July 1, 2008
Modyo, BVI. (“Modyo” or “we”) operates Modyo.com, which is a web service that allows Members to create unique personal pages or “Super Blogs” or “Widgets” online in order to broadcast their personal media to others. The services offered by Modyo include any Modyo-branded URL (the "Modyo Website"), the Modyo messaging service, and any other features, content, or applications offered from time to time by Modyo in connection with Modyo’s business (collectively, the "Modyo Services"). The Modyo Services are hosted in the United States.
This Terms of Use Agreement ("Agreement") sets forth the legally binding terms for your use of the Modyo Services. By using the Modyo Services, you agree to be bound by this Agreement, whether you are a "Visitor" (which means that you simply browse the Modyo Website, including through a mobile device, or otherwise use the Modyo Services without being registered) or you are a "Member" (which means that you have registered with Modyo). The term "User" refers to a Visitor or a Member. You are only authorized to use the Modyo Services (regardless of whether your access or use is intended) if you agree to abide by all applicable laws and the terms of this Agreement. Please read this Agreement and save it. If you do not agree to be bound by this Agreement and to follow all applicable laws, you should leave the Modyo Website and discontinue use of the Modyo Services immediately. If you wish to become a Member, communicate with other Members and/or make use of the Modyo Services, you must read this Agreement and indicate your acceptance during the registration process.
This Agreement includes Modyo's policy for acceptable use of the Modyo Services and Content (as defined in Section 6.1 below) posted on or through the Modyo Services and your rights, obligations and restrictions regarding your use of the Modyo Services and Content posted on or through the Modyo Services. In order to participate in certain Modyo Services, you may be notified that you are required to download software or content and/or agree to additional terms and conditions from Modyo. Unless otherwise provided by the additional terms and conditions applicable to the Modyo Services in which you choose to participate, those additional terms are hereby incorporated into this Agreement.
Modyo may modify this Agreement from time to time and such modification shall be effective upon posting by Modyo on the Modyo Website. Your continued use of the Modyo Services after Modyo posts a revised Agreement signifies your acceptance of the revised Agreement. It is therefore important that you review this Agreement regularly to ensure you are updated as to any changes.
Please choose carefully the information you post on or through the Modyo Services and that you provide to other Users. Your Modyo profile may not include any form of Prohibited Content, as outlined in Section 8 below. Despite this prohibition, information, materials, products or services provided by other Modyo Members (for instance, in their profile) may, in whole or in part, be unauthorized, impermissible or otherwise violate this Agreement, and Modyo assumes no responsibility or liability for this material. If you become aware of misuse of the Modyo Services by any person, please click on the “Flag This Content” link.
Modyo reserves the right, in its sole discretion, to reject, refuse to post or remove any posting (including private messages) by you, or to deny, restrict, suspend, or terminate your access to all or any part of the Modyo Services at any time, for any or no reason, with or without prior notice or explanation, and without liability. Modyo expressly reserves the right to remove your profile and/or deny, restrict, suspend, or terminate your access to all or any part of the Modyo Services if Modyo determines, in its sole discretion, that you have violated this Agreement or pose a threat to Modyo and/or its Users.
1. Eligibility. Use of the Modyo Services and registration to be a Member for the Modyo Services (“Membership”) is void where prohibited. By using the Modyo Services, you represent and warrant that (a) all registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; (c) you are 14 years of age or older; and (d) your use of the Modyo Services does not violate any applicable law or regulation. Your profile may be deleted and your Membership may be terminated without warning, if we believe that you are under 14 years of age, if we believe that you are under 18 years of age and you represent yourself as 18 or older, or if we believe you are over 18 and represent yourself as under 18.
2. Term. This Agreement, and any posted revision to this Agreement, shall remain in full force and effect while you use the Modyo Services or are a Member. You may terminate your Membership at any time, for any reason, by following the instructions on the Member's Account Settings page. Modyo may terminate your Membership at any time, for any or no reason, with or without prior notice or explanation, and without liability. Even after Membership is terminated, this Agreement will remain in effect, including Sections 5-17.
3. Fees. You acknowledge that Modyo reserves the right to charge for any portion of the Modyo Services and to change its fees (if any) from time to time in its discretion. If Modyo terminates your Membership because you have breached the Agreement, you shall not be entitled to the refund of any unused portion of fees or payments (if any).
4. Password. When you sign up to become a Member, you will also be asked to choose a password. You are entirely responsible for maintaining the confidentiality of your password. You agree not to use the account, username, or password of another Member at any time or to disclose your password to any third party. You agree to notify Modyo immediately if you suspect any unauthorized use of your account or access to your password. You are solely responsible for any and all use of your account.
5. Use by Members. The Modyo Services are for the personal use of Members and may be used for promotional purposes as well, but direct commercial endeavors may only be used if they are specifically endorsed or authorized by Modyo. Modyo reserves the right to remove commercial content in its sole discretion. Illegal and/or unauthorized use of the Modyo Services, including collecting usernames, user id numbers, and/or email addresses of Members by electronic or other means for the purpose of sending unsolicited email or unauthorized framing of or linking to the Modyo Website, or employing third party promotional sites or software to promote profiles for money, is prohibited. Commercial advertisements, affiliate links, and other forms of unauthorized solicitation may be removed from Member profiles without notice or explanation and may result in termination of Membership privileges. Modyo reserves the right to take appropriate legal action for any illegal or unauthorized use of the Modyo Services.
6. Proprietary Rights in Content on Modyo.
6.1 Modyo does not claim any ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, "Content") that you post on or through the Modyo Services. After posting your Content to the Modyo Services, you continue to retain any such rights that you may have in your Content, subject to the limited license herein. By displaying or publishing ("posting") any Content on or through the Modyo Services, you hereby grant to Modyo a limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce, and distribute such Content solely on or through the Modyo Services, including without limitation distributing part or all of the Modyo Website in any media formats and through any media channels, except Content marked “private” will not be distributed outside the Modyo Website. This limited license does not grant Modyo the right to sell or otherwise distribute your Content outside of the Modyo Services. After you remove your Content from the Modyo Website we will cease distribution as soon as practicable, and at such time when distribution ceases, the license will terminate. If after we have distributed your Content outside the Modyo Website you change the Content’s privacy setting to “private,” we will cease distribution of such “private” Content outside the Modyo Website as soon as practicable after you make the change.
6.2 The license you grant to Modyo is non-exclusive (meaning you are free to license your Content to anyone else in addition to Modyo), fully-paid and royalty-free (meaning that Modyo is not required to pay you for the use on the Modyo Services of the Content that you post), sublicensable (so that Modyo is able to use its affiliates, subcontractors and other partners such as Internet content delivery networks and wireless carriers to provide the Modyo Services), and worldwide (because the Internet and the Modyo Services are global in reach).
6.3 You represent and warrant that: (i) you own the Content posted by you on or through the Modyo Services or otherwise have the right to grant the license set forth in this Section 6, and (ii) the posting of your Content on or through the Modyo Services does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person or entity. You agree to pay for all royalties, fees, and any other monies owing any person or entity by reason of any Content posted by you on or through the Modyo Services.
6.4 The Modyo Services contain Content of Modyo ("Modyo Content"). Modyo Content is protected by copyright, trademark, patent, trade secret and other laws, and Modyo owns and retains all rights in the Modyo Content and the Modyo Services. Modyo hereby grants you a limited, revocable, nonsublicensable license to reproduce and display the Modyo Content (excluding any software code) solely for your personal use in connection with viewing the Modyo Website and using the Modyo Services.
6.5 The Modyo Services contain Content of Users and other Modyo licensors. Except as provided within this Agreement, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any Content appearing on or through the Modyo Services.
6.6 Modyo performs technical functions necessary to offer the Modyo Services, including but not limited to transcoding and/or reformatting Content to allow its use throughout the Modyo Services.
7. Content Posted.
7.1 Modyo may reject, refuse to post or delete any Content for any or no reason, including Content that in the sole judgment of Modyo violates this Agreement or which may be offensive, illegal or violate the rights of any person or entity, or harm or threaten the safety of any person or entity. Modyo assumes no responsibility for monitoring the Modyo Services for inappropriate Content or conduct. If at any time Modyo chooses, in its sole discretion, to monitor the Modyo Services, Modyo nonetheless assumes no responsibility for the Content, no obligation to modify or remove any inappropriate Content, and no responsibility for the conduct of the User submitting any such Content.
7.2 You are solely responsible for the Content that you post on or through any of the Modyo Services, and any material or information that you transmit to other Members and for your interactions with other Users. 8. Content/Activity Prohibited. The following are examples of the kind of Content that is illegal or prohibited to post on or through the Modyo Services. Modyo reserves the right to investigate and take appropriate legal action against anyone who, in Modyo's sole discretion, violates this provision, including without limitation, removing the offending Content from the Modyo Services and terminating the Membership of such violators. Prohibited Content includes, but is not limited to, Content that, in the sole discretion of Modyo:
8.1 is patently offensive and promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
8.2 harasses or advocates harassment of another person;
8.3 exploits people in a sexual or violent manner;
8.4 contains nudity, excessive violence, or offensive subject matter or contains a link to an adult website;
8.5 publicly posts information that poses or creates a privacy or security risk to any person;
8.6 constitutes or promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
8.7 constitutes or promotes an illegal or unauthorized copy of another person's copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacturer-installed copy-protect devices, or providing pirated music or links to pirated music files;
8.8 involves the transmission of "junk mail," "chain letters," or unsolicited mass mailing, instant messaging, "spimming," or "spamming";
8.9 contains restricted or password only access pages or hidden pages or images (those not linked to or from another accessible page);
8.10 furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities including, but not limited to making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses;
8.11 solicits passwords or personal identifying information for commercial or unlawful purposes from other Users;
8.12 involves commercial activities and/or sales without prior written consent from Modyo such as contests, sweepstakes, barter, advertising, or pyramid schemes;
8.13 includes a photograph or video of another person that you have posted without that person's consent;
8.14 for band, comedy, filmmaker and other profiles, uses sexually suggestive imagery or any other unfair, misleading or deceptive Content intended to draw traffic to the profile; or
8.15 violates the privacy rights, publicity rights, copyrights, trademark rights, contract rights or any other rights of any person.
The following are examples of the kind of activity that is illegal or prohibited on the Modyo Website and through your use of the Modyo Services. Modyo reserves the right to investigate and take appropriate legal action against anyone who, in Modyo's sole discretion, violates this provision, including without limitation, reporting you to law enforcement authorities. Prohibited activity includes, but is not limited to:
8.16 criminal or tortious activity, including child pornography, fraud, trafficking in obscene material, drug dealing, gambling, harassment, stalking, spamming, spimming, sending of viruses or other harmful files, copyright infringement, patent infringement, or theft of trade secrets;
8.17 advertising to, or solicitation of, any Member to buy or sell any products or services through the unauthorized or impermissible use of the Modyo Services. You may not transmit any chain letters or junk email to other Members. In order to protect our Members from such advertising or solicitation, Modyo reserves the right to restrict the number of emails which a Member may send to other Members in any 24-hour period to a number which Modyo deems appropriate in its sole discretion. If you breach this Agreement and send unsolicited bulk email, instant messages or other unauthorized commercial communications of any kind through the Modyo Services, you acknowledge that you will have caused substantial harm to Modyo, but that the amount of such harm would be extremely difficult to ascertain. As a reasonable estimation of such harm, you agree to pay Modyo $50 for each such unsolicited email or other unauthorized commercial communication you send through the Modyo Services;
8.18 circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person in circumventing or modifying any security technology or software that is part of the Modyo Services;8.19 activity that involves the use of viruses, bots, worms, or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware, or otherwise permit the unauthorized use of or access to a computer or a computer network; 8.20 covering or obscuring the advertisements on your personal profile page, or any Modyo page via HTML/CSS or any other means;
8.21 any automated use of the system, such as, but not limited to, using scripts to add friends or send comments or messages;
8.22 interfering with, disrupting, or creating an undue burden on the Modyo Services or the networks or services connected to the Modyo Services;
8.23 impersonating or attempting to impersonate another Member, person or entity;
8.24 for band, comedy, filmmaker and other profiles containing a Modyo player, copying the code for your Modyo Player and embedding it (or directing others to embed it) anywhere other than your band profile on Modyo;
8.25 using the account, username, or password of another Member at any time or disclosing your password to any third party or permitting any third party to access your account;
8.26 selling or otherwise transferring your profile;
8.27 using any information obtained from the Modyo Services in order to harass, abuse, or harm another person or entity, or attempting to do the same;
8.28 displaying an unauthorized commercial advertisement on your profile, or accepting payment or anything of value from a third person in exchange for your performing any commercial activity through the unauthorized or impermissible use of the Modyo Services on behalf of that person, such as placing commercial content on your profile, posting blogs or bulletins with a commercial purpose, selecting a profile with a commercial purpose as one of your "Top 8" friends, or sending private messages with a commercial purpose; or
8.29 using the Modyo Services in a manner inconsistent with any and all applicable laws and regulations.
9. Protecting Copyrights and Other Intellectual Property. Modyo respects the intellectual property of others, and requires that our users do the same. You may not upload, embed, post, email, transmit or otherwise make available any material that infringes any copyright, patent, trademark, trade secret or other proprietary rights of any person or entity. Modyo has the right to terminate the Membership of infringers.
If you believe your work has been copied and posted on or through the Modyo Services in a way that constitutes copyright infringement, please send Modyo's Copyright Agent a notification of claimed infringement with all of the following information: (a) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (b) identification of the claimed infringing material and information reasonably sufficient to permit us to locate the material on the Modyo Services (providing the URL(s) of the claimed infringing material satisfies this requirement); (c) information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an email address; (d) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (e) a statement by you, made under penalty of perjury, that the above information in your notification is accurate and that you are the copyright owner or a uthorized to act on the copyright owner's behalf; and (f) your physical or electronic signature. Please send to rjohnson@modyo.com.
10. Member Disputes. You are solely responsible for your interactions with other Modyo Members. Modyo reserves the right, but has no obligation, to become involved in any way with disputes between you and other Members.
11. Privacy. Use of the Modyo Services is also governed by our Privacy Policy, which is incorporated into this Agreement by this reference.
12. Disclaimers. Modyo is not responsible for and makes no warranties, express or implied, as to the User Content or the accuracy and reliability of the User Content posted on or through the Modyo Services, whether caused by Users of the Modyo Services or by any of the equipment or programming associated with or utilized in the Modyo Services and such User Content does not necessarily reflect the opinions or policies of Modyo. Profiles and third party applications created and posted by Members on the Modyo Website may contain links to other websites. Modyo is not responsible for the content, accuracy or opinions expressed on such websites, and such websites are not necessarily investigated, monitored or checked for accuracy or completeness by Modyo. Inclusion of any linked website on the Modyo Services does not imply approval or endorsement of the linked website by Modyo. When you access these third party sites, you do so at your own risk. Modyo takes no responsibility for third party advertisements or third party applications that are posted on or through the Modyo Services, nor does it take any responsibility for the goods or services provided by its advertisers. Modyo is not responsible for the conduct, whether online or offline, of any User of the Modyo Services. Modyo assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any User or Member communication. Modyo is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email or players due to technical problems or traffic congestion on the Internet or on any of the Modyo Services or combination thereof, including any injury or damage to Users or to any person's computer related to or resulting from participation or downloading materials in connection with the Modyo Services. Under no circumstances shall Modyo be responsible for any loss or damage, including personal injury or death, resulting from use of the Modyo Services, attendance at a Modyo event, from any User Content posted on or through the Modyo Services, or from the conduct of any Users of the Modyo Services, whether online or offline. The Modyo Services are provided "AS-IS" and as available and Modyo expressly disclaims any warranty of fitness for a particular purpose or non-infringement. Modyo cannot guarantee and does not promise any specific results from use of the Modyo Services.
13. Limitation on Liability. IN NO EVENT SHALL MODYO BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM YOUR USE OF THE MODYO SERVICES, EVEN IF MODYO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, MODYO'S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO MODYO FOR THE MODYO SERVICES DURING THE TERM OF MEMBERSHIP.
14. U.S. Export Controls. Software available in connection with the Modyo Services (the "Software") is further subject to United States export controls. No Software may be downloaded from the Modyo Services or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk.
15. Disputes. The Agreement shall be governed by, and construed in accordance with, the laws of the British Virgin Islands, without regard to its conflict of law provisions. You and Modyo agree to submit to the exclusive jurisdiction of the courts of the British Virgin Islands to resolve any dispute arising out of the Agreement or the Modyo Services. EACH OF THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING BUT NOT LIMITED TO ANY CLAIMS, COUNTERCLAIMS, CROSS-CLAIMS, OR THIRD PARTY CLAIMS) ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. FURTHER, EACH PARTY HERETO CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF EITHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. EACH OF THE PARTIES ACKNOWLEDGES THAT THIS SECTION IS A MATERIAL INDUCEMENT FOR THE OTHER PARTY ENTERING INTO THIS AGREEMENT.
16. Indemnity. You agree to indemnify and hold Modyo, its subsidiaries, and affiliates, and their respective officers, agents, partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your use of the Modyo Services in violation of this Agreement and/or arising from a breach of this Agreement and/or any breach of your representations and warranties set forth in this Agreement and/or if any Content that you post on or through the Modyo Services causes Modyo to be liable to another. 17. Other. This Agreement is accepted upon your use of the Modyo Website or any of the Modyo Services and is further affirmed by you becoming a Member. This Agreement constitutes the entire agreement between you and Modyo regarding the use of the Modyo Services. The failure of Modyo to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. Modyo is a trademark of Modyo, BVI. This Agreement operates to the fullest extent permissible by law. If any provision of this Agreement is unlawful, void or unenforceable, that provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions.
Please contact us at: rjohnson@modyo.com with any questions regarding this Agreement.
I HAVE READ THIS AGREEMENT AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE.