Last Updated July 1, 2021
This TERMS OF USE AGREEMENT contains the terms for your use of our VideoMade App. When used herein, “App” refers to the VideoMade mobile software owned and operated by Instasize, Inc. or any of its affiliated companies (“Instasize,” “we” or “us”).
BY DOWNLOADING OR USING THE APP, YOU AGREE TO BE BOUND BY THE TERMS CONTAINED HEREIN. IF YOU DO NOT AGREE TO THESE TERMS, OR DO NOT HAVE THE NECESSARY PARENTAL CONSENT, DO NOT INSTALL AND/OR USE THE APP.
Instasize may, in its sole discretion, modify or update these Terms of Use and the Privacy Policy from time to time, so you should review the Terms of Use and Privacy Policy periodically. When we change either of these in a material manner, we will update the ’Last Updated’ date at the top of this page. Thirty days after the posted changes, your continued use of our App after any such change constitutes your acceptance of the new Terms of Use and Privacy Policy. If you do not agree to any of these terms or any future Terms of Use or Privacy Policy, do not use or access (or continue to access) our App.
Use of our App is prohibited by persons under 13 years of age. Minors 13 years of age or older must obtain parental or guardian consent to download and use our App.
You affirm that you are 18 years of age, or possess legal or parental or guardian consent, and are competent to enter into this agreement.
We reserve the right, in our sole and absolute discretion to make changes to how we operate and provide our App, including adding or removing software features, modifying existing software features, or suspending, discontinuing or terminating your access to any or all portions of the App.
Instasize, in its sole discretion, may refuse to offer the App to any person at any time. Any license granted herein is effective only until revoked or terminated. Your license will terminate automatically if you fail to comply with any of these Terms. Additionally, Instasize may terminate your license to use our App and block future access to the same in its sole discretion. You agree to only register or download the App for yourself personally.
SECTION 1 – PRIVACY
1.1 User Data. By using this App you agree that Instasize, its agents, affiliates and third parties may collect, maintain, process and use diagnostic, technical, usage and related information, including but not limited to unique system or hardware identifiers, location data, email address, carrier name, and other content contained on your hardware device. Additionally, you agree to the terms of the SelfieMade Privacy Policy. You certify that all information provided to us is and will be true, accurate, current and complete. You authorize us to create and maintain an account for you and collect information about you in accordance with our Privacy Policy. As described in our Privacy Policy, you consent to us obtain, analyze, sort, and present certain information or features about you.
1.2 Privacy. For information about how we collect, use, share or otherwise process information about you, please see our Privacy Policy at http://www.privacy.videomade.app or the app store.
1.3 Our Access to Your Content. Machine Learning processes on your device may analyze your Content. This analysis may occur when the Content is manipulated, created, sent, received, or stored. From this analysis, we are able to improve the software.
SECTION 2 – USE OF SOFTWARE AND FEATURES
2.1 License. Subject to your compliance with the Terms, applicable law, and App availability, you may access and use the services and software.
2.2 Instasize Intellectual Property. We (and our licensors) remain the sole owner of all right, title, and interest in the services or software. Except as stated in the Terms, we do not grant you any rights to patents, copyrights, trade secrets, trademarks, or any other rights in respect to the items in the software. We reserve all rights not granted under the Terms.
2.3 Sample Files. “Sample Files” means Instasize-provided files such as content images, clip art, stock images, or sounds for use in tutorials, demonstrations, and for other trial purposes, which may be identified as sample files. Sample Files cannot be used for any other purpose than for which they were provided. You cannot distribute Sample Files on a stand-alone basis (i.e., in circumstances in which the Sample Files constitute the primary value of the product being distributed), and you cannot claim any rights in the Sample Files.
2.4 Content Files. "Content Files" means Instasize digital image assets intended to be edited through the App functions and provided as part of the software. Unless documentation or specific licenses state otherwise, we grant you only a personal, non-commercial, non-exclusive, non-sublicensable, and non-transferable license to use the Content Files for Instasize’s intended consumer end use. You agree to use the Content Files only to create derivative images that showcase your personalized selections and artistic styles embedded in the Content Files for your personal use ("End Use"). You must modify the Content Files prior to embedding them in the End Use. You may reproduce and distribute Content Files only in connection with your End Use, however, under no circumstances can you distribute the Content Files on a stand-alone basis, outside of the End Use.
SECTION 3 – USER CONTENT
User Content. The App includes features that allow you to create, post, and transmit, and/or store content. You understand that this content may be viewable by others including, but not limited to, those with whom you share the content. You agree that you are solely responsible for your content and that Instasize is not responsible or liable for any of this content.
3.1 Content. "Content" means any material, such as audio files, video files, electronic documents, or images, that you upload and import into the services or software in connection with your use of the services.
3.2 Ownership. You retain all rights and ownership of your Content. We do not claim any ownership rights to your
Content.
3.3 Licenses to Your Content in Order to Operate the services and software. We require certain licenses from you to your Content in order to operate and enable the services and software. When you upload Content to the services and
software, you grant us a nonexclusive, worldwide, royalty-free, sublicensable, and transferable license to use, reproduce, publicly display, distribute, modify (so as to better showcase your Content, for example), publicly perform, and translate the Content as needed in response to user driven actions (such as when you choose to share your Content with others). This license is only for the purpose of operating or improving the services and software.
3.4 Sharing Your Content.
(a) Sharing. Some services and software may provide features that allow you to Share your Content with other users or to make it public. “Share” means to email, post, transmit, upload, or otherwise make available (whether to us or other users or the general public) through your use of the services and software. Other users may use, copy, modify, or re-share your Content in many ways. Please carefully consider what you choose to Share or make public as you are responsible for the Content that you Share.
(b) Level of Access. We do not control what others do with your Content. You are responsible for determining the limitations and restrictions of your Content.
3.5 Feedback. You have no obligation to provide us with ideas, suggestions, or proposals (“Feedback”). If you submit Feedback to us however, then you grant us a non-exclusive, worldwide, royalty-free, sublicensable, and transferable license to make, use, sell, have made, offer to sell, import, reproduce, publicly display, distribute, modify, and publicly perform the Feedback.
SECTION 4 – YOUR RIGHTS WITH RESPECT TO THE SERVICES
4.1 Instasize services. Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the services for your personal use only as permitted by the features of the services.
4.2 Software. Subject to the terms and conditions of this Agreement, Instasize hereby grants you a non-exclusive, limited, non-transferable, freely revocable license to use a compiled code copy of the software on mobile devices owned, leased, or controlled solely by you, for your personal use. To use the software you must have a mobile device that is compatible with the software. You acknowledge that Instasize may from time to time issue or require you to upgrade to an upgraded versions of the software. You agree that the terms and conditions of this Agreement will apply to all such upgrades. The foregoing license grant is not a sale of the software or any copy thereof, and Instasize or its third party partners or suppliers retain all right, title, and interest in the software (and all copies thereof). You may not rent, lease, lend, sell, redistribute or sublicense this App.
SECTION 5 – INSTASIZE’S PROPRIETARY RIGHTS
5.1 Instasize Property. Except for your User Content, the services and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content belonging to other Users (the “Instasize Property”), and all intellectual property rights therein or thereto, are the exclusive property of Instasize. Except as explicitly provided herein, nothing in this Agreement will be deemed to create a license in or under any such intellectual property rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Instasize Property. Use of Instasize Property for any
purpose not expressly permitted by this Agreement is strictly prohibited. Instasize, and all related graphics, logos, service marks and trade names used on or in connection with the services (“Instasize Marks”) are the trademarks of Instasize and may not be used without permission in connection with your or any third-party products or services.
5.2 Feedback. You may choose to or we may invite you to submit feedback, modifications, suggestions, improvements, comments, ideas, or the like about Instasize, the services, or Instasize’s other products or services, including without limitation about how to improve the services or our other products or businesses (“Ideas”). You hereby grant to Instasize a world-wide, royalty free, irrevocable, perpetual license to use, incorporate, or otherwise exploit any Ideas you share or communicate to Instasize in any manner that we see fit.
5.3 Partners’ Intellectual Property. Our App my also display or contain certain intellectual property that is owned by our business or marketing partners. Nothing in this Agreement grants you any license or right to copy, modify, sell, reproduce, republish, display, post, create derivative works, reverse-engineer, including in-line linking or mirroring, any of our business or marketing partners intellectual property.
SECTION 6 – PROHIBITED ACTIVITIES
6.1 Prohibited Activities. You agree not to use our App in any manner that could interfere, disrupt, negatively affect, or inhibit others users from fully enjoying the App. You may not send any unsolicited or unauthorized advertising, solicitation, or promotional materials. You may not use any robot, spider, crawler, scraper, or other automated means to extract data from our App. You may not use or attempt to use another’s user account. You are not permitted to access or use our App in any jurisdiction or country if it would be contrary to the law or regulation of that jurisdiction. We reserve the right to limit the availability of our App to any geographical area or jurisdiction. You may not use our App in any manner that infringes on the rights of any third party. If you believe, in good faith, that any of our content infringes your intellectual property rights, you may send a notice of infringement by email or snail mail to:
Instasize, Inc.
Attention: Legal Counsel
2980 McFarlane Road
Miami, Florida 33133 legal@instasize.com
6.5 Compliance with Laws. You agree to use the App in accordance with all applicable laws, including, but not limited to, local laws where the App is used and those of the United States of America.
SECTION 7 – ACCOUNT
7.1 Account Security. You accept any responsibility for any activity that occurs while logged into your account. You are responsible for making sure that you keep your password safe and secure. You agree not to allow others to use your account or take, or fail to take, actions that will jeopardize the security of your account. If you believe that your account is no longer secure, notify us immediately at suport@instasize.com.
SECTION 8 – FEES AND PAYMENT
8.1 Subscription. The fee for a Subscription will be billed by the Apple iTunes Store or Google Play Store (“Distributor”)
at the start of your Subscription or, if applicable, at the end of any free trial period (only one free trial is allowed), and
at regular intervals in accordance with your elections at the time of purchase. The timing of billing may change at any time. Your Subscription will continue to automatically renew indefinitely, including if you terminate your Account, until your Subscription is canceled in accordance with the Terms of the Distributor.
8.2 Free Trials. Certain Subscription offerings may offer a free trial prior to charging your payment method. If you decide to cancel your Subscription before Instasize starts charging your payment method, you must cancel the Subscription a day before the free trial ends. Otherwise, you will be responsible for payment for the full term of the Subscription period. If you have already started a free trial previously, you will not be eligible for additional free trials and you will be charged immediately for a subscription.
8.3 No Refunds. Instasize does not issue any refunds for any products or services purchased on or through Distributor, and we are not obligated to provide any credits for partially used periods.
8.4 Payment Service Provider. All financial transactions made in connection with the services will be processed by the Distributor or their third party payment service provider in accordance with their respective terms of use, privacy policy, and/or any applicable payment terms and conditions. As such, in no event will Instasize be responsible for the actions or inactions of any Distributor or their third party payment service provider. Cancellation of your Subscription must be done exclusively with and through the applicable Distributor.
8.5 Taxes and Third-Party Fees. You must pay any applicable taxes and third-party fees (including, for example, telephone toll charges, mobile carrier fees, ISP charges, data plan charges, credit card fees, foreign exchange fees, and foreign transaction fees). We are not responsible for these fees.
SECTION 9 -- TERMINATION
9.1 Termination by You. You may stop using the services and software at any time. Termination of your account does not relieve you of any obligation to pay any outstanding fees. Stopping use of or deleting the App from your device does NOT stop or cancel your subscription. To terminate your subscription, you must contact the Distributor.
9.2 Termination by Us. If we terminate your use of the Software or Service(s) for any reason other than for cause, we will make reasonable efforts to notify you at least 3 days prior to termination via the email address you provide to us with instructions on how to retrieve your Content. Unless stated in any Additional Terms, we may, at any time, terminate your right to use and access the services or software if:
(a) you breach any provision of these Terms (or act in a manner that clearly shows you do not intend to, or are unable to, comply with the Terms);
(b) you fail to make the timely payment of fees for the services or software, if any;
(c) you materially breach any provision of the Terms, and (i) the breach cannot be corrected; or (ii) we notify you of the breach and you fail to correct it within 3 days of the notice;
(d) you physically, verbally, or through other means abuse, threaten, bully, or harass us or our personnel (in such circumstances, we may alternatively suspend or restrict your access to the services or software);
(e) you have repeatedly made complaints in bad faith; (f) we are required to do so by law;
(g) we elect to discontinue the services or software, in whole or in part; or
(h) there has been an extended period of inactivity in your account.
9.4 Survival. Upon the expiration or termination of these Terms of Use, some or all of the services and/or software may cease to operate without prior notice. Your indemnification obligations, our warranty disclaimers or limitations of liabilities, and dispute resolution provisions stated in these Terms of Use will survive.
SECTION 10 – WARRANTIES AND INDEMNIFICATION OBLIGATIONS
10.1 You Promise. By uploading your Content to the services or software, you agree that you have: (a) all necessary licenses and permissions to use and Share your Content; and (b) the rights necessary to grant the licenses in the Terms.
10.2. Disclaimers of Warranties. The services and software are provided “AS-IS.” To the maximum extent permitted by law, we disclaim all warranties, express or implied, including the implied warranties of non-infringement, merchantability, and fitness for a particular purpose. We make no commitments about the content within the services. We further disclaim any warranty that (a) the services or software will meet your requirements or will be constantly available, uninterrupted, secure, or error-free; (b) the quality of the services or software will meet your expectations; or (c) any errors or defects in the services or software will be corrected. If you are unpleased with the services or software, your only remedy from Instasize is to cease use of the services or software and terminate your subscription with the Distributor.
10.3 Indemnification. You will indemnify us and our subsidiaries, affiliates, officers, agents, employees, partners, and licensors from any claim, demand, loss, or damage, including reasonable attorneys’ fees, arising out of or related to your Content, your use of the services or software, or your violation of these Terms of Use or any law.
SECTION 11 – LIMITATION OF LIABILITY
11.1 Indirect Damages. We are not liable to you or anyone else for any loss of use, data, goodwill, or profits, whatsoever, and any special, incidental, indirect, consequential, or punitive damages whatsoever, regardless of cause, including losses and damages (a) resulting from loss of use, data, or profits, whether or not foreseeable; (b) based on any theory of liability. Nothing in these Terms of Use limits or excludes our liability for gross negligence, for our, or our employees’, intentional misconduct, or for death or personal injury.
11.2 Liability Limit. Our total liability in any matter arising out of or related to the Terms is limited to US $50 or the aggregate amount that you paid for access to the Service and software during the three-month period preceding the event giving rise to the liability, whichever is larger. This limitation will apply regardless of the form or theory of liability.
11.3 Basis of the Bargain. The limitations of damages set forth above are a critical inducement for the bargain between
Instasize and you. The limitations on liability contained herein apply whether the alleged liability is based on contract,
tort, negligence, strict liability, or any other basis, even if Instasize knows of the possibility of such damage. The foregoing limitation of liability applies to the fullest extent permitted by applicable law.
SECTION 12 – NO REVERSE ENGINEERING
Except as provided by these Terms, you may not, and you agree not to or enable others to, copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of the App, or any part thereof, or services related thereto.
12.1 No Modifications, Reverse Engineering. Except as expressly permitted in the Terms, you may not (a) modify, port, adapt or translate any portion of the services or software; or (b) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or any portion of any Service or software. If the laws of your jurisdiction give you the right to decompile the software to obtain information necessary to make the software interoperable with other software, you must first request such information from us.
SECTION 13 – APPLICABLE LAW, FORUM AND VENUE
13.1 Applicable Law, Forum, and Venue. Any dispute between you and Instasize will be governed by these terms and the laws of the State of Utah and applicable international laws of the United States of America, without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction. Any lawsuit or arbitration, if any and as permitted herein, by you or Instasize against the other will occur in state or federal courts located in Salt Lake City, Utah, USA. You and Instasize agree that the jurisdiction and venue as stated herein is exclusive. These Terms and the license granted herein shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is express excluded.
13.2 Trade Control Laws. The services or software and your use of the services and software, are subject to U.S. and international laws, restrictions, and regulations that may govern the import, export, and use of the services and software. You agree to comply with all the laws, restrictions, and regulations.
SECTION 14 – DISPUTE RESOLUTION
14.1 Process. If you have any concern or dispute, you agree to first try to resolve the dispute informally by contacting us. If a dispute is not resolved within 30 days of submission, any resulting legal actions must be resolved through final and binding arbitration, except that you may assert claims in small claims court if your claims qualify.
14.2 Injunctive Relief. Notwithstanding the foregoing, in the event of your or others’ unauthorized access to or use of the services or software in violation of the Terms, you agree that we are entitled to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
14.3 Arbitration. PLEASE READ THIS PARAGRAPH (“Arbitration Agreement”) CAREFULLY BECAUSE IT LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM INSTASIZE. You and Instasize agree to arbitrate any disputes arising from these Terms or your use of the App, except that you are not required to arbitrate any disputes in which either party seeks equitable and other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secretes or patents. ARBITRATION PREVENTS YOU FROM SUING IN COURT OR HAVING A JURY TRIAL. You agree that any arbitration will occur in Salt Lake City, Utah, and will be conducted confidentially by a single arbitrator in accordance with the rules of American Arbitration Association.
14.4 Applicability of Arbitration Agreement. You agree that any dispute, claim, or request for relief relating in any way to your access or use of the services, to any products sold or distributed through the services, or to any aspect of your relationship with Instasize, will be resolved by binding arbitration, rather than in court, except that: (a) you may assert claims or seek relief in small claims court if your claims qualify; and (b) you or Instasize may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
14.5 Waiver of Jury Trial. YOU AND INSTASIZE 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 Instasize are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 14.3 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
14.6 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 to: legal@instasize.com, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Instasize username (if any), the email address you used to set up your 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 in the future, with us.
14.7 No Class Actions. You may only resolve disputes with us on an individual basis, and you may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of Utah. All other disputes, claims, or requests for relief shall be arbitrated.
SECTION 15 – MISCELLANEOUS
15.1 Waiver. Instasize’s failure to enforce any of its rights or act with respect to a breach of the terms of this Agreement by you or others does not constitute a waiver of any rights and will not limit Instasize’s rights with respect to that breach or any subsequent breaches. No waiver by Instasize shall be of any force or effect unless made in writing and signed by a duly authorized officer of Instasize.
15.2 Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Instasize without restriction. Any attempted transfer or assignment in violation hereof will be null and void.
15.3 Changes to the Agreement. PLEASE NOTE THAT THE AGREEMENT IS SUBJECT TO CHANGE BY INSTASIZE ON A GOING-FORWARD BASIS IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Instasize will make a new copy of the modified Terms of Use and any modified Supplemental Terms available on the services. Any changes to the Agreement will be effective immediately for new Users of the services and will be effective for continuing Users
upon the earlier of: (a) thirty (30) days after posting notice of such changes on the services for existing Users; (b) thirty (30) days after dispatch of an email notice of such changes to you; or (c) you to providing consent to the updated Agreement in a specified manner, as applicable. Unless otherwise stated, your continued use of the services constitutes your acceptance of such change(s). If you do not agree to any change(s) after receiving a notice of such change(s), you may not be permitted to continue using the services. PLEASE REGULARLY CHECK THE SERVICES TO VIEW THE THEN-CURRENT TERMS.
15.4 Communications. You agree that any communications, ideas, or other information transmitted to Instasize becomes the sole property of Instasize. Instasize will be entitled to use these communications in any way its sees fit. You waive any rights you may have to these communications. If you feel that you have an idea that you expect to be paid for or want to continue to own, then do not communicate them with Instasize.
15.5 Limitation Period. YOU AND INSTASIZE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS, THE SERVICES OR THE CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
15.6 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Instasize agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Salt Lake County, Utah.
15.8 Governing Law. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF UTAH, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT.
15.9 Notice to Instasize. You may send notices to us at the following address: Instasize, Inc., Attention: Legal, 11650 S. State Street, Suite 103, Draper, Utah 84020, USA.
15.10 Notice to You. We may notify you by email, postal mail, postings within the services, or other legally accepted means.
15.11 English Version. This English version of these Terms will be used when interpreting or construing the Terms.
15.12 Headings. Headings used in these General Terms or Additional Terms are provided for convenience only and will not be used to construe meaning or intent.
15.13 Severability. If any provision contained in these Terms are deemed unlawful, void, or unenforceable, then that provision shall be severed from these Terms and shall not affect the validity or enforceability of the remaining provisions.
15.14 Complete Agreement. The Terms of this agreement supersede all prior understandings. This agreement represents the completed agreement and understanding of the parties.
15.15 Questions or Comments. Instasize welcomes your comments or questions. Please send emails to contact@instasize.com.