This End-User License Agreement (this "Agreement") is a legal contract between you, as either an individual or a single business entity, and VideoKen Inc. and its affiliates ("Vend"). This agreement covers all services ("Software") provided by VideoKen including but not limited to services provided via its website VideoKen.com and related sites, any downloaded software including downloads of VideoKen's mobile apps and any services provided via embeddings in the customers website(s) or apps.
These Terms are effective as of this 1st day of January, 2017 and may be modified from time to time. All such modifications are binding on You if you decide to continue to use VideoKen services.
Last Revision Date; 24 April 2019
You are eligible to use the Software and as consented by the owner or licensor of certain content, only if you comply with the following conditions:
You have the right, authority, and capacity to enter into these Terms and must have completed the “Minimum Age” (as defined below) or under such proper parental/ guardian guidance in case of minor, who represent you and takes the responsibility in having an account with VideoKen in the minor’s name. Notwithstanding anything, certain Services or content are not for use by anyone under the age of 16 years ; and
You are not barred by any applicable law for the time being in force or restricted by VideoKen from using the Services. “Minimum Age” means (a) 18 years old for India and the People's Republic of China, (b) 16 years old for the Netherlands, (c) 14 years old for the United States, Canada, Germany, Spain, Australia and South Korea, and (d) 13 years old for all other countries. However, if law requires that you must be older in order for VideoKen to lawfully provide the Services to you (including the collection, storage and use of your information) then the Minimum Age is such older age.
VideoKen hereby grants to you, and you accept, a limited, nonexclusive, non-transferable license to use the Software in machine-readable, object code form only, and the user manuals accompanying the Software (the “Documentation”), only as authorized in this Agreement, and subject to compliance with the terms of this Agreement, and payment of all applicable license fees. For purposes of this Agreement, the “Software” includes any updates, enhancements, modifications, revisions, or additions to the Software or Website made available to you by VideoKen. Notwithstanding the foregoing, VideoKen shall be under no obligation to provide any updates, enhancements, modifications, revisions, or additions to the Software. The term of your license is as set forth in the Order. VideoKen provides multiple services. Each of these services has its own license fees. The Order will specify commercial terms for use of a specified service. If the Order does not state a term, then the term of the license shall be for a period of one (1) year from the day you purchase the Software or Use the Software whichever is earlier. The term of your license is renewable on terms set forth in the Order or otherwise as agreed by VideoKen.
The Software will be available to you for use upon signing of an Order specifying commercial terms. The license fees paid by you for the license keys are paid in consideration of the license granted under this Agreement. You shall, in addition to license fees, pay all applicable sales, use, transfer, or other taxes and all duties, whether national, state, or local, however designated, that are levied or imposed by reason of your purchase and use of the Software, excluding income taxes on the net profits of VideoKen.
You may use the Software for the number of computers or mobile devices (virtual or physical) owned, leased, or otherwise controlled by you or for the number of users, or number of videos as specified in an Order. An Order may also specify other applicable license scope definitions. For purposes of this Agreement, “Use” of the Software means loading the Software into the temporary or permanent memory of a computer or mobile device and executing the Software. "Use" includes accessing VideoKen's website (videoken.com) or related sites from a browser or via an API call or via embeddings in the customers website or app. If you distribute the Software to multiple computers or users, you must ensure that your usage does not exceed the usage for which you have paid license fees, or you will be in breach of this Agreement. In cases where the Order specifies that VideoKen will bill you based on usage post use of the software, you must pay for the usage within the specified time or you will be in breach of the agreement. If the Order does not state a scope of license, then the scope of license for the Software shall be for a single user and a single video.
You may not reverse engineer, decompile, disassemble, or otherwise translate the Software. You may not modify or adapt the Software in any way. No copies of the Software, Documentation, or any portions thereof, may be made or distributed by you or any person under your authority or control. You may not allow third party use of the Software or use of the Software as a service bureau. In case access to VideoKen Software is embedded in a website or app controlled by You, the number of users or videos that can access the website or app is restricted by the Order.
VideoKen allows you to upload/submit videos, your personal information including without limitation, to your name, educational qualification, job description, reviews, clarifications, comments, views, queries, endorsements, curated material along with associated notes, curriculum, videos, quizzes, performance records, evaluation records, private notes and other information (“User Content”) which may be hosted, shared or published as part of the Services, and may be visible to other registered Users of VideoKen, as restricted by you. User Content also includes the text, software, scripts, graphics, photos, sounds, music, videos, audiovisual combinations, interactive features, assessment results, and other materials that can be viewed/ accessed on VideoKen. User Content can also include data generated by VideoKen on the basis of user interactions such as analytics based on your video views. You undertake that you own all of the User Content, network data and other information that you may upload on or share through VideoKen. However, you agree to grant a non-exclusive, transferable, royalty-free, sub-licensable and worldwide right and license to the Company, to use, copy, modify, distribute, publish and process the User Content, without any further consent. The User Content will be restricted for access only to those subscribed Users and/ or those other registered User, as authorized by you (“Authorized Users”) and shall not be shared with third parties or made public on VideoKen. Accordingly, you also hereby grant a non-exclusive license to such subscribed or registered users, as authorized by you to access the User Content through VideoKen. The Company agrees to take all possible measures to protect the User Content from any unauthorized access and further to restrict access to your User Content exclusively for such Authorized Users on VideoKen.
You will not sublicense, lease, rent, or lend your rights in the Software or Documentation as granted by this Agreement, to any party without prior written consent of VideoKen.
You agree that, in order to access and use certain part of the Software, you may have to register and give certain personally identifiable information of yours, at the time of registration. Only after such registration, you shall have access to certain features. You are restricted to have only one account with VideoKen in your individual/ personal capacity. However you may have additional account(s) with VideoKen in your professional/ academic capacity as an employee/student/affiliate/partner representing an organization/institution/ company provided such organization/ institution/ company is authorized by VideoKen to create an account for you.
You will be solely responsible for maintaining the confidentiality of the username and password, and for all activities that occur under your username. You agree to: (a) notify the Company immediately of any unauthorized use of account or any other breach of security; and (b) ensure that you log off from your account at the end of each session, if you are accessing VideoKen through a shared device or computer. The Company will not be liable for any loss or damage arising from your failure to comply with this clause.
You further represent and warrant that:
VideoKen reserves the right to gather data on server IP addresses, view counts, device counts, domain counts, referral URL counts and other information deemed relevant, to ensure that our products are being used in accordance with the terms of this Agreement. Additionally, you agree that VideoKen may, upon reasonable notice, perform an audit of your facilities to verify compliance with the terms of this Agreement. Any unauthorized use shall be considered by VideoKen to be a violation of this Agreement. VideoKen reserves the right to remedy violations immediately upon discovery, by charging the then-current list price for use of the Software. There may be different list prices for different kinds of Use. This is not a sole remedy for a violation of this Agreement and VideoKen may exercise any other remedies available at equity or law.
Your license may include an expiration date that can result in the termination of the license. For perpetual licenses, the license updates automatically except if VideoKen determines that a license is used in violation of the terms of this Agreement. If you suspect that a 3rd party is using VideoKen Software in such a way that the Use is attributed to you, you should promptly notify VideoKen of such misuse. VideoKen will take steps to ensure that this 3rd party use is not charged to you. In cases where VideoKen bills you for Use after the Use has occurred you are responsible for the payment as per the payment terms specified in the Order. In case of non-payment, VideoKen reserves the right to put in controls that limit your ability to use the Software. For limited-term licenses, your periodic payment must be processed prior to the expiration date in order for the license updates to be performed. VideoKen may automatically restrict use post license expiry. It is your responsibility to contact VideoKen regarding any potential expiration that you deem inappropriate. VideoKen shall not be liable for any damages or costs incurred in connection with expired licenses. .
You acknowledge that the Software and the Documentation are proprietary to VideoKen, and the Software and Documentation are protected under United States copyright law and international treaties. You further acknowledge and agree that, as between you and VideoKen, VideoKen owns and shall continue to own all right, title, and interest in and to the Software and Documentation, including associated intellectual property rights under copyright, trade secret, patent, or trademark laws. This Agreement does not grant you any ownership interest in or to the Software or the Documentation, but only a limited right of use that is revocable in accordance with the terms of this Agreement. Any and all trademarks or service marks that VideoKen uses in connection with the Software or with services rendered by VideoKen are marks owned by VideoKen. This Agreement does not grant you any right, license, or interest in such marks, and you shall not assert any right, license, or interest in such marks or any words or designs that are confusingly similar to such marks.
You shall permit only authorized users, to use the Software or to view the Documentation. Except as expressly authorized by this Agreement, you shall not make available the Software or Documentation to any third party. You will use your best efforts to cooperate with and assist VideoKen in identifying and preventing any unauthorized use, copying, or disclosure of the Software, Documentation, or any portion thereof.
VideoKen website includes a combination of content that the Company license from third parties or that is created and posted by the Users. All the Company’s Content and User Content (collectively “Content”) are protected under copyright by the Company or its licensors and the Users respectively. Content uploaded to VideoKen may be subjected to posted limitations on usage, reproduction and/or dissemination. You are responsible for adhering to such limitation if you download or upload any Content.
As a User, you may not modify, publish, transmit, participate in the transfer or sale of reproduce, create derivative work of, distribute, publicly perform, publicly display, or in any way exploit any of the content on VideoKen in whole or in part outside of the specific usage rights granted to you by each license. If you download or print a copy of any such Content for personal use, you must retain all copyright and other proprietary notices contained therein. You may not otherwise use, reproduce, display, publicly perform, broadcast, stream, distribute or otherwise exploit such Content in any way for any public or commercial purpose unless such use is expressly granted by a particular license.
The User Content that you share may be seen by certain other or a particular group of registered users of VideoKen or, if public, by visitors, depending on the settings created by the User uploading or creating it. Wherever the settings are available for the User Content, the Company will, to the best of its ability, honor the choices you make about who can see the User Content and other privacy settings as available on VideoKen. It is agreed by you that the Company is not obligated to publish any information or User Content on VideoKen and can remove it at the sole discretion of the Company, with or without notice.
The Company may review any User Content posted on VideoKen, and in case the Company finds, at its sole discretion, that you violate any of these Terms, then it reserves the right to take actions to prevent/control such violation, including without limitation, removing the offending User Content from VideoKen and/or terminating the registration of yours and/or blocking your use of the Services.
The Company shall also be entitled to investigate occurrences which may involve such violations and may take appropriate legal action, involve and cooperate with law enforcement authorities in prosecuting you when involved in such violations.
You acknowledge that in no event shall the Company be liable for any damages whatsoever whether direct, indirect, general, special, compensatory, consequential, punitive or incidental, arising out of or relating to the conduct of you or anyone else in connection with the use of the Services. You also acknowledge that in any such event the Company shall also have the right to hold such defaulting party liable and initiate proceedings against such party in the courts and other appropriate forums.
VideoKen website may contain links, features and functionalities that allow access to third party contents. Please note that if you allow a third-party website to authenticate you or connect with your account, that website can access information provided on Website related to you and your connections. Third party sites have their own legal terms and privacy policies, and you may be giving others permission to use your information in ways we would not. You should make whatever investigation you may feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You are solely responsible for their dealings with any third party. If you have any problem resulting from use of any third-party services, or suffer data loss or other losses as a result of problems with any of other service providers or any third-party services, the Company shall not be responsible for the same. The Company has no control over and assumes no responsibility for the content, privacy policies, or practices of any third-party websites.
VideoKen may show advertisements and/or other marketing content of third parties during the rendering of the Services. The Company does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through VideoKen or any hyperlinked website or featured in any manner or other advertising, and the Company will not be a party to or in any way be responsible for monitoring any transaction between the user and third-party providers of products or services.
User shall not:
You may elect to purchase Software maintenance and support services by so ordering from VideoKen or a VideoKen reseller and paying the applicable fees. Certain support and maintenance services may be included as part of the license fees as specified in the Order.
This Agreement is effective upon your acceptance of the Agreement, or upon accessing, or using the Software, even if you have not expressly accepted this Agreement. This Agreement shall continue in effect until terminated. Without prejudice to any other rights, this Agreement will terminate automatically if you fail to comply with any of the limitations or other requirements described herein. If you are licensing the Software on a limited term basis, and fail to pay the applicable license fees or renewal license fees, VideoKen shall have the right to interrupt your use of the Software. In cases where the Order specifies that VideoKen will bill you post use of the Software, you must make the payment as per the payment terms stipulated in the Order. VideoKen will have the right to interrupt your use of the Software in case of non-payment or delayed payment. Even after Software use has been stopped, VideoKen will retain the right to be paid for Software use already done and will pursue all legal remedies to recover its dues with appropriate interest.
You may terminate this Agreement at any time by: (i) providing written notice of your decision to terminate the Agreement to VideoKen and (ii) stop usage and access of the Software.
VideoKen may terminate this License Agreement if you breach any term of the Agreement by giving you written notice of your breach and VideoKen’s decision to terminate the Agreement. Upon termination of this Agreement, you agree to stop use and access of the Software and Documentation.
VideoKen shall, at its expense, defend and indemnify you for damages and reasonable costs finally incurred in any suit or claim brought against you alleging that the Software infringes any U.S. patent, copyright, trade secret or similar right, provided that VideoKen is promptly notified, rendered reasonable assistance by you as required, and permitted to direct the defense or settlement negotiations. VideoKen shall have no obligation to defend or indemnify any infringement claim that arises from or relates to: (i) a modification of the Software by you or any third party, (ii) a combination of the Software with other software products, components, processes or materials, (iii) your failure to incorporate or implement modifications directed by VideoKen, (iv) third party or open source software components, (v) use of the Software in a manner inconsistent with the intended use, or (vi) any Software provided for evaluation or trial use or marked as beta or early access. Should the use of Software by you be enjoined, or in the event VideoKen wishes to minimize its potential liability hereunder, VideoKen may, at its option, either: (i) substitute fully equivalent non-infringing software; (ii) modify the infringing Software so that it no longer infringes but remains functionally equivalent; (iii) obtain for you, at VideoKen’s expense, the right to continue use of the Software; or (iv) stop the infringing Software and refund to you pre-paid license fees applicable to the remainder of the license term, or if a perpetual license was purchased, the purchase price paid, less depreciation amortized on a three-year straight line basis. This indemnification sets forth VideoKen’s sole liability and your sole remedy for claims of infringement arising from your use of the Software. You will, at your own expense, indemnify and hold VideoKen, and its subsidiaries and affiliates, and all officers, directors, and employees thereof, harmless from and against any and all claims, actions, liabilities, losses, damages, judgments, grants, costs, and expenses, including reasonable attorneys’ fees, arising out of any use of the Software by you, any party related to you, or any party acting upon your authorization in a manner that is not expressly authorized by this Agreement. Your indemnification does not include claims of infringement that are covered by VideoKen’s indemnification above.
THE SOFTWARE AND DOCUMENTATION ARE LICENSED “AS IS,” AND VIDEOKEN DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT, TO THE EXTENT AUTHORIZED BY LAW. WITHOUT LIMITATION OF THE FOREGOING, VIDEOKEN EXPRESSLY DOES NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. YOU ASSUME RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE RESULTS OBTAINED FROM YOUR USE OF THE SOFTWARE. YOU SHALL BEAR THE ENTIRE RISK AS TO THE QUALITY AND THE PE WARNING:
The Software is not designed or intended for use in on-line control of equipment in hazardous environments such as the operation of nuclear facilities, aircraft, air traffic, aircraft navigation or aircraft communications, or in the design, construction, operation or maintenance of any nuclear facility, or in the operation or maintenance of any direct life support system. VideoKen disclaims any express or implied warranty of fitness for such uses and shall not be liable for any costs, liabilities or damages resulting from the use of the Software in such an environment. You agree that you will not use or license the Software for such purposes.
IN NO EVENT WILL VIDEOKEN BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, OR LOSS OF PROFITS OR LOST SAVINGS, ARISING OUT OF USE OF OR INABILITY TO USE THE SOFTWARE OR DOCUMENTATION OR INABILITY TO ACCESS DATA OR CONENT UPLOADED ON VIDEOKEN, EVEN IF VIDEOKEN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL VIDEOKEN BE LIABLE FOR ANY DIRECT DAMAGES IN EXCESS OF THE FEES PAID TO VIDEOKEN FOR THE SOFTWARE WITHIN THE PERIOD OF TWELVE (12) MONTHS PRIOR TO ANY CLAIM ARISING.
Where publicly viewable data or content is submitted to VideoKen, VideoKen is only acting as a repository of data, Content available and those submissions made by you and do not represent the views/ clarifications of the Company and Company makes no guarantee as to the validity, accuracy or legal status of any User Content. It is agreed by you that the Company neither endorses, nor promotes any of the views, ideas, expressions, postings, actions of any of the Users or other information.
THE COMPANY TRIES TO PROTECT YOUR DATA ON VIDEOKEN, BUT YOU AGREE TO UPLOAD/KEEP YOUR DATA AT YOUR OWN RISK. THE COMPANY IS NOT RESPONSIBLE FOR MISUSE OF YOUR DATA BY ANOTHER USER OR BY A THIRD PARTY.
THE COMPANY DOES NOT GUARANTEE THAT YOUR DATA WILL ALWAYS BE INTACT OR THAT YOUR DATA WILL NOT BE ERASED OR FORMATTED. HOWEVER, THE COMPANY SHALL TAKE NECESSARY PRECAUTIONS TO THE BEST OF ITS ABILITIES TO SAFEGUARD YOUR DATA WITHOUT BEING ERASED OR LOST.
THE COMPANY DOES NOT GUARANTEE THAT VIDEOKEN WILL ALWAYS BE SAFE, SECURE OR ERROR-FREE OR BUG-FREE OR THAT VIDEOKEN WILL ALWAYS FUNCTION WITHOUT DISRUPTIONS, DELAYS OR IMPERFECTIONS.
THE COMPANY IS NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, OR DATA OF THIRD PARTIES, AND YOU RELEASE THE COMPANY, COMPANY’S DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES. THE COMPANY IS NOT RESPONSIBLE FOR ANY PROBLEMS OR TECHNICAL MALFUNCTION OF ANY TELEPHONE NETWORK OR LINES, COMPUTER ONLINE SYSTEMS, SERVERS, PROVIDERS, COMPUTER EQUIPMENT, SOFTWARE, FAILURE OF COMMUNICATION ON ACCOUNT OF TECHNICAL PROBLEMS, OR TRAFFIC CONGESTION ON THE INTERNET OR AT ANY WEBSITE OR COMBINATION THEREOF, INCLUDING INJURY OR DAMAGE TO YOU OR TO ANY OTHER PERSON’S COMPUTER RELATED TO OR RESULTING FROM PARTICIPATING OR DOWNLOADING MATERIALS IN CONNECTION WITH THE WEB OR IN CONNECTION WITH THE SERVICES PROVIDED BYVIDEOKEN.
THIS LIMITATION OF LIABILITY IS PART OF THE BASIS OF THE BARGAIN BETWEEN YOU AND THE COMPANY AND SHALL APPLY TO ALL CLAIMS OF LIABILITY WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF VIDEOKEN, COMPANY SPECIFICATIONS, CONTENT, OR OTHER COMPANY PRODUCTS AND SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
If anyone brings a claim against the Company related to your actions, User Content, comments or information on VideoKen, you will indemnify and hold the Company harmless from and against all damages, losses, and expenses of any kind, including reasonable legal fees and costs, related to such claim. The Company shall also have the right to hold you or such other person liable for the damages, losses and expenses which the Company may incur and initiate proceedings in any appropriate courts or other forums for the material breach of these Terms by You. Although the Company provides rules for your conduct, the Company does not control or direct your actions on VideoKen and is not responsible for the User Content you transmit or share on or use in VideoKen or for any of your actions using the Software. The Company is not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable User Content you may encounter on VideoKen. The Company is not responsible for the conduct, whether online or offline, of you. You can notify us of any inappropriate User Content you find on VideoKen by sending an e-mail to abuse@VideoKen.com. The Company in its sole discretion shall remove the inappropriate User Content without giving any notice to the User who uploaded the content.
If any term or provision of this Agreement is declared void or unenforceable in a particular situation, by any judicial or administrative authority, this declaration shall not affect the validity of enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation.
Any provisions of this Agreement that, in order to fulfill the purposes of such provisions, need to survive the termination or expiration of this Agreement, shall be deemed to survive for as long as necessary to fulfill such purposes.
The Section headings contained in this Agreement are incorporated for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. Amendments to the Agreement shall only be effective if in writing and signed by all parties.
You may not assign your rights under this Agreement and any attempted assignment shall be void and of no effect. VideoKen may assign its rights and obligations under this Agreement.
The Software and Documentation are provided with Restricted Rights. Use, duplication, or disclosure by the government is subject to restrictions as set forth in subparagraph (c)(f)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c) (1) and (2) of the Commercial Computer Software-Restricted Rights at 48 C.F.R. S:52.227-19, as applicable. 9.8. Export Restrictions. THIS AGREEMENT IS EXPRESSLY MADE SUBJECT TO ANY LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS ON THE EXPORT, REEXPORT OR IMPORT OF THE SOFTWARE OR DOCUMENTATION ABOUT SUCH SOFTWARE WHICH MAY BE IMPOSED FROM TIME TO TIME BY THE GOVERNMENT OF THE UNITED STATES OF AMERICA OR ANY OTHER GOVERNMENT. YOU SHALL NOT EXPORT, REEXPORT OR IMPORT THE SOFTWARE, DOCUMENTATION, OR INFORMATION ABOUT THE SOFTWARE OR DOCUMENTATION WITHOUT THE WRITTEN CONSENT OF VIDEOKEN AND COMPLIANCE WITH SUCH LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS.