END USER LICENSE AGREEMENT
Last Updated: October 5, 2016
THIS END USER LICENSE AGREEMENT (“AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU AND VEVO LLC (“VEVO”) STATING THE TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE “VEVO APPLICATION” (THE “VEVO APP”). PLEASE READ THIS AGREEMENT CAREFULLY. BY DOWNLOADING, INSTALLING AND/OR USING THE VEVO APP, YOU ARE INDICATING THAT YOU AGREE TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. IF YOU DO NOT AGREE TO ANY OF THE TERMS AND CONDITIONS SET FORTH HEREIN, DO NOT PURCHASE (IF APPLICABLE), DOWNLOAD, INSTALL AND/OR USE THE VEVO APP.
If you download, install or otherwise access the Vevo App through a Third Party Platform owned and/or operated by Apple, Inc. or any of its subsidiaries (collectively, “Apple”) (e.g., Apple App Store, etc.), then the additional terms set forth in Section 17 below apply to you and your use of the Vevo App. If you download, install or otherwise access the Vevo App through a Third Party Platform owned and/or operated by Samsung Electronics Co., Ltd (“Samsung”) (e.g., Galaxy Apps, SmartHub, etc.), then the terms of this Agreement may not apply to you and your use of the Vevo App may instead be governed by the applicable Samsung end user license agreement, as further described in Section 18 below.
- LICENSE GRANT.
Subject to the terms and conditions of this Agreement, Vevo hereby grants to you a limited, non-transferable, non-sublicensable, non-assignable and revocable license to install and use the Vevo App solely for your own personal, non-commercial use in the country in which you downloaded or installed the Vevo App, provided that you downloaded or installed the Vevo App in one of the following countries (such country in which you downloaded or installed the Vevo App, the “Territory”): the United States of America, Canada, Brazil, Mexico, Australia, New Zealand, the United Kingdom, the Republic of Ireland, France, Italy, Spain, Poland, Germany, the Netherlands or any other country in which Vevo makes the Vevo App available to end users, solely on any applicable device, as specified by Vevo at the time of download, that you own or control (“Device”). For the avoidance of doubt, the Vevo App is licensed, not sold, to you by Vevo pursuant to and subject to the terms and conditions of this Agreement and any applicable terms and conditions promulgated by any Third Party Platform. The Vevo App and/or Services may be dependent on and/or interoperate with such Third Party Platforms and may require that you be a registered member of such Third Party Platforms and provide certain account credentials and other information in order to access and use the Vevo App and/or Services. Vevo, its affiliates and licensors reserve all rights not expressly granted to you herein. You acknowledge and agree that this Agreement is between you and Vevo, and any applicable Third Party Platform and its subsidiaries are not a party to this Agreement and are not responsible for the Vevo App and/or Services, including, without limitation, providing maintenance and support in connection therewith.
You may not rent, lease, lend, sell, redistribute or sublicense the Vevo App. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Vevo App, any updates or upgrades thereto, or any part thereof. Any attempt to do so is a violation of the rights of Vevo, its affiliates and/or licensors, as applicable. If you breach this restriction, you may be subject to prosecution and damages. The terms and conditions of this Agreement will govern any upgrades and/or updates that may be provided by or on behalf of Vevo, in its sole discretion, that replace and/or supplement the original Vevo App, unless such upgrade or update is accompanied by or references a separate license in which case the terms of that license agreement will govern.
- SERVICES; THIRD PARTY PLATFORMS, SERVICES AND CONTENT.
- You understand that by using any of the Services, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. You agree that your use of the Services shall be at your sole risk and that the Vevo Parties (as such term is defined in Section 8 below) shall have no liability to you for any content that may be found to be offensive, indecent, or objectionable.
- CONSENT TO USE OF DATA.
This Agreement is effective until terminated by you or Vevo in accordance with the terms hereof. You may terminate this Agreement only by deleting the Vevo App from your Device, which you may do at any time. The license granted to you herein and all of your rights thereunder will terminate automatically without notice from Vevo if you fail to comply with any terms or conditions of this Agreement. Upon termination of this Agreement, you shall cease all use of the Vevo App, and destroy all copies, full or partial, thereof.
- PROPRIETARY RIGHTS.
Vevo, its affiliates and/or their respective licensors own all right, title and interest in and to the Vevo App and the Services, including, without limitation, all intellectual and proprietary rights appurtenant thereto, and, except for the limited license granted to you herein, nothing in this Agreement shall be construed to restrict, transfer, convey, encumber, alter, impair or otherwise adversely affect Vevo’s, its affiliates’ and/or their respective licensors’ ownership or proprietary rights therein or any other Vevo’s, its affiliates’ and/or their licensors’ information, processes, methodologies, products, goods, services, or materials, tangible or intangible, in any form and in any medium.
- NO WARRANTY.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE VEVO APP IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT OF THE VEVO APP IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE VEVO APP AND SERVICES ARE PROVIDED ‘AS IS’ AND ‘AS AVAILABLE’, WITH ALL BUGS AND FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND VEVO, ITS PARENT COMPANIES, AFFILIATES AND LICENSORS, SUPPLIERS, OPERATORS, PARTNERS, SERVICE PROVIDERS, ADVERTISERS, THIRD PARTY PLATFORMS AND OTHER AFFILIATED PARTIES, AND EACH OF THE FOREGOING PARTIES’ RESPECTIVE AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “VEVO PARTIES”) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE VEVO APP AND THE SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NONE OF THE VEVO PARTIES WARRANT THAT THE FUNCTIONS OR SERVICES CONTAINED IN, ACCESSED FROM, PERFORMED BY, DISPLAYED ON, LINKED TO/FROM, OR PROVIDED BY, THE VEVO APP AND/OR SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE VEVO APP AND/OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE VEVO APP AND/OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY VEVO, ITS AFFILIATES OR ANY OF THEIR RESPECTIVE AUTHORIZED REPRESENTATIVES SHALL CREATE ANY WARRANTY. SHOULD THE VEVO APP AND/OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
- LIMITATION OF LIABILITY.
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL THE VEVO PARTIES BE LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND, WHETHER DIRECT, INCIDENTAL, SPECIAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THIS AGREEMENT AND/OR YOUR USE OF OR ACCESS TO OR INABILITY TO USE OR ACCESS THE VEVO APP AND/OR THE SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE), WHETHER OR NOT THE VEVO PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF, IN A RELEVANT JURISDICTION, THE LIMITATIONS AND EXCLUSIONS ON LIABILITY CONTAINED HEREIN ARE NOT PERMITTED, THEN THE VEVO PARTIES’ LIABILITY SHALL BE LIMITED AND EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW.
You agree to indemnify, defend and hold the Vevo Parties harmless from and against any and all claims, demands, actions, losses, damages, costs and expenses (including reasonable attorneys’ fees), arising out of or relating to (a) any breach or violation of this Agreement, (b) the infringement, misappropriation or any violation of the rights of any other party, (c) the violation or non-compliance with any applicable law, rule or regulation, and (d) any use, alteration or export of the Vevo App (or any component thereof) in violation of this Agreement. Vevo reserves the right to assume, at its own expense, the exclusive defense and control of any claims or actions and all negotiations for its settlement or compromise, and you agree to fully cooperate with us upon our request. To the extent Vevo is required by applicable law to provide indemnification for a third party claim that the Vevo App, or your use or possession of the Vevo App, infringes such third party’s intellectual property rights, Vevo, and not any Third Party Platform, shall be solely responsible for the investigation, defense, settlement and discharge of any such infringement claim.
- EXPORT RESTRICTIONS.
You may not use or otherwise export or re-export the Vevo App except as authorized by United States law and the laws of the jurisdiction in which the Vevo App was obtained. In particular, but without limitation, the Vevo App may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Vevo App, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
- COMMERCIAL ITEMS.
The Vevo App and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
- WIRELESS ACCESS CHARGES.
The Vevo App and other Services may require data access, and the provider of data access (e.g., network operator, wireless carrier, etc.) for your Device may charge you data access and other fees in connection with your use of the Vevo App and other Services, including, without limitation, wireless carrier messaging and other communication, messaging and data fees and charges, as applicable. Under no circumstances will Vevo be responsible for any such data access fees or charges in connection with your use of the Vevo App or other Services, including, without limitation, access fees, wireless internet, email, text messaging or other charges or fees incurred by you (or any person that has access to your Device, telephone number, email address, user account information or other similar information). Further, the use or availability of the Vevo App and other Services may be prohibited or restricted by your wireless carrier and/or data access provider, or the Vevo App and other Services may not work with all wireless carriers, networks, platforms, services or devices.
- NO GUARANTEE OF CONTINUED USE OR AVAILABILITY.
Vevo and its affiliates reserve the right to modify, update, supplement, limit, discontinue, remove or disable access to the Vevo App and/or any Services without notice to you and neither Vevo, its affiliates nor any of their respective licensors shall be liable to you or any third party should it exercise such rights. From time to time, Vevo may make available updates or upgrades to the Vevo App via software download or other means. Such download may occur automatically without the need for any act on your part, or it may require you to manually download an update or upgrade through the same source from which the Vevo App was originally downloaded. Certain functions of the Vevo App may be modified or discontinued as a result of any such update or upgrade, or may not be available if you have not downloaded all updates and upgrades made available by Vevo.
- CHANGES TO THE AGREEMENT.
Vevo may modify or change this Agreement from time to time, and at any time, without notice to you, for any reason, in its sole discretion. Vevo will post or display notices of material changes on or within the Vevo App, Services and/or notify you via other electronic means. The form of such notice is at Vevo’s discretion. Once Vevo posts or makes them available on or within the Vevo App and/or Services, these changes become effective immediately and if you use the Vevo App and/or Services after they become effective it will signify your agreement to be bound by and comply with the changes.
- GOVERNING LAW AND INTERPRETATION.
To the extent not prohibited by law, you agree (a) that this Agreement and all disputes, claims, actions, suits or other proceedings arising hereunder shall be governed by, and construed in accordance with, the substantive law of the State of New York applicable to contracts wholly made and to be performed within the State of New York, (b) to irrevocably submit to the sole and exclusive jurisdiction of the courts of New York State and the Federal courts of the Southern District of New York, situated in the City, County and State of New York, and (c) to irrevocably consent to the exercise of personal jurisdiction by such courts and waive any right to plead, claim or allege that New York is an inconvenient forum. You may not assign your rights under this Agreement without Vevo’s prior written permission and any attempt by you to do so shall be void. Any provision of this Agreement, which is by its nature must survive the termination of this Agreement in order to give effect to its meaning shall survive termination. No failure or delay by Vevo, its affiliates or licensors to exercise any right or enforce any obligation shall impair or be construed as a waiver or ongoing waiver of that or any or other right or power. If any provision of this Agreement is held to be illegal, invalid or unenforceable, the remaining provisions of this Agreement shall be unimpaired and remain in full force and effect.
- APPLE PLATFORMS.
If you download, install or otherwise access the Vevo App through a Third Party Platform owned and/or operated by Apple (e.g., Apple App Store, etc.), then you agree that Apple is a third party beneficiary of this Agreement and will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary hereof. In the event of any failure of the Vevo App to conform to any applicable warranty, you may notify Apple and Apple will refund the purchase price (if applicable) for the Vevo App. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Vevo App, and, as between Apple and Vevo, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Vevo’s sole responsibility.
- SAMSUNG PLATFORMS.
Notwithstanding anything to the contrary set forth herein, if you download, install or otherwise access the Vevo App through a Third Party Platform owned and/or operated by Samsung (e.g., Galaxy Apps, SmartHub, etc.) in the following countries, then the terms of this Agreement shall not apply to you, and your license to and use of the Vevo App in such countries shall instead be governed by the applicable Samsung end user license agreement that is made available to you at the time of and/or in connection with, your download or installation of or access to the Vevo App in such countries: the United States, Brazil, the United Kingdom, the Republic of Ireland, Spain, Italy, France, Germany, the Netherlands and Poland.