1. Welcome and Introduction
Welcome to ScreenSpace! ScreenSpace has created a set of tools and services to help our customers (“you,” “your,” and derivatives thereof) create and share both videos and interactive experiences with their audiences (“Audiences”). The Services consist of an online platform, any desktop application included in our offering to you, our website, content offered in connection with the software, hosting, documentation, and other online tools, whether they are accessed through the use of a mobile device, computer, or other method (individually and together, the “Services”), all as described in the Order Form (defined below). The term “Services” also includes any help desk and support services we offer, as well as any new features which augment or enhance the current Services, including the release of new features or products.
We hope you will carefully read through these Terms of Service (“Agreement”), since it is a binding agreement between you and ScreenSpace, Inc. (“ScreenSpace,” “Company,” “we,” “us,” “our”), which owns and operates the Services. It is effective on the date you click “I Accept” or a similar indication of your intent to enter into this Agreement with us, such as by signing or accepting (by payment) an Order Form (defined below).
Specific provisions related to pricing, payment terms, and other matters related to this Agreement may be set forth in an online document, invoice, purchase order or other document executed by both parties (“Order Form”). However, the terms of an Order Form other than an online document provided by us may not change the provisions of this Agreement unless the Order Form specifically calls out the provisions changed and is signed by both parties. No order form, purchase agreement, or any other document generated by you may change the terms of this Agreement, even if it is made expressly conditioned upon our acceptance of the additional document.
2. Software, Fees, Term, and Payment
The Services are made available to you on a software-as-a-service (SaaS) basis through an online platform that facilitates the creation of your product videos and interactive experiences, which you can then make available to your Audiences when you order our hosting services. The Services may be modified by us in our sole discretion, with or without notice, at any time. If we have modified the Services in a manner that substantially reduces the value you obtain from the Services (e.g., by removing specific functionality without replacing it with substantially similar or improved functionality) then you may terminate this Agreement and receive a refund of any Fees paid in advance for the portion of the term following termination. Your continued receipt and use of the Services following the modification to the Services shall conclusively demonstrate your acceptance of such modification.
You agree to pay any fees set forth in an Order Form (“Fee”) upon the terms described in the Order Form.
When you sign up using a credit card or other payment method, you authorize us to make the charges disclosed to you at the time you sign up, including recurring payments, where applicable.
The term of this Agreement shall be the period set forth in the Order Form, or if no term is set forth in the Order form, a period of one month, with renewal occurring automatically at the end of each year unless a party notifies the other not less than 30 days prior to the end of the then-current term that it intends to terminate this Agreement. No refund of any Fee paid in advance is required.
Your credit card or other payment method acceptable to ScreenSpace will be billed on a monthly basis for all Services that are rendered on a monthly basis. Your credit card will be billed on a one-time basis for all Services that are rendered on a one-time basis. The provisions governing the amount and timing of payment, including the details related to recurring billing, will be indicated when you sign up for Services. If you fail to make timely payment, the balance of any unpaid amount shall accrue interest at a rate of 1.5% per month, or the highest amount allowed by law, whichever is less.
In order to protect the privacy and security of your credit information, we use the services of a third-party processor. You authorize us to contract with such third-party processor for these purposes.
By signing up with ScreenSpace, you authorize us to charge you a fee for your initial Term as well as a recurring fee for each subsequent Term. You also authorize us to charge you any other fees you may incur in connection with your use of the Site or Services that are disclosed when you sign up for Services.
Generally, our fees (including the monthly fee for your membership and any other fees) are nonrefundable. We may make exceptions in our sole and absolute discretion, and any such exceptions do not entitle you to any future discounts or refunds in the future for similar instances.
You may update your payment method information by contacting our customer service department via phone or email as set forth on our website. If a payment is not successfully settled, due to expiration, insufficient funds or otherwise, and you do not update your payment method information or cancel your account, you nonetheless will remain responsible for any uncollected amounts and authorize us to continue billing the payment method, as it may be updated, including in the event you attempt to create a new account. This may result in a change to your payment billing dates. If we cannot charge your account, we reserve the right, but are not obligated, to terminate your access to any or all of the Services, and to seek payment through other methods.
3. License and Acceptable Use, Compliance
Company hereby grants you, subject to your compliance with this Agreement, a limited non-exclusive, non-sublicensable, non-transferable, license to use the Services. Other than for the purposes described in this Agreement, you may not download any portion of the Services or use any Services. You may not use any data mining, robots, or similar data gathering tools, and you may not otherwise exploit your access to the Services for any commercial purpose other than as described in our documentation. You may not use any of our trademarks, logos, or other proprietary graphics, unless embedded in the Services, without express written permission, which may be denied in Company’s absolute discretion. Company’s logos and product and service names are trademarks of Company. All other trademarks appearing in connection with our website or the Services are trademarks of their respective owners, and our reference to them does not imply or indicate any approval or endorsement by their owners unless such approval or endorsement is expressly made.
In addition to any other things that might constitute a misuse of the Services, you must not, and must not attempt to do the following things:
• modify, alter, tamper with, repair or otherwise create derivative works of any of the Services;
• reverse engineer, disassemble or decompile the software used to provide or access the Services, or attempt to discover or recreate the source code used to provide or access the Services;
• use the Services for research or benchmarking or any related endeavor with the intent of creating a competing or similar product;
• sell, lend, rent, resell, lease, sublicense or otherwise transfer any of the rights granted to you with respect to the Services to any third party;
• remove, obscure or alter any proprietary rights notice pertaining to the Services;
• access or use the Services in a way intended to avoid incurring fees or exceeding usage limits or quotas;
• use the Services to: (i) engage in any unlawful or fraudulent activity or perpetrate a hoax or engage in phishing schemes or forgery or other similar falsification or manipulation of data; (ii) send unsolicited or unauthorized junk mail, spam, chain letters, pyramid schemes or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) store or transmit inappropriate content, such as content: (1) containing unlawful, defamatory, threatening, pornographic, abusive, libelous or otherwise objectionable material of any kind or nature, (2) containing any material that encourages conduct that could constitute a criminal offense, or (3) that violates the intellectual property rights or rights to the publicity or privacy of others; (v) store or transmit any content that contains or is used to initiate a denial of service attack, software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs, cancelbots, or spyware; or (vi) abuse, harass, stalk or otherwise violate the legal rights of a third party;
• interfere with or disrupt servers or networks used by Company to provide the Services or used by other users’ to access the Services, or violate any third party regulations, policies or procedures of such servers or networks or harass or interfere with another user’s full use and enjoyment of any of the Services;
• access or attempt to access Company’s other accounts, computer systems or networks not covered by this Agreement, through password mining or any other means;
• cause, in Company’s sole discretion, inordinate burden on the Services or Company’s system resources or capacity;
• share passwords or other access information or devices or otherwise authorize any third party to access or use the Services;
• violate any law applicable to your use of the Services, including without limitation CAN-SPAM, COPPA, CCPA, GDPR, TCPA, and any other applicable law, rule, or regulation, whether state, federal, or local;
• upload material (e.g., a virus) that is damaging to computer systems or data of ScreenSpace or users of the Services or Site; or
• modify, alter, or remove ScreenSpace branding from watermarked material.
You should not rely on the Services to meet your compliance obligations. While the Services offer tools to facilitate the creation and publication of your content, Company does not guarantee that the Services will perform these tasks in a manner that is consistent with the laws applicable to your business, which can vary by region and can change at any time. Similarly, the Services may not include all features and functionality necessary to meet the federal, state, and/or local requirements applicable to your business. You are responsible for determining whether the Services meet your business’s needs, and Company is not providing any legal, financial, accounting, tax, or other professional advice by providing the Services. You should consult federal and local government websites and/or with qualified counsel to help you with your compliance obligations.
4. Received Materials
If you send us any comments, materials, or letters including, without limitation, questions, comments, suggestions, criticisms or the like (“Received Materials”), those Received Materials may be deemed by us to be non-confidential and free of any claims of proprietary or personal rights. Company shall have no obligation of any kind with respect to such Received Materials, and Company will be free to reproduce, use, disclose, exhibit, display, transform, edit, abridge, create derivative works from and/or distribute the Received Materials without limitation or restriction. Furthermore, Company is free to use any ideas, concepts, know-how, or techniques contained in any communication you send to Company for any purpose whatsoever, including, but not limited to, developing, manufacturing, and marketing products using such information or ideas, without compensation or any other obligations to anyone, including you.
5. Accounts and Authorized Users
In order to use the Services, you must create an account (“Account”). You must not allow anyone other than yourself or an authorized employee or agent acting on your behalf, including any employees or contractors who access the Services (each, an “Authorized User”) to access and use your Account. You acknowledge and agree: (i) to provide accurate and complete Account and login information; (ii) to keep, and ensure that Authorized Users keep all Account login details and passwords secure and current at all times; (iii) that you remain solely responsible and liable for the activity that occurs in connection with your Account, (iv) that the Account login details may only be used by Authorized Users; and (v) to promptly notify Company in writing if you become aware of any unauthorized access or use of your Account or the Service.
6. Your Data
The Services will process the data that you provide to us using the Services, such as the content you produce and publish using the Services, the names and contact information of your Audiences, and the content of the messages you send to your Audiences (together and individually “Your Data”). Your Data belongs to you. We may process Your Data in the course of providing the Services, but we do not own Your Data, and we only access Your Data for the purposes of providing Services to you at your request. Your Data may be considered “Confidential Information” pursuant to the provisions of Section 10, but you acknowledge, notwithstanding the provisions of Section 10, that we may use Your Data as provided in this Section. “Your Data” does not include, without limitation, the analytical information generated by your use of the Services.
You acknowledge and agree that Your Data may contain personally identifying information or personal data, as defined by the applicable laws which govern the use of data relating to identified or identifiable nature persons residing in the EU and/or the state of California in the United states, including the laws of the European Union (“EU”) Data Protection Act 1998, the EU General Data Protection Regulation (“GDPR”), and the California Consumer Protection Act effective as of January 1, 2020, as each of these laws are amended or replaced from time to time, and any other foreign or domestic laws to the extent that they are applicable to the personally identifiable or personal data you upload, transmit, post or process while using the Services (“Data Protection Laws and Regulations”), and you agree to abide by such Data Protection Laws and Regulations.
You hereby grant Company a non-exclusive right and license to receive, retrieve, access, use, reproduce, display, publish, copy, transmit, process and store Your Data in order to provide the Services to you. However, we may redact, anonymize, and/or aggregate Your Data with content and data from our other clients and/or e-commerce channels (“Data Aggregations”) for purposes including, without limitation, product and service development and commercialization and quality improvement initiatives. Company will redact or anonymize Data in such a way as to not divulge your Confidential Information (as defined below) or personally identifying information. All Data Aggregations will be the sole and exclusive property of Company.
You represent and warrant that: (i) you have lawfully obtained any personally identifying information and Your Data pursuant to any and all applicable and relevant Data Protection Laws and Regulations; (ii) you have appropriately disclosed to your Authorized Users and your Audiences how personally identifiable information or personal data will be used, processed, stored and/or shared pursuant to any and all applicable and relevant “Data Protection Laws and Regulations”; (iii) you are responsible for honoring any requests from your Authorized Users or Audiences relating to the collection, use and storage of personally identifiable information or personal data as required by any and all relevant Data Protection Laws and Regulations; (iv) you own or have acquired the right to all of the intellectual property rights subsisting in Your Data, and have the right to provide Company the license granted herein to Your Data; and (ii) Your Data does not infringe or violate any patents, copyrights, trademarks or other intellectual property, proprietary or privacy rights of any third party. You shall remain solely responsible and liable for Your Data, including without limitation for your use of and reliance upon Your Data, and you expressly release us from any and all liability arising from or related to any such activities.
You acknowledge that: (i) the Services are not intended to operate as an archive or file storage service; (ii) you are solely responsible for the backup of Your Data; and (iii) you will lose access to any Data that you delete. You may download certain Data that you provided to us at any time during the term and for a period of thirty (30) days after the term, provided you comply with this Agreement and Company’s security requirements.
You understand and acknowledge that the Internet and telephone communications may not be secure, and that connecting to the Internet and via telephone provides the opportunity for unauthorized access to computer systems, networks, and all data stored therein. The information and data transmitted through the Internet and via telephone (including, without limitation, Your Data) or stored on any equipment through which Internet information is transmitted may not remain confidential and Company makes no representation or warranty regarding privacy, security, authenticity, non-corruption or destruction of any such information. Use of any information transmitted or obtained over the Internet or via telephone is at your own risk and Company shall not be responsible to you for any adverse consequence or loss whatsoever from use of the Internet or telephones.
When you visit our website or send e-mails to us, you are communicating with us electronically, and you consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on our website. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
8. Third-Party Applications and Third-Party Licensed Content
The Services may be integrated with third-party applications, websites, and services (“Third Party Applications”) to make available content, products, and/or services to you. These Third- Party Applications may have their own terms and conditions of use and privacy policies and your use of these Third-Party Applications will be governed by and subject to such terms and conditions and privacy policies. You understand and agree that we do not endorse and are not responsible or liable for the behavior, features, or content of any Third-Party Application or for any transaction you may enter into with the provider of any such Third-Party Applications.
In the course of using the Services, you may have access to intellectual property either owned by us or in-licensed by us that can be used to produce videos, interactive experiences, and other materials include as User Content (defined below). This intellectual property is referred to herein as “Licensed Content.” Once you upload Licensed Content, it will not be directly accessible or available for download.
Company may modify and replace any Licensed Content it makes available in its sole discretion. For example, if company has made a 3D model or image of a specific branded device available for use as Licensed Content, Company may replace such model or image without being in breach of this Agreement.
You must download any of your Licensed Content within 30 days after the transaction. After the 30 days has expired, the content may no longer be available for download.
The Licensed Content may only be used in one end-product. Notwithstanding the foregoing, licensed content that is hosted by Company may be embedded on a single domain.
You may not visually alter any of the Licensed Content other than for standard color correction. This restriction prohibits, without limitation, time re-mapping and removing, replacing, obscuring, or modifying any part of the Licensed Content.
If ScreenSpace produces watermarked material and makes it available to you, you may only use the watermarked material for testing purposes. You may not use any watermarked materials in any final materials or publicly available materials, and in any event your use of watermarked materials may not exceed 30 days.
ScreenSpace may withdraw any of its content from use at any time, including any content that ScreenSpace determines in its sole discretion may be subject to a claim of intellectual property right infringement. If ScreenSpace notifies you that it is withdrawing any content from use, you agree to immediately and at your own expense, cease using the content and to destroy any copies and ensure that your clients, distributors, subcontractors and/or distributors do likewise. ScreenSpace will take commercially reasonable action to promptly replace any such content free of charge.
If ScreenSpace believes that you are using any of the Licensed Content beyond the license granted or in violation of any of the provisions of this Agreement, you agree to submit to an audit of your use of the Licensed Content to be conducted at ScreenSpace's expense. If any such audit reveals that you have used any of the Licensed Content beyond your license or in violation of any provision of this Agreement, you agree to immediately reimburse ScreenSpace for the reasonable expenses of conducting such audit, and to pay the fees that would have otherwise been payable under this Agreement plus interest at an annual rate of 12% (or such lower amount that is the maximum allowed under applicable law).
You shall retain any copyright symbol, the name of ScreenSpace, any identification number or other information that may be embedded in the electronic file containing the original content, and to maintain appropriate security to protect the Licensed Content from unauthorized use. You may make one copy for back-up purposes.
You may not use any Licensed Content in a pornographic, defamatory, or unlawful manner.
You may not upload black, white, or solid color Licensed Content to be used as a screen asset.
You may not use any Licensed Content as part of a trademark, design mark, tradename, business name, service mark, or logo.
You may not use any of the Licensed Content in connection with any goods or services, including DVDs, mobile applications, or other items intended for resale or distribution where the primary value lies in the content itself.
You may not use Licensed Content in electronic or digital templates intended for resale or other distribution (for example, website templates, business card templates, electronic greeting card templates, brochure design templates). Notwithstanding the foregoing, you may use hosted Licensed Content as a placeholder intended to be removed or replaced by the end user.
9. Your Audiences and User Generated Content
Your Audiences will access Your Data using the Services. In certain cases, that access will include interactions with Your Data. In connection with those interactions, you or your Audiences may post, upload, and/or contribute (“post”) content to the Services, which may include, for example, images, text, information, and/or other types of content (“User Content”). For the avoidance of doubt, “User Content” also includes any such content posted to any support community we may establish, as well as to any other part of the Services.
You promise that, with respect to any User Content that you or your Audiences post, (1) you (including your Audiences) have the right and legitimate interest to post such User Content, and (2) such User Content, or its use by Company as contemplated by the Agreement, does not violate the Agreement, applicable law, or the intellectual property, including, without limitation, copyright, publicity, personality, or other rights of others or imply any affiliation with or endorsement of you or your User Content by Company.
We may, but we have no obligation to, monitor, review, or edit User Content. In all cases, we reserve the right to remove or disable access to any User Content for any or no reason, including but not limited to, User Content that, in our sole discretion, violates the Agreement. We may take these actions without prior notification to you or any third party. Removal or disabling of access to User Content shall be at our sole discretion, and we do not promise to remove or disable access to any specific User Content.
You are solely responsible for all User Content that you or your Audiences post. We are not responsible for User Content, nor do we endorse any opinion contained in any User Content. YOU AGREE THAT IF ANYONE BRINGS A CLAIM AGAINST US RELATED TO USER CONTENT THAT YOU OR YOUR AUDIENCES POST, THEN, TO THE EXTENT NOT PROHIBITED UNDER APPLICABLE LAW, YOU WILL INDEMNIFY AND HOLD US HARMLESS FROM AND AGAINST ALL DAMAGES, LOSSES, AND EXPENSES OF ANY KIND (INCLUDING REASONABLE ATTORNEY FEES AND COSTS) ARISING OUT OF OR RELATED TO SUCH CLAIM.
Each party agrees to hold the other’s Confidential Information in strict confidence and protect it from unauthorized dissemination and use with the same degree of care that each uses to protect its own like information, but not less than a reasonable degree of care. Each party shall limit the use and access to the others’ Confidential Information to those of its employees and contractors whose use or access is necessary to effect the purpose of this Agreement and who are under written contractual non-disclosure and non-use obligations that are no less restrictive or protective than the terms of this Section 10. Neither party will use the others’ Confidential Information for purposes other than those necessary or appropriate to exercise rights or fulfill obligations under this Agreement. Each party shall be liable for any unauthorized disclosure or use by its employees and contractors of the others’ Confidential Information.
10.2. “Confidential Information” means all information and data furnished by a party to the other or to which a party has been exposed in performance of this Agreement, which information and data have been marked or otherwise specifically identified as confidential or proprietary, or can by their nature reasonably be presumed to be confidential or proprietary including but not limited to personal information that is protected by law, in any form, including but not limited to inventions, discoveries, ideas, processes, products, designs, technology, specifications, software, equipment, trade secrets, pricing information, customer and supplier information, third party confidential information and all other information related to a party’s business. Confidential Information shall not include information which is: (i) publicly known and/or made generally available in the public domain, either prior to or after the time of disclosure by the disclosing party, through no wrongful act of the receiving party, (ii) already known by the receiving party at the time of disclosure through no wrongful act of the receiving party, (iii) rightfully obtained by the receiving party from a third party free of any obligation to such third party to keep it confidential, or (iv) independently developed by the receiving party without use of or reference to the disclosing party’s disclosure.
In the event that a party shall be required by legal or regulatory process to disclose Confidential Information of the other, it shall promptly (if legally permitted to do so) notify the party whose Confidential Information is being disclosed, reasonably cooperate therewith in seeking to quash such request or obtain an appropriate protective order, and only disclose such Confidential Information to the extent required.
Each party shall advise the other promptly in the event it learns or has reason to believe that any person who has had access to the other’s Confidential Information has violated or intends to violate the terms hereof and reasonably cooperate with the other in seeking injunctive or other equitable relief. The obligations of confidentiality and non-use herein shall survive for the term and for a period of five (5) years thereafter; provided, however, that with respect to Confidential Information that constitutes a trade secret, the obligations of confidentiality and non-use herein shall survive for so long as such Confidential Information constitutes a trade secret under applicable law, but in no event less than the term and for a period of five (5) years thereafter; and similarly for Confidential Information including personal information that is protected by law, the obligations of confidentiality and non-use herein shall survive for so long as the information remains protected by law, but in no event less than the term and for a period of five (5) years thereafter.
11. Advertising and Publicity
Company shall be entitled to refer to you as a customer of Company and as a user of the Service, directly or indirectly, in any advertisement, news release, or publication, and may use your trade names and trademarks in connection with such usage, subject to any reasonable limitations or guidelines you may impose.
12. Warranty Disclaimer
Company shall not be held responsible or liable for any actions taken by you, either wholly or in part, based on Your Data, Licensed Content, User Content, or information provided to Company by you or any third party, or for any loss, damage, expense or injury resulting from any transactions conducted by you with any third party as a result, by way of or through the use of the Service. THE SERVICE, INCLUDING WITHOUT LIMITATION, ALL SOFTWARE, CONTENT, REPORTS, AND INFORMATION PROVIDED AS PART OF THE SERVICE, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. You assume all responsibility for the selection of the Service to achieve your intended results. In addition, since Company cannot verify all Your Data, User Content, or information provided by you or other third parties, and errors in gathering or reporting Your Data, User Content, or information may occur, Company does not represent or warrant that the Services are always accurate, complete or current and shall not be liable for or responsible for decisions taken by you as a result thereof COMPANY HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE COMPLETE, ACCURATE, SECURE, UNINTERRUPTED, ERROR FREE, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT DEFECTS WILL BE CORRECTED. COMPANY DOES NOT OFFER A WARRANTY OR MAKE ANY REPRESENTATION REGARDING ANY SOFTWARE, CONTENT, REPORTS, INFORMATION, OR RESULTS THAT YOU OBTAIN THROUGH THE SERVICE. YOUR USE OF AND RELIANCE UPON THE SERVICES AND YOUR DATA AND USER CONTENT IS ENTIRELY AT YOUR SOLE DISCRETION AND RISK, AND COMPANY SHALL HAVE NO RESPONSIBILITY OR LIABILITY WHATSOEVER TO YOU IN CONNECTION WITH ANY OF THE FOREGOING. YOU AGREE THAT WE WILL NOT BE HELD RESPONSIBLE FOR ANY CONSEQUENCES THAT MAY RESULT FROM THIRD PARTY’S HARDWARE, SOFTWARE, COMMUNICATIONS SERVICES OR MATERIALS, OR FROM TECHNICAL PROBLEMS, INCLUDING WITHOUT LIMITATION IN CONNECTION WITH, THE INTERNET (SUCH AS SLOW CONNECTIONS, TRAFFIC CONGESTION, DELAYS OR INTERRUPTIONS OR OVERLOAD OF OUR OR OTHER SERVERS) ANY TELECOMMUNICATIONS, INTERNET PROVIDERS OR OTHER THIRD PARTY SERVICE PROVIDERS. Applicable law may not allow the exclusion of certain warranties, so to that extent the above exclusions may not apply.
13. Limitation of Liability
COMPANY SHALL NOT BE LIABLE FOR ANY INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST PROFITS OR REVENUE, LOSS OF GOODWILL, DATA LOSS, WORK STOPPAGE, OR COMPUTER FAILURE, DELAY OR MALFUNCTION) ARISING OUT OF THE ORDER FORM AND/OR THIS AGREEMENT OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE SERVICE, EVEN IF THE PARTY AGAINST WHOM A CLAIM IS ASSERTED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OTHER THAN YOUR DUTY TO PAY FEES AS PROVIDED IN THE AGREEMENT OR APPLICABLE ORDER FORM, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF COMPANY TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY CLAIMS AND DAMAGES ARISING FROM OR OUT OF THE ORDER FORM AND/OR THIS AGREEMENT OR IN CONNECTION WITH THE USE OF OR THE INABILITY TO USE THE SERVICES (WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE) EXCEED THE TOTAL AMOUNT OF FEES PAID BY YOU TO US FOR THE SERVICES DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DAY THE ACT OR OMISSION OCCURRED THAT GAVE RISE TO YOUR FIRST CLAIM. Applicable law may not allow the exclusion or limitation of liability, so to that extent the above limitations or exclusions may not apply.
14. Copyright and Title
The Services and all copyrights, trade secrets and other proprietary rights therein, including any derivative work, are, and will remain the sole property of Company, regardless of the use made by you; and are protected by certain United States and international copyright laws and trademark laws. The Services are licensed, not sold, to you. This Agreement confers no title of ownership in the Services and are not a sale of any rights in the Services, including any intellectual property rights related thereto.
Company warrants that the Services do not infringe the intellectual property rights of any third party and agrees to hold you harmless and indemnify you with respect to any final judgment obtained by a third party based on a claim that the Services infringe on the intellectual property rights of such third party; provided that you give Company notice of any infringement claim within seven (7) days after receiving notice of the claim. In response to such a claim, we may in our sole and absolute discretion either (1) make modifications to the Services to avoid infringement, (2) obtain a license to use the intellectual property that is alleged to be infringing, or (3) terminate this Agreement and refund the portion of any Fees paid in advance for time periods during which use of the Services is denied.
16. Service Limitations and Modifications
Company will make reasonable efforts to keep the Services operational. However, certain technical difficulties or maintenance may, from time to time, result in temporary interruptions. To the extent permissible under applicable law, we reserve the right, periodically and at any time, to modify or discontinue, temporarily or permanently, functions and features of the Services, with or without notice, all without liability to you, except where prohibited by law, for any interruption, modification, or discontinuation of the Services or any function or feature thereof. You understand and agree that Company has no obligation to maintain, support, upgrade, or update the Services, or to provide all or any specific content through the Services. Company and/or the owners of any Content may, from time to time, remove any such Content without notice to the extent permitted by applicable law.
17. Governing Law and Jurisdiction
The Services are operated by Company from its offices in Colorado in the United States. The validity, construction, and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of Colorado, without reference to choice of law principles. You expressly agree that exclusive jurisdiction for any claim or dispute with Company, this Agreement, or relating in any way to your use of the Services resides in the federal and state courts located in the State of Colorado. You agree to and consent to jurisdiction and venue in the State of Colorado. You agree to waive any defense pertaining to jurisdiction and venue. In the event any provision hereof shall be held by a tribunal of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement shall remain in full force and effect.
18. Attorney Fees
In case of an action to enforce any rights or conditions of this Agreement, or appeal from said proceeding, it is mutually agreed that the losing party in such suit, action, proceeding or appeal shall pay the prevailing party’s reasonable attorney fees and costs incurred.
19. Entire Agreement
This Agreement is a binding contract and constitutes the entire agreement and understanding of the parties, whether oral or written, relating to the subject matter hereof. It is intended as the parties’ final expression and complete and exclusive statement of the terms hereof, superseding all prior or contemporaneous agreements, representations, communications, and understandings, whether written or oral; and may be amended or modified only by an instrument in writing signed by both parties.
No waiver of any provision of this Agreement shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. Failure to enforce any provision of this Agreement shall not operate as a waiver of such provision or any other provision or of the right to enforce such provision or any other provision.
21. Severability; Binding Effect
If any provision of this Agreement shall be invalid or unenforceable in any respect for any reason, the validity and enforceability of any such provision in any other respect and of the remaining provisions of this Agreement shall not be impaired. This Agreement shall be binding on and inure to the benefit of the parties and their heirs, personal representatives, successors, and assigns.
22. Force Majeure
Company will not be liable for or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond Company’s reasonable control.
23. Defense and Indemnification
In addition to the other provisions of this Agreement, you agree to defend, indemnify, and hold harmless Company from and against any damages, losses, costs, judgments, settlements, and other liabilities, including without limitation reasonable attorneys’ fees and court costs, arising out of or related to (1) any actual or threatened third party claim arising out of or based upon your use of the Services, (2) your failure to comply with any of the provisions of applicable law, (3) your breach of any of the provisions of this Agreement, (4) any claim that Your Data or User Content infringe upon the intellectual property rights of any third party, and (5) your interaction with any of your Audiences, Authorized Users, or any other third party.