Legal
These Terms of Service (these “Terms”) describe the terms and conditions by which you may access and use Vibe Advertising Inc.’s (including its successors and assigns, “Vibe.co,” “we,” “us,” or “our”) advertising-related products and services (collectively, the “Service”). If you don’t agree to these Terms, you may not use the Service. We reserve the right to modify these Terms, as described below. These Terms apply to all entities or individuals using or integrating with the Service for its business or commercial purposes (collectively, “Users,” and, as applicable to you, “you” or “your”).
Please read these terms carefully to ensure you understand each provision. These Terms contain a jury trial waiver provision and a mandatory arbitration provision.
1.1 Eligibility. This is a contract between you and Vibe.co. You must read and agree to these Terms before using 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”). To use the Service, you must be at least 18 years old (or the age of majority in your jurisdiction). The Service is not available to any Users we previously removed from the Service.
1.2 User Accounts
1.2.1 Your User Account; Suspension, and Termination. 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. We may, with or without prior notice, permanently terminate or temporarily suspend your access to your User Account and/or the Service without liability and for any or no reason, including if you violate any provision of these Terms. Additionally, you may deactivate your User Account at any time. We may, with or without prior notice, change or stop providing the Service to you or to Users generally or create usage limits for the Service.
1.2.2 Organizational Accounts. An individual may access and/or use the Service on behalf of a company or other entity, such as that individual’s employer (such entity, an “Organization”). In such cases, notwithstanding anything to the contrary herein: (a) these Terms are an agreement between (i) us and such individual and (ii) us and that Organization; (b) “you,” as used in these Terms in the context of a license grant, assignment, restriction, obligation, acknowledgment, representation, warranty, or covenant, or in any similar context, means (i) such individual and (ii) “the Organization, on behalf of the Organization and its subsidiaries and affiliates, and its and their respective directors, officers, employees, contractors, agents, and other representatives who access and/or use the Service (collectively, ‘Org Users’)”; and “your” has the corresponding meanings; (c) such individual represents and warrants to having the authority to bind that Organization to these Terms (and, in the absence of such authority, such individual may not access, nor use, the Service); (d) such individual’s acceptance of these Terms will bind that Organization to these Terms; (e) we may disclose information regarding such individual and such individual’s access to and use of the Service to that Organization; (f) such individual’s right to access and use the Service may be suspended or terminated (and the administration of the applicable User Account may be transferred) if such individual ceases to be associated with, or ceases to use an email address associated with or provisioned by, that Organization; (g) that Organization will make all Org Users aware of these Terms’ provisions, as applicable to such Org Users, and will cause each Org User to comply with such provisions; and (h) that Organization will be solely responsible and liable for all acts and omissions of the Org Users, and any act or omission by any Org User that would constitute a breach of these Terms had it been taken by that Organization will be deemed a breach of these Terms by that Organization. Without limiting the generality of the foregoing, if an individual opens a User Account using an email address associated with or provisioned by an Organization, or if an Organization pays fees due in connection with such individual’s access to or use of the Service (or reimburses such individual for payment of such fees), then we may, in our sole discretion, deem such individual to be accessing and using the Service on behalf of that Organization.
1.2.3 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.
1.2.4 Account Security. You may never use another User’s User Account without such User’s permission. 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. Any Org User with administrator-level access to your User Account can modify your User Account settings, access, and billing information. 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 immediately of any breach of security or unauthorized use of your User Account.
2.1 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 internal business purposes, as permitted by the features of the Service. We reserve all rights not expressly granted herein in and to the Service. Our Service includes methods and services designed to enhance the effectiveness of and to optimize campaigns, as well as offer optimization choices. You are responsible for use of the Service through your account. If you use the Service for a business, that business can receive information about your use and remove you from its accounts. Vibe.co may offer you choices about whether you would like to use certain automated optimizations. With your permission, Vibe.co also may manually assist you with your campaigns. We may reject Ads, modify or terminate the Service, and participate in auctions via the Service.
2.2 Restrictions and Acceptable Use. Except to the extent a restriction is prohibited by Applicable Law, you will not do, and will not enable any third party to do, any of the following:
3.1 Ads. As between us and you, you (or your licensors) will own any and all ads, information, data, and other content submitted by or on your behalf through the Service or otherwise submitted or collected by us through the Service, including the creatives, text, images, branding, URLs, tags, and pixels that comprise the ads and content thereof (collectively, “Ad” or “Ads”).
3.2 Responsibility. You acknowledge and accept full responsibility for (i) your Ads; (ii) all ad trafficking or targeting decisions made by or on your behalf, (iii) all content and property to which Ads direct viewers as well as redirects (“Destinations”), and (iv) all services and products advertised on Destinations (“Advertised Goods”). Except as expressly agreed by us in writing, we will determine the size, placement, and positioning of your Ads. We will serve your Ads as inventory becomes available on the applicable properties. Your Ads, Destinations, Advertised Goods, and use of the Service must comply with the Terms of Service and Applicable Law.
3.3 Ad Ownership. We claim no ownership rights over your Ads, and, as between you and us, all Ads submitted, posted, displayed, provided, shared, or otherwise made available on or via the Service by you are and will remain yours. You understand that certain portions of the Service may allow other Users to view, edit, share, and/or otherwise interact with your Ads and your Output (as defined below), and you agree to allow others to view, edit, share, and/or interact with your Ads and Output in accordance with your settings and these Terms. We have the right (but not the obligation) in our sole discretion to remove any of your Ads that is shared via the Service. You hereby grant us a non-exclusive, worldwide, royalty-free, sublicensable, and transferable license to access your Ads and Output through the Service, and to copy, use, modify, reproduce, distribute, display, and publish your Ads and Output in connection with our performance of the Service (including for testing, compliance, marketing and promotional purposes). You further grant, and you represent and warrant that you have all rights necessary to grant, to us, under all of your intellectual property rights, a non-exclusive worldwide, royalty-free, sublicensable and transferable right and license to use, copy, store, modify, distribute, reproduce, publish, list, make derivative works of, and display your Ads and Output: (i) to maintain and provide the Service; (ii) to improve our products and the Service and for our other purposes, including any purposes otherwise described in these Terms; and (iii) to perform such other actions as described in our Privacy Notice or as authorized by you in connection with your use of the Service.
3.4 Ad Review Process. In order to maintain the professionalism and integrity of our Service, Ads will not run until approved through our ad review process, which checks your Ads against the policies we detail below. We strive to review Ads as soon as possible. If your Ad is rejected, we’ll provide the reason in your account in the Service in connection with your ad status and also via email. You have the ability to edit your Ads to comply with our policies and resubmit. If you have further questions, please contact us.
3.5 You represent and warrant the following: (a) you have obtained, and are solely responsible for obtaining, all consents required by Applicable Law to provide Ads relating to third parties; (b) your Ads and Output and our use thereof as contemplated by these Terms and the Service will not violate any Applicable Law or infringe any rights of any third party, including, but not limited to, any intellectual property rights, privacy rights and confidentiality rights; (c) you will not upload or make available through the Service, either directly or by other means, any Personal Data (as such term is defined under Exhibit A) of children under 18; (d) you will not use the Service to target Ads to properties directed at minors under the age of 18 or to users that you know or should know are, or that you’ve willfully disregarded as being, under the age of 18, and (e) your Ads do not include sexually suggestive content; hate speech or direct attacks on an individual or group; content that is abusive, harassing, defamatory, vulgar, libelous, or invasive of another’s privacy; sexist or racially, ethnically, or otherwise discriminatory content; content that contains self-harm or excessive violence; impostor profiles; content in furtherance of harmful or illegal activities; malicious programs or code; any person’s Personal Data without such person’s consent; spam messages; and/or otherwise objectionable content.
3.6 Prohibited Content. The following Ads categories are prohibited for use in connection with the Service.
3.7 Restricted Content. The following Ads categories may have restrictions associated with them, which may be conveyed to you via your User Account or otherwise via the Service:
3.8 Safety and Privacy.
You own your Ads and we claim no ownership rights over your Ads or user content. We take no responsibility and assume no liability for any Ads or user content. You will be solely responsible for your Ads and the consequences of submitting, posting, displaying, providing, sharing, or otherwise making it available on or through the Service, and you understand and acknowledge that we are acting only as a passive conduit for your online distribution and publication of your Ads. WE TAKE NO RESPONSIBILITY AND ASSUME NO LIABILITY FOR ANY ADS. YOU WILL BE SOLELY RESPONSIBLE FOR YOUR ADS AND THE CONSEQUENCES OF SUBMITTING, POSTING, DISPLAYING, PROVIDING, SHARING, OR OTHERWISE MAKING IT AVAILABLE ON OR THROUGH THE SERVICE, AND YOU UNDERSTAND AND ACKNOWLEDGE THAT WE ARE ACTING ONLY AS A PASSIVE CONDUIT FOR YOUR ONLINE DISTRIBUTION AND PUBLICATION OF YOUR ADS. YOU UNDERSTAND AND ACKNOWLEDGE THAT THE SERVICE MAY EXPOSE YOU TO CONTENT THAT IS INACCURATE, OBJECTIONABLE, OR OTHERWISE UNSUITED TO YOUR PURPOSE, AND YOU UNDERSTAND AND ACKNOWLEDGE THAT WE WILL NOT BE LIABLE FOR ANY DAMAGES YOU ALLEGE TO INCUR AS A RESULT OF OR RELATING TO ANY CONTENT ACCESSED ON OR THROUGH THE SERVICE.
4.1 Vibe.co 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 (excluding your Ads), and all software, algorithms, code, technology, and intellectual property underlying and/or included in or with the Service, including all Improvements thereof (collectively, “Vibe Materials”). Use of any Vibe Materials for any purpose not expressly permitted by these Terms is strictly prohibited. Any usage of Vibe Materials that results in an Improvement will be owned solely and exclusively by us, and, to the extent any ownership rights in or to the Improvements vest in you, you hereby assign to us all rights (including intellectual property rights), title, and interest in and to same. “Improvements” means any derivative work of, modification, or enhancement made in relation to any Vibe Materials, including all intellectual property rights therein.
4.2 Use of Vibe.co Intellectual Property. As part of the Service, we may provide you access to our Vibe Materials. If Vibe Materials are provided to you as part of the Service, we hereby grant you a non-exclusive, non-transferable (except as set forth in Section 17.1 (Assignment)), non-sublicensable license to access and use the Vibe Material in accordance with any documentation provided to you by us. We retain control and discretion over the Vibe Materials as any of such may be modified from time to time, including their appearance, design, functionality, and content. Should we terminate your access to the Service (as permitted by the Terms), all licenses granted in respect of Vibe Materials will immediately expire, and you must immediately cease use of the Service and delete (or, at the option of Vibe.co, return) Vibe.co Confidential Information and Vibe Materials received through the Service in all forms in your possession and control.
4.3 Generated Content. You may be allowed to submit text, documents, images and other materials to the Services for processing and receive output from the Services based on such materials (“Output”). Due to the nature of machine learning, use of the service may result in incorrect Output. You must evaluate the accuracy of any Output as appropriate for your use case, including by using human review of the output. You agree that we shall not be liable for any damages you or any third party alleges to incur as a result of or relating to any Output or other content generated by or accessed on or through the service.
4.4 Usage Data. In addition to any rights pursuant to Section 8, 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 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.
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.
4.5 Open Source Software. Some software used in our Service may be offered under an open-source license that we make available to you. There may be provisions in an open-source license that expressly override some of these terms, so please be sure to read those licenses.
4.6 Feedback. To the extent you provide us any suggestions, recommendations, or other feedback relating to the Service or to any other Vibe.co products or services (collectively, “Feedback”), you hereby assign to us all rights (including intellectual property rights), title, and interest in and to the Feedback, without providing any attribution or compensation to you or to any third party. Please treat Feedback as our Confidential Information (as defined below). If you provide testimonials about our Services or submit Ads to Vibe.co, we may post those testimonials and Ads in connection with our promotion of the Services.
The Service may include Confidential information of Vibe.co and/or of other Users. “Confidential Information” means 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. Our Confidential Information includes our pricing, metrics, member demographics and beta features. 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.
We may identify you as a User in our promotional materials. We will promptly stop doing so upon receipt of your request sent to legal@vibe.co.
Billing Policies; Taxes. Certain aspects of the Service may be provided for free, while certain other aspects of the Service may be provided for a fee (“Fee”). Each Fee is the sum of the applicable Vibe.co Fee (as defined below) and any applicable Third-Party Fees (as defined below). By electing to use non-free aspects of the Service, you agree to the pricing and payment terms applicable to you, as may be made available on our website or via your User Account, and as incorporated by reference herein. We may add new products and/or services for additional Fees, add or amend Fees for existing products and/or services. Any change to our pricing and payment terms will become effective in the billing cycle following our provision of notice of such change. In certain cases, you may be assigned a balance on your User Account that can be refilled through a deposit (wire payment). Payment will be charged periodically on the balance. Balance can be withdrawn partially or wholly at any moment by requesting it to legal@vibe.co. Wire transfer to the party will occur within ten (10) business days. Further, you agree to pay on the basis and at the rate shown when a campaign, order or other purchase was submitted through your account (“Rate”), e.g., price per impression, click, other conversion, lead or period, whether with a fixed or automatically optimized bid, whether with daily budget, lifetime pacing, or other budget options. Deposits and payments shall be made in U.S. dollars to Vibe.co. Fees are stated exclusive of any taxes, levies or duties (collectively, but, for clarity, excluding taxes based on our net income, “Taxes”). You will be responsible for paying all Taxes associated with your purchases in connection with the Service. You will have no liability for income taxes that are statutorily imposed on Vibe.co.
7.1 Definitions
7.1.1 “Vibe.co Fee” means the portion of the Fee that Vibe.co may retain as consideration for providing the Service or any portion thereof (including any particular Subscription), as applicable.
7.1.2 “Third-Party Fees” means the portion of the Fee retained by one (1) or more third parties, including Payment Processor, that we may engage from time to time, in our sole discretion.
7.1.3 “Payment Processor” means the third-party payment processor, which we engage to process payments Users make in connection with the Service.
7.2 Your Payment Method
7.2.1 General. To use non-free aspects of the Service, you must provide us with at least one (1) valid payment card that is accepted by us and Payment Processor (each such card, a “Payment Method”). By providing a Payment Method, you authorize each of Vibe.co and Payment Processor to charge that Payment Method the applicable Fees and Taxes, including, if applicable, on a recurring basis until you cancel such recurring payments (including any notice period specified in the Cancellation Procedures section below). Fees and Taxes will be charged to your Payment Method on the specific payment date indicated in your User Account. We may authorize your Payment Method in anticipation of Service-related charges through various methods. Your Payment Method will be charged and an invoice will be issued at the end of each month, or when your total ad spend across all campaigns reaches a billing threshold of $500.00 unless otherwise adjusted up or down in writing by us. Your billing threshold is an amount of spend across all of campaigns that triggers a charge once reached. If your credit or debit card payment fails, all campaigns will remain inactive until the invoice is paid. The metrics reported by us and our providers shall be decisive, including for purposes of calculating amounts owed.
7.2.2 Third-Party Payment Processor. We or Payment Processor will attempt to verify your Payment Method(s), and may do so by processing an authorization hold, which is standard practice. To the extent Payment Processor processes payments made by you, you will be subject to terms and conditions governing the use of Payment Processor’s service. Please review such terms and conditions as well as Payment Processor’s privacy notice (each of which is available on Payment Processor’s website). You acknowledge and understand that Payment Processor may collect and retain Third-Party Fees whenever you pay Fees (including Subscription Fees). Payment must be received by Payment Processor before our acceptance of an order. For all payments, Payment Processor will collect your Payment Method details and charge your chosen Payment Method in connection with an order. If any of your account, order, 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.
7.2.3 Payment Representations and Warranties. You represent and warrant that: (i) the account, order, and Payment Method information you supply to us and/or to Payment Processor, as applicable, is true, accurate, correct, and complete; (ii) you are duly authorized to use the Payment Method(s); (iii) you will pay any and all charges incurred by users of your Payment Method in connection with the Service, including any applicable Fees (at the prices in effect when such charges are incurred) and Taxes; (iv) charges incurred by you will be honored by your Payment Method company.
7.2.4 Disclaimer. WE DISCLAIM ANY AND ALL LIABILITY WITH RESPECT TO, AND YOU UNDERSTAND AND ACKNOWLEDGE THAT WE ARE NOT RESPONSIBLE FOR: (I) ANY SECURITY OR PRIVACY BREACHES RELATED TO YOUR CREDIT CARD OR OTHER PAYMENT METHOD, (II) ANY FEES THAT MAY BE CHARGED TO YOU BY YOUR BANK IN CONNECTION WITH THE COLLECTION OF FEES, AND/OR (III) ANY UNAUTHORIZED USE OF YOUR CREDIT CARD, DEBIT CARD, OR OTHER PAYMENT METHOD BY A THIRD PARTY.
7.2.5 Late and Disputed Payments. If you believe that Vibe.co has billed you incorrectly, you must contact Vibe.co no later than 10 days after the closing date of the last day of the calendar month in which the error or problem appeared, in order to be eligible for a Service credit. Unpaid amounts not disputed are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by Applicable Laws, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. The amount you owe will be calculated based on Vibe.co’s tracking mechanisms. Vibe.co is not responsible for click fraud, fraudulent leads, technological issues or other potentially invalid activity by third parties that may affect the cost of running Ads. Your exclusive remedy for suspected invalid activity is to make a claim for a Service credit within 90 days of the date of that activity, and Vibe.co’s exclusive liability is, in Vibe.co’s sole discretion, to issue Service credit for suspected invalid activity. Any Services credit that you may accrue are non-refundable and non-transferable and must be used prior to termination of these Terms or your User Account.
7.3 Promotional Offers. We may from time to time offer special promotional offers, plans, coupons or memberships (“Promotional Offers”). Promotional Offer eligibility is determined by us in our sole discretion, and we reserve the right to revoke a Promotional Offer in the event that we determine you, or your clients, are not eligible. We may use information such as device ID, method of payment, and/or an email address used in connection with your User Account to determine eligibility. The eligibility requirements and other limitations and conditions will be disclosed when you, or your clients, sign-up for the Promotional Offer or in other communications made available to you or your clients. You understand and acknowledge that any Promotional Offers, including, without limitation, coupons, are subject to change at any time and from time to time. We reserve the right to block or deactivate Promotional Offers at any time without notice or liability. You, or as applicable your clients, are responsible for all charges that exceed the value of any Promotional Offer. To manage your spending, you have the ability to set a daily budget and end date for your campaign. Additionally, you can pause and resume campaigns whenever you choose. Promotional Offers can only be applied through our platform. Promotional Offers cannot be combined with other offers or discounts or applied to previous transactions. Promotional Offers are non-transferable and cannot be redeemed for cash or other services. Promotional Offers may include new user coupons: exclusively available to new users who have not yet launched campaigns; and, spend-based coupons: made available when a specified spending condition is met.
8.1 Privacy. The Parties agree to, and shall comply with, the Data Processing Agreement attached to these Terms as Exhibit A. The Data Processing Agreement will control to the extent of any conflict between Exhibit A and the rest of these Terms.
The service may contain links to third-party PROPERTIES, 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, to which you are subject to and agree to the third party’s terms and conditions made available via 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 Ads OR OUTPUT 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 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.
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.”
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 Vibe.co, the “Vibe.co Indemnitees”) 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, including your use of Output; (b) your violation of any term of 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) your Ads or any content that is submitted via your User Account; (f) your willful misconduct; or (g) any third party’s access to and/or use of the Service with your authentication credential(s).
The service is provided on an “as is” and “as available” basis. 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 VIBE.CO INDEMNITEES WARRANTS THAT ANY CONTENT OR ANY OTHER INFORMATION CONTAINED IN, OR AVAILABLE VIA, THE SERVICE IS ACCURATE, COMPREHENSIVE, RELIABLE, USEFUL, OR CORRECT (INCLUDING REGARDING TARGETING CATEGORIES, MATCH RATES, THE RATE AT WHICH INVENTORY FOR YOUR ADS BECOMES AVAILABLE ON THE PROPERTIES, THE NATURE AND CONTENT OF THE PROPERTIES ON WHICH ADS ARE SERVED, THE MATCH RATE FOR BLOCK LISTS OF PROPERTIES, THE RESULTS OF YOUR CAMPAIGNS AND OTHER USES OF THE SERVICES); 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, Vibe.co 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 Vibe.co will not be a party to, or in any way monitor, any transaction between you and third-party providers of products or services.
To the maximum extent permitted by applicable law, in no event will you OR any Vibe.co indemnitee 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. OTHER THAN WITH RESPECT TO YOUR PAYMENT OBLIGATIONS, A PARTY’S BREACH OF SECTION 5 (CONFIDENTIALITY), A PARTY’S INDEMNIFICATION OBLIGATIONS, A PARTY’S LIABILITY FOR FRAUD, GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, A PARTY’S LIABILITY FOR DEATH OR PERSONAL INJURY, OR A PARTY’S VIOLATION OF THE OTHER’S INTELLECTUAL PROPERTY RIGHTS, In no event will YOU OR any Vibe.co indemnitee be liable for any claims, proceedings, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES, OR COSTS IN AN AMOUNT EXCEEDING THE GREATER OF (A) THE TOTAL FEES PAID OR PAYABLE TO VIBE.CO DURING THE 6-MONTH PERIOD BEFORE THE EVENT GIVING RISE TO THE LIABILITY OR (B) ONE hundred U.S. Dollars ($100.00), whichever is greater. 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.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE 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 DATA 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 ADS, OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY.
The disclaimers, exclusions, and limitations of liability under these terms will not apply to the extent prohibited by applicable law.
14.1 Governing Law. These Terms, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the State of Delaware, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The parties acknowledge that the Terms evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law of the Agreement, any arbitration conducted hereunder shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16).
14.2 Venue; Waiver of Jury Trial; Fees. The state and federal courts located in Sussex County, Delaware will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to these Terms or its formation, interpretation or enforcement, including any appeal of an arbitration award or for trial court proceedings if the arbitration provision below is found to be unenforceable. Each party hereby consents and submits to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to these Terms. In any action or proceeding to enforce rights under these Terms, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.
14.3 Arbitration Agreement. Read this section carefully because it requires the parties to arbitrate their disputes and limits the manner in which you may seek relief from us. For any dispute with us, you agree to first contact us at legal@vibe.co and attempt to resolve the dispute informally. If we have not been able to resolve a dispute within sixty (60) days of your first contact, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to these Terms, or the breach or alleged breach thereof by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. The arbitration will be conducted in New York, New York, unless we agree otherwise. If you are using the Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Service for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing us from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, intellectual property rights or other proprietary rights.
To the extent the Service is being used by or on behalf of the U.S. Government, the Service will be deemed commercial computer software or commercial computer software documentation (as applicable). Accordingly, if you are an agency of the U.S. Government or any contractor therefor, you receive only those rights with respect to the Service as are granted to all other Users hereunder, in accordance with 48 C.F.R. §227.7202 and 48 C.F.R. §12.212, as applicable.
You understand and acknowledge that the Service may be subject to export control laws and regulations. You will comply with all applicable import and export and re-export control and trade and economic sanctions laws and regulations, including the Export Administration Regulations maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”), and the International Traffic in Arms Regulations maintained by the U.S. State Department. You represent and warrant that you are not, and that no person to whom you make the Service available or that is acting on your behalf, or, if you are an Organization, that no person or entity owning 50% or more of your equity securities or other equivalent voting interests, is (a) listed on the List of Specially Designated Nationals and Blocked Persons or on any other list of sanctioned, prohibited, or restricted parties administered by OFAC or by any other governmental entity, or (b) located in, a national or resident of, or a segment of the government of, any country or territory for which the United States maintains trade or economic sanctions or embargoes or that has been designated by the U.S. Government as a “terrorist supporting” region.
17.1 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.
17.2 Notification Procedures and Changes to these Terms. We may provide notifications to you via email notice or through posting of such notice on the Service, as we determine in our sole discretion. We may modify or update these Terms from time to time, and you should review this page periodically. 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.
17.3 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. 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.
17.4 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.
17.5 Contact. If you have any questions about these Terms and/or the Service, please contact us at legal@vibe.co.
Exhibit A: Data Processing Agreement
This Data Processing Agreement (this “DPA”) is part of the Terms. References to the Terms under this DPA mean the Terms as including this DPA.
1. Definitions
“CCPA” means the California Consumer Privacy Act of 2018 and its implementing regulations.
“Consumer” means a natural person or as such term “consumer” or similar term is otherwise defined under Data Protection Laws.
“Covered Personal Data” means Personal Data that You make available to Vibe.co via tracking technologies (e.g., use of or integration with APIs, pixels, or cookies) or any other means (e.g., by registering an account on the Service, upload of files such as audience segments, authorizing or activating an integration with the Service directly or via a data provider, measurement partner, data management platform, or other partner).
“Data Protection Laws” means all applicable laws, rules, regulations, and governmental requirements in the United States relating to data privacy or data protection, as they may be amended or otherwise updated from time to time, such as, as applicable, the CCPA, other U.S. state consumer privacy laws, consumer protection laws, and Section 5 of the Federal Trade Commission Act.
“Deidentified Data” means any data that (i) cannot reasonably be used to infer information about, or otherwise be linked to, a particular individual or (ii) is otherwise considered “deidentified,” “de-identified data,” or “anonymous” (or similar term) under Data Protection Laws.
“Personal Data” means any data (i) relating to an identified or identifiable individual (such as name, address, email address, or digital identifiers such as cookie IDs, mobile advertising IDs, or other device IDs, in each case, whether or not hashed or encrypted) or (ii) that is otherwise “personal data” or “personal information” (or similar term, such as “personally identifiable information”) under Data Protection Laws.
“Process” or “Processing” (or other tenses of the term “Process”) means any operation or set of operations performed, whether by manual or automated means, on data or on sets of data, such as the collection, use, storage, disclosure, analysis, deletion, or modification of data.
2. Privacy Designations and Purposes. Vibe.co is a “controller” (as such term or similar term is defined under Data Protection Laws, such as “business” under the CCPA) of Covered Personal Data. Vibe.co may Process Covered Personal Data for purposes of providing and improving the Service or developing new services, such as, in each case, in connection with targeted advertising, audience activation (e.g., look-a-like audience generation) and suppression, measurement and attribution, identity resolution (e.g., modification of our identity graph), Consumer profiles and audience targeting, bidding, and similar algorithms/models, and research and analytics. However, where you are using the Service as an advertiser and make available audience segments that comprise Covered Personal Data to Vibe.co for targeting purposes, Vibe.co shall not allow other Vibe.co customers to use those specific audience segments except where you’ve otherwise agreed.
3. Privacy Obligations.
3.1 You shall obtain all consents, provide all notices, and otherwise satisfy all obligations under Data Protection Laws for you to provide the Covered Personal Data to Vibe.co for Processing pursuant to the Agreement.
3.2 In addition to any other restrictions under the Terms, you shall not make available to Vibe.co any Personal Data (i) of non-U.S.-located Consumers, (ii) of Consumers that you know or should know are, or that you’ve willfully disregarded as being, under the age of eighteen (18), (iii) that is considered “sensitive” under Data Protection Laws or otherwise governed under sector-specific laws such as “consumer health data” as defined under the Washington My Health My Data Act or “Protected Health Information” under HIPAA, or (iv) of a Consumer that has opted-out of “sales,” “shares,” or “targeted advertising” as such terms, or similar terms, are defined under Data Protection Laws. For the avoidance of doubt, Vibe.co shall not honor any “privacy signals” (e.g., Global Privacy Platform signals) from you under the Agreement except as separately agreed in writing between the Parties.
3.3 You shall provide Covered Personal Data to Vibe.co in a secure manner.
3.4 To the extent that you receive Deidentified Data from or on behalf of Vibe.co, then you shall (i) take reasonable measures to ensure the data cannot be associated with a Consumer (and, where Data Protection Laws requires more stringent measures, then such measures will apply instead), (ii) publicly commit to Process the Deidentified Data solely in deidentified form (where such public commitment is required under Data Protection Laws) and not attempt to reidentify the data, and (iii) contractually obligate any recipients of the Deidentified Data to comply with the requirements of this section and Data Protection Laws.
3.5 With respect to Vibe.co’s Processing of Covered Personal Data, Vibe.co shall comply with, and provide the same level of privacy protection as is required by, Data Protection Laws.
3.6 You have the right to take reasonable and appropriate steps to ensure that Vibe.co Processes Covered Personal Data in a manner consistent with your obligations under Data Protection Laws.
3.7 You have the right, upon notice, to take reasonable and appropriate steps to stop and remediate Vibe.co’s unauthorized use of Covered Personal Data.
3.8 Vibe.co shall promptly notify you if Vibe.co determines that Vibe.co can no longer meet its obligations under Data Protection Laws with respect to its Processing of Covered Personal Data.