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Vivid Labs Terms of Service

Effective as of May 5, 2022

IMPORTANT- PLEASE READ: These Vivid Labs Terms of Service (“Terms of Service”) apply to any use of by you (“User”, “you”, or “your”) of (i) the proprietary  publishing and management platform and related software (the “Network”) offered by Live Planet, Inc. d/b/a Vivid Labs (“Vivid Labs”, “Company”, “us,” “our,” or “we”) and our related services (the “Services”) and related applications (“Apps”) for the creation, management and sale of multimedia non-fungible tokens (“NFTs”). The Network, Apps, and related Services are collectively referred to in the these Terms of service as the “Vivid Platform.”    

Please read these Terms of Service carefully before accessing, registering for or otherwise using any aspect of the Vivid Platform. By clicking the “Yes” button or by accessing, registering for or otherwise using any aspect of the Vivid Platform you are agreeing to be legally bound by these Terms of Service. These Terms of Service provide that all disputes related to these Terms of Service will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury and your claims cannot be brought as a class action. Please review the Arbitration Agreement in Section 15 for the details regarding your agreement to arbitrate any disputes arising under these Terms of Service, including any limitations of that agreement.

1. Definition of terms
As used in these Terms of Service:

API Materials” means Vivid Labs’ downloadable application programing interface(s) and related documentation and interfaces that enable you to connect to and use the Network, as updated by Vivid Labs from time to time.

Period” means  the period commencing on the date that you first register to use or otherwise access any aspect of the Vivid Platform and continues for the time that you are authorized to use any aspect of the Vivid Platform.

Customer Content” means the videos, audios, 3D images, or other digital content that you may upload to the Vivid Platform for processing to create one or more VIVID NFTs.

Documentation” means specifications, written guidelines, user guides, manuals, help files and other documents that Vivid Labs provides to you relating to your use of the Vivid Platform.

NFT Owner” means your customer who acquires a VIVID NFT minted by you, such that the customer’s ownership is recorded in the VID blockchain.

NFT Package” means a digital copy of a package of Customer Content and metadata created by you using the Vivid Platform.

Territory” shall mean the any country in which Vivid Labs is able to legally offer access to the Vivid Platform or any aspect thereof.

VIVID NFT” means a NFT Package minted by a User using the Vivid Platform through the Ethereum-based smart contract created as part of the NFT minting process, and minted on the VID blockchain network using the App.

2. Eligibility
A.
You must be at least 18 years old to use Vivid Platform. By agreeing to these Terms of Service, you represent and warrant to us that you are at least 18 years old. If you are using the Vivid Platform on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to these Terms of Service and you agree to be bound by these Terms of Service on behalf of that organization.

B. You shall comply with applicable export controls control, financial laws and all related regulations with respect to your use of the Vivid Platform, including but not limited to export controls administered under the U.S. Export Administration Regulations (EAR).

3. Account registration
To access and use the Network the App or any paid Services, you will be required to register for an account (“Account”). By creating an Account, you agree to: (i) provide accurate, current and complete Account information; (ii) maintain the security of your password, not share your password with any other person and (iii) accept all risks of unauthorized access to your Account. You are entirely liable for all activities conducted through your Account and are responsible for ensuring that any person who uses your Account is aware of and complies with these Terms of Service. Each user will select a unique user name during the registration process. If Vivid Labs finds a user name to be offensive or improper or belong to another person with intent to mislead, Vivid Labs may, in its sole and absolute discretion, change the name or suspend or terminate your Account and your access to the Network and/or the App.

4. Use of services
A. API Materials License. Subject to these Terms of Service, Vivid Labs grants to you a non-exclusive, non-transferable limited license and right, solely for the Period and solely within the Territory, to download and use the API Materials solely to connect with and use the Network.

B. Network License. Subject to these Terms of Service, Vivid Labs grants to you a non-exclusive, non-transferable limited license and right, solely for the Period and solely within the Territory, to access and use the Network and related Services for the creation and editing of your NFT Packages and minting and distribution of your VIVID NFTs via the blockchain network in accordance with the Documentation and all applicable laws and regulations.

C. App License. Subject to these Terms of Service, Vivid Labs grants to each App user a non-exclusive, non-transferable limited license, solely for the Period and solely within the Territory, to access and use the App for the creation and editing of your NFT Packages and minting and distribution of your VIVID NFTs via the blockchain network, all in accordance with the Documentation and all applicable laws and regulations. We reserve the right to deny access to the App and its features if we determine, in our sole discretion, that you are located outside the Territory, based on information available to us at the time of such determination. You acknowledge that we are not responsible for monitoring or verifying the territorial usage of your VIVID NFTs.

D. Customer Content. You retain all rights and ownership of your Customer Content. We do not claim any ownership rights to your Customer Content. We require certain licenses from you to your Customer Content to operate and enable the Services. When you upload or otherwise transfer Customer Content to the Network, including through the applicable App, you grant Vivid Labs and its authorized service providers (i) a non-exclusive, royalty-free, worldwide license during the Period to use, reproduce, and modify (solely as necessary to format or transcode) your Customer Content for your distribution and exhibition using the Network; and (ii) a non-exclusive, royalty-free, worldwide license during the Period to all rights necessary for us to enable the Vivid Platform functionality, including without limitation all copyright, trademark, and other proprietary and personal rights to use, reproduce, and modify the Customer Content as necessary to enable you to use the Vivid Platform to create, edit, and modify NFT Packages, and to mint VIVID NFTs. For all such purposes, you irrevocably consent to any and all acts or omissions by us or persons authorized by us that may infringe any moral right (or analogous right) in your Customer Content. You acknowledge that we may access, view, or listen to Customer Content in limited ways. For example, we may need to access, view, or listen to Customer Content to (a) respond to support requests; (b) detect, prevent, or otherwise address fraud, security, unlawful, or technical issues; and (c) enforce these Terms of Service.

E. Storage. While your Customer Content may be temporarily stored to enable the processing that we perform on your Customer Content, the Vivid Platform and Vivid Labs do not provide storage services. You are solely responsible for the integrity and quality of your Customer Content, and for maintaining an appropriate backup thereof. Vivid Labs is not responsible for loss of data. Without limiting the generality of the foregoing, VIVID NFTs may be stored upon creation by using a third party provider that offers decentralized storage (e.g. Filecoin) or cloud storage (e.g. Google Cloud), and we have no obligation thereafter to maintain, monitor, or service such storage.  

F. Usage Limitations. We may create reasonable technical limits on your use of the Vivid Platform, such as limits on file size, processing capacity, and other technical limits. We may also suspend your use of all or part of the Vivid Platform until you are within the limits associated with your Account.

G. Feedback. You may choose to provide Vivid Labs with oral feedback and/or written feedback related to your use of Vivid Platform, including, but not limited to, a report of any errors which you discover, or suggestions for improvements or changes. Such reports, and any other materials, information, ideas, concepts, and know-how provided by you to Vivid Labs concerning the Vivid Platform and any information reported automatically through the Vivid Platform to Vivid Labs (“Feedback”) will be the property of Vivid Labs. You hereby grant Vivid Labs a perpetual, irrevocable, sublicensable, non-exclusive, fully-paid and royalty-free, worldwide license to use reproduce, distribute, modify and prepare derivative works of any Feedback for any purpose, including but not limited to the development and improvement of the Vivid Platform, or other Vivid Labs products or services, as well as any marketing, sales, or promotional activities.

H. Support. For paid Users, Vivid Labs will use commercially reasonable efforts to provide you with a limited amount of email support during the Period in a manner consistent with Vivid Labs’ technical support provided to other customers.

I. Third Party Sites and Integrations.
The Network may be embedded in or contain links to third party websites that are not owned or controlled by Vivid Labs (“Third Party Sites”). Vivid Labs has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any Third Party Sites. In addition, Vivid Labs will not and cannot censor or edit the content of any third-party site. By using the Vivid Network, you expressly relieve Vivid Labs from any and all liability arising from your use of any Third Party Site.

The Vivid Platform may contain links to, or otherwise allow Users to integrate with and/or connect to and/or use certain third party products, services or software (including, without limitation, data products and services), which are subject to separate terms and conditions (collectively, “Third Party Integrations”). For example, Third Party Integrations are required for:

     • VIVID NFT marketplace and exchange
     • VIVID NFT gallery and showcase
     • Decentralized storage for the NFT Packages and associated VIVID NFTs

If you decide to access and use such Third Party Integrations, such use is governed solely by the terms and conditions of such Third Party Integrations, and Vivid Labs does not endorse, is not responsible for, and makes no representations as to such Third Party Integrations, their content or the manner in which they handle User’s data, the VIVID NFTs, Customer Content, and the NFT Packages. If you do not agree to the applicable terms and conditions of the Third Party Integrations, you may not access or use the Third Party Integrations. Vivid Labs is not liable for any damage or loss caused or alleged to be caused by or in connection with your access or use of any such Third Party Integrations, or your reliance on the privacy practices or other policies of such Third Party Integrations.  VIVID LABS DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY THIRD PARTY PRODUCTS OR SERVICES ADVERTISED OR OFFERED THROUGH, OR IN CONNECTION WITH, THIRD-PARTY INTEGRATIONS, OR ANY HYPERLINKED WEBSITE OR SERVICE, AND VIVID LABS WILL NOT BE A PARTY TO, OR IN ANY WAY MONITOR, ANY TRANSACTION BETWEEN CUSTOMER AND THIRD-PARTY PROVIDERS OF SUCH THIRD PARTY PRODUCTS OR SERVICES AND/OR THIRD PARTY INTEGRATIONS.

J. Fees.
     (i) You agree to pay the applicable fees, as referenced below (“Fees”) with respect to your use of the Vivid Platform. All Fees are quoted in the United States currency. Except as otherwise provided in this Agreement, Fees are non-cancellable and once paid are non-refundable. In addition to such Fees, User shall pay all applicable sales, use and other taxes or duties (excluding taxes based on Vivid Labs’ income). Any past due payment not received in a timely manner shall accrue interest (except with respect to charges then under reasonable and good faith dispute), at the lower of 1.0% of the outstanding balance per month (being 12% per annum), or the maximum rate permitted by law, from the date such payment is due until the date paid. You agree to pay all sums expended (including reasonable legal fees) in collecting overdue payments. If you believe that any Fees charged are incorrect, User must contact Vivid Labs in writing within thirty (30) days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.

     (ii) Except for limited use beta or trial Accounts, or limited use of the features of the Vivid Open offering, Vivid Labs charges fees for the use of the Vivid Platform (“Fees”). The Fee schedule applicable to you may be set forth in your ordering documentation or may be viewable through the App or browser that you use to access the Network. Vivid Labs reserves the right to change the stated fees or update its fee structure at any time in its discretion.

K. NFT minting and ownership for Vivid Pro Users
Vivid Pro Users are responsible for effecting all sales and transfers of their VIVIVID NFTs through transactions on the blockchain. Nothing in this Agreement or in the functionality of the App grants ownership, intellectual property rights or proprietary rights in the VIVID NFTs to NFT Owners. All rights of a NFT Owner in and to the associated Video Asset shall be as set forth in a valid and binding license or other agreement between you and the NFT Owner ("NFT License") that shall remain in force during the period beginning on the date of such acquisition through the date that the applicable VIVID NFT is legally transferred or otherwise terminates for any reason. Each NFT License shall include, and shall not include any terms that conflict with, the following:

     • A requirement that the NFT Owner must be at least 18 years of age, legally competent, and within the Territory.

     • A clear, factual description of the NFT offering terms, including an acknowledgment that each NFT is intended for consumer enjoyment, use, and consumption only, and is not offered as an opportunity to gain an economic benefit or profit, or as an investment, equity, or any other ownership or profit-sharing interest in any entity.

     • The NFT Owner’s agreement that the NFT Owner assumes all inherent risks of NFTs and blockchain technology, and that Vivid Labs shall not be liable to any NFT Owner or any other third-party for any loss, claims or damages that may arise as a result of any use of the VID blockchain or any other blockchain or payments or transactions the NFT Owner engages in, including but not limited to (a) any failure, malfunction, or cessation of the blockchain or any other blockchain or any unintended function or unexpected functioning that may cause VIVID NFTs to malfunction or function in an unexpected or unintended manner, including without limitation inability to access Video Packages; (b) any bugs or vulnerabilities in the smart contracts or their functioning, (c) loss of the NFT Owner’s private keys to its digital wallet or vault, or any misappropriation or unauthorized access to such party’s VIVID NFTs, or (d) the discontinuance of the Network, the Service, or the App by Vivid Labs, for any reason.

5. Restriction on use
A. Intended Use. You represent that you intend to use the Vivid Platform solely for lawful purposes. You agree not to publish or disclose the results of your evaluation or benchmarking of the Network and/or the App, or use such results for the benefit of any competing product or services development activities. You acknowledge that (i) the form and nature of the Vivid Platform may change without prior notice and that future versions of the Network may be different and/or incompatible with content and applications developed using the Network; and (ii) the App may be updated or terminated without prior notice and future iterations may be incompatible with Customer Content and software used by a User, as well as NFT Packages and VIVID NFTs created by you. Use of the Vivid Platform is each subject to all laws, regulations, and ordinances applicable in your jurisdiction. It is solely your responsibility to determine whether your use of the Vivid Platform, complies with local laws, regulations, and ordinances, and to ensure that your use complies with all applicable laws, regulations and ordinances. If you do not have sufficient information to determine whether your use of the Vivid Platform complies with all applicable laws, regulations, and ordinances, then do not use the Vivid Platform.

B. Your Responsibilities. You shall: (i) be responsible for the compliance with these Terms of Service by any user accessing the Vivid Platform through your Account, (ii) be responsible for the accuracy, quality and legality of your Customer Content used with the Vivid Platform and of the means by which you acquired your Customer Content, including acquiring the appropriate copyright and trademark licenses or rights of publicity or privacy from any third party whose content, intellectual property, name or likeness may be included in the Customer Content; (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Vivid Platform and notify Vivid Labs promptly at support@vividlabs.com of any such unauthorized access or use, and (iv) use the  only in accordance with the Documentation.

C. Unauthorized Activities. You promise not to use the Vivid Platform for any purpose that is unlawful or prohibited by these Terms of Service. When using the Vivid Platform, you agree not to:

     • Take any actions that are inappropriate or disruptive to the Vivid Platform;
 
    • Incite, engage in, encourage, or promote any illegal activity, or any activity that violates these Terms of Service, community standards or any other terms or policies provided by Vivid Labs;
 
    • Upload or process Customer Content which is offensive, illegal, dangerous, libelous, gratuitously violent, or threatening content or activity which Vivid Labs, in its sole discretion, deems objectionable;
 
    • Upload any personal information that you do not have authority or permission to upload or to store or transmit material in your Customer Content which is in violation of third-party privacy rights;

     • Upload, produce or distribute any copyrighted or trademarked materials without the express permission from the owner;

     • Include any false or misleading information in any content, title, icon, description or screenshots or attempt to divert users or provide links to any other site that mimics or passes itself off as another app or service;

     • make any false or misleading claims or representations with respect to the value or legal nature of the VIVID NFTs, or portray VIVID NFTs as an opportunity to gain an economic benefit or profit, or as an investment, equity, or any other profit-sharing interest.

     • Use the Network and/or the App to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs;

     • Take any action that (i) interferes with or disrupts the integrity or performance of the Vivid Platform; (ii) imposes an unreasonable or disproportionately large load on our infrastructure; (iii) circumvents or attempts to circumvent any filtering, security measures or other features designed to protect the Vivid Platform; or (iv) attempts to gain unauthorized access to the Vivid Platform or its related systems or networks.

     • Decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, techniques or algorithms in the App, the API Materials and/or the software used to provide the Network.

     • This list of prohibitions provides examples and is not complete or exhaustive. Vivid Labs reserves the right to suspend or terminate your access to the Vivid Platform or any part thereof, with or without notice, for any reason, including, without limitation, for any action that Vivid Labs determines, in its sole discretion, is inappropriate or disruptive to the Vivid Platform, or to any other user of the Vivid Platform. Vivid Labs may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such prohibited conduct. When legally required or at Vivid Labs’ discretion, Vivid Labs will cooperate with law enforcement agencies in any investigation of alleged illegal activity in connection with the Vivid Platform or on the Internet. These prohibitions do not require Vivid Labs to monitor, police or remove any Customer Content, NFT, Video Packages, VIVID NFTS other information submitted by you, another user, or any third party.

6. Proprietary rights
A. Vivid Labs Intellectual Property
. As between you and Vivid Labs, Vivid Labs (and its licensors) own all patent, trademark, copyright, trade secret and other intellectual property rights in the API Materials and the Vivid Platform, and the underlying software and technology used to provide the Vivid Platform App. Vivid Labs reserves all rights in and to the API Materials and Vivid Platform not granted expressly in these Terms of Service.

B. Definition of Confidential Information. For purposes of these Terms of Service, "Confidential Information" shall include each party’s proprietary technology, business processes and technical information, product plans and designs, all communication between the parties regarding the Vivid Platform, and other information, whether disclosed orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. However, Confidential Information does not include information which (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the receiving party, subsequent to disclosure by the disclosing party; (4) the receiving party becomes aware of from a third party not bound by non-disclosure obligations to the disclosing party and with the lawful right to disclose such information to the receiving party; or (5) if disclosed by Vivid Labs, aggregates statistical data regarding Vivid Labs products and services that does not contain any personally identifiable or user-specific information.

C. Protection of Confidential Information. Each party agrees: (a) to keep confidential all Confidential Information; (b) not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under Terms of Service or as directed by the disclosing party; (c) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information) and to make Confidential Information available to authorized persons only on a “need to know” basis. Either party may disclose Confidential Information on a need to know basis to its contractors and service providers who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of these Terms of Service. Notwithstanding the foregoing, this Section will not prohibit the disclosure of Confidential Information to the extent that such disclosure is permitted by law or order of a court or other governmental authority or regulation.

D. Digital Millennium Copyright Act. The Digital Millennium Copyright Act (the “DMCA”), applies to online service providers, such as Vivid Labs. Compliance with the DMCA may result in Vivid Labs being asked to remove content that allegedly violates someone’s copyright. While the DMCA itself only applies to copyrights, Vivid Labs also extends its DMCA policy below to allegations of trademark infringement. As an online service provider under the DMCA, Vivid Labs respects the intellectual property rights of others, and we ask you to do the same. Vivid Labs may, in appropriate circumstances and at our discretion, terminate service and/or access to the Network and/or the App for users who infringe the intellectual property rights of others. If you believe that there is content that appears on our Network which infringes a copyright or trademark, please provide Vivid Labs’ designated agent the following information:

     • A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

     • Identification of the copyrighted or trademarked work claimed to have been infringed, or, if multiple works at a single online site are covered by a single notification, a representative list of such works at that site;

     • Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled on our Network and/or App, and information reasonably sufficient to permit Vivid Labs to locate the material;

     • Information reasonably sufficient to permit Vivid Labs to contact you as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;

     • 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 and/or trademark owner, its agent, or the law; and

     • A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Vivid Labs’s designated agent for notice of claims of copyright or trademark infringement on the Network can be reached as follows:

By mail:
Live Planet, Inc.
Attn: Copyright Agent
809 Laurel Street #1346
San Carlos, California, USA 94070

By e-mail:
support@vividlabs.com

Please also note that for copyright infringements under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing and may be subject to liability.

7. Warranty disclaimers
YOU ACKNOWLEDGE AND AGREE THAT VIVID LABS AND ITS LICENSORS PROVIDE THE API MATERIALS, THE NETWORK, THE SERVICES, AND THE APP ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND WITHOUT GUARANTEED WARRANTY OF ANY KIND, AND VIVID LABS HEREBY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE API MATERIALS, THE NETWORK, THE SERVICES, AND THE APP, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO: (A) THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. VIVID LABS DOES NOT WARRANT THAT USE OF API MATERIALS, THE NETWORK, ANY SERVICES, OR THE APP WILL BE UNINTERRUPTED OR FREE OF ERRORS OR OTHER HARMFUL COMPONENTS, AND DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. VIVID LABS DOES NOT WARRANT THAT THE API MATERIALS, THE NETWORK, ANY SERVICES, AND/OR THE APP COMPLIES WITH ALL APPLICABLE LAWS OR REGULATIONS IN ANY PARTICULAR JURISDICTION. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF THE API MATERIALS, THE NETWORK, ANY SERVICES, AND/OR THE APP.

WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT THE VIVID NFTS AND NFT PACKAGES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE VIVID NFTS AND NFT PACKAGES. VIVID LABS WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSS OR MALFUNCTION OF VIVID NFTS AND NFT PACKAGE, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (A) END USER ERROR SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED ADDRESSES; (B) SERVER FAILURE OR DATA LOSS; (C) CORRUPTED CRYPTO-WALLET FILES; (D) UNAUTHORIZED ACCESS TO APPLICATIONS; OR (E) ANY UNAUTHORIZED THIRD PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTE-FORCING OR OTHER MEANS OF ATTACK AGAINST THE NETWORK, THE APP, THE VID BLOCKCHAIN OR ANY THIRD PARTY SERVICES.

8. Limitation of liability
A.  EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL VIVID LABS, ITS RELATED ENTITIES, ITS SERVICE PROVIDERS, LICENSORS, AND ITS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS (COLLECTIVELY THE “VIVID LABS PARTIES”) BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES WHATSOEVER, ARISING OUT OF OR RELATED TO THESE TERMS OF SERVICE OR YOUR USE OF OR INABILITY TO USE THE API MATERIALS, THE NETWORK, THE SERVICES, AND/OR THE APP, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF VIVID LABS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. You agree that the aggregate liability of the Vivid Labs Parties to you for all claims arising out of or related to these Terms of Service or your use or inability to use the API Materials, the Network, any Services, the App, or any combination thereof, shall not at any time during the Period exceed in the aggregate the greater of (i) One Hundred Dollars ($100) or (ii) the amount of Fees paid by you to Vivid Labs in the 12 month period preceding the first occurrence of events giving rise to the imposition of lability for any such claims, except as may be required by applicable law. This Section and all limitations will apply even if the above stated remedy fails of its essential purpose or if the other party knew or should have known of the possibility of such damages. Each provision of these Terms of Service that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is to allocate the risks under these Terms of Service between the parties. This allocation is an essential element of the basis of the bargain between the parties and shall survive any termination or expiration of these Terms of Service.

You acknowledge that you may have or may in the future have claims against us which you do not know or suspect to exist in your favor when you agreed to these Terms of Service and which if known, might materially affect your consent to these Terms of Service. You expressly waive all rights you may have under Section 1532 of the California Civil Code, which states:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN ITS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.

IF THIS CLAUSE IS HELD TO BE UNENFORCEABLE IN WHOLE OR IN PART IN ANY JURISDICTION DUE TO RELEVANT LAWS, THEN IN NO EVENT SHALL OUR OR THE RELEASEES’ TOTAL LIABILITY TO YOU EXCEED THE TOTAL AMOUNT YOU HAVE PAID US OR THE RELEASEES DURING THE SIX (6) MONTHS PRIOR TO THE INCIDENT. TO THE EXTENT REQUIRED BY APPLICABLE LAW, NOTHING IN THIS CLAUSE SHALL LIMIT OR EXCLUDE ANY LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM NEGLIGENCE.

B.  Blockchain Technology. WE ARE NOT RESPONSIBLE FOR LOSSES DUE TO BLOCKCHAINS OR ANY OTHER FEATURES OF THE NETWORK, THE VID NETWORK, OR ANY ELECTRONIC WALLET, INCLUDING BUT NOT LIMITED TO THE FAILURE, SHUT DOWN, OR LATE REPORT OF ANY ISSUES WITH THE BLOCKCHAINS SUPPORTING THE NETWORK, THE VIVID NFTS, AND THE NFT PACKAGES, INCLUDING FORKS, TECHNICAL NODE ISSUES, OR ANY OTHER ISSUES RESULTING IN LOSSES INCLUDING LOSS OF NFTS AND FUNDS. By using the Vivid Platform or any part thereof, you understand and acknowledge that the regulatory regimes in areas pertaining to blockchain-based services, cryptocurrencies and crypto-assets could be subject to change and new regulations or policies are likely to rapidly evolve. New or changing regulations or interpretation of existing laws and regulations may materially adversely affect the quality, transferability, viability, and/or value of the VIVID NFTs and the NFT Packages in the future. The Vivid Labs Parties will not be held responsible for any losses you may incur as a result of such potential changes and the consequences related to the VIVID NFTs, the NFT Packages, and/or their potential utility and value.

C.  Token Security: Hackers or other malicious groups or organizations may attempt to interfere with the Network, the VIVID NFTs, and other technology used by the App in a variety of ways, including, but not limited to, malware attacks, denial of service attacks, consensus-based attacks, Sybil attacks, smurfing and spoofing. Furthermore, because the Ethereum platform rests on open source software and the VIVID NFTs are based on open source software, there is the risk that Ethereum smart contracts may contain intentional or unintentional bugs or weaknesses which may negatively affect the VIVID NFTs or result in the loss of VIVID NFTs, the loss of an NFT Owner’s ability to access or control NFT Owner’s VIVID NFTs or the loss of ETH in NFT Owner’s account. In the event of such a software bug or weakness, there may be no remedy and Company shall not be obligated to provide any remedy, refund or compensation to you or your customers.

D.  No Third-Party Beneficiaries. The provisions of this Agreement are not intended for the benefit of any third party, including without limitation NFT Owners and User’s customers, and except as specifically set forth in in these Terms of Service, no third party may be a beneficiary of, or have any rights by virtue of, these Terms of Service.

9. Indemnity
You alone are responsible for the manner in which you use the API Materials, the Network, the Services, and the App. You shall defend, indemnify and hold harmless the Vivid Labs Parties from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your and your end users’ use of, or alleged use (or misuse) of, the API Materials, the Network, any Services, and/or the App, including any data or content transmitted or received by you or your end users; (b) your violation of any portion of these Terms of Service, any representation, warranty, or agreement referenced in these Terms of Service, or any applicable law or regulation; (c) your breach or alleged breach of any third-party right, including copyright or trademark infringement or violation of any intellectual property right, publicity right or privacy right; (d) gross negligence, fraudulent misrepresentation, or willful misconduct by you or your end users; (e) any Customer Content you upload to the Network or the App; (f) NFT Owners; (g) any allegation that a VIVID NFT or Video Asset, or your activities in connection with or use thereof, violates any applicable laws, rules, or regulations, or infringes or misappropriates the intellectual property or personal rights of any third party; or (h) any dispute or issue between you and any third party, or your violation of any license or other agreement applicable to any Third Party Site or Third Party Integration. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.

10. Term and termination
A. Term. These Terms of Service (i) commence on the earliest of the date you first access the Network, register for an Account, otherwise use the Services, or download the App, and (ii) continue until expiration of the Period.

B. Termination by Vivid Labs. Vivid Labs may, at any time, terminate your right to use and access the Network, Services, and/or the App if:

(i) You breach any provision of these Terms of Service, act in a manner that clearly shows you do not intend to, or are unable to, comply with these Terms of Service or otherwise create risk or possible legal exposure for us, our service providers and/or our contractors; or

(ii) We are required to do so by law, or we determine, in the Company’s sole discretion, that the provision of the Network, the Services, and/or the App, may be found not in compliance with all applicable law; or

(iii) We elect to change, suspend, remove, discontinue or disable access to our Network, the Services, or the App, in whole or in part for any reason, (such as, for example, it becomes impractical for us to continue offering Services in your region due to change of law). User agrees that Vivid Labs will not be liable to User or any third parties, such as an NFT Owners, for any modification, suspension, or discontinuance of the Network, the Services, or the App (or any part thereof).

C. Retrieval of Customer Content.
     (i) Vivid Open Users: Upon expiration of the Period or termination of these Terms of Service, you shall immediately stop using the Network and Services. For a period of then (10) days from the date of termination of these Terms of Service, Vivid Labs will allow you to download any Customer Content being processed in the Network and Vivid Labs may thereafter, unless legally prohibited, delete all of your Customer Content from our systems or otherwise in our possession or under our control. However, some copies of your Customer Content may be retained as part of our routine backups.
     (ii) Vivid Pro Users: Upon expiration of the Period or termination of these Terms of Service, you shall immediately stop using the App, and, unless legally prohibited, Vivid Labs will delete all of your data and Customer Content uploaded to the App, but will have no obligation to erase or modify any NFT Packages or VIVID NFTs stored by any Third Party Service. NFT Owners may continue to own their VIVID NFTs on the decentralized VID blockchain network. Upon request, Vivid Labs will cooperate with Vivid Pro Users (at the User’s expense) to transition VIVID NFTs and NFT Packages to a new blockchain and/or storage provider.

D. Surviving Provisions. Sections 4.D, 4.G, 4.I, 4.J, 4.K, 5-9, 10.C, 10.D, and 11-18 shall survive any termination or expiration of these Terms of Service.

11. Force majeure
Vivid Labs will not be liable to you for any delay, loss, or any other matter due to an event which prevents, impedes, or delays a party’s performance of its obligations hereunder, such as an act of God, terrorism, war or other military or police action, political insurgence, pandemic or epidemic, insurrection, riot, civil unrest, act of civil or military authority, internet service provider failure, electrical, telecommunications, hardware, software or other utility failures, software or smart contract bugs or weaknesses, changes to any blockchain-related protocol, changes in applicable law or regulation, uprising, earthquake, flood or any other natural or man-made eventuality outside of Vivid Labs’s control.

12. Privacy
We describe all policies related to our collection and use of data in our current Privacy Policy, which is incorporated into these Terms of Service by this reference which may be updated from time to time in accordance with the terms of the Privacy Policy.

13. Publicity
Each party agrees not to issue any press release, publicity or other public statements regarding your use of the Vivid Platform, without the other party’s prior written consent, except that Vivid Labs shall have the rights to use your name and logo on Vivid Labs’s website, and in sales collateral and press listings. All other marketing uses shall be subject to your prior written consent.

14. Controlling law and severability
These Terms of Service will be governed by and construed in accordance with the laws of the State of California, excluding its conflict of law principles. These Terms of Service will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If for any reason a court of competent jurisdiction finds any portion of these Terms of Service to be unenforceable, such excluded term shall be replaced with a valid provision that most closely approximates the parties’ intent, and the remainder of these Terms of Service will continue in full force and effect.

15. Arbitration
A. Generally. In the interest of resolving disputes between you and Vivid Labs in the most expedient and cost-effective manner, you and Vivid Labs agree that every dispute arising in connection with these Terms of Service will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award, and your liability is nevertheless limited as set forth in these Terms of Service. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms of Service, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms of Service. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS OF SERVICE, YOU AND VIVID LABS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

B. Exceptions. Despite the provisions of this Section 15, nothing in these Terms of Service will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.

C. Arbitrator. Any arbitration between you and Vivid Labs will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms of Service, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Vivid Labs.

D. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). Vivid Labs’ address for Notice is: Live Planet, Inc., 809 Laurel Street #1346, San Carlos, California, USA 94070. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Vivid Labs may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Vivid Labs must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Vivid Labs will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Vivid Labs in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.

E. Fees. If you commence arbitration in accordance with these Terms of Service, Vivid Labs will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in San Mateo County, California, USA, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Vivid Labs for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

F. No Class Actions. YOU AND VIVID LABS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Vivid Labs agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

G. Modifications to this Arbitration Provision. If Vivid Labs makes any future change to this arbitration provision, other than a change to Vivid Labs’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to Vivid Labs’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected will survive, and Vivid Labs may refuse to provide the Vivid Network and any further Services or products to you.

H. Enforceability. If Section 15.F. is found to be unenforceable or if the entirety of this Section 15 is found to be unenforceable, then the entirety of this Section 15 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 14 will govern any action arising out of or related to these Terms of Service.

16. Consent to electronic communications
By opening an Account, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about your choices regarding our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically to the email you provide in your Account will satisfy any legal communication requirements, including that such communications be in writing.

17. General
These Terms of Service, together with the Privacy Policy and any other agreements expressly incorporated by reference into these Terms of Service, are the entire and exclusive understanding and agreement between you and Vivid Labs regarding your use of the Vivid Network and Services. These Terms of Service may be amended only by a written agreement signed by authorized representatives of the parties to these Terms of Service. You may not assign or transfer these Terms of Service or your rights under these Terms of Service, in whole or in part, by operation of law or otherwise, without our prior written consent, and any such assignment or transfer without our consent will be void; provided, however, that Vivid Labs may assign these Terms of Service in whole to any successor company or an acquiror of substantially all of its business. We may assign these Terms of Service at any time without notice or consent. Use of section headers in these Terms of Service is for convenience only and will not have any impact on the interpretation of any provision.

18. Contact information

By mail:
Vivid Labs, Inc.
809 Laurel Street #1346
San Carlos, California, USA 94070

By email:
support@vividlabs.com

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