Terms of Service

Welcome to Velvet. Velvet provides a platform through which video creators (“Creators”) create and deliver custom-made videos. These Terms of Service (these “Terms”) describe the terms and conditions by which you may access and/or use the website(s), including https://velvet.video and any successor URL(s), and any and all related software, platforms, mobile applications, documentation, and online and/or digital services (collectively, the “Service”) provided by Velvet Media, Inc. (including its successors and assigns, “Velvet,” “we,” “our,” or “us”). By accessing and/or using the Service, or by clicking a button or checking a box marked “I Agree” or the equivalent, you signify that you have read, understood, and agree to be bound by these Terms, and you acknowledge that you have read and understood our Privacy Policy, as further described in Section 9.1 (Privacy). We reserve the right to modify these Terms, and we will provide notice of material changes as described below. These Terms apply to all visitors and users of the Service, and to all others who access the Service (collectively, “Users,” and, as applicable to you, “you” or “your”).

PLEASE READ THESE TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THESE TERMS CONTAIN A MANDATORY INDIVIDUAL ARBITRATION PROVISION AND A CLASS ACTION/JURY TRIAL WAIVER PROVISION IN SECTION 16 (THE “ARBITRATION AGREEMENT”) THAT REQUIRE, UNLESS YOU OPT OUT PURSUANT TO THE INSTRUCTIONS IN THE ARBITRATION AGREEMENT, THE EXCLUSIVE USE OF FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES BETWEEN YOU AND US, INCLUDING ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE YOU AGREED TO THESE TERMS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW (AS DEFINED BELOW), YOU EXPRESSLY WAIVE YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS, AS WELL AS YOUR RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, COLLECTIVE, PRIVATE ATTORNEY GENERAL, OR REPRESENTATIVE ACTION OR PROCEEDING.

IN ADDITION, WHEN USING THE SERVICE, YOU MAY BE SUBJECT TO CERTAIN ADDITIONAL TERMS APPLICABLE TO SUCH SERVICE (“SUPPLEMENTAL TERMS”) THAT MAY BE POSTED ON THE SERVICE FROM TIME TO TIME, OR PRESENTED TO YOU FOR YOUR ACCEPTANCE WHEN YOU SIGN UP FOR OR ACCESS THE ADDITIONAL SERVICE. ALL SUCH TERMS ARE HEREBY INCORPORATED BY REFERENCE INTO THESE TERMS. IF THE TERMS SET FORTH HEREIN ARE INCONSISTENT WITH THE SUPPLEMENTAL TERMS, THEN THE SUPPLEMENTAL TERMS CONTROL WITH RESPECT TO SUCH ADDITIONAL SERVICE, BUT ONLY TO THE EXTENT OF SUCH INCONSISTENCY.

How We Administer the Service

Eligibility

This is a contract between you and Velvet. You must read and agree to these Terms before using the Service. If you do not agree, you may not use the Service. You may use the Service only if you can form a legally binding contract with us, and only in compliance with these Terms and all applicable local, state, national, and international laws, rules, and regulations (“Applicable Law”). Without limiting the generality of the foregoing, any access to, or use of, the Service by anyone who is a minor (which is under the age of 18 in most jurisdictions) in any applicable jurisdiction is strictly prohibited and in violation of these Terms. The Service is not available to any Users we previously removed from the Service.

User Accounts

Your User Account

Your account on the Service (your “User Account”) gives you access to certain services and functionalities that we may, in our sole discretion, establish and maintain as part of the Service from time to time. You acknowledge that, notwithstanding anything to the contrary herein, you do not own your User Account, nor do you possess any rights to data stored by or on behalf of Velvet on the servers running the Service. We may maintain different types of User Accounts for different types of Users.

Connecting Via Third-Party Services

By connecting to the Service via a third-party service, you give us permission to access and use your information from that service, as permitted by that service, and to store your log-in credentials and/or access tokens for that service.

Account Security

You may never use another User’s User Account without such User’s permission. When creating your User Account, you must provide accurate and complete information, and you must keep this information up to date. You are solely responsible for the activity that occurs on your User Account, you will keep your User Account password(s) and/or any other authentication credentials secure, and you will not share your password(s) and/or any other authentication credentials with anyone else. We encourage you to use strong passwords (passwords that use a combination of upper- and lower-case letters, numbers, and symbols) to protect your User Account. We will not be liable for, and expressly disclaim liability for, any losses caused by any unauthorized use of your User Account and/or any changes to your User Account. You will notify us promptly of any breach of security or unauthorized use of your User Account.

Account Settings

You may control certain aspects of your User Account and any associated User profile, and of the way you interact with the Service, by changing the settings in your settings page. By providing us with your email address, you consent to our using that email address to send you Service-related notices, including any notices required by Applicable Law, in lieu of communication by postal mail. We may also use that email address to send you other messages, including, without limitation, marketing and advertising messages, such as messages notifying you of changes to features of the Service and special offers (collectively, “Marketing Emails”). If you do not want to receive Marketing Emails, you may opt out of receiving them or change your preferences by contacting us at the contact provided in Section 17.10 (Contact) or by clicking on the “unsubscribe” link within a Marketing Email. Opting out will not prevent you from receiving Service-related notices.

Changes, Suspension, and Termination

You may de-activate your User Account at any time. We may, with or without prior notice, change the Service, stop providing the Service or features of the Service to you or to Users generally, or create usage limits for the Service. We may, with or without prior notice, permanently terminate or temporarily suspend your access to your User Account and/or the Service without liability, with or without cause, and for any or no reason, including if, in our sole determination, you violate any provision of these Terms. Upon their termination for any reason or no reason, you continue to be bound by these Terms.

Access to the Service; Task Submissions

Access to the Service

Subject to your compliance with these Terms and any documentation we may make available to you, you are hereby granted a non-exclusive, limited, non-transferable, and freely revocable right to access and use the Service, solely for your personal use or internal business purposes, as applicable, strictly as permitted by the features of the Service. We may terminate the license granted in this Section at any time, for any reason or no reason. We reserve all rights not expressly granted herein in and to the Service.

Task Submissions

From time to time, Velvet or other Users may commission you to create and provide to Velvet (either through a User Account or via email or such other mutually agreed upon method of delivery) certain works of authorship, including but not limited to videos, footage, film, clips, recordings, video datasets, and any other related content on the Service (“Task Submission(s)”) in accordance with any criteria set forth on the Service and any submission guidelines provided to you. The terms and conditions of these Terms apply to all Task Submissions commissioned by Velvet, regardless of whether any such Task Submissions are completed or required to be completed prior to termination of these Terms. You must have an individual User Account in order to submit Task Submissions.

Creator Responsibility

With respect to each Task Submission commissioned by Velvet, you shall:

• Accept or deny Task Submissions that are communicated to you from time to time on your User Account on the Service (“Submissions Request(s)”);
• If accepted, deliver each Task Submission pursuant to each accepted Submission Request to Velvet on a timely basis in the formats and on or via the media set forth in your User Account, applicable Submission Request, or as otherwise specified by Velvet;
• Prior to delivery of each Task Submission, obtain from all persons who are, or whose property is, identified, depicted, or otherwise referred to or captured in such Task Submission, such written and signed licenses, permissions, waivers, and consents (collectively, “Permissions” and each, individually, a “Permission”), including those relating to publicity and privacy, as are or reasonably may be expected to be necessary for Velvet, including its licensees, successors, and assigns, to exercise its rights in such Task Submission, including all Intellectual Property Rights (defined below) therein, without incurring any payment or other obligation to, or otherwise violating any right of, any such person. Without limiting the generality of the foregoing, and your responsibility to secure Permissions as described herein, (i) Velvet may make available through the Service, from time to time, certain written Permissions for such individual non-Users to execute who appear in a Task Submission; or (ii) Velvet may require you to share the contact information of individual non-Users who appear in a Task Submission for purposes of obtaining Permission, and you represent and warrant that you will ensure that any such individuals appearing in your Task Submission will execute relevant Permissions and cooperate with Velvet as requested by Velvet.

Creator Representations, Warranties, and Covenants

You represent, warrant, and covenant that:

• You have sufficient right, power, and authority to enter into and to perform your obligations under these Terms, including providing Task Submissions, and to grant the rights described in these Terms.
• You have not made, nor will you make, any agreement or commitment with any third party that would prevent or materially interfere in any way with your provision of the Task Submissions or the exercise of the rights granted to us (other than as specifically set out in these Terms), including, without limitation, liability for payment of any guild or other fees, residuals, payments, or royalties payable under any collective bargaining agreement or otherwise.
• You will provision the Task Submissions in compliance with all Applicable Laws and in a manner that does not infringe or violate any third party’s personal or property rights, including Intellectual Property Rights and privacy rights.
• You have secured all Permissions as are or reasonably may be expected to be necessary for Velvet, including its licensees, successors, and assigns, to exercise its rights in such Task Submissions, including all Intellectual Property Rights therein, without incurring any payment or other obligation to, or otherwise violating any right of, any such person.
• You will create and provision the Task Submissions in compliance with any and all consumer disclosure requirements under federal, state and local laws, statutes, ordinances, rules, regulations, guidance and orders.
• All content you post under these Terms, including all Task Submissions, are your own work, original, and unless we mutually agree otherwise, will not contain any third party’s content and will not be generated, in whole or in part, with the use of any generative or other artificial intelligence tools or technology.
• You have the written consent of each and every identifiable natural person referred to or mentioned in the Task Submissions, as applicable, if any, to use such person’s name, voice, and likeness in the manner contemplated by the Service and these Terms, and each such person has released you from any liability that may arise in relation to such use.
• To the best of your knowledge, all content you posted under these Terms, including all Task Submissions, are truthful and accurate.

Grant of Rights

For the purposes of these Terms, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of personality, trademark, trade dress and service mark rights, goodwill, trade secret rights, and any and all other intellectual property rights and proprietary rights as may now exist or hereafter come into existence, and all applications therefor and registrations, renewals, and extensions thereof, under Applicable Law.

Velvet is and will be the sole and exclusive owner in perpetuity throughout the universe of all right, title, and interest in and to the Task Submissions, including all copyrights and other Intellectual Property Rights therein (including all extensions and renewals thereof, all reversion rights therein, and the right to register and sue to enforce such copyrights against alleged and actual infringers) and all exploitation and allied, ancillary, and subsidiary rights therein (including the right to exploit the Task Submissions, in perpetuity, throughout the universe, in any and all media and by any and all technologies and means of delivery whether now or hereafter known or devised). You hereby irrevocably and unconditionally: (i) assign, transfer, and otherwise convey to Velvet, on a perpetual basis, throughout the universe, all right, title, and interest in and to all Task Submissions, including all copyrights and other Intellectual Property Rights therein and all exploitation and allied, ancillary, and subsidiary rights therein; and (ii) waive any and all claims you may now or hereafter have in any jurisdiction to so-called “moral rights” or droit moral with respect to such Task Submission.

To the extent that you cannot assign, in whole or in part, all right, title and interest in and to any particular Task Submission, you hereby grant to Velvet and its affiliates, and each of their respective direct and indirect licensees, successors, and assigns, a perpetual, irrevocable, freely transferable and sublicensable, fully paid-up and royalty-free exclusive right and license to use such Task Submission, including all copyrights and other Intellectual Property Rights therein (including all extensions and renewals thereof, all reversion rights therein, and the right to register and sue to enforce such copyrights against alleged and actual infringers) and all exploitation and allied, ancillary, and subsidiary rights therein (including the right to exploit such Task Submission, in perpetuity, throughout the universe, in any and all media and by any and all technologies and means of delivery whether now or hereafter known or devised). For purposes of clarity and without limiting the foregoing, you agree that the foregoing grant includes the rights: (a) to modify, edit, combine with other materials, translate, include in collective works, and create derivative works of such Task Submission (collectively, “Adapt,” where “Adapted,” and “Adaptation” have correlative meanings); (b) to reproduce, perform (publicly or otherwise), display (publicly or otherwise), and transmit such Task Submission, in whole or in part, and as provided by you unmodified or Adapted; (c) to use Task Submissions to train artificial intelligence and machine learning models; and (d) to license or sell the Task Submissions to Velvet’s customers to use such Task Submissions for any of the foregoing.

You hereby grant to Velvet and its affiliates, and each of their respective direct and indirect successors, licensees, and assigns, the perpetual, irrevocable, worldwide, royalty-free, fully licensable (through multiple tiers of sub-licensees) and assignable right to use your name, image, likeness, and biographical professional information, including information you provide to Velvet and any other information about you that is publicly available, in connection with the Task Submissions (and as incorporated into the Task Submissions), including in any product or service that features or includes any Task Submission and any Adaptation, in whole or in part, as provided by you unmodified or as Adapted, in any and all media and by any and all technologies and means of delivery whether now or hereafter known or devised, without further consent from or any royalty, payment, or other compensation due to you. Further, Velvet may identify you as a User in its promotional materials. We will promptly stop doing so upon receipt of your request sent to the email address listed in Section 17.10 (Contact) below.

Except for the rights, assignments, and licenses expressly set forth in these Terms, each party and its licensors shall retain the exclusive right, title and interest in and to its and their respective Intellectual Property Rights and other proprietary rights, whether preexisting or otherwise, and any and all derivative works of the foregoing. Nothing in these Terms shall be construed as conferring any rights by implication, estoppel, or otherwise, under any Intellectual Property Right or other proprietary right, other than the rights expressly granted in these Terms. Nothing herein shall constitute any obligation on us, our agents, assignees, licensees and others working for us or on our behalf to make any use of any of the rights set forth herein.

Interactions with Other Users; Acceptable Use

Interactions with Other Users

User Responsibility. You are solely responsible for your interactions with other Users and any other parties with whom you interact through the Service, including during interactions with other Users in the course of creating any Task Submissions; provided, however, that Velvet reserves the right, but has no obligation, to intercede in any disputes between you and any other Users. You agree that Velvet will not be responsible for any liability incurred as the result of your interactions with other Users.

Assumption of Risk. Velvet does not approve or endorse, or make any representations or warranties with respect to, the actions of Users on the Service. You interact with other Users at your own risk.

General Restrictions

Except to the extent a restriction is prohibited by Applicable Law, you will not do, and will not assist, permit, or enable any third party to do, any of the following:

• disassemble, reverse engineer, decode, or decompile any part of the Service;
• use any robot, spider, scraper, off-line reader, data mining tool, data gathering or extraction tool, or any other automated means to access the Service in a manner that sends more request messages to the servers running the Service than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that Velvet grants the operators of public search engines revocable permission to use spiders to copy publicly available materials from the Service for the sole purpose of, and solely to the extent necessary for, creating publicly available searchable indices of, but not caches or archives of, such materials, and only as specified in the applicable robots.txt file);
• buy, sell or transfer API keys without our prior written consent in each case;
• copy, rent, lease, sell, loan, transfer, assign, license or purport to sublicense, resell, distribute, modify, alter, or create derivative works of any part of the Service or any of our Intellectual Property (as defined below), including, without limitation by any automated or non-automated “scraping”;
• use the Service in any manner that impacts (i) the stability of the servers running the Service, (ii) the operation or performance of the Service or any User’s use of the Service, or (iii) the behavior of other applications that use the Service;
• take any action that imposes, or may impose (as determined by us, in our sole discretion), an unreasonable or disproportionately large load on our infrastructure;
• use the Service in any manner or for any purpose that (i) violates, or promotes the violation of, any Applicable Law, contractual obligation, or right of any person, including, but not limited to, Intellectual Property Rights (as defined below), privacy rights, confidentiality rights, and/or rights of personality, (ii) is fraudulent, false, deceptive, or defamatory, (iii) promotes hatred, violence, or harm against any individual or group, or (iv) otherwise may be harmful or objectionable (in our sole discretion) to us or to our providers, our suppliers, Users, or any other third party;
• use or display the Service in competition with us, to develop competing products or services, for benchmarking or competitive analysis of the Service, or otherwise to our detriment or disadvantage;
• access any content available on or via the Service through any technology or means other than those provided by the Service or authorized by us;
• bypass the measures we may use to prevent or restrict access to the Service, including, without limitation, features that prevent or restrict use or copying of any content or that enforce limitations on use of the Service or any portion thereof;
• attempt to interfere with, compromise the system integrity or security of, or decipher any transmissions to or from, the servers running the Service;
• use the Service for any commercial solicitation purposes;
• impersonate another person or entity, misrepresent your affiliation with a person or entity, hide or attempt to hide your identity, or otherwise use the Service for any invasive or fraudulent purpose;
• collect or harvest any personal information, including Users’ names, from the Service; or
• identify or refer to us or to the Service in a manner that could reasonably imply a relationship that involves endorsement, affiliation, or sponsorship between you (or a third party) and us without our prior express written consent.

Content Restrictions

You will not submit any Task Submissions that constitute, or otherwise transmit to the Service, any of the following types of content:

• spam, chain letters, machine-generated content or unsolicited messages;
• malicious programs or code, viruses, worms, or other software agents;
• information or material that a governmental body deems to be sensitive or classified information;
• any personal information of children and teens under 18 or the applicable age of digital consent, and any person’s personal information without such person’s consent;
• content that contains nudity or other sexually suggestive content; hate speech, threats, or direct attacks on an individual or group;
• content that is abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or invasive of another’s privacy; sexist or racially, ethnically, or otherwise discriminatory content;
• content that contains self-harm or excessive violence; fake or impostor profiles;
• illegal content or content in furtherance of harmful or illegal activities; or
• any objectionable content in Velvet’s sole discretion.

Payment

Payment Terms

You understand that Velvet has the right to and may sell or license your Task Submissions to other Users and to third parties. As a result of such sale or licensing, we, or our designated agent, will pay you the compensation designated for each Task Submission (“Compensation”). Unless otherwise agreed by you and Velvet in writing, we will remit Compensation due to you hereunder no later than thirty (30) days after the end of each calendar month in which the applicable fees are incurred. Payment will be in the form you select when you register for the Service, or as subsequently updated as permitted by the Service. We reserve the right to withhold payment under these Terms due to any breach of these Terms by you, pending our reasonable investigation of such breach. We also reserve the right to withhold payment or to charge back to your User Account any amounts subject to dispute, such as in the case of credit card chargebacks, pending successful resolution of the dispute. To ensure proper payment, you are solely responsible for providing and maintaining accurate contact and payment information associated with your User Account, which includes, without limitation, applicable tax information. If we believe that we are obligated to obtain tax information and you do not provide this information to us after we have requested it, we may withhold your payments until you provide this information or otherwise satisfy us that you are not a person or entity from whom or from which we are required to obtain tax information. Any third-party fees related to returned or cancelled payments due to a contact or payment information error or omission may be deducted from the newly-issued payment. You will pay all applicable taxes in connection with your access to and/or use of the Service.

Disputes

If you dispute any payment obligation we allegedly have hereunder, you must notify us in writing within thirty (30) days of such payment or from when you purport such payment would have been due, whichever is earlier. Failure to so notify us will result in the waiver by you of any claim relating to such disputed payment obligation. Compensation will be calculated solely based on records maintained by us; no other measurements or statistics of any kind will be accepted by us or have any effect under these Terms, and you will have no audit rights hereunder. We may withhold any taxes or other amounts from payments due to you as required by Applicable Law.

Limitation of Remedies

You recognize and confirm that in the event of any failure or omission by Velvet constituting a breach of any of the obligations under these Terms, whether or not material, the damage, if any, caused to you is not irreparable or sufficient to entitle you to injunctive or other equitable relief. Consequently, your rights and remedies for a breach of these Terms shall be limited to the right, if any, to obtain damages at law and you shall not have any right to terminate or rescind these Terms or any of the rights granted to the Velvet hereunder or to enjoin or restrain any activities in connection with the exploitation of the rights granted in Section 3 (Grant of Rights) above.

Third-Party Payment Processor

To the extent a third-party payment processor (“Payment Processor”) processes payments made to you, you will be subject to terms and conditions governing the use of such Payment Processor’s service. Our current Payment Processors are Stripe, Inc. and Wise US Inc. Please review such terms and conditions (which are available at https://stripe.com/legal/ssa and https://wise.com/en/legal/terms-and-conditions) as well as our Payment Processors’ privacy notices (which are available at https://stripe.com/privacy and https://wise.com/gb/legal/privacy-notice-personal-en). You acknowledge and understand that Payment Processor may collect and retain third-party fees whenever you receive Compensation and such amounts will be deducted from your Compensation before your Compensation is distributed to you. For all payments, Payment Processor will collect your preferred payment method details and remit payment to your chosen payment method in connection with each transaction. If any of your account or payment method information changes, you will promptly update such information, so that we or Payment Processor may complete your transaction(s) and/or contact you, as needed.

Expenses

You are responsible for all costs and expenses incurred by you incident to your provision of Task Submissions, including but not limited to all tools, vehicles, or other equipment you provide, all fees, fines, licenses, bonds, or taxes required of or imposed against you, and all of your other costs of doing business.

Monitoring; Investigations

Velvet reserves the right in its sole discretion to review, monitor, prohibit, edit, delete, disable access to, or otherwise make unavailable any content transmitted by Users, including Task Submissions, without notice for any reason or for no reason at any time. If at any time Velvet chooses to monitor as such, Velvet assumes no responsibility for such content and assumes no obligation to modify or remove any inappropriate content. Any unauthorized use of the Service terminates the licenses granted by Velvet pursuant to this Agreement. If Velvet becomes aware of any possible violations by you of this Agreement, Velvet reserves the right to investigate such violations. If, as a result of the investigation, Velvet believes that you have committed criminal activity, Velvet reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Velvet is entitled, except to the extent prohibited by Applicable Law, to disclose any information or materials you provide to Velvet in connection with your use of the Service, to (a) comply with Applicable Law, legal process, or governmental request; (b) enforce these Terms, (c) respond to your requests for customer service, or (d) protect the rights, property or personal safety of Velvet, the Service, or the public, and all enforcement or other government officials, as Velvet, in its sole discretion believes to be necessary or appropriate.

Intellectual Property; Confidential Information

Velvet Intellectual Property

You understand and acknowledge that we (or our licensors (including other Users), as applicable) own and will continue to own all rights (including Intellectual Property Rights), title, and interest in and to the Service, all materials and content displayed or otherwise made available on and/or through the Service (including, without limitation, images, text, graphics, illustrations, logos, photographs, audio, videos, music, and any content belonging to other Users), and all software, algorithms, code, technology, and intellectual property underlying and/or included in or with the Service (collectively and individually, “Intellectual Property”). Except as may be explicitly provided herein, nothing in these Terms will be deemed to create a license in or under any such Intellectual Property Rights, and you will not access, sell, license, rent, distribute, copy, reproduce, transmit, display, perform, publish, or Adapt any Intellectual Property. Use of any Intellectual Property for any purpose not expressly permitted by these Terms is strictly prohibited.

Usage Data

We may collect, or you may provide to us, diagnostic, technical, usage, and/or related information, including information about your computers, mobile devices, systems, and software (collectively, “Usage Data”). All Usage Data is and will be owned solely and exclusively by us, and, to the extent any ownership rights in or to the Usage Data vest in you, you hereby assign to us all rights (including Intellectual Property Rights), title, and interest in and to the same. Accordingly, we may use, maintain, and/or process the Usage Data or any portion thereof for any lawful purpose, including, without limitation: (a) to provide and maintain the Service; (b) to improve our products and services (including the Service), and to develop new products, services, and/or features; (c) to monitor your usage of the Service; (d) for research and analytics, including, without limitation, data analysis, identifying usage trends, and/or customer research; and (e) to share analytics and other derived Usage Data with third parties, solely in de-identified or aggregated form. The Service may contain technological measures designed to prevent unauthorized or illegal use of the Service; you understand and acknowledge that we may use these and other lawful measures to verify your compliance with these Terms and to enforce our rights, including Intellectual Property Rights, in and to the Service.

Feedback

To the extent you provide us any suggestions, recommendations, or other feedback relating to the Service or to any other Velvet products or services (collectively, “Feedback”), you hereby assign to us all rights (including Intellectual Property Rights), title, and interest in and to the Feedback. Accordingly, we are free to use the Feedback and any ideas, know-how, concepts, techniques, and/or other intellectual property contained in the Feedback, without providing any attribution or compensation to you or to any third party, for any purpose whatsoever, although we are not required to use any Feedback. Feedback is deemed our Confidential Information (as defined below). You acknowledge that, by acceptance of your submission of Feedback, we do not waive any rights to use similar or related ideas previously known to us, or developed by our employees, or obtained from sources other than you.

Confidential Information

The Service may include non-public, proprietary, or confidential information of Velvet and/or of other Users (“Confidential Information”). Confidential Information includes any information that should reasonably be understood to be confidential given the nature of the information and the circumstances of disclosure, including non-public business, product, technology, and marketing information. You will: (a) protect and safeguard the confidentiality of all Confidential Information with at least the same degree of care as you would use protect your own highly sensitive confidential information, but in no event with less than a reasonable degree of care; (b) not use any Confidential Information for any purpose other than to exercise your rights, or to perform your obligations, under these Terms; and (c) not disclose any Confidential Information to any person or entity, except your service providers or financial or legal advisors who/that (i) need to know the Confidential Information and (ii) are bound by non-use and non-disclosure restrictions at least as restrictive as those set forth in this Section.

DMCA Notice

We respect artists and content owner rights, and it is our policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (as it may be amended, “DMCA”).

If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify our copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide all of the following information in writing:

• an electronic or physical signature of a person authorized to act on behalf of the copyright owner;
• identification of the copyrighted work that you claim has been infringed;
• identification of the material that is claimed to be infringing and its location on the Service;
• information reasonably sufficient to permit us to contact you, such as your address, telephone number, and email address;
• a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
• a statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.

The above information must be submitted to our DMCA agent, using the following contact information:

Attn: Copyright Agent
Address:
Velvet Media, Inc.
44 Montgomery Street, Suite 300
San Francisco, CA, 94104

Tel.:+1-510-214-3469
Email: support@velvet.video

UNDER UNITED STATES FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.

Please note that the procedure outlined herein is exclusively for notifying Velvet and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with Velvet’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other Applicable Law.

In accordance with the DMCA and other Applicable Law, we have adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. We may also, at our sole discretion, limit access to the Service and/or terminate the User Accounts of any Users who infringe any Intellectual Property Rights of others, whether or not there is any repeat infringement.

Privacy; Data Security

Privacy

We care about your privacy. By using the Service, you acknowledge that we may collect, use, and disclose your personal information and aggregated and/or anonymized data as set forth in our Privacy Policy, and that your personal information may be transferred to, and/or processed in, the United States.

Security

We care about the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or to use your data for improper purposes. You acknowledge that you provide your data at your own risk.

Text Messaging and Calls

General

You may provide us with your telephone number as part of creating your User Account or otherwise. By providing a telephone number, you consent to receiving autodialed or prerecorded calls and/or text messages from us, or on our behalf, at such telephone number. We may place such calls or send such texts to (a) help keep your User Account secure through the use of multi-factor authentication (“MFA”); (b) help you access your User Account if you are experiencing difficulties; and/or (c) as otherwise necessary to service your account or enforce these Terms, our policies, Applicable Law, or any other agreement we may have with you. Part of the MFA identity-verification process may involve Velvet sending text messages containing security codes to the telephone number you provided, and you agree to receive such texts from or on behalf of Velvet.

Consent to Transactional Communications

You expressly consent and agree to Velvet contacting you using written, electronic, and/or verbal means, including manual dialing, emails, prerecorded/artificial voice messages, and/or using an automatic telephone dialing system to call or text your mobile/cellular telephone number, as necessary to complete transactions requested by you and to service your account, and as permitted by Applicable Law, in each case even if the phone number is registered on any United States federal and/or state Do-Not-Call/Do-Not-email registry/ies. Message and data rates apply. For purposes of clarity, the text messages described in this paragraph are transactional text messages, not promotional text messages.

Unsubscribing From Transactional Text Messages

You may opt out from transactional text messages at any time. To unsubscribe from transactional text messages, text “STOP,” “QUIT,” “END,” “CANCEL,” or “UNSUBSCRIBE” to the conversation thread from the mobile device receiving the messages, or reply “STOP,” “QUIT,” “END,” “CANCEL,” or “UNSUBSCRIBE” to any promotional text message you receive from Velvet. You consent that following such a request to unsubscribe, you may receive one (1) final text message from or on behalf of Velvet confirming your request. For help, text “HELP” as a reply to a text message you receive from us or contact us at the contact information in Section 17.10 (Contact) below.

Your Use of Third-Party Services

THE SERVICE MAY CONTAIN LINKS TO THIRD-PARTY SITES, MATERIALS, AND/OR SERVICES (COLLECTIVELY, “THIRD-PARTY SERVICES”) THAT ARE NOT OWNED OR CONTROLLED BY US, AND CERTAIN FUNCTIONALITIES OF THE SERVICE MAY REQUIRE YOUR USE OF THIRD-PARTY SERVICES. IF YOU USE A THIRD-PARTY SERVICE IN CONNECTION WITH THE SERVICE, YOU ARE SUBJECT TO AND AGREE TO, AND MUST COMPLY WITH, THE THIRD PARTY’S TERMS AND CONDITIONS MADE AVAILABLE VIA, OR AGREED IN CONNECTION WITH, ITS SERVICES. WE DO NOT ENDORSE OR ASSUME ANY RESPONSIBILITY FOR ANY THIRD-PARTY SERVICES. IF YOU ACCESS A THIRD-PARTY SERVICE FROM THE SERVICE OR SHARE YOUR USER CONTENT OR TASK SUBMISSIONS ON OR THROUGH ANY THIRD-PARTY SERVICE, YOU DO SO AT YOUR OWN RISK, AND YOU UNDERSTAND THAT THESE TERMS AND OUR PRIVACY NOTICE DO NOT APPLY TO YOUR USE OF ANY THIRD-PARTY SERVICE. YOU EXPRESSLY RELIEVE US FROM ANY AND ALL LIABILITY ARISING FROM YOUR ACCESS TO AND/OR USE OF ANY THIRD-PARTY SERVICE. ADDITIONALLY, YOUR DEALINGS WITH, OR PARTICIPATION IN PROMOTIONS OF, ADVERTISERS FOUND ON THE SERVICE, INCLUDING AS RELATES TO PAYMENT AND DELIVERY OF GOODS, AND ANY OTHER TERMS (SUCH AS WARRANTIES) ARE SOLELY BETWEEN YOU AND SUCH ADVERTISERS. YOU UNDERSTAND AND ACKNOWLEDGE THAT WE WILL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE OF ANY SORT RELATING TO YOUR DEALINGS WITH SUCH ADVERTISERS.

Release

You hereby release us from all claims, damages (whether direct, indirect, incidental, consequential, or otherwise), obligations, losses, liabilities, costs, debts, and expenses, in each case of every kind and nature, known and unknown, arising out of a dispute between you and a third party (including any other User) in connection with the Service. In addition, you waive any Applicable Law that says, in substance: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE RELEASED PARTY.”

Indemnity

You will defend, indemnify, and hold us and our subsidiaries and affiliates, and our and their respective agents, suppliers, licensors, employees, contractors, officers, and directors (collectively, including Velvet, the “Velvet Parties”) harmless from and against any and all claims, damages (whether direct, indirect, incidental, consequential, or otherwise), obligations, losses, liabilities, costs, debts, and expenses (including, but not limited to, legal fees) arising from: (a) your access to and/or use of the Service; (b) your violation of any term of these Terms, including, without limitation, your breach of any of your representations and warranties set forth in these Terms; (c) your violation of any third-party right, including, without limitation, any privacy right or Intellectual Property Right; (d) your violation of any Applicable Law; (e) Task Submission or any content that is submitted via your User Account, including, without limitation, any misleading, false, or inaccurate information; (f) your willful misconduct; (g) any third party’s access to and/or use of the Service with your username(s), password(s), or other authentication credential(s); or (h) any dispute between you and other Creators with respect to any Compensation paid by Velvet and owed to you or such other Creators pursuant to a Task Submission.

No Warranty; Disclaimers

THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. YOUR USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE, THE INTELLECTUAL PROPERTY, AND ANY OTHER INFORMATION AVAILABLE ON OR THROUGH THE SERVICE ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND/OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NONE OF THE VELVET INDEMNITEES WARRANTS THAT ANY CONTENT OR ANY OTHER INFORMATION CONTAINED IN, OR AVAILABLE VIA, THE SERVICE IS ACCURATE, COMPREHENSIVE, RELIABLE, USEFUL, OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED, OR SECURE; THAT ANY DEFECTS OR ERRORS IN THE SERVICE WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS SO OBTAINED AT YOUR OWN RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM(S) OR MOBILE DEVICE(S) AND/OR FOR LOSS OF DATA THAT RESULTS FROM SAME OR FROM YOUR ACCESS TO AND/OR USE OF THE SERVICE. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY APPLICABLE LAW.

FURTHER, VELVET DOES NOT WARRANT, ENDORSE, GUARANTEE, RECOMMEND, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY ANY THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND VELVET WILL NOT BE A PARTY TO, OR IN ANY WAY MONITOR, ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.

YOU AGREE THAT VELVET PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD VELVET PARTIES LIABLE, FOR THE CONDUCT OR OMISSIONS OF THIRD PARTIES, INCLUDING THE ACTIONS OF ANY OTHER USER WITH WHOM YOU CHOOSE TO INTERACT IN CONNECTION WITH YOUR USE OF THE SERVICE (WHETHER VIA THE SERVICE OR IN PERSON), AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.

UNITED STATES FEDERAL LAW AND SOME STATES, PROVINCES, AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF AND/OR LIMITATIONS ON CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS AND/OR LIMITATIONS MAY NOT APPLY TO YOU. THESE TERMS GIVE YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM JURISDICTION TO JURISDICTION. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS UNDER THESE TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ANY VELVET PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA, OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THE SERVICE OR ANY PORTION THEREOF. UNDER NO CIRCUMSTANCES WILL WE BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS TO OR USE OF THE SERVICE OR YOUR USER ACCOUNT OR THE INFORMATION CONTAINED THEREIN.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE VELVET PARTIES ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICE; (C) ANY UNAUTHORIZED ACCESS TO OR USE OF THE SERVERS RUNNING THE SERVICE AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY; (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (G) YOUR DATA, ANY USER CONTENT, OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY.

IN NO EVENT WILL ANY VELVET PARTY BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES, OR COSTS IN AN AMOUNT EXCEEDING THE GREATER OF (A) THE AMOUNT PAID OR PAYABLE TO YOU HEREUNDER DURING THE MOST RECENT TWELVE (12) MONTHS, OR (B) ONE HUNDRED U.S. DOLLARS ($100.00). THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF AND/OR LIMITATIONS ON INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS AND/OR LIMITATIONS MAY NOT APPLY TO YOU. THESE TERMS GIVE YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM JURISDICTION TO JURISDICTION. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THESE TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

Arbitration Agreement

Please read this Section (the “Arbitration Agreement”) carefully. It is part of your contract with Velvet and affects your rights. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.

Applicability of Arbitration Agreement

Subject to the terms of this Arbitration Agreement, you and Velvet agree that any disputes, claims, or disagreements arising out of or relating in any way to your access to or use of the Service, any communications you receive, any products sold or distributed through the Service or this Agreement and prior versions of this Agreement, including claims and disputes that arose between us before the effective date of these Terms (each, a “Dispute”) will be resolved by final, binding arbitration, rather than in court, except that: (i) you and Velvet may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (ii) you or Velvet may seek equitable relief in court for infringement or other misuse of Intellectual Property Rights. For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of this Agreement as well as claims that may arise after the termination of this Agreement.

Informal Dispute Resolution

There might be instances when a Dispute arises between you and Velvet. If that occurs, Velvet is committed to working with you to reach a reasonable resolution. You and Velvet agree that good faith informal efforts to resolve Disputes can result in a prompt, low-cost, and mutually beneficial outcome (“Informal Dispute Resolution”). You and Velvet therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), the parties will personally meet and confer telephonically or via videoconference, in a good-faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.

The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within forty-five (45) days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to Velvet that you intend to initiate an Informal Dispute Resolution Conference should be sent by e-mail or regular mail to the addresses set forth in the “Contact Information” section below. The Notice must include: (1) your name, telephone number, mailing address, e-mail address associated with your User Account (if you have one); (2) the name, telephone number, mailing address and e-mail address of your counsel, if any; and (3) a description of your Dispute.

The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.

Waiver of Jury Trial

YOU AND VELVET HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Velvet are instead electing that all Disputes will be resolved by arbitration under this Arbitration Agreement, except as specified in Section 16.1 (Applicability of Arbitration Agreement). There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

Waiver of Class and Other Non-Individualized Relief

YOU AND VELVET AGREE THAT, EXCEPT AS SPECIFIED IN SECTION 16.9 (BATCH ARBITRATION), EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under Section 16.9 (Batch Arbitration). Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this section are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Velvet agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of California. All other Disputes will be arbitrated or litigated in small claims court. This section does not prevent you or Velvet from participating in a class-wide settlement of claims.

Rules and Forum

This Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/rules-forms-and-fees/consumer/.

A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e-mail address of the party seeking arbitration and the User Account username (if applicable) as well as the e-mail address associated with any applicable User Account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good-faith calculation of the amount in controversy in United States dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.

If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and e-mail address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.

Unless you and Velvet otherwise agree, or the Batch Arbitration process discussed in Section 16.9 (Batch Arbitration) is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely set forth in the applicable AAA Rules.

You and Velvet agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and shall be subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.

Arbitrator

The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under Section 16.9 (Batch Arbitration) is triggered, the AAA will appoint the arbitrator for each batch.

Authority of Arbitrator

The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to Section 16.4 (Waiver of Class and Other Non-Individualized Relief), including any claim that all or part of Section 16.4 (Waiver of Class and Other Non-Individualized Relief) is unenforceable, illegal, void or voidable, or that such Section 16.4 (Waiver of Class and Other Non-Individualized Relief) has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in Section 16.9 (Batch Arbitration), all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in Section 16.9 (Batch Arbitration). The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.

Attorneys’ Fees and Costs

The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Velvet need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.

Batch Arbitration

To increase the efficiency of administration and resolution of arbitrations, you and Velvet agree that in the event that there are one-hundred (100) or more individual Requests of a substantially similar nature filed against Velvet by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).

All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree that the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Velvet.

You and Velvet agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.

This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.

30-Day Right to Opt Out

You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out: by email or regular mail to the addresses set forth in the “Contact Information” section below, within thirty (30) days after becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address associated with your User Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter into the future, with us.

Invalidity, Expiration

Except as provided in Section 16.4 (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Velvet as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.

Modification

Notwithstanding any provision in this Agreement to the contrary, we agree that if Velvet makes any future material change to this Arbitration Agreement, we will notify you. Unless you reject the change within thirty (30) days of such change becoming effective by writing to Velvet via email or regular mail to the addresses set forth in the “Contact Information” section below, your continued use of the Service following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of this Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Service, any communications you receive, any products sold or distributed through the Service or this Agreement, the provisions of this Arbitration Agreement as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement) remain in full force and effect. Velvet will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Agreement.

General Provisions

Governing Law

You agree that: (a) the Service will be deemed solely based in the State of California; and (b) the Service will be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than California. These Terms will be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The parties acknowledge that these Terms evidence a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law governing these Terms, the Federal Arbitration Act (9 U.S.C. §§ 1-16) (as it may be amended, “FAA”) governs the interpretation and enforcement of the Arbitration Agreement below and preempts all state laws (and laws of other jurisdictions) to the fullest extent permitted by Applicable Law. If the FAA is found to not apply to any issue that arises from or relates to the Arbitration Agreement, then that issue will be resolved under and governed by the law of the U.S. state where you live (if applicable) or the jurisdiction mutually agreed upon in writing by you and us. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the exclusive personal jurisdiction of the federal and state courts located in California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Confidential Information, or Intellectual Property Rights, as set forth in the Arbitration Agreement above, including any provisional relief required to prevent irreparable harm. You agree that California is the proper and exclusive forum for any appeals of an arbitration award, or for trial court proceedings in the event that the Arbitration Agreement below is found to be unenforceable. These Terms were drafted in the English language and this English language version of the Terms is the original, governing instrument of the understanding between you and us. In the event of any conflict between the English version of these Terms and any translation, the English version will prevail.

Export Controls

You may not use, export, import, or transfer the Service except as authorized by U.S. law, the laws of the jurisdiction in which you accessed any Velvet property, and any other Applicable Law. In particular, but without limitation, the Service 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’s Denied Person’s List or Entity List. By using the Service, you represent and warrant that (y) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (z) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Service for any purpose prohibited by U.S. law, including the development, design, manufacture, or production of missiles, nuclear, chemical, or biological weapons. You acknowledge and agree that products, services, or technology provided by Velvet are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Velvet products, services, or technology, either directly or indirectly, to any country in violation of such laws and regulations.

Assignment

These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without our prior express written consent, but may be assigned by us without restriction. Any attempted transfer or assignment in violation hereof will be null and void.

Notification Procedures and Changes to these Terms

We may provide notifications, whether such notifications are required by Applicable Law or are for marketing or other business-related purposes, to you via email notice or written or hard copy notice, or through posting of such notice on the Service, as we determine, in our sole discretion. We reserve the right to determine the form and means of providing notifications to Users, provided that you may opt out of certain means of notification, as required under Applicable Law or as described in these Terms. We are not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. We may, in our sole discretion, modify or update these Terms from time to time, and so you should review this page periodically. When we change these Terms in a material manner, we will update the ‘last modified’ date at the top of this page and notify you that material changes have been made to these Terms. These Terms apply to and govern your access to and use of the Service effective as of the start of your access to the Service, even if such access began before publication of these Terms. Your continued use of the Service after any change to these Terms constitutes your acceptance of the new Terms of Service. If you do not agree to any part of these Terms or to any future Terms of Service, do not access or use (or continue to access or use) the Service.

Entire Agreement; Severability

These Terms, together with any amendments and any additional agreements you may enter into with us in connection with the Service, will constitute the entire agreement between you and us concerning the Service. Any statements or comments made between you and any of our employees or representatives are expressly excluded from these Terms and will not apply to you or us, or to your access to or use of the Service. Except as otherwise stated in the Arbitration Agreement, if any provision of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of these Terms, which will remain in full force and effect.

Third-Party Beneficiaries

You acknowledge that the Velvet Parties are third-party beneficiaries of Sections 13 (Indemnity), 14 (No Warranty; Disclaimers), and 15 (Limitation of Liability), and that they will have the right to enforce those provisions.

Force Majeure

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

No Waiver

No waiver of any term of these Terms will be deemed a further or continuing waiver of such term or of any other term, and our failure to assert any right or provision under these Terms will not constitute a waiver of such right or provision.

California Residents

The provider of the Service is set forth herein. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting it in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.

Contact

If you have any questions about these Terms and/or the Service, please contact us at:

Velvet Media, Inc.
44 Montgomery Street, Suite 300
San Francisco, CA, 94104
Support@velvet.video