute by informal negotiation or in small claims court, the dispute shall be settled by binding arbitration before a neutral arbitrator whose decision will be final except for a limited right of appeal under the U.S. Federal Arbitration Act. YOU ARE GIVING UP THE RIGHT TO LITIGATE A DISPUTE IN COURT BEFORE A JUDGE OR JURY. Arbitration will be administered by the American Arbitration Association (the “AAA”) under its Commercial Arbitration Rules and its Supplementary Procedures for Consumer Related Disputes. For more information, visit www.adr.org or, in the United States, call 800-778-7879. Arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator may award damages to you individually as a court could, including declaratory or injunctive relief, but only to the extent required to satisfy your individual claim.
If you are a resident of the United States, arbitration will take place at any reasonable location convenient for you. For residents outside the United States, arbitration shall be initiated in Los Angeles, United States of America, and you and Vyng agree to submit to the personal jurisdiction of the federal or state courts located there, in order to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
PROCEEDINGS TO RESOLVE OR LITIGATE A DISPUTE IN ANY FORUM WILL BE CONDUCTED ON AN INDIVIDUAL BASIS. Neither you nor Vyng will seek to have a dispute heard as a class action, private attorney general action, or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or proceeding can be combined with another without the prior written consent of all parties to the arbitration or proceeding. If the class action waiver is found to be illegal or unenforceable as to all or some parts of a dispute, those parts will be severed and proceed in a court of law, with the remaining parts proceeding in arbitration.
Notwithstanding the foregoing, either you or Vyng may bring an individual action in small claims court.
IF YOU ARE A NEW USER OF VYNG SERVICE, YOU CAN CHOOSE TO REJECT THE AGREEMENT TO ARBITRATE PROVISION (“OPT-OUT”) BY EMAILING US AN OPT-OUT NOTICE TO [email protected] (“OPT-OUT NOTICE”) OR REGULAR MAIL TO: 929 Colorado Ave., Santa Monica, CA 90401THE OPT-OUT NOTICE MUST BE RECEIVED NO LATER THAN THIRTY (30) DAYS AFTER THE DATE YOU ACCEPT THE TERMS OF THIS AGREEMENT FOR THE FIRST TIME. IF YOU ARE NOT A NEW USER OF VYNG, YOU HAVE UNTIL THIRTY (30) DAYS AFTER THE POSTING OF THE NEW TERMS TO SUBMIT AN ARBITRATION OPT-OUT NOTICE.
In order to opt-out, You must email Your name, address (including street address, city, state, and zip code), email address associated with Your Account(s) to which the opt-out applies, and an unaltered digital image of Your valid driver’s license to: This procedure is the only way You can opt out of the agreement to arbitrate.
BY AGREEING TO THIS AGREEMENT, YOU HEREBY IRREVOCABLY WAIVE ANY RIGHT YOU MAY HAVE (i) TO A COURT TRIAL (OTHER THAN SMALL CLAIMS COURT AS PROVIDED ABOVE), (ii) TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING FILED AGAINST US AND/OR RELATED THIRD PARTIES, AND (iii) TO A TRIAL BY JURY EVEN IF ANY ARBITRATION IS NOT REQUIRED UNDER THIS AGREEMENT.
REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE SITE, SERVICES, OR THIS AGREEMENT MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES OR IT WILL BE FOREVER BARRED.
Class Action/Jury Trial Waiver. WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE VYNG SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
Choice of Forum
You agree that any action at law or in equity arising out of or relating to these terms that is not subject to arbitration shall be filed, and that venue properly lies, only in the state or federal courts located in Los Angeles, California, United States of America and you consent and submit to the personal jurisdiction of such courts for the purposes of litigating such action.
Choice of Law
These terms are governed by and construed in accordance with the laws of the State of California and the laws of the United States, without giving effect to any conflict of law principles.
If any provision of these terms shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions.
The provisions of these terms which by their nature should survive the termination of these terms shall survive such termination.
No waiver of any provision of these terms by us shall be deemed a further or continuing waiver of such provision or any other provision, and our failure to assert any right or provision under these terms shall not constitute a waiver of such right or provision
We are not responsible for addressing any disputes between any Users. In the event of a concern, claim or dispute, Users shall communicate directly with the other party in resolving such concern, claim or dispute. In the event we receive complaints about a User, we will investigate the complaint at our sole discretion and may direct the User to respond to the other party directly.
This Agreement, together with any amendments and any additional agreements you may enter into with Vyng in connection with the Vyng Service, shall constitute the entire agreement between you and Vyng concerning the Vyng Service.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Vyng without restriction or notice.
Special Provisions Applicable To Users Outside The United States.
The following provisions apply to users outside the United States: You consent to having your personal data transferred to and processed in the United States. If you are located in a country embargoed by the United States, or are on the U.S. Treasury Department’s list of Specially Designated Nationals you will not engage in commercial activities using the Vyng Service.
We may provide notices, whether such notices are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, Apple App Store or Google Android Marketplace, as determined by us in our sole discretion. We reserve the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement.
Should you wish to contact us with any questions with respect to the Vyng Service, you should email [email protected].