Terms of Service

Last Updated: September 10, 2026

Important; Read Carefully:

GoAnimate, Inc., a Delaware corporation and the provider of the Vyond Platform (“Company”) provides you a right to use the Vyond Platform pursuant to these Terms of Service (this “Agreement”). This Agreement is a legal contract between you (if using the Vyond Platform in your capacity as an individual) or the legal entity you represent (e.g., your employer) (“Customer”) and Company.

Please read the terms of this Agreement carefully. By signing up for a free trial, subscribing to, or using the Vyond Platform, Customer agrees to be bound by this Agreement and to be subject to Company’s posted privacy policy set forth here: https://www.vyond.com/privacy/.

If Customer does not agree to the terms of this Agreement and the Company privacy policy, do not sign up for a free trial, subscribe to, or use the Vyond Platform.

This Agreement shall exclusively apply to Customer’s use of the Vyond Platform unless the parties have entered into a separate, written agreement signed by the parties.

The terms of this Agreement are effective as of September 10, 2026, and remain in effect except as set forth below in Section 15.

This Agreement replaces its predecessor Terms of Service, dated as of September 27, 2023.

Prior versions of this Agreement are archived for your review here:

  1. DEFINITIONS

“Administrator” means the person or persons assigned system privileges by Customer under a multi-user Subscription plan, which system privileges are used to configure, and govern how non-administrative Authorized Users under Customer’s Account interact with, access and use, the SaaS.

“Affiliates” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. For purposes of this definition, “control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“AI Input” means any Content (including either Customer Content or a Vyond Asset) used as a prompt to generate an Output using Vyond AI.

“AI Outputs” means the Videos and Customer-Owned Output generated by Customer’s use of Vyond AI on or with the Vyond Platform.

“Authorized User” means a named individual with a unique user ID and password that may use and access the Vyond Platform, limited by the total quantity of designated Authorized Users set forth in each Order Form.

“Company API” means Company’s proprietary application programming interface through which Customer loads Customer Content to the Vyond Platform.

“Content” means videos, photos, images, graphics, audio, music, sounds, special effects, logos, branding, marks, text, scripts, files, information and other data.

“Customer Account” means the online set of login credentials necessary to gain access to the Vyond Platform for Authorized Users to use the SaaS, who are authorized by the Customer as managed by one or more Customer-designated Administrator(s).

“Customer Account Data” means any Personal Data provided by an Authorized User to access the Customer Account.

“Customer Content” means all Customer-owned or duly licensed Content that Customer uploads, posts or otherwise makes available or provides to the Vyond Platform. Customer Content expressly excludes publicly available Content, and any AI Input based upon a Vyond Asset.

“Customer-Owned Output” means all Content and Videos that are generated by Vyond Platform and/or transformed by Vyond AI based on Customer Content.

“Data Protection Laws” means all laws applicable to the parties in relation to the protection and privacy of Personal Data including, as applicable, the EU General Data Protection Regulation 2016/679 (“EU GDPR”) and U.S. state privacy laws such as the California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et. seq. (collectively, “U.S. State Privacy Laws”); each as amended, extended, repealed and replaced. “Personal Data”, “Controller”, “Processor”, “Data Subject”, “Personal Data Breach”, “Personal Information”, “Business”, and “Service Provider” shall have the meanings given those terms in applicable Data Protection Laws.

“Documentation” means the online descriptions of the features of the Vyond Platform, Vyond Assets and the SaaS as set forth here: https://product.vyond.com/ and https://help.vyond.com/hc/en-us, as may be updated from time to time at Company’s sole discretion. Documentation also specifically related to Vyond AI can be found at https://www.vyond.com/trust-center/.

“Evaluation Period” means a specific timeframe over which Company agrees to allow select Authorized Users to access the Vyond Platform and SaaS for trial or evaluation purposes, as further described in Section 2.8 below, plus any extensions that may be expressly authorized by Company in writing.

“Order Form” means the Subscription ordering document solely governed by this Agreement that describes the SaaS Subscription entitlements, any additional modules or functionality selected by the Customer, the quantity of Authorized Users, applicable data use limitations or other entitlement metrics, the end and start dates of the Subscription Term, and all fees payable under the Order Form. An Order Form may also include an online ordering dashboard or portal from which Customer pays for its Subscriptions and acknowledges the applicability of this Agreement to Customer’s use of the Vyond Platform. An Order Form may additionally be a binding ordering document between Customer and an authorized Company reseller governed by the terms of this Agreement.

“Personal Data” means any information that is considered “personal data,” “personal information,” or other analogous term under Data Protection Laws.

“SaaS” means the software-as-a-service offering that Company provides to Customer under this Agreement, which includes use of the Vyond Platform, customer support and any other entitlements set forth in an Order Form.

“SaaS Data” means technical and other performance or usage data about Customer’s use of the SaaS and the Vyond Platform that is anonymized and is not derived from, and does not include or contain, Customer Content, Personal Data or Customer Confidential Information.

“Security Measures” means those technical and organization processes and practices deployed by Company designed to secure Customer Content, Personal Data and Customer Confidential Information, as further described at https://www.vyond.com/securitymeasures.

“Service Level Commitments” means those Company availability, uptime and response time commitments for the Vyond Platform and its technical support policy in effect as of the Effective Date as further described below in Section 2.6.

“Subprocessor” means those third parties listed here: https://think.vyond.com/subprocessors that process Personal Data and Customer Content under contract with Company as part of the Vyond Platform.

“Subscription” means the then-current Company subscription plan(s) for which Customer will pay or has paid a Subscription fee to use the Vyond Platform.

“Subscription Term” means the period during which a Customer is entitled to use the SaaS and access the Vyond Platform, as defined by the Order Form.

“Updates” means any new SaaS module, capability or feature of the Vyond Platform that Company only offers its customers for a separate fee. Customers under an active Subscription are otherwise entitled to access enhancements, defect corrections, or other Vyond Platform releases at no additional cost.

“Video” means a video owned by Customer that Customer creates by using the Vyond Platform.

“Vyond AI” means Content generation or modification capabilities on the Vyond Platform (also referred to as “AI Features”) that enable Customer to generate and/or transform Content, Customer Content, Vyond Assets and/or Videos, and is based on one or more underlying third-party foundational AI models and/or Company-owned proprietary AI models.

“Vyond Assets” means all Content that Company makes available or provides within the Vyond Platform, including, but not limited to, templates, characters, actions, backgrounds, props, fonts, music and sound effects.

“Vyond Platform” means Company’s proprietary cloud-based platform that allows Customer to create and edit audio and Video content, to edit and use AI Inputs and other Content to generate AI Outputs, including Customer-Owned Output, and to create and download Videos by accessing a suite of proprietary SaaS applications, Vyond Assets and Vyond AI.

  1. LICENSES, VYOND AI, SERVICE LEVELS, SUPPORT, AND EVALUATION USE
    1. Use Entitlements. Subject to the terms and conditions of this Agreement, including the payment of the applicable Subscription fees and other limitations imposed on Customer’s Subscription, Company hereby grants Customer, solely during the Subscription Term set forth in the Order Form, a non-exclusive, worldwide, non-assignable and non-transferable (except in accordance with Section 13 below) right i) to access and use the Vyond Platform and the SaaS; and, if Customer obtains an Enterprise SaaS Subscription, ii) to receive applicable “Service Level Commitments”, in accordance with Section 2.6 below and as further described at https://www.vyond.com/SLA.
    2. Company Support. Company shall provide Customer those technical support and “Error” correction services described below in Section 2.6 and as further described at https://www.vyond.com/supportschedule.
    3. Use of Vyond Assets. Subject to the terms and conditions of this Agreement, Company hereby grants Customer a non-exclusive, worldwide, royalty-free and perpetual license to use, reproduce, display, perform and distribute Vyond Assets but solely as part of or incorporated into, the Videos created by Customer using the Vyond Platform for Customer’s own commercial use. Customer acknowledges that Customer is not entitled to use Vyond Assets in any standalone capacity (except as set forth below in Section 4.5) or to make any modifications to Vyond Assets, and such licensed use of a Vyond Asset under this Agreement is limited to, and solely as incorporated into, a Video. Except as otherwise set forth below in Section 5.1.1, Company agrees that Company will not access, distribute, display (publicly or internally), or share Videos generated by Customer’s use of the Vyond Platform, or any Customer Content or Customer-Owned Output, with any third party (except with Subprocessors as necessary to provide the SaaS), without Customer’s prior written consent in each instance.
    4. Customer Grants to Company. Subject to the terms and conditions of this Agreement, Customer hereby grants to Company, a non-exclusive, worldwide, royalty-free license to use, store, process, reproduce, display and perform the Videos, Customer Content and Customer-Owned Output solely as necessary to provide the SaaS to Customer under this Agreement. Company may sublicense these rights to Company’s cloud service provider and other Subprocessors for the sole purpose of enabling Company to provide the SaaS to Customer under this Agreement. Customer represents and warrants that Customer has (and will have) all rights that are necessary to grant Company these licenses.
    5. Vyond AI Use. The Vyond Platform incorporates Vyond AI which includes certain AI Features that enables Customer to generate Videos as further described in the Documentation. Company reserves the right to update, modify or discontinue AI Features from time to time during a Subscription Term. Company will notify Customer if a new AI Feature involves the processing of Customer Content or Personal Data by a new or additional Subprocessor. Customer is solely responsible for determining whether Customer wishes to use Vyond AI in connection with the SaaS.
    6. SLA and Availability. Company will use commercially reasonable efforts to enable Customer and its Authorized Users to access and use the Vyond Platform 24x7x365, excluding both scheduled downtime for regular Vyond Platform maintenance and during any periods during which Company has determined unscheduled maintenance must occur on an urgent basis, as further described in the Service Level Commitments Schedule as set forth here https://www.vyond.com/SLA. Only a customer under an “Enterprise Subscription” plan is eligible for Service Credits described in this Schedule.
    7. SaaS Data. Company may use and share the SaaS Data to improve, support, develop, provide the SaaS and the Vyond Platform, and to deliver reporting regarding the SaaS, during and after the Term of this Agreement, provided that said SaaS Data is anonymized, excludes Personal Data and cannot be linked back to or identify Customer in any manner.
    8. Evaluation and Trial Use of the Vyond Platform. If Customer has not entered into an Order Form with Company for the commercial version of the SaaS or an Order Form specifies that Customer only has rights to an Evaluation Version, then Customer’s use of the SaaS shall be for evaluation purposes only (“Evaluation Version”), and Customer acknowledges and agrees that Customer will only access and use the SaaS solely for Customer’s internal evaluation purposes to assess the capabilities of the SaaS against their requirements in determining whether to enter into an Order Form for the commercial version of the SaaS. Customer’s right to use such Evaluation Version shall only be for the duration of the Evaluation Period set forth in the applicable Order Form or if no such period is specified, fourteen (14) days (together with any extension of the Evaluation Period that may be expressly authorized by Company in writing). In addition and notwithstanding any other provision of this Agreement, Customer acknowledges and agrees that (i) the Evaluation Version of the SaaS is provided to Customer “AS-IS,” with no warranties of any kind; (ii) Company shall have no indemnification obligations for the Evaluation Version; (iii) Company may terminate Customer’s use of the Evaluation Version immediately in the event Company has reasonably determined that Customer has committed a breach of this Agreement; and (iv) for Evaluation Versions provided to Customer at no cost, in addition to the termination rights under Section 6, either party may terminate use and access rights to the Evaluation Version with or without cause effective five (5) calendar days after such party giving written notice of termination to the other party. COMPANY AND ITS LICENSORS AGGREGATE LIABILITY WITH RESPECT TO THE EVALUATION VERSION SHALL NOT EXCEED THE GREATER OF (I) FEES PAID BY CUSTOMER FOR SUCH EVALUATION VERSION UNDER THE APPLICABLE ORDER FORM (IF ANY) OR (II) FIVE THOUSAND DOLLARS ($5,000).
  2. OWNERSHIP
    1. As between the parties, and except for the licenses granted by this Agreement, Customer retains all right, title and interest, including all related intellectual property rights, in and to, AI Inputs (including Customer Content) and AI Output (including Customer-Owned Output and the Videos), except in all instances, the Vyond Assets. Company will not itself use (nor will permit its third-party AI model providers and Subprocessors the right to use) Customer Content or Customer-Owned Output to create new products or services or to train any large language AI models or machine learning algorithms.
    2. As between the parties, and except for the licenses granted by this Agreement, Company retains all right, title and interest, including all related intellectual property rights, in and to, the SaaS, Vyond Assets, the Vyond Platform, Company APIs, Feedback, Documentation, SaaS Data, any other proprietary software, information and materials made available by Company under this Agreement, and any modifications to any of the foregoing.
    3. Customer acknowledges and understands that: (i) Vyond Assets used to create a Video can make up the substantial majority of every Video and that Vyond Assets are reused by Company and offered to Company’s other customers, and therefore any Video created by Customer may appear substantially similar to any videos created by Company’s other customers; and (ii) the use of Vyond AI may produce similar scripts, Content or videos in response to similar prompts or queries (including AI Inputs) from Company’s other customers, and therefore any script, Vyond Asset or Video created by Customer using Vyond AI may be substantially similar to any scripts, Content or videos created by Company’s other customers. Customer agrees that the ownership and license provisions set forth in this Agreement are reasonable and appropriate both to clarify and protect Customer’s and Company’s respective ownership and legal rights, and to diminish the risk of ownership disputes between Customer and Company’s other customers.
    4. Company retains all rights not expressly granted to Customer under this Agreement. Customer does not have any implied rights under this Agreement, or any rights to use any Vyond Assets, the SaaS or the Vyond Platform, except as expressly provided in this Agreement.
  3. RESTRICTIONS
    1. Except to the extent expressly permitted by applicable law, Customer may not decompile, disassemble, reverse engineer or otherwise attempt to derive the source code of any Company software that operates on or with the SaaS and the Vyond Platform, or to use the Vyond Platform, Vyond Assets and the SaaS for the benefit of unaffiliated third parties as a service bureau or reseller of Videos, or for any similar use case or commercial arrangement, unless Customer purchases an “Agency” Subscription plan in an Order Form. If Customer purchases an Agency Subscription, Customer agrees to pass through Company’s online terms of service (https://www.vyond.com/terms/) to each of Customer’s end users.
    2. Except to the extent expressly permitted by applicable law, Customer may not use Vyond AI to derive (or attempt to derive) the underlying components of models, algorithms and systems of the SaaS, or to create, train, or improve (directly or indirectly) any other AI service or any product or service that is competitive with the Vyond Platform.
    3. Customer shall not remove (or attempt to remove) any copyright, trademark or other intellectual property rights notice contained in or on any Vyond Assets or the Vyond Platform.
    4. A Customer Account based on an Authorized User pricing model is required to access the Vyond Platform unless otherwise set forth in an Order Form and, under this circumstance, may be accessed and used only by an Authorized User who has registered on the Vyond Platform. Each Authorized User will choose a unique, non-transferable password. Authorized User accounts may not be “shared” or used by more than one named individual. In the event of a breach of this restriction, Company shall be entitled to require Customer to pay any Subscription fees due for such additional Authorized Users in arrears for the remaining portion of the then active Subscription Term. Where Customer’s SaaS Subscription is based on an alternative pricing and use model (e.g. based on a data quantity, or an AI use consumption model using a Company API), such terms and conditions shall be set forth in the applicable Order Form.
    5. No right or license is granted under this Agreement to use the Vyond Assets in any way other than as part of a Video created using the Vyond Platform, unless (a) Customer has purchased an “Asset Rights” license for the Vyond Asset(s) to be used, or (b) Company and Customer have otherwise expressly agreed in writing. Notwithstanding the foregoing, Customer may download and use images and recordings that are Vyond Assets in a standalone capacity as .gif or mp3 files but only for Customer’s internal use (and not for public display or performance).
    6. Customer shall not create or sell any non-fungible token (“NFT”) in connection with any Vyond Assets.
    7. Certain of the Vyond Assets are provided by Company under license from Shutterstock, Inc. (“Shutterstock Assets”). If Customer chooses to use any Shutterstock Assets (which are clearly designated as such on the Vyond Platform), Customer’s use of such Shutterstock Assets shall be further restricted as follows: (I) Customer shall not use any Shutterstock Assets (a) together with pornographic, defamatory, or unlawful content or in such a manner that it infringes upon any third party’s trademark or intellectual property rights, (b) portraying any person depicted in a Video (a “Character”) in a way that a reasonable person would find offensive, including but not limited to depicting a Character (i) in connection with pornography, “adult videos,” adult entertainment venues, escort services, dating services, or the like, (ii) in connection with the advertisement or promotion of tobacco products, (iii) as endorsing a political party, candidate, elected official, or opinion, (iv) as suffering from, or medicating for, a physical or mental ailment, or (v) engaging in immoral or criminal activities, or (c) as a trademark, service mark, or logo; and (II) Customer shall not use any Shutterstock Assets that are music or sound effects (a) as a musical theme in connection with any Video, (b) in an audio-only capacity in which music or sound effects is the primary content of any Video, (c) in an international television advertising campaign by or on behalf of an entity with annual revenues of more than One Billion Dollars ($1,000,000,000), (d) remixed or otherwise altered, except that Customer may engage in basic editing (e.g., setting start/stop points, determining fade-in/fade-out points, etc.), or (e) in a downloadable form available through the Internet or otherwise including making it available via FTP, IRC, peer-to-peer file sharing services or the like.
    8. Certain of the Vyond Assets are provided by the Company under license from Universal Production Music, a unit of Universal Music – MGB NA LLC (“UPM Assets”). If Customer chooses to use any UPM Assets (which are clearly designated as such on the Vyond Platform), Customer shall be obligated to: (i) report to the appropriate performing rights society any public performance of such UPM Assets (excluding public performances online or made via digital delivery, the rights for which have been cleared); and (ii) pay any corresponding “public performance royalties/fees” in connection with such uses, as applicable.
  4. DATA SECURITY, DATA PRIVACY AND ACCEPTABLE USE
    1. Data Security.

      5.1.1 Company Security Measures. Company’s security policies, compliance descriptions and related information is found here: https://www.vyond.com/solutions/enterprise/security/ and is as further described at https://www.vyond.com/securitymeasures. For additional information regarding the Company’s security and data privacy practices, please see: https://www.vyond.com/trust-center/. Company will not monitor, display or delete Videos except for the purpose of enforcing Company’s acceptable use policy, Company’s privacy policy, or complying with the request of a governmental or regulatory body (including subpoenas or court orders) or otherwise as required by law.

      5.1.2 Cloud Infrastructure. Company currently uses Amazon Web Services (“AWS”) as its cloud services provider. AWS infrastructure is housed in Amazon-controlled data centers. AWS has been accredited under ISO 27001, as well as SOC 1/SSAE 16/ISAE 3402 (Previously SAS 70 Type II) and SOC2 Type II. For more information on the security provided by AWS, please see the Amazon Web Services Security Center page (https://aws.amazon.com/security/). Company shall not be liable to Customer for any liabilities arising from the operation of the Vyond Platform over the Internet or other networks outside of Company’s control.

      5.1.3 Customer Responsibilities. Customer acknowledges that no data transmission over the Internet or data storage system can be guaranteed to be 100% secure, and Company cannot guarantee the security of data transmitted to it or that it stores. Customer acknowledges that if it wishes to protect its transmission of any data, it is Customer’s responsibility to use a secure, encrypted connection to communicate with the Vyond Platform. Customer is also responsible for protecting the confidentiality of Authorized Users’ access credentials to its Customer Account while using the Vyond Platform.

    2. Data Privacy.
      Company will: (i) comply with its obligations under applicable Data Protection Laws as further described in the Company Data Processing Addendum, which is available here: https://www.vyond.com/DPA (“DPA”); (ii) provide the same level of security protection for Personal Data as required under the Data Protection Laws; and (iii) enter into data processing agreements with its Subprocessors (as defined below in Section 5.3 and in the DPA) that require materially similar levels of security and confidentiality of Personal Data as described in this Agreement, and be responsible for any adverse acts or omission of this Agreement by any of its Subprocessors. The nature, purpose, subject matter, and duration of Company’s processing of Personal Data are as set forth in the DPA.
    3. Subprocessors.
      Customer consents to Company’s use of its current Subprocessors listed at https://think.vyond.com/subprocessors. Company will update this list from time to time, and will provide Customer thirty (30) days written notice prior to the implementation of a new subprocessor. If Customer objects to any new Subprocessor, Customer will provide Company with notice of its objection by email (using [email protected]), including reasonable detail supporting Customer’s concerns, within the thirty (30) days of Customer’s receipt of notice of Company’s use of a new Subprocessor. The company will then consider Customer’s objection in good faith and will respond to Customer by email within thirty (30) days of receiving such notice of Customer’s objection. Customer’s sole and exclusive remedy and Company sole and exclusive obligation for any new Subprocessor Customer reasonably rejects is for Company to disable the feature supported or provided by that rejected Subprocessor. If Company does not receive an objection email within the foregoing notice period and Customer continues to use and access the SaaS, Customer’s ongoing use of the SaaS shall include the new Subprocessor as described in Company’s original written notice.
    4. Acceptable Use.
      Company’s acceptable use practices regarding the use of Vyond Platform by its customers are governed by Company’s acceptable use policy, as set forth here: https://www.vyond.com/AUP. Customer agrees to abide by Company’s acceptable use policy as may be updated from time to time at Company’s sole reasonable discretion.
  5. TERM, RENEWALS AND TERMINATION
    1. Term. The term of this Agreement (“Term”) shall commence on the Effective Date hereof, and shall continue until the termination of this Agreement in accordance with the terms hereunder. The Subscription Term shall commence on the date set forth in the Order Form, and shall continue for the period specified therein, unless terminated earlier as set forth below in Sections 6.2 and 6.3.
    2. Renewals. Customer’s SaaS Subscriptions will automatically renew for the same Subscription Term set forth in each Order Form, unless Customer has turned off auto-renewal in the SaaS application profile settings. The Agreement itself shall remain in full force and effect for so long as the Customer is using and accessing the SaaS.
    3. Termination. Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after delivery of written notice specifying the material breach in detail; (b) ceases operations without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
    4. Termination of Convenience. Either party may terminate this Agreement for convenience by sending the other party a written notice of termination at least thirty (30) days prior to the date when Customer’s last Subscription expires. In the event of a termination pursuant to this paragraph, this Agreement will terminate on the date Customer’s last Subscription expires. To the extent Customer exercises its right under this Section 6.4 prior to the expiration of an active Subscription Term, Customer agrees and acknowledges that it shall not be entitled to any prepaid, unused fees for the remaining portion of the then applicable Subscription Term.
    5. Effect of Termination. Upon any expiration or termination of this Agreement, Customer shall immediately cease any and all use of and access to the Vyond Platform (including any and all related SaaS) and delete any Company Account passwords or access codes and any other Company Confidential Information in its possession. Company shall make Customer Content, Customer-Owned Output and the Videos available for retrieval for thirty (30) days following termination of this Agreement for any reason except where the cause of termination by Company is a failure by Customer to pay all applicable undisputed fees. Thereafter, Customer acknowledges that following termination (and the Customer Content, Customer-Owned Output and the Videos retrieval period), it shall have no further access to the SaaS or the Vyond Platform (and to the Customer Content, Customer-Owned Output and the Videos), and that Company may then delete any such materials as may have been stored by Company at any time. Except where an exclusive remedy is specified (as in Sections 9.1 and 11.6), the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
    6. Survival. All terms of this Agreement which by their nature extend beyond the termination of this Agreement, remain in effect until fulfilled and apply to respective successors and assigns.
    7. Changes to the Vyond Platform and the SaaS. At any time during an active Subscription Term, Company reserves the right to update, modify and optimize the Vyond Platform, without diminishing its essential security capabilities and material functionalities, and reserves the right to deprecate under utilized features. If Company discontinues or sunsets the Vyond Platform or SaaS altogether, it will give Customer no less than ninety (90) days’ prior written notice.
  6. PAYMENT AND TAXES
    1. During the Term of this Agreement, Customer may have one or more Subscriptions.
    2. If Customer obtains Subscriptions to the SaaS from an authorized Company reseller, Customer acknowledges that i) Customer is expressly bound by the terms and conditions applicable to any contract between Customer and the reseller, ii) Company is not a party to the contract between Customer and reseller including, but not limited to, all applicable commercial terms therein; and iii) this Agreement is the sole and exclusive set of terms and conditions that apply to Customer’s use of and access to, the SaaS and the Vyond Platform.
    3. Company charges a Subscription fee for access to the Vyond Platform. Fees may be calculated by the Company based on i) prepaid or contracted consumption metrics; ii) the quantity of Authorized Users or iii) in any other agreed upon basis set forth in an Order Form. Customer agrees to pay all fees charged by Company or otherwise incurred by Customer. Unless otherwise agreed by the parties, all fees are payable within thirty (30) days of the invoice date, are non-refundable, and are stated and payable in US dollars.
    4. If Customer fails to pay the applicable fees in a timely manner, other than fees disputed in good faith, Company may suspend Customer’s access to either the Vyond Platform or certain features of the Vyond Platform until Customer brings its Customer Account current.
    5. Customer is responsible for the payment of all taxes (other than taxes based on Company’s net income and Company property), duties, and other governmental charges, arising from the payment of fees to Company under this Agreement or the delivery or use of, or license to, the Vyond Platform or the provision of any SaaS, and any related penalties, fines and interest due to any late, delayed or delinquent payment of taxes caused by Customer. Customer will make all payments to Company free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of fees to Company will be Customer’s sole responsibility, and Customer agrees to provide Company with official receipts issued by the appropriate taxing authority, or such other evidence as Company may reasonably request, to establish that such taxes have been paid.
  7. GOVERNMENT RESTRICTIONS Customer may not export or re-export Videos, the Vyond Assets, or the SaaS except in compliance with the United States Export Administration Act and the related rules and regulations and similar non-U.S. government restrictions, if applicable. The foregoing and all accompanying Documentation are deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying, or disclosing of the foregoing by the U.S. Government is governed solely by the terms of this Agreement.
  8. WARRANTY
    1. Company Warranties. Company warrants that during an applicable Subscription Term (i) the SaaS and Vyond Platform will perform materially in accordance with the applicable Documentation; (ii) Company will not materially decrease the overall, core functionality of the SaaS and Vyond Platform; (iii) Company will not materially decrease the overall security of the Vyond Platform, and (iv) this Agreement, the Order Forms and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Personal Data, Customer Content and other Customer Confidential Information.

      Company’s sole liability and Customer’s sole and exclusive remedy for any breach of any of the foregoing warranties in this Section 9.1 shall be, at no charge to Customer, for Company to use commercially reasonable efforts to correct the reported non-conformity, or if Company is unable to correct the defective SaaS, or if Company reasonably determines such remedy is impracticable, either party may then terminate the applicable Order Form and/or the Agreement, following a cure period of not less than thirty (30) days, and Company will promptly refund to Customer any prepaid, unused fees for the remaining portion of the then active Subscription Term.

    2. Disclaimers. EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION 9, THE VYOND ASSETS, THE VYOND PLATFORM, AND THE SAAS ARE PROVIDED TO CUSTOMER “AS IS” AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND COMPANY HEREBY DISCLAIMS AND EXCLUDES, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL OTHER WARRANTIES, WHETHER STATUTORY, EXPRESS, OR IMPLIED, INCLUDING NON-INFRINGEMENT OF THIRD PARTY RIGHTS, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE AND SATISFACTORY QUALITY. COMPANY DOES NOT WARRANT THAT THE VYOND ASSETS, THE VYOND PLATFORM, OR THE SAAS WILL MEET CUSTOMER’S NEEDS OR REQUIREMENTS, BE ERROR-FREE, ALWAYS AVAILABLE OR AVAILABLE AT ANY PARTICULAR TIME, OR THAT ALL ERRORS OR DEFECTS WILL BE CORRECTED.
    3. Customer Warranties. Customer represents and warrants that neither Customer Content, Customer-Owned Output or the Videos, nor Company’s use of Customer Content, Customer-Owned Output and the Videos by or through the SaaS, will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. Customer further represents and warrants to Company that Customer owns or otherwise controls and has sufficient rights or licenses to provide all Customer Content for use by Company in the manner contemplated by this Agreement.
    4. Mutual Warranties. Both parties warrant that each i) has fully power and authority to enter into this Agreement and ii) shall comply with all applicable laws, regulations, court decisions and other governmental regulations and mandatory legal obligations applicable to such party’s business operations and products, including export controls, sanctioned entities and restricted person restrictions, data privacy, and artificial intelligence.
  9. LIMITATION OF LIABILITY
    1. EXCEPT FOR EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 12 BELOW OR IN CONNECTION WITH ANY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY EITHER PARTY, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF COVER, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND PRODUCT LIABILITY), INDEMNIFICATION OR OTHERWISE.
    2. EXCEPT FOR EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 12 BELOW, ANY BREACH OF PARTY’S DATA PRIVACY OBLIGATIONS UNDER SECTION 5, EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11 BELOW, EITHER PARTY’S VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS (INCLUDING CUSTOMER’S BREACH OF SECTION 4) OR IN CONNECTION WITH ANY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY EITHER PARTY, EACH PARTY’S LIABILITY UNDER THIS AGREEMENT WILL NOT, IN ANY EVENT, EXCEED THE FEES, IF ANY, PAID OR PAYABLE BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT FIRST GIVING RISE TO THE CLAIM, DAMAGES OR LIABILITY.
    3. WITH RESPECT TO EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 12 BELOW, ANY BREACH OF PARTY’S DATA PRIVACY OBLIGATIONS UNDER SECTION 5, OR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11 BELOW, A PARTY’S AGGREGATE AND CUMULATIVE LIABILITY PAYABLE TO THE OTHER PARTY HEREUNDER SHALL NOT EXCEED THREE TIMES (3X) FEES PAID OR PAYABLE BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT FIRST GIVING RISE TO THE CLAIM, DAMAGES OR LIABILITY.
    4. THE FOREGOING LIMITATIONS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE, AND CUSTOMER ACKNOWLEDGES THAT THE POTENTIAL FINANCIAL LIABILITIES SET FORTH IN THIS SECTION 10 ARE DIRECTLY TIED TO HOW COMPANY OFFERS AND DETERMINES THE PRICING FOR ITS SAAS SERVICES.
  10. INDEMNITY
    1. Subject to Section 10, Customer shall indemnify, defend and hold harmless Company and its officers, directors, employees and agents from and against liabilities, costs, losses, damages, judgments, expenses (including reasonable attorneys’ fees and costs of experts and costs of appeals) finally awarded by a court of competent jurisdiction or reached in a settlement agreed to by Customer to the extent caused by any or all of the following: (a) any allegation that a Video, Customer Content, Customer-Owned Output and use of Company API infringes, misappropriates or violates any intellectual property right, including any rights of publicity or privacy, (b) any claims for defamation or slander, invasion of privacy or other violation of a person’s rights in connection with Customer’s use of the Vyond Platform, (c) any unauthorized activity relating to Customer’s Account, or (d) any failure of Customer to have all necessary rights and licenses in and to the Videos, Customer Content, Customer-Owned Output.
    2. Subject to Section 10, Company shall (a) defend Customer against any third party claim that the Vyond Assets or Vyond Platform infringe, misappropriate or violate any United States patent, copyright, trademark or trade secret rights of any third parties (“Infringement Claim”); and (b) indemnify Customer against and pay any settlement of such Infringement Claim consented to by Company or any damages finally awarded against Customer to such third party by a court of competent jurisdiction.
    3. Each party’s obligations to indemnify the other party under this Section shall be conditioned upon the following: (a) the indemnified party shall promptly notify the indemnifying party in writing of the claim; (b) the indemnified party shall grant the indemnifying party sole control of the defense and settlement of the claim; and (c) the indemnified party shall provide the indemnifying party, at the indemnifying party’s expense, with all assistance, information and authority reasonably required for the defense or settlement of the claim. The indemnifying party shall not enter into any settlement that admits fault or imposes any financial obligations on the indemnified party or that does not include a full and unconditional release of any indemnified party without the indemnified party’s prior written consent (not to be unreasonably withheld, conditioned, or delayed).
    4. Notwithstanding the foregoing, Company shall have no liability for any Infringement Claim based on (a) the use of the Vyond Assets or the Vyond Platform other than in accordance with this Agreement, (b) the combination of the Vyond Assets or Vyond Platform with other content, services, software or hardware not provided by Company, where the combination causes the infringement and not the Vyond Assets or Vyond Platform standing alone; (c) a Video, Customer Content, and Customer-Owned Output; and (d) any use of the Vyond Platform provided on a no-charge, beta or evaluation basis.
    5. If the Vyond Assets or the Vyond Platform, or any material portion thereof, are held by a court of competent jurisdiction to infringe, or if Company reasonably believes that the Vyond Assets or the Vyond Platform may be subject to an Infringement Claim, Company shall in its commercially reasonable judgment and at its expense: (i) replace or modify the Vyond Assets or the Vyond Platform so as to be non-infringing, provided that the replacement content or platform contains substantially similar functionality; (ii) obtain for Customer the rights to continue using the Vyond Assets or the Vyond Platform; or (iii) if non-infringing Content or platform functionalities or the rights to use the Vyond Assets or the Vyond Platform cannot be obtained by Company upon commercially reasonable terms, terminate this Agreement. Upon any such termination of this Agreement, Company shall promptly refund any prepaid, unused Subscription fees paid by Customer under this Agreement for the remaining portion of the then-current Subscription Term.
    6. This Section 11 sets forth each party’s exclusive remedy, and the indemnifying party’s entire liability, with respect to infringement (including any Infringement Claim) or misappropriation of intellectual property rights of any kind arising out of this Agreement.
  11. CONFIDENTIALITY, FEEDBACK, PUBLICITY, AND INSURANCE
    1. Confidential Information Defined. As used herein, “Confidential Information” means non-public information that the party disclosing the information designates at the time of disclosure as being confidential, or, if disclosed orally or visually, is identified as such prior to disclosure, or which, under the circumstances surrounding the disclosure, the receiving party knows or has reason to know should be treated as confidential without the need to be marked as such. Without limiting the foregoing, Confidential Information shall include any information regarding a party’s financial condition, business opportunities, plans for development of future products, unreleased versions of products, know-how, technology, customer information, and customer data. Vyond AI, the Vyond Platform, Saas Data, security documentation, Company disaster recovery plans, and unpublished technical materials including Vyond Platform architecture and the Company technology roadmap, are deemed to be Company Confidential Information. Customer Confidential Information includes Customer Personal Data, Customer Content, Customer-Owned Output, its proprietary AI Inputs and AI Outputs, and the Videos.
    2. Exclusions. Notwithstanding the foregoing, nothing received by a receiving party shall be construed as Confidential Information which the receiving party can competently demonstrate: (i) is or becomes generally available to the public without breach of this Agreement; (ii) is lawfully obtained from a third party without a duty of confidentiality; (iii) is rightfully known to the receiving party prior to such disclosure; or (iv) is, at any time, independently developed by the receiving party without the use of, or reference to, the disclosing party’s Confidential Information.
    3. Non-Disclosure. The receiving party shall not disclose the disclosing party’s Confidential Information to any third party and may only use the disclosing party’s Confidential Information for the intended business purpose related to this Agreement and for the benefit of the disclosing party. Both parties shall protect Confidential Information from disclosure or misuse by using the same degree of care as for their own confidential information of like importance, but shall at least use reasonable care. Each receiving party agrees to promptly notify the disclosing party upon learning of any unauthorized disclosure of the disclosing party’s Confidential Information, and shall provide reasonable assistance to the disclosing party to remedy and contain such breach. In connection therewith, Customer agrees to provide any such notice to Company at [email protected]. The foregoing notwithstanding, a receiving party may disclose the other party’s Confidential Information if the information is required by law to be disclosed in response to a valid order of a court of competent jurisdiction or authorized government agency, provided that the receiving party must give the disclosing party prompt written notice, if legally permitted, and obtain or allow for a reasonable effort by the disclosing party to obtain a protective order prior to disclosure, at this disclosing party’s cost and expense.
    4. Permitted Disclosures. The receiving party may disclose the disclosing party’s Confidential to its employees, professional advisers, contractors, consultants and agents on a “need to know basis”, provided that such persons agree or have agreed to be bound by an enforceable agreement (or duty of confidentiality) that ensures the protection of the Confidential Information from disclosure to at least the same extent as does this Agreement. Company shall also be entitled to disclose Customer Confidential Information to its Subprocessors subject to industry standard written confidentiality and security commitments only for the purposes of providing the SaaS to Customer. Company acknowledges that its Subprocessors will promptly delete or return Customer Confidential Information following the termination of this Agreement in accordance with such Subprocessor’s industry standard data retention policies.
    5. Equitable Remedies. The parties agree that a breach of the confidentiality obligations set forth in this Agreement by receiving party may cause immediate and irreparable damage to disclosing party and shall entitle disclosing party, without the necessity of posting a bond, to seek injunctive relief to prevent the continued unauthorized use of disclosing party’s Confidential Information, as well as to pursue all other remedies available to disclosing party at law.
    6. Feedback. Customer may provide Company with feedback, including any flaws, errors, bugs, anomalies, problems with and/or suggestions relating to the SaaS including suggestions about new features, functionality, or performance capabilities for the SaaS (“Feedback”). If Customer offers any Feedback to Company that Company subsequently incorporates into the SaaS, such new features, functionality, or performance capabilities shall be the sole and exclusive property of Company and shall be free i) from any confidentiality restrictions that might otherwise be imposed upon Company pursuant to this Section 12, or ii) from any duty to account or pay Customer any compensation for sharing and communicating such Feedback to Company. Customer agrees to assign, and hereby does assign, all right, title and interest worldwide in the Feedback, and the related intellectual property rights, to Company and agrees to assist Company in perfecting and enforcing these rights.
    7. Publicity. With Customer prior written consent, Customer agrees that Company may use Customer’s name and logo on Company’s website and promotional materials. With Customer prior written consent, Customer also agrees to (i) serve as a reference, and (ii) participate in case studies, each as reasonably requested by Company.
    8. Insurance. Each party shall maintain during the Term all industry standard categories of business insurance associated with each party’s standard portfolio of risk and liability exposure based on the nature and scope of each party’s commercial operations. Company shall provide Customer with a brokerage summary of its insurance coverages upon request.
  12. ASSIGNMENT This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement (and any Order Form) in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities by providing written notice to the other party, provided that the assignee agrees to be bound by all of the terms of this Agreement, and, in the case of Company, all fees owed by the Customer are paid in full. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 13 will be null and void.
  13. NOTICES All notices required or permitted under this Agreement will be in writing and delivered in person, by courier, overnight delivery services, by certified mail, or by email that does not bounce back to the legal email address provided below, and in each instance will be deemed given upon receipt (or same the same day as delivery by email). All communications to Company will be sent to the addresses set forth below or to such other address as may be specified by Company to Customer in accordance with this Section. Either party may change its address for notices under this Agreement by giving written notice to the other party by the means specified in this Section.

    Legal Notices Delivered To Company:

    GoAnimate, Inc. 204 East 2nd Avenue, Suite 638 San Mateo, CA 94401 USA Attention: CEO; CC: [email protected] or to [email protected].

    Legal notices to Customer shall be sent to the person, email alias and/or legal address set forth in the Order Form.
  14. ENTIRE AGREEMENT
    1. This Agreement, any Company policy referred to in this Agreement and any schedule or Vyond website link referring to this Agreement, each of which is incorporated by reference, constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement and such schedule.
    2. Company may modify this Agreement at any time upon notice to Customer, with such modification to be effective immediately upon delivery of such notice. Customer’s continued use of the SaaS following each update or modification to this Agreement shall constitute Customer’s consent and approval of the revised Agreement terms.
    3. In the event of any conflict between the terms and conditions of this Agreement and the terms and conditions of any exhibit, schedule, linked site, or an Order Form, the terms and conditions of this Agreement will govern. No party hereto has relied on any statement, representation or promise of any party or representative thereof except as expressly set forth in this Agreement.
    4. Any terms and conditions contained in any Customer (or reseller) purchase order that are inconsistent with or in addition to the terms and conditions of this Agreement will be deemed stricken from such purchase order, unless expressly agreed to in writing by Company.
  15. GENERAL The laws of the State of California govern all matters arising out of this Agreement, without regard to conflict of law principles. The United Nations Convention for the International Sale of Goods shall not apply. The federal and state courts located in San Mateo County, California USA will have exclusive jurisdiction in respect of disputes arising in connection with this Agreement.

    If any provision of this Agreement is held invalid, that provision will be deemed amended to achieve as nearly as possible the same economic effect as the original provision and the remainder of this Agreement will continue in full force and effect.

    The parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.

    This Agreement is non-exclusive, and each party will be free to enter into other similar agreements or arrangements with other third parties.

    Company has no liability for any failure of performance or equipment due to causes beyond its reasonable control, including the following: acts of God, fire, flood, earthquake, tsunami, storm, or other catastrophes; any law, order, regulation, direction, action, or request of any governmental entity or agency, or any civil or military authority; national emergencies, insurrections, riots, wars or acts of terrorism; or strikes, lock-outs, work stoppages, or other labor difficulties; or failure of the Internet or any telecommunications, hosting or service provider.

    No term or provision hereof will be considered waived by a party, and no breach excused, unless the waiver or consent is in writing signed by such party. No consent by a party to, or waiver of, a breach, whether express or implied, will constitute a consent to, waiver of, or excuse of any other, different or subsequent breach.

    The word “including” shall be construed as meaning “including without limitation.” The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.