This Master Services Agreement (this “Agreement”) is between ScreenSpace, Inc., a Delaware corporation (“ScreenSpace”) and the individual or legal entity accepting this Agreement (“Customer”) and governs Customer’s access to and use of the Platform and ScreenSpace’s provision of the Services (each, as defined below). This Agreement is effective as of the date of Customer’s acceptance of this Agreement (the “Effective Date”). CUSTOMER ACCEPTS THIS AGREEMENT AND AGREES TO ITS TERMS AND CONDITIONS BY: (1) CLICKING A BOX INDICATING ACCEPTANCE; (2) EXECUTING AN ORDER OR STATEMENT OF WORK (EACH, AS DEFINED BELOW) THAT REFERENCES THIS AGREEMENT; (3) SUBMITTING CREDIT CARD PAYMENT INFORMATION; OR (4) OTHERWISE ACCESSING THE SERVICES. IF CUSTOMER REGISTERS FOR FREE SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL GOVERN THOSE FREE SERVICES.
ANY INDIVIDUAL AGREEING TO BE BOUND BY THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY REPRESENTS THAT SUCH INDIVIDUAL HAS THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT.
IF CUSTOMER AND SCREENSPACE ARE PARTY TO A SEPARATE WRITTEN AGREEMENT GOVERNING CUSTOMER’S ACCESS TO AND USE OF THE PLATFORM AND SCREENSPACE’S PROVISION OF THE SERVICES (THE “SERVICES AGREEMENT”), THAT SERVICES AGREEMENT WILL APPLY IN PLACE OF THIS AGREEMENT AND THIS AGREEMENT WILL BE OF NO FORCE OR EFFECT, EXCEPT WITH RESPECT TO SECTION 3.8, WHICH WILL ALWAYS APPLY WITH RESPECT TO FREE SERVICES (AS DEFINED BELOW).
1.1 “Customer Content” means the text, software, music, sound, photographs, graphics, video, trademarks, service marks, tradenames, and other content that Customer uploads to the Platform to create an Interaction.
1.2 “Customer Data” means the electronic data and information: (a) collected by the Platform about Customer Property End User sessions on the Interactions; and (b) input into the Platform by or on behalf of Customer. Customer Data does not include Usage Data or Aggregated Data.
1.3 “Customer Properties” means the digital properties upon which Customer utilizes the Platform and display an Interaction, as specified in an Order.
1.4 “Customer Property End Users” means visitors to the Customer Properties that the Platform collects information about as a result of their sessions on the Interactions.
1.5 “Documentation” means any user materials, instructions, and specifications made available by ScreenSpace to Customer for the Services.
1.6 “Downloadable Content” means still images from an Interaction made available by ScreenSpace through the Platform that Customer downloads from the Platform for Customer’s use outside of the Platform that directs third parties to the Customer’s Interaction.
1.7 “Free Services” means Software that ScreenSpace makes available to Customer through the Platform free of charge.
1.8 “Interactions” means the videos and interactive experiences that Customer creates using the Platform to display to visitors to the Customer Properties.
1.9 “Order” means any order for access to the Platform submitted by Customer and agreed to (including, but not limited to, Customer’s selection of Platform access made by Customer through the Platform) and accepted by ScreenSpace setting forth the terms and conditions relating to access to the Platform that ScreenSpace will provide. Each Order is incorporated by reference into this Agreement.
1.10 “Platform” means the ScreenSpace’s proprietary platform utilized by ScreenSpace to provide the Software to Customer under this Agreement that allows Customer to create product videos and interactive product experiences to share with its audiences and monitor insights regarding provision of the same. The Platform does not include Customer’s connectivity equipment, internet and network connections, hardware, software and other equipment as may be necessary for Customer and its Users to connect to and obtain access to the Platform or to utilize the Services.
1.11 “Professional Services” means the professional services provided by ScreenSpace as set forth in the applicable Statement of Work (as defined in Exhibit A) and provided in accordance with Exhibit A. Professional Services do not include Support Services
1.12 “ScreenSpace Content” means content, data, and information that is owned by ScreenSpace or any of its licensors that is provided or made available by ScreenSpace through use of the Platform or as part of or in connection with ScreenSpace’s provision of Services. ScreenSpace Content does not include Customer Data or Customer Content.
1.13 “Services” means, collectively, access to and provision of the Platform, including access to and provision of any Free Services offered through the Platform, Professional Services, Support Services, and the other services made available on, by, or through the Platform by ScreenSpace under this Agreement.
1.14 “Software” means ScreenSpace’s proprietary software as a service offering as set forth in the applicable Order, including any modified, updated, or enhanced versions that may become part of the Software.
1.15 “Support Services” means ScreenSpace’s standard technical support and Software maintenance.
1.16 “Usage Data” means any content, data, or information that is collected or produced by ScreenSpace as a result of Customer’s use of the Services that does not identify Customer, its Users, or Customer Property End Users, and may include, but is not limited to, Platform usage patterns, and user conduct associated with the Platform.
1.17 “Users” means Customer’s employees, and independent contractors who are authorized by Customer to use the Services on behalf of Customer.
2.1 Provision of Services. Subject to the terms and conditions of this Agreement, ScreenSpace shall provide the Services to Customer and its Users.
2.2 Cooperation. Customer shall supply to ScreenSpace the Customer Data and Customer Content, along with access and personnel resources that ScreenSpace reasonably requests in order for ScreenSpace to provide the Services, including to implement the Interactions on the Customer Properties.
2.3 Resources. Customer is solely responsible for, at its own expense, acquiring, installing, and maintaining all connectivity equipment, internet and network connections, hardware, software, and other equipment as may be necessary for its Users to connect to and access the Platform.
2.4 Third Party Offerings. ScreenSpace may make access to or use of third-party software services, applications, or functionality that link to, interoperate with, or are incorporated into the Platform available to Customer (collectively, “Third-Party Offerings”). Customer acknowledges that ScreenSpace does not own or control such Third-Party Offerings, they are made available as a convenience only, and are not part of the Platform or subject to any of the warranties, service commitments, or other obligations with respect to Platform under this Agreement and that such Third-Party Offerings are subject to their own terms and conditions. Any acquisition by Customer of Third-Party Offerings, and any exchange of data between Customer and/or its Users and any Third Party Offering is solely between Customer and/or its Users and the applicable Third-Party Offering provider. Access to and use of any Third-Party Offering is at Customer’s own risk and is solely determined by the relevant third-party provider and is subject to such additional terms and conditions applicable to such Third-Party Offering. ScreenSpace may disable or restrict access to any Third-Party Offerings on the Platform at any time without notice. ScreenSpace is not liable for Third-Party Offerings or any Customer Data provided to a third party via a Third-Party Offering.
3. GRANT OF RIGHTS.
3.1 Access Rights; Customer’s Use of the Platform. Subject to the terms and conditions of this Agreement, ScreenSpace hereby grants to Customer, during the Term (as defined below), a non-exclusive, non-transferable (except as permitted by Section 11.3), non-sublicensable right to access and use the Platform: (a) for Customer’s internal business purposes; and (b) to create Interactions to display on the Customer Properties for the marketing of and training on Customer’s own products and services, in each case, in accordance with the Documentation and the terms and conditions of this Agreement and subject to the usage limitations set forth in the applicable Order (both in terms of seats and Interaction views) (collectively, the “Usage Limitations”). ScreenSpace and its licensors reserve all rights in and to the Platform and the Services not expressly granted to Customer under this Agreement.
3.2 Restrictions on Use. Customer shall not (a) reproduce, display (except as otherwise expressly permitted in this Agreement), download, modify, create derivative works of or distribute the Platform or the Interactions, or attempt to reverse engineer, decompile, disassemble or access the source code for the Platform or any component thereof; (b) use the Platform, or any component thereof, in the operation of a service bureau to support or process any content, data, or information of, or create or display an Interaction for, any party other than Customer or in any other way that circumvents the Usage Limitations; (c) permit any party, other than the then-currently authorized Users to independently access the Platform or display the Interactions; (d) use the Platform in any manner or for any purpose, or create or display any Interaction, that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third-party, or that violates any applicable law; (e) use the Platform to store, introduce, or transmit any code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs, and Trojan horses; (f) use the Platform or any Interaction in any manner not expressly permitted under this Agreement; (g) remove, obscure, or alter any proprietary marks or notices from the Platform or Interactions; (h) present the Platform in a way that suggests or implies Customer’s own products and services offer the functionality that the Platform is responsible for; (i) access the Platform if they are or become a competitor of ScreenSpace; or (j) use the Platform to build a competitive product or service or for a competitive purpose.
3.3 Users. Under the rights granted to Customer under this Agreement, Customer may permit its independent contractors and employees to become Users in order to access and use the Platform in accordance with this Agreement; provided that Customer will be liable for the acts and omissions of all and Users to the extent any of such acts or omissions, if performed by Customer, would constitute a breach of, or otherwise give rise to liability to Customer under, this Agreement. Customer shall not, and shall not permit any User to, use the Platform, Software or Documentation except as expressly permitted under this Agreement. Customer is responsible for Users’ compliance with this Agreement.
3.4 Responsibility for Customer Content. Customer acknowledges that ScreenSpace is not responsible for and is under no obligation to review or pre-screen any Customer Content. Notwithstanding the foregoing, ScreenSpace may reject, remove, or delete Customer Content that it, in its sole discretion, deems abusive, defamatory, obscene, in violation of the law, including but not limited to copyright or trademark law, or otherwise unacceptable. Customer hereby irrevocable consents to such monitoring and review. Without limiting the foregoing, Customer shall not distribute any Customer Content via an Interaction or Downloadable Content, or use the Platform, an Interaction, or any Downloadable Content, in a way that: (a) is defamatory, abusive, harassing, threatening, or an invasion of a right of privacy of another person; is bigoted, hateful, or racially or otherwise offensive; is violent, vulgar, obscene, pornographic or otherwise sexually explicit; or otherwise harms or can reasonably be expected to harm any person or entity; (b) is illegal or encourages or advocates illegal activity or the discussion of illegal activities with the intent to commit them, including a submission that is, or represents an attempt to engage in, child pornography, stalking, sexual assault, fraud, trafficking in obscene or stolen material, drug dealing and/or drug abuse, harassment, theft, or conspiracy to commit any criminal activity; (c) infringes or violates any right of a third party including any copyright, patent, trademark, trade secret or other proprietary or contractual rights, right of privacy (specifically, Customer shall not distribute another person's personal information of any kind without their express permission) or publicity, or any confidentiality obligation; (d) contains a virus or other harmful component, or otherwise tampers with, impairs or damages the Platform or any connected network, or otherwise interferes with any other user’s use of the Platform; or (e) disparages the Platform, the Services, or ScreenSpace.
3.5 Responsibility for Customer Data. Customer is responsible for: (a) giving adequate notice and making any required disclosures to Customer Property End Users regarding ScreenSpace’s processing of Customer Data as contemplated in this Agreement; and (b) obtaining all necessary rights, permissions, and valid consents which may be required in order to (i) display the Interactions on the Customer Properties, including the collection of Customer Data in connection therewith; and (ii) permit ScreenSpace’s performance of its obligations and exercise of its rights under this Agreement. Customer shall comply with all applicable privacy laws and cookie rules and regulations.
3.6 ScreenSpace Content. ScreenSpace may make ScreenSpace Content available to Customer for use in creating Interactions through the Platform. The ScreenSpace Content is provided solely as a convenience, and ScreenSpace reserves the right at any time and from time to time to modify or remove any ScreenSpace Content with or without notice to Customer.
3.7 Downloadable Content. ScreenSpace may make Downloadable Content available to Customer via the Platform. Accordingly, subject to the terms and conditions of this Agreement, ScreenSpace hereby grants to Customer, during the Term, a revokable, a non-exclusive, non-transferable (except as otherwise permitted in Section 11.3), non-sublicensable license to reproduce and display Downloadable Content via the Internet solely to promote and direct third parties to Customer’s Interaction; provided that Customer complies with this Agreement. Upon notice from ScreenSpace, Customer shall cease use of the Downloadable Content and delete and remove any Downloadable Content in Customer’s possession (including posted on the Internet).
3.8 Free Services.
(a) Access and Use. ScreenSpace may make Free Services available to Customer. If Customer is accessing and using the Free Services, this Section 3.8 will apply and take precedence over any inconsistent or conflicting terms with respect to the Free Services. Subject to the terms and conditions of this Agreement, ScreenSpace grants to Customer, a revocable, non-exclusive, non-transferable, non-sublicensable right to access and use the Free Services solely for Customer’s internal business purpose of evaluating and testing the Platform and validating the functionality of the Platform to determine whether to purchase a full right to access and use the Platform and subject to any limitations specified by ScreenSpace. Customer may purchase a right to access and use the full production version of the Platform by notifying ScreenSpace prior to the termination of Customer’s use of the Free Services and paying ScreenSpace the applicable Fees (as defined below). Upon payment of such Fees, ScreenSpace will grant Customer a right to access and use the full production version of Platform in accordance with Section 3.1.
(b) Disclaimer. CUSTOMER ACKNOWLEDGES THAT THE FREE SERVICES MAY NOT INCLUDE OR ALLOW ACCESS TO ALL FEATURES AND FUNCTIONALITY AVAILABLE TO PAYING CUSTOMERS CUSTOMER’S USE OF THE FREE SERVICE IS ENTIRELY AT CUSTOMER’S OWN RISK. SCREENSPACE IS NOT OBLIGATED TO PROVIDE SUPPORT SERVICES FOR THE FREE SERVICE OR CORRECT ANY BUGS, DEFECTS, OR ERRORS IN THE FREE SERVICES OR SUPPORT OR MAINTAIN THE FREE SERVICES. NOTWITHSTANDING SECTIONS 7.1 AND 8.1 AND THE CAP ON DAMAGES IN SECTION ERROR! REFERENCE SOURCE NOT FOUND., THE FREE SERVICES ARE PROVIDED “AS-IS”, WITHOUT ANY WARRANTIES OF ANY KIND, AND SCREENSPACE WILL HAVE NO SUPPORT SERVICE OR WARRANTY OBLIGATIONS, INDEMNIFICATION OR DEFENSE OBLIGATIONS, OR LIABILITY OF ANY TYPE WITH RESPECT TO THE FREE SERVICES, UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW, IN WHICH CASE IN NO EVENT WILL SCREENSPACE’S LIABILITY WITH RESPECT TO THE FREE SERVICES EXCEED $100. EXCEPT AS ALTERED IN THIS SECTION 3.8, ALL OTHER TERMS OF THIS AGREEMENT APPLY AND GOVERN CUSTOMER’S USE OF THE FREE SERVICE. SCREENSPACE MAY DISCONTINUE, SUSPEND, OR REMOVE FREE SERVICES (INCLUDING ANY CUSTOMER CONTENT STORED AS PART OF THE FREE SERVICES) OR TERMINATE CUSTOMER’S ACCESS THERETO AT ANY TIME IN SCREENSPACE’S SOLE DISCRETION AND WITHOUT NOTICE AND CUSTOMER ACKNOWLEDGES THAT SCREENSPACE WILL NOT BE LIABLE FOR SUCH DISCONTINUATION, SUSPENSION, REMOVAL, OR TERMINATION.
4. FEES AND PAYMENT TERMS.
4.1 Price. Customer shall pay ScreenSpace the fees set forth in the applicable Order and Statement of Work (“Fees”) in accordance with the terms of this Agreement. Fees are exclusive of, and Customer shall pay all taxes, fees, duties, and other governmental charges arising from the payment of any Fees or any amounts owed to ScreenSpace under this Agreement (excluding any taxes arising from ScreenSpace’s income or any employment taxes). Fees for any Services requested by Customer that are not set forth in a Statement of Work or an Order will be charged as mutually agreed to by the parties in writing.
4.2 Payment. ScreenSpace will bill Customer’s credit card for all Fees. Customer shall provide ScreenSpace with accurate and complete billing information including legal name, address, telephone number, and credit card or debit card billing information. If such information is false or fraudulent, ScreenSpace may terminate Customer’s use of the Services and Customer’s access to the Platform in addition to seeking any other legal remedies. Customer’s agreement with its credit card or other payment provider governs Customer’s use of the designated credit card and payment provider account, and Customer must refer to that agreement and not this Agreement to determine Customer’s rights and liabilities. By providing ScreenSpace with Customer’s credit card number or payment provider account and associated payment information, Customer hereby authorizes ScreenSpace to charge Customer’s credit card or account for all Fees and charges due and payable to ScreenSpace under this Agreement and that no additional notice or consent is required. ScreenSpace will bill such charges in advance, in accordance with any billing frequency stated in the applicable Order or Statement of Work. ScreenSpace is not responsible for any charges or expenses (e.g., for overdrawn accounts, exceeding credit card limits, etc.) resulting from charges billed by ScreenSpace. If the Order or Statement of Work specifies that payment will be invoice instead of credit card, Customer shall pay to ScreenSpace all Fees within 30 days after Customer’s receipt of the applicable invoice for such Services. If Customer disagrees with any Fees set forth in an invoice, Customer must notify ScreenSpace of the dispute within 30 days after receipt of such invoice. If ScreenSpace does not receive notice of a dispute during such 30 day period, Customer will be deemed to have accepted the Fees set forth in the invoice. All payments received by ScreenSpace are non-refundable except as otherwise expressly provided in this Agreement. Customer shall make all payments in United States dollars.
5. TERM AND TERMINATION.
5.1 Term. This Agreement commences on the Effective Date and, unless terminated earlier in accordance with this Agreement, continues until all Orders and Statements of Work have terminated (“Term”).
5.2 Order Term. The initial term of an Order begins on the date set forth in the Order and continue for the period set forth in the Order (the “Subscription Term”). Each Order will automatically renew for additional periods equal to the length of the Subscription Term (each, a “Renewal Term”), unless a party gives the other party written notice of its intent to not renew at least 30 days prior to the end of the then current Subscription Term. Each Statement of Work begins on the date set forth in the Statement of Work and continues for the period set forth in the Statement of Work. For the avoidance of doubt, Statements of Work do not automatically renew.
5.3 Termination for Cause. A party may terminate on or more of the following: this Agreement, a Statement of Work, and an Order upon notice if the other party breaches any material provision of this Agreement and (provided that such breach is capable of cure) does not cure such breach within 30 days after being provided with written notice of such breach.
5.4 Effects of Termination. Upon termination of this Agreement and all Statements of Work and Orders: (a) all amounts owed to ScreenSpace under this Agreement before such termination will be due and payable in accordance with Section 4; (b) Customer’s rights granted in this Agreement will immediately cease; (c) Customer shall promptly discontinue all access and use of the Platform and Downloadable and return or erase, all copies of the Documentation and Downloadable Content in Customer’s possession or control; and (d) ScreenSpace shall promptly return or erase all Customer Data, except that ScreenSpace may retain Customer Data in ScreenSpace’s archived backup files. Sections 3.4, 3.5, 3.8(b), 4, 5.4, 6, 7.3, 8, 9, 10, and 11 survive expiration or termination of this Agreement.
5.5 Suspension. Notwithstanding anything to the contrary in this Agreement, ScreenSpace may suspend Customer’s access to the Platform if ScreenSpace determines that: (a) there is an attack on the Platform; (b) Customer’s or any of its Users’ use of the Platform poses a reasonable risk of harm or liability to ScreenSpace and, if capable of being cured, Customer is not taking appropriate action to cure such risk; (c) Customer has breached Sections 3.2 or 10; (d) Customer’s or its Users’ use of the Platform violates applicable law; (e) Customer has failed to pay any undisputed charge owed under this Agreement when due and has failed to cure such late payment within 15 days after ScreenSpace has provided Customer with written notice of such late payment; or (f) Customer has exceeded any of the Usage Limitations. ScreenSpace shall use commercially reasonable efforts to provide Customer with notice of such suspension. ScreenSpace may suspend Customer’s access to the Platform until the situation giving rise to the suspension has been remedied to ScreenSpace’s reasonable satisfaction. ScreenSpace’s suspension of Customer’s access to the Platform will not relieve Customer of its payment obligations under this Agreement.
6. PROPRIETARY RIGHTS.
6.1 Customer Data and Customer Properties. As between the parties, Customer owns all right, title, and interest in and to the Customer Data, Customer Content, and Customer Properties, including all intellectual property rights therein.
6.2 Customer License Grant. Customer hereby grants to ScreenSpace and its authorized representatives and contractors, during the Term, a limited, non-exclusive, non-transferable (except as permitted by Section 11.3) license to use the Customer Data and Customer Content solely for the limited purpose of performing the Services for Customer and fulfilling its other obligations and exercising its rights under this Agreement.
6.3 The Services. All proprietary technology utilized by ScreenSpace to perform its obligations under this Agreement, including, but not limited to, ScreenSpace Content, the Interactions (but excluding Customer Content within the Interaction), and the Downloadable Content (but excluding Customer Content within the Downloadable Content), and all intellectual property rights in and to the foregoing, as between the parties, are the exclusive property of ScreenSpace. ScreenSpace or its third party licensors retain ownership of all right, title, and interest to all copyrights, patents, trademarks, trade secrets, and other intellectual property rights in and to the ScreenSpace Content and the Platform, including without limitation the Software, Documentation, customizations, and enhancements, and all processes, know-how, and the like utilized by or created by ScreenSpace in performing under this Agreement. Any rights not expressly granted to Customer hereunder are reserved by ScreenSpace.
6.4 Aggregated Data. Notwithstanding anything in this Agreement to the contrary, ScreenSpace may analyze Customer Data to create de-identified and aggregated data that does not identify Customer, its Users, or Customer Property End Users (collectively, “Aggregated Data”). ScreenSpace retains ownership of all right, title, and interest in and to Aggregated Data. ScreenSpace may use Aggregated Data for any lawful purpose, including, but not limited to, to improve, market, and provide the Services.
6.5 Usage Data. ScreenSpace retains ownership of all right, title, and interest in and to the Usage Data. ScreenSpace may use Usage Data in connection with its performance of its obligations in this Agreement and for any other lawful business purpose, including, but not limited to, benchmarking, data analysis, and to improve ScreenSpace’s services, systems, and algorithms.
7. WARRANTY; DISCLAIMERS.
7.1 Access to the Platform. ScreenSpace warrants that the Platform will perform materially in accordance with the Documentation and this Agreement. ScreenSpace does not warrant that the Platform will be completely error-free or uninterrupted. If Customer notifies ScreenSpace of a reproducible error in the Platform that indicates a breach of the foregoing warranty (each, an “Error”) within 30 days after Customer first experiences such Error, ScreenSpace shall, at its own expense and as its sole obligation and Customer’s exclusive remedy: (a) use commercially reasonable efforts to correct or provide a workaround for such Error; or (b) if ScreenSpace is unable to correct or provide a workaround for such Error within 60 days after receiving notice of such Error from Customer, Customer may terminate this Agreement upon notice to ScreenSpace and, ScreenSpace shall refund the amounts paid by Customer for access to the Platform for the following ScreenSpace’s receipt of notice of the Error. The warranties set forth in this Section 7.1 do not apply to any Third Party Offerings or cover any Error caused by: (i) Customer or its Users; (ii) use of the Platform in any manner or in any environment inconsistent with its intended purpose; (iii) Customer’s hardware or software if modified or repaired in any manner which materially adversely affects the operation or reliability of the Platform, or (iv) any equipment, software, or other material utilized by Customer in connection with the Platform contrary to the provider’s instructions.
7.2 Customer Warranty. Customer represents and warrants that it has the right to: (a) use the Customer Data as contemplated by this Agreement; and (b) grant ScreenSpace the rights and licenses granted to ScreenSpace under this Agreement. In addition, Customer represents and warrants that the Customer Content does not infringe or misappropriate any intellectual property right of any other person.
7.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7 AND SECTION 7 OF EXHIBIT A, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND AND EACH PARTY SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
8.1 Claims Against Customer. ScreenSpace shall defend any claim, suit, or action against Customer brought by a third party to the extent based on an allegation that the Software or ScreenSpace Content infringes any intellectual property rights of such third party (a “Customer Claim”), and ScreenSpace shall indemnify and hold Customer harmless, from and against damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and other legal expenses) (collectively, “Losses”) that are specifically attributable to such Customer Claim or those costs and damages agreed to in a settlement of such Customer Claim. The foregoing obligations are conditioned on Customer: (a) promptly notifying ScreenSpace in writing of such Customer Claim; (b) giving ScreenSpace sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at ScreenSpace’s request and expense, assisting in such defense. If any portion of the Platform (including, but not limited to, ScreenSpace Content) becomes, or in ScreenSpace’s opinion is likely to become, the subject of a claim of infringement , ScreenSpace may, at its option and at its own expense either (i) procure for Customer the right to continue using the Platform and ScreenSpace Content, (ii) replace the Software or ScreenSpace Content with a non-infringing but functionally equivalent product, (iii) modify the Software or ScreenSpace Content so it becomes non-infringing; or (iv) terminate this Agreement and refund the amounts Customer paid for access to the Platform that relate to the period during which Customer was not able to use the Platform. Notwithstanding the foregoing, ScreenSpace will have no obligation under this Section 8.1 with respect to any infringement claim based upon: (1) any use of the Platform or ScreenSpace Content not in accordance with this Agreement; (2) any use of the Platform or ScreenSpace Content in combination with products, equipment, software, content, or data that ScreenSpace did not supply or approve of if such infringement would have been avoided without the combination with such other products, equipment, software, content, or data; (3) any modification of the Platform or ScreenSpace Content by any person other than ScreenSpace or its authorized agents or subcontractors; (4) any Third-Party Offering; or (5) Customer’s continued use of the applicable portion of the Platform after Customer’s receipt of written notice from ScreenSpace of a claim of infringement or Customer’s continued use of ScreenSpace Content after Customer’s receipt of a written notice from ScreenSpace to remove and delete any ScreenSpace Content. This Section 8.1 states ScreenSpace’s entire liability and Customer’s sole and exclusive remedy for infringement claims or actions.
8.2 Claims Against ScreenSpace. Customer shall defend, any claim, suit, or action against ScreenSpace brought by a third party to the extent that such claim, suit, or action is to the extent arising out of or related to one or more of the following: (a) ScreenSpace’s use of any Customer Data in accordance with this Agreement; (b) Customer’s use of any Customer Data; (c) any Customer Content; (d) Customer Materials; (e) any Interaction (or use thereof); (f) Customer’s use of any Third-Party Property (as defined in Exhibit A); or (f) Customer’s use of Downloadable Content (except to the extent qualifying as a Customer Claim) (each, a “ScreenSpace Claim”) and Customer shall indemnify and hold ScreenSpace harmless, from and against Losses that are specifically attributable to such ScreenSpace Claim or those costs and damages agreed to in a settlement of such ScreenSpace Claim. The foregoing obligations are conditioned on ScreenSpace: (a) promptly notifying Customer in writing of such ScreenSpace Claim; (b) giving Customer sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at Customer’s request and expense, assisting in such defense. Notwithstanding the foregoing, Customer will have no obligation under this Section 8.2 or otherwise with respect to any ScreenSpace Claim to the extent based upon ScreenSpace’s use of the Customer Data in violation of this Agreement.
9. LIMITATIONS OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, OR FOR ANY LOST DATA, LOST PROFITS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING FROM OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES (INCLUDING PROFESSIONAL SERVICE FEES (AS DEFINED IN EXHIBIT A)) PAID OR OWED BY CUSTOMER TO SCREENSPACE UNDER THIS AGREEMENT IN THE 12 MONTHS PRECEDING THE EVENTS GIVING RISE TO LIABILITY. THE EXCLUSIONS AND LIMITATION OF LIABILITIES SET FORTH IN THIS SECTION 9 DO NOT APPLY TO A PARTY’S OBLIGATIONS UNDER SECTION 8, TO LIABILITY ARISING FROM A PARTY’S BREACH OF SECTION 10, OR TO LIABILITY ARISING FROM CUSTOMER’S BREACH OF SECTIONS 3.2 OR 3.4.
10.1 Definitions. “Confidential Information” means all information disclosed by one party (“Discloser”) to the other party (“Recipient”) under this Agreement during the Term. Confidential Information includes information that is marked or identified as confidential and, if not marked or identified as confidential, information that should reasonably have been understood by Recipient to be proprietary and confidential to Discloser or to a third party. ScreenSpace’s Confidential Information includes Software and Documentation. Customer’s Confidential Information includes Customer Data.
10.2 Protection. Recipient shall not use any Confidential Information for any purpose not expressly permitted by this Agreement and shall not disclose Confidential Information to anyone other than Recipient’s employees and independent contractors who have a need to know such Confidential Information for purposes of this Agreement and who are subject to confidentiality obligations no less restrictive than Recipient’s obligations under this Section 10. Recipient will be liable to the Discloser for any of its independent contractor’s acts or omissions, which, if performed by Recipient, would constitute a breach of this Section 10. Recipient shall protect Confidential Information from unauthorized use, access, and disclosure in the same manner as Recipient protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
10.3 Exceptions. Recipient shall have no confidentiality obligations under Section 10.2 above with respect to any information of Discloser that Recipient can document: (a) was already known to Recipient prior to Discloser’s disclosure; (b) is disclosed to Recipient by a third party who had the right to make such disclosure without violating any confidentiality agreement with or other obligation to the party who disclosed the information; (c) is, or through no fault of Recipient has become, generally available to the public; or (d) is independently developed by Recipient without access to or use of Confidential Information. Recipient may disclose Confidential Information if required to as part of a judicial process, government investigation, legal proceeding, or other similar process on the condition that, to the extent permitted by applicable law, Recipient gives prior written notice of such requirement to Discloser. Recipient shall take reasonable efforts to provide this notice in sufficient time to allow Discloser to seek an appropriate confidentiality agreement, protective order, or modification of any disclosure, and Recipient shall reasonably cooperate in such efforts at the expense of Discloser.
11.1 Independent Contractor. The relationship of the parties established under this Agreement is that of independent contractors and neither party is a partner, employee, agent, or joint venture partner of or with the other, and neither party has the right or authority to assume or create any obligation on behalf of the other party.
11.2 Subcontractors. ScreenSpace may utilize subcontractors, subprocessors, and other third-party service providers (collectively, “Subcontractors”) in the performance of its obligations, provided that ScreenSpace will remain liable and responsible for the Subcontractors’ acts and omissions to the extent any of such acts or omissions, if performed by ScreenSpace, would constitute a breach of, or otherwise give rise to liability to ScreenSpace under, this Agreement when they are performing for or on behalf of ScreenSpace.
11.3 Assignment. Neither party may assign this Agreement or any of its rights under this Agreement to any third party without the other party’s prior written consent; except that a party may assign this Agreement without consent from the other party to any successor to its business or assets to which this Agreement relates, whether by merger, acquisition, or sale of all or substantially all of its assets, or otherwise. Any attempted assignment in violation of the foregoing will be void and of no force or effect.
11.4 Feedback. Periodically and at ScreenSpace’s request, Customer shall provide to ScreenSpace comments, criticisms, suggested improvements and other feedback, about the use, operation, functionality and features of the Service (collectively, the “Feedback”). Feedback includes, without limitation, any information about operating results, known or suspected bugs, errors or compatibility problems, and user-desired features. In addition, Customer shall report to ScreenSpace any unusual, unplanned or out-of-the-ordinary performance of the Service observed by any of Customer’s Users. Customer hereby grants to ScreenSpace a perpetual, irrevocable, worldwide license to use any Feedback, without compensation, without any obligation to report on such use, and without any other restriction. ScreenSpace’s rights granted in the previous sentence include, without limitation, the right to exploit Feedback in any and every way, as well as the right to grant sublicenses .
11.5 Force Majeure. Except for payment obligations, neither party will be liable for any breach of this Agreement, or for any delay or failure of performance, resulting from any cause beyond that party’s reasonable control.
11.6 Notices. To be effective, notices under this Agreement must be delivered in writing by email , courier, or certified or registered mail (postage prepaid and return receipt requested) to the other party at the address listed below and will be effective upon receipt, or in the case of email, upon confirmation of receipt. The parties may update their notice address by providing the other party with notice in accordance with this Agreement.
If to ScreenSpace:
4845 Pearl E. Circle #101
Boulder CO 80301
If to Customer: At the address that ScreenSpace has on file
11.7 Governing Law; Venue. The laws of the State of Colorado govern this Agreement and any matters related to this Agreement, without regard to any conflicts of laws principles that would require the application of the laws of a different jurisdiction. The parties hereby submit to the exclusive jurisdiction of, and waive any venue objections against, state or federal courts sitting in Denver, Colorado in any litigation arising out of this Agreement or the Services.
11.8 Remedies. Each party acknowledges that any actual or threatened breach of Sections 3.2 or 10 will constitute immediate, irreparable harm to the non-breaching party for which monetary damages would be an inadequate remedy, that injunctive relief is an appropriate remedy for such breach, and that if granted, the breaching party agrees to waive any bond that would otherwise be required. If any legal action is brought by a party to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other legal expenses, in addition to any other relief it may receive from the non-prevailing party.
11.9 Compliance with Laws. Each party shall comply with all laws, rules, and regulations, applicable to that party in connection with this Agreement.
11.10 Modification. ScreenSpace may modify this Agreement at any time, upon written notice to Customer. Any such modification will become effective with respect to the applicable Order upon the commencement of the Renewal Term for such Order following the date of such notice. If Customer does not agree to the modified Agreement, Customer may choose to not renew the then-current term. Except as otherwise set forth in this Section, this Agreement may not otherwise be modified except by a written amendment signed by an authorized representative of each party.
11.11 Waivers. To be effective, any waivers must be in writing and signed by the party to be charged. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
11.12 Severability. If any provision of this Agreement is unenforceable, the other provisions of this Agreement will be unimpaired, and the unenforceable provision will be deemed modified so that it is enforceable to the maximum extent permitted by law (unless such modification is not permitted by law, in which case such provision will be disregarded).
11.13 Counterparts. Any written Order or Statement of Work may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument.
11.14 Entire Agreement. This Agreement, including any Statement of Work, Order and any exhibits or attachments thereto, constitute the final and entire agreement between the parties regarding the subject hereof and supersedes all other agreements, whether written or oral, between the parties concerning such subject matter. No terms and conditions proposed by either party shall be binding on the other party unless accepted in writing by both parties, and each party hereby objects to and rejects all terms and conditions not so accepted. To the extent of any conflict between the provisions of this Agreement and the provisions of any Statement of Work or Order, the provisions of the Agreement shall govern unless the Statement of Work Order specifically overrides this Agreement.
Subject to the terms and conditions of the Agreement, and to the extent purchased by Customer, ScreenSpace shall provide the Professional Services to Customer as follows:
1. Professional Services. ScreenSpace shall perform the Professional Services as described in one or more statements of work mutually agreed upon by the parties (each, a “Statement of Work”). Each Statement of Work is incorporated by reference into this Agreement. Customer acknowledges and agrees that the schedule set forth in any Statement of Work is an estimate only and is subject to change as the Professional Services proceed. All Professional Services and Deliverables (as defined below) will be deemed accepted upon delivery.
2. Changes. In the event either party requires a material change to a Statement of Work, such party will provide a written change order to the other for approval, specifying the change required (each a “Change Order”). Each party agrees that a Change Order may necessitate a change in the delivery schedule and fees due under the applicable Statement of Work. No Change Order will be binding upon either party until it is signed by the authorized representatives of both parties. Each Statement of Work and Change Order will be governed by the terms of this Agreement.
3. Customer Materials and Assistance. Customer acknowledges that in order to perform the Professional Services, ScreenSpace requires access to certain intellectual property, content, data, information, and materials, including, but not limited to, trademarks, branding, and software of Customer and Customer’s suppliers (collectively, “Customer Materials”). Customer shall provide ScreenSpace with the Customer Materials, along with any assistance, access, and personnel resources that ScreenSpace reasonably requests in order for ScreenSpace to perform the Professional Services. Customer acknowledges that ScreenSpace’s ability to successfully perform the Professional Services is contingent upon ScreenSpace’s receipt from Customer of such Customer Materials and such assistance, access, and personnel resources. Accordingly, ScreenSpace will not be deemed in breach of this Agreement and will have no liability for failure to perform, or any other deficiencies in, the Professional Services or for damages resulting from: (a) Customer’s failure to provide any Customer Materials or any such assistance, access, and personnel resources; (b) the acts or omissions of Customer, its agents, or employees; or (c) performance of the Professional Services in accordance with Customer’s instructions.
4. Revisions; Acceptance. Except as otherwise provided in the applicable Statement of Work, Customer may provide ScreenSpace with: (i) up to two rounds of revisions for any interim Deliverable during the production process for such Deliverable, and (ii) one round of revisions for any final Deliverable, except that any requested revisions to the final Deliverable that differ from the pre-approved script, edit, and design for such Deliverable will be treated as a request for a Change Order in accordance with Section 2. Without limiting the revision rights set forth in this Section and any applicable warranties set forth in the Agreement, the Professional Services will be deemed accepted upon performance and any Deliverables delivered pursuant to a Statement of Work will be deemed accepted upon delivery to Customer.
5. Professional Service Fees and Expenses.
5.1 Professional Service Fees. As consideration for the Professional Services and Deliverables provided by ScreenSpace hereunder, Customer shall pay ScreenSpace the fees set forth in the applicable Statement of Work (“Professional Service Fees”). Professional Service Fees are exclusive of, and Customer shall pay all taxes, fees, duties, and other governmental charges arising from the payment of any Professional Service Fees or any amounts owed to ScreenSpace under this Agreement (excluding any taxes arising from ScreenSpace’s income or any employment taxes). Professional Service Fees for any Professional Services requested by Customer that are not set forth in the Statement of Work will be charged at ScreenSpace’s then current time and materials rates.
5.2 Expenses. Unless expressly specified otherwise in a Statement of Work, Customer shall reimburse ScreenSpace for reasonable preapproved travel, lodging and meal expenses, and such other costs and expenses, including expenses for licensing Third-Party Property (as defined below), as ScreenSpace may incur in connection with the performance of Professional Services (collectively, “Expenses”)
5.3 Payment Terms. Except as otherwise set forth in a Statement of Work, Customer shall pay all Professional Service Fees and Expenses within 30 days after the invoice date for such Professional Service Fees and Expenses. All payments received by ScreenSpace for the Professional Service Fees and Expenses are non-refundable except as otherwise expressly provided in this Exhibit. Customer shall make all payments in United States dollars. If Customer does not make any payments when due under this Exhibit, Customer shall: (a) pay ScreenSpace interest on such unpaid amounts at a rate equal to the lesser of 1.5% per month and the maximum rate permitted by applicable law, from the due date until paid; and (b) reimburse ScreenSpace for reasonable costs ScreenSpace incurs (including legal fees) in collecting any late payments.
6. Ownership; Assignment; License.
6.1 Customer Materials. As between the parties, Customer retains all right, title, and interest in and to Customer Materials provided to or made available to ScreenSpace under this Agreement. Customer hereby grants to ScreenSpace a non-exclusive, non-transferable (except as otherwise provided in Section 11.3) license to use the Customer Materials as necessary for ScreenSpace to perform the Professional Services and provide the Deliverables.
6.2 Assignment of Deliverables. The parties understand and agree that Customer owns all Deliverables (exclusive of ScreenSpace Property and Third-Party Property (each, as defined below)) and, subject to Customer’s payment of all applicable Fees, ScreenSpace hereby assigns to Customer all right, title, and interest worldwide in and to such Deliverables, including all intellectual property rights therein, but excluding ScreenSpace Property and Third Party Property, which are licensed to Customer in Section 6.4 of this Exhibit and Section 6.5 of this Exhibit, respectively. “Deliverable” means any item ScreenSpace creates for and delivers to Customer under this Agreement and identified as a “Deliverable” in the applicable Statement of Work, including Work Product included in such Deliverable or necessary for Customer to fully utilize such Deliverable. “Work Product” means all (a) all designs, ideas, know-how, processes, techniques, and inventions that ScreenSpace makes, develops, conceives or reduces to practice, whether alone or jointly with others, in the course of performing the Professional Services, (b) enhancements, modifications, improvements, and derivative works of each and any of the foregoing; and (c) copyrights, trademarks, service marks, trade secrets, patents, patent applications, and other proprietary rights related to each and any of the foregoing.
6.3 License to Deliverables. Customer hereby grants to ScreenSpace the right and license to use the Deliverables in order to promote and market ScreenSpace’s products and services to potential customers.
6.4 ScreenSpace Property. As between the parties, ScreenSpace owns all (a) software, tools, routines, programs, content, designs, technology, intellectual property, ideas, know-how, processes, techniques, and inventions that ScreenSpace uses, makes, develops, or reduces to practice, whether alone or jointly with others or otherwise obtained by ScreenSpace prior to, independently of, or outside the scope of this Agreement, (b) Work Product that has applicability to ScreenSpace’s provision of services to its customers generally, (c) all enhancements, modifications, improvements and derivative works of each and any of the foregoing, and (d) intellectual and proprietary rights related to each and any of the foregoing (collectively, “ScreenSpace Property”).
6.5 License to ScreenSpace Property. Subject to the terms and conditions of this Agreement, ScreenSpace hereby grants to Customer a non-exclusive, perpetual, worldwide, fully-paid right and license, with the right to grant sublicenses, under all of ScreenSpace’s intellectual property rights, to all ScreenSpace Property included in any Deliverable or necessary for Customer to fully utilize any Deliverable, to use, reproduce, distribute, publicly display, publicly perform, and create derivative works of such ScreenSpace Property solely in connection with Customer’s use of such Deliverables for lawful marketing and training purposes on the condition that Customer does not: (a) reproduce, distribute, or use ScreenSpace Property other than as components of the Deliverable, or (b) sublicense any rights in ScreenSpace Property other than in support of Customer’s internal business purposes. Notwithstanding the forgoing and for the avoidance of doubt, Customer’s license to the ScreenSpace Property provided under this Exhibit does not include access to the Platform, which is provided to Customer under Section 3 of the main body of the Agreement.
6.6 License to Third-Party Property. In connection with the Professional Services and Deliverables, ScreenSpace may license for Customer rights to certain third party intellectual property incorporated in the Deliverables, including, but not limited to, stock assets, video footage, images, 3D models, audio tracks, and voiceovers (collectively, “Third-Party Property”). Customer’s use of the Third-Party Property is subject to the terms and conditions of the applicable license agreement for such Third-Party Property and Customer shall comply with such license agreement. To the extent permitted under the applicable license agreement to the Third-Party Property, ScreenSpace hereby assigns to Customer the applicable license to such Third-Party Property and any of ScreenSpace’s rights and obligations under such Agreement.
6.7 Reservation of Rights. Any rights not expressly granted by ScreenSpace to Customer under this Agreement are reserved by ScreenSpace, its licensors and suppliers..
7. Limited Warranty. ScreenSpace warrants to Customer that: (a) the Professional Services will be performed in a professional manner consistent with industry standards; and (b) the Deliverables will materially conform the specifications set forth in the applicable Statement of Work. If Customer notifies ScreenSpace of a breach of the foregoing warranties specifying the breach in reasonable detail within 30 days after ScreenSpace performs the non-conforming Professional Services or delivers the non-conforming Deliverable, ScreenSpace shall, at its own expense and as its sole liability and Customer’s exclusive remedy for breach of the foregoing warranty: (i) use commercially reasonable efforts to re-perform the Professional Services or re-deliver the Deliverable which gave rise to the breach; or (ii) if ScreenSpace cannot re-perform such defective Professional Services or re-deliver such defective Deliverable to Customer within 60 days after receiving notice of the breach, Customer may terminate the applicable Statement of Work upon written notice to ScreenSpace, and ScreenSpace shall refund to Customer the fees paid for such defective Professional Services and/or Deliverables.