EFFECTIVE AS OF: JULY 23, 2021
IF YOU DO NOT AGREE TO THESE TERMS, OR IF YOU DO NOT HAVE THE REQUISITE AUTHORITY OR CAPACITY TO ENTER INTO THEM, DO NOT CLICK THE “ACCEPT” BUTTON OR CHECK ANY BOX TO ACCEPT THESE TERMS, AND YOU MUST NOT ACCESS, OR USE THE PLATFORM. YOU AGREE AND ACKNOWLEDGE THAT DOWNLOADING, ACCESSING OR USING ANY PORTION OF THE PLATFORM OR SERVICES IN ANY MANNER CONSTITUTES YOUR ACCEPTANCE OF THESE TERMS IN THEIR ENTIRETY.
1. Changes to this Agreement.
VidLoft retains the exclusive right, in its sole discretion, to make changes to this Agreement from time to time. Your continued access to and use of the Platform constitutes your agreement to be bound by, and your acceptance of, the terms of the Agreement posted at such time, with the effective date indicated at the beginning of this Agreement. You acknowledge and agree that you accept this Agreement (and any amendments thereto) each time you sign into your Account, access, or use the Platform. Therefore, VidLoft encourages you to review this Agreement regularly.
2.1 General. VidLoft shall provide the Platform and accompanying Services in accordance with Company’s Subscription, enabling Company to create, produce, manage, and share production-quality videos using Company’s Content and VidLoft’s Services, including, by way of example, Video Editing Services, Use-Based Services, Updates, Helpdesk Services, and Production Kit(s), to the extent each may be applicable hereunder, including as may be set forth on an Order Form.
2.2 Platform Use.
(a) The Platform’s functionality allows Company the ability to: (i) upload Content created by Company, its End Users, or Third parties on the Company’s behalf; (ii) review, manage, and amend the Content that it has uploaded; (iii) submit the Content to VidLoft, for its professional editing team (the “Editors”) to compile into a finished video (the “Compilation”) as part of VidLoft’s Video Editing Service process; and (iv) to manage, store, and download Compilations.
(b) Subject to Company’s compliance with the terms of this Agreement, including timely payment of Fees, VidLoft hereby grants to Company a non-exclusive, non-transferable, non-assignable, revocable, limited license to access and use the Platform and associated Services, solely through its End Users and solely during the Subscription Term (as defined herein below).
2.3 Platform Data Storage. As part of Company’s Subscription to the Platform, Company’s Account will include a dedicated volume of data storage, which Company may use to store Content and Compilations (“Platform Data Storage”). The specific amount of Platform Data Storage shall depend upon Company’s Subscription level. If Company reaches the limit of its Platform Data Storage volume, it will (a) no longer be able to upload any additional Content to the Platform; and (b) VidLoft will not be able to submit any additional Compilations to Company via to the Platform. Company will be notified via the Platform when it has reached its Platform Data Storage limit, after which, Company will need to delete Content and/or Compilations from its Account. Alternatively, VidLoft may offer to Company additional Platform Data Storage volume, for an additional recurring fee. The specific amount of additional Platform Data Storage volume and amount of the corresponding Fees will be as set forth in the applicable Order Form.
2.4 Platform Maintenance. Company acknowledges that certain maintenance activities involving the Platform may be necessary or appropriate, from time to time, including development and deployment of Updates. In most instances, the VidLoft infrastructure is designed to support Updates by the VidLoft engineering and support teams without the need to interrupt the uptime of the Platform. Where such maintenance activities are not reasonably anticipated to materially impact Company’s use of the Platform, VidLoft will have no obligation to provide notice to Company regarding such maintenance activities, although VidLoft generally endeavors to inform Company, at least twenty-four (24) hours in advance of the same, if VidLoft reasonably determines that maintenance activities will require an unavailability or outage of the Services in excess of fifteen (15) consecutive minutes. VidLoft will use commercially reasonable efforts to perform routine scheduled maintenance during non-business hours. Company acknowledges and agrees that VidLoft may develop and provide Updates in its sole discretion. VidLoft has no obligation to develop any Updates at all or for particular issues, and VidLoft expressly disclaims any liability for not doing so.
Subject to Company’s compliance with the terms of this Agreement, including timely payment of Fees, during the Subscription Term, Company will have the ability to request Services from VidLoft. The specific Services available to Company shall correspond to the Subscription level purchased by Company.
3.1 Video Editing Services.
(a) To request Video Editing Services, Company must firstly create and upload all Content that it desires to include as part of a particular Compilation to the Platform, and then submit such Content to VidLoft through the Platform (each, a “Submission”). VidLoft shall have no obligation to accept Submissions outside of the Platform.
(b) In making each Submission, Company must have available and redeem the number of Credits that correspond to such Submission. The specific number of Credits required for a Submission may vary by the type of Submission, which VidLoft may amend from time to time, with advance notice to Company.
(c) While Company may have the ability to make multiple Submissions at one time, each Submission made shall be accepted by VidLoft individually. All Content included with a single Submission shall be included into one (1) Compilation.
(d) Upon receiving a Submission, VidLoft will confirm receipt thereof, and it will use commercially reasonable efforts to provide the Compilation to Company within the number of days specified as part of Company’s specific Subscription level (the “Turnaround Period”). Unless expressly confirmed otherwise by VidLoft on a case-by-case basis, the Turnaround Period expressly excludes weekends and federal holidays in the United States of America. Company expressly acknowledges and agrees that the Turnaround Period by VidLoft is not guaranteed and is provided on a commercially reasonable-efforts basis.
(e) Upon completing the Compilation, VidLoft shall provide the Compilation to Company for its review and approval by making it available in Platform Data Storage or otherwise to an End User, as appropriate. Company shall have ten (10) days to review the Compilation (the “Review Period”), and either accept it (an “Acceptance”) or to submit a revision request for the Compilation via the Platform (each, a “Revision Request”). Upon receiving a Revision Request, Company shall have a renewed Turnaround Period to make the requested changes and once again re-submit the Compilation to Company. Company shall, once again have the duration of the Review Period to review the Compilation and either accept it or submit another Revision Request. For each Compilation it receives from VidLoft, Company shall have the right to make the number of Revision Requests specified as part of Company’s specific Subscription level at no cost. Each additional Revision Request shall require the use and redemption of the number of Credits that correspond to such additional Revision Request. If Company does not tender its Acceptance of a Compilation provided by VidLoft or submit a Revision Request relating to same by the conclusion of the Review Period, then such Compilation shall be deemed to be accepted by Company for all purposes. Any Revision Requests for Compilations made post-Acceptance shall require the use and redemption of the number of Credits corresponding to an additional Revision Request.
(f) Company acknowledges and agrees that it is solely and exclusively responsible for the type, scope, and quality of the Content that it provides to VidLoft as part of a Submission. Accordingly, the scope and quality of each Compilation provided by VidLoft shall be subject to, and limited by, the quality and scope of the original Content files VidLoft receives from Company as part of the corresponding Submission. VidLoft shall be under no obligation to re-create or substantially alter or customize any Content.
(g) Company acknowledges and agrees that VidLoft shall have the right to final creative control with respect to its Video Editing Services and other Platform Services relating to Content comprising a Submission, for the purpose of providing to Company a production-quality Compilation. As a result, certain portions of the Content may be edited, enhanced, cut, or omitted, as determined by VidLoft in its sole discretion.
(h) VidLoft agrees to exercise reasonable care and judgment in reviewing Submissions made by Company. If all or any portion of the Content submitted is missing, corrupted, defective, or, in VidLoft’s reasonable judgment, of a quality that will not yield a successful Compilation, VidLoft will notify Company thereof. Company shall then have the ability to re-submit Content or submit additional Content, or to request that VidLoft proceed with the original Content provided in the Submission. Upon such an event, the Turnaround Period shall pause, and VidLoft will take no further action until receiving either the required Content or instructions to proceed as-is from Company. IF COMPANY ELECTS TO ISSUE INSTRUCTIONS TO PROCEED WITH VIDEO EDITING SERVICES DESPITE VIDLOFT’S OBJECTIONS ABOUT THE QUALITY, TYPE, OR SCOPE OF THE CONTENT AVAILABLE, VIDLOFT HEREBY DISCLAIMS AND ALL RESPONSIBILITY AND WARRANTIES FOR THE QUALITY, COMPLETION LEVEL, OR ANY OTHER ATTRIBUTE OF THE RESULTING COMPILATION.
3.2 Onboarding Services. If offered by VidLoft, Company may have the option to request Services, for an additional Fee, in connection with Platform onboarding and Account setup for Company and its End Users. Any Services in connection with onboarding, if and as applicable, shall be set forth in a corresponding Order Form which will be attached to and become part of the Agreement. Each Order Form may contain terms and obligations that are different from, or that in addition to, those set forth in this Agreement, subject to Section 13.4(a) hereof.
3.3 Training Services. VidLoft makes available for Company and End Users training Documentation, which may include videos, articles, and other Materials, as part of Company’s Subscription and at no additional cost. If offered by VidLoft, however, Company may have the option to request Services, for an additional Fee, for training Company and its End Users in the use of the Platform and Production Kits. Any Services in connection with training, if and as applicable, shall be set forth in a corresponding Order Form that shall reference and become part of this Agreement. Each Order Form may contain terms and obligations that are different from, or that in addition to, those set forth in this Agreement, subject to Section 13.4(a) hereof.
3.4 Helpdesk Services. Unless otherwise set forth in Company’s specific Subscription level, or unless otherwise agreed to by VidLoft and Company, VidLoft will provide Helpdesk Services in connection with its Platform and Services to Company and End Users solely via email. Furthermore, unless otherwise set forth in Company’s specific Subscription level, or unless otherwise agreed to by VidLoft and Helpdesk Services will be provided during VidLoft’s normal business, which are generally Monday through Friday, 9:00am through 5:00pm US Eastern Time, exclusive of US federal holidays.
3.5 Additional Services. To the extent the same is expressly set forth in an Order Form, Company may be provided the option to receive or purchase additional customizations or enhancements to the Services (the “Additional Services”). The delivery of and fees for the Additional Services will be as set forth in the applicable Order Form.
3.6 Third Party Services. Company may be provided by VidLoft with the option to receive services from a Third Party (via the Platform or otherwise). Such Third Party may, but need not, be an Affiliate of VidLoft. Company acknowledges and agrees that any such option to receive Third Party services are at Company’s sole discretion, and VidLoft makes no recommendations or representations about the abilities or availability of any such Third Party. Any such relationship shall be governed solely by any express agreement(s) between Company and such Third Party, unless Vidloft expressly agrees to be a party to such agreement(s).
3.7 Instructions from End Users. Company acknowledges and agrees that, in connection with any Services, VidLoft shall have the right to take instructions from, and rely upon information provided by, any Company End User registered in connection with Company’s Platform Account, and any such End User shall be deemed to have the necessary authority to act on Company’s behalf in connection with the Platform and Services, expressly to include, but not limited to, Company’s authorization of Fees, Submissions, Use-Based Services, Additional Credits, and Add-On Kits.
4. Production Kits.
Subject to Company’s compliance with the terms of this Agreement, including timely payment of Fees, during the Subscription Term, VidLoft will supply to Company one or more Production Kits unless otherwise set forth in the Order Form.
4.1 Availability of Production Kits.
(a) The specific number of Production Kits available to Company shall correspond to the Subscription level purchased by Company.
(b) VidLoft may make available Add-On Kits to Company, in exchange for the payment of an additional recurring Fee. Any Add-On Kits, if available and if requested by Company, shall be set forth in a corresponding Order Form that shall reference and become part of this Agreement. Each Order Form may contain terms and obligations that are different from, or that in addition to, those set forth in this Agreement, subject to Section 13.4(a) hereof.
4.2 Use of Production Kits.
(a) Production Kits are provided to Company solely for Company’s use in connection with the Platform and the Services, to assist Company in generating high quality Content. Company acknowledges and agrees that Production Kits are not sold Company but provided for Company’s temporary use during the Subscription Term.
(b) Company agrees to utilize Production Kits that it receives for the purpose of creating Content for use with the Platform and the Services.
(c) Company agrees to utilize all Production Kits provided by VidLoft hereunder only within the United States of America, and Company must not remove them outside of the United States of America for any reason without VidLoft’s written permission in advance of such removal.
4.3 Receipt, Storage, and Maintenance of Production Kits.
(a) To receive Production Kits pursuant to the Subscription level selected by Company, Company must provide VidLoft with (i) the mailing address to which Production Kits will be shipped; and (ii) the address of the location where such Production Kits are expected to be stored. To avoid delays and issues with shipping, Company agrees to promptly update VidLoft of any changes to Company’s shipping address for Production Kits.
(b) Company agrees to store, use, and maintain the Production Kits in the same manner in which it stores, uses, and maintains its own equipment of a similar type, but in any event, with no less than a commercially reasonable degree of care. Company shall be responsible for any loss of, or damage or destruction to, the Production Kits for any reason (other than Normal Wear and Tear), including without limitation, due to theft, loss, mysterious disappearance, fire, drops, functional damage, or any other cause. For the purposes of this Section, “Normal Wear and Tear” means non-functional damage to the Production Kits due to normal use. If Company returns a Production Kit that is damaged beyond Normal Wear and Tear, then Company agrees to reimburse VidLoft for the price of repairing or replacing the Production Kit, as determined in VidLoft’s reasonable discretion, up to the full retail value of the Production Kit.
(c) In the event that any Production Kit in use with Company is damaged during the shipping process to Company, Company must note the damage with the carrier at the time of delivery, and further notify VidLoft. Company is responsible for inspecting each Production Kit that it receives for damage before accepting the delivery thereof from the carrier; if Company does not note damage at the time of delivery (unless it is latent), then Company shall be responsible for repair or replacement costs.
(d) In the event that any equipment that is included as part of a Production Kit is defective or begins to malfunction, Company may request a replacement thereof from VidLoft. VidLoft may ship to Company the individual piece of equipment or an entire replacement Production Kit, at VidLoft’s sole discretion. VidLoft will also provide shipping instructions (including those related to labeling and packaging) for return of defective or malfunctioning equipment, and Company agrees to comply with such instructions. In the event that, upon inspection, VidLoft determines that malfunction is the result of Company-caused damage to the equipment (except due to Normal Wear and Tear), then Company shall be responsible for repair or replacement costs of such equipment.
4.4 Ownership of Production Kits; Disclaimer of Warranty for Production Kits.
(a) Company expressly acknowledges and agrees that each Production Kit made available for Company use is, and shall remain, the sole and exclusive property of VidLoft in all events. VidLoft expressly reserves all right, title, and interest in and to all Production Kits provided to Company, and VidLoft shall have the right to take actions it deems necessary to ensure return or recompense for each Production Kit, including without limitation, perfecting VidLoft’s security interest in each Production Kit. Upon VidLoft’s request, Company shall cooperate with VidLoft to complete any document reasonably necessary to perfect VidLoft’s security interest in each Production Kit. Company agrees that it shall not, at any time, sell, transfer, lend, lease, trade, pledge, hypothecate, encumber, file liens involving, whether voluntarily or otherwise, any Production Kit provided to Company by VidLoft hereunder.
(b) Company acknowledges and agrees that VidLoft is not a manufacturer or distributor of any equipment contained as part of the Production Kits, and provides them to Company for Company’s convenience, to assist in Company’s internal Content generation. Accordingly, ALL PRODUCTION KITS AND ALL EQUIPMENT CONTAINED THEREIN ARE PROVIDED BY VIDLOFT TO CUSTOMER ON AN ‘AS-IS’ BASIS, WITH ALL FAULTS, AND WITHOUT ANY WARRANTIES WHATSOEVER. WITH RESPECT TO PRODUCTION KITS AND ALL EQUIPMENT CONTAINED THEREIN, VIDLOFT EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, THE IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE.
4.5 Return of Production Kits.
(a) Upon termination of this Agreement for any reason, Company must return to VidLoft all Production Kits in Company’s possession within fifteen (15) days thereof.
(b) In the event of a cancellation or downgrade of a particular Subscription, Company must return to VidLoft all Production Kits in connection with that Subscription within fifteen (15) days: (a) after the last day of the cancelled Subscription; or (b) following a downgrade in a Subscription, which results in a reduction in the number of Production Kits available to Company at the new Subscription level (except to the extent such new Subscription level permits the retention of one or more Production Kits by the Company).
(c) In the event of a voluntary request by Company to return an Add-On Kit, Company must return to VidLoft the Add-On Kit subject to return within fifteen (15) days of the return date provided by VidLoft. In VidLoft’s sole discretion, Add-On Kits requested to be returned and not timely returned shall continue to incur Fees to account for the Company’s on-going retention or omission to return the Add-On Kits, as may be appropriate, or else shall incur the requisite Holdover Kit Rental Fee (as defined below) and related costs, fees and expenses as set forth in Section 4(d) below.
(d) In the event that Company fails to return a Subscription Kit as set forth in this Section 4, VidLoft reserves the right to charge Company a rental fee for each Production Kit at a rate of four hundred dollars ($400) per month (the “Holdover Kit Rental Fee”), which amount may be amended by VidLoft at any time in VidLoft’s sole discretion, with advance notice to Company. Company shall be responsible for reimbursing VidLoft for all costs, fees, and expenses (including without limitation, attorneys’ fees) that may arise in the course of collecting Holdover Kit Rental Fee amounts and in VidLoft seeking return of Production Kits from Company.
5. Intellectual Property Rights.
5.1 For the Parties. All Intellectual Property Rights belonging to a Party prior to entering into the Agreement shall remain vested in that Party.
5.2 For VidLoft. All title, ownership rights, and Intellectual Property Rights in and to the Platform, Documentation, the VidLoft Materials, Production Kits (to the extent applicable), all VidLoft Marks, and all Feedback (and all Derivative Works and copies thereof) are and will remain owned exclusively by VidLoft Company (and/or its licensors, as applicable). Company acknowledges that the Platform, in source code form, remains proprietary information of VidLoft and that the source code is not licensed to Company by this Agreement or any Order Form, and will not be provided or escrowed by VidLoft. Company further acknowledges and agrees that the Platform is the product of substantial expenditure by VidLoft of labor, skill, and money, and Company’s use of the Platform in contravention of this Agreement would misappropriate the benefits of those expenditures. VidLoft will also retain all Intellectual Property Rights in any Services (except for any Content and Compilations, which are expressly excluded), unless the Parties agree that the same are intended to be transferred to Company in connection with the performance of and payment therefor, as indicated in the applicable Order Form.
5.3 For Company. All title, ownership rights, and Intellectual Property Rights in and to (a) Company data and any other Company Materials that Company owns; (b) Content or other Company Materials that Company uploads to the Platform; and (c) Compilations that Company receives from VidLoft that Company receives as the result of the Services, will remain owned exclusively by Company (and/or its licensors, as applicable).
5.4 Content. The role of VidLoft is only to provide Company with the Services and access to the Platform. Company shall be solely and exclusively responsible for Content that it may use in conjunction with its use of the Platform and/or the Services. Accordingly, Company is solely and exclusively responsible for ensuring that (i) it has all of the rights, licenses, and privileges that are required for all Content that it posts, publishes, transmits, or otherwise makes available through the use of the Platform (whether such content is utilized by/for Company itself, or by/for its clients), and (ii) no portion of the Content is unlawful or infringes upon the rights of any Third Party. At no time shall VidLoft be responsible for any Content that Company uploads to, or that is transmitted through, the Platform, or otherwise provided to VidLoft. VidLoft shall have the right, in its sole discretion, to restrict, limit, or reject the posting, publication, use, storage, or transmission of any Content via the Platform and to remove any Content that has previously been uploaded or transmitted (including Compilations and Content that has been included as part of a Compilation). VIDLOFT MAKES NO REPRESENTATIONS OR ENDORSEMENTS WHATSOEVER ABOUT ANY CONTENT UTILIZED, UPLOADED, OR TRANSMITTED BY COMPANY, ITS END USERS, OR OTHERWISE, AND EXPRESSLY DISCLAIMS ANY LIABILITY WHATSOEVER THAT MAY ARISE OUT OF THE USE, UPLOADING, STORAGE, TRANSMISSION OF ANY CONTENT (OR USE, SHARING, STORAGE, AND TRANSMISSION OF ANY COMPILATIONS).
6. Fees and Payment Terms.
(a) All Fees, inclusive of Fees relating to access to the Platform, Subscriptions, Services, Add-On Kits, Additional Credits, and any other goods or services made available by VidLoft from time to time and ordered by Company, shall be payable by Company on the terms set forth on the applicable Order Form.
(b) For each Subscription, Company agrees to pay the total of all Fees corresponding to each such Subscription, for the entire Subscription Term.
(c) Except as expressly set forth otherwise in an Order Form, all Fees shall be due and payable on a monthly basis (a “Billing Period”) in advance, initially on the Effective Date hereof, and subsequently on the same day of each subsequent calendar month (the “Billing Date”). Company may be provided with the option to prepay Fees in advance on a quarterly or annual basis, in which event VidLoft may offer certain discounts or other incentives, as set forth in the applicable Order Form.
(a) Company expressly agrees to timely pay all Fees due, no later than the Billing Date. For all Fees occurring on a recurring basis, Company agrees to provide VidLoft with a bank account and/or a payment card for use as a payment method; Company further expressly authorizes VidLoft to withdraw funds from the bank account and/or charge the payment card provided by Company for the full amount of the Fees, on or about each Billing Date on a recurring basis, until Company terminates this Agreement or affirmatively cancels the Subscription for which the Fees are collected, in accordance with this Agreement.
(b) All Fees paid by Company under this Agreement, including all prepayments, are final and are non-refundable for any reason, even in the event of early termination or cancellation of a Subscription.
6.3 Acceleration. In the event of termination of this Agreement for any reason other than termination by Company due to breach by VidLoft, the due dates for payment of all Fees (including for all Subscriptions) will automatically be accelerated so that they become due and payable on the date of termination, even if longer terms had been provided previously.
6.4 Price Changes.
(a) VidLoft may, in its sole discretion, amend its Fees and pricing structure for payment of Fees in connection with the Platform, Services, and Subscriptions. All changes in Fees shall be communicated by VidLoft to Company no less than thirty (30) days prior to the effective date of such change. Notwithstanding anything to the contrary herein, for each Subscription, changes to Fees due will take effect only upon the renewal of a Subscription Term of that Subscription.
(b) In addition to the foregoing, to the extent that one or more Third Party providers impose increased costs or expenses on VidLoft that materially affect VidLoft’s cost of delivering one or more Subscriptions to Company, VidLoft reserves the right, in its sole discretion, to propose to pass through any such increased costs and expenses to Company by reasonably increasing the Fees as set forth on the applicable Order Form with respect to the applicable Subscription(s) upon at least thirty (30) days’ prior notice to Company; provided that if Company does not promptly agree in writing to any such increase, then VidLoft may in its sole discretion elect to terminate the applicable Subscription(s) immediately.
6.5 Late Payment. Company’s late payments will accrue interest in the amount of one and one-half percent (1.5%) per month, or the maximum interest allowed under applicable law, whichever is less, on all balances not paid when due on account of all invoices which are not reasonably in dispute. Company shall reimburse VidLoft for all costs incurred by VidLoft in collecting any late payments or interest, including attorneys’ fees, in an amount not to exceed fifteen percent (15.0%) or the maximum amount allowed under applicable law, whichever is less, of the outstanding amount owed, court costs and collection agency fees. VidLoft may, at its option, upon notice and a reasonable opportunity to cure, suspend Company’s access to the Platform, Subscriptions, use of Credits, and provision of the Services, in whole or in part, if VidLoft does not receive all amounts which are due and owing, and not reasonably in dispute, under the Agreement when due; provided that it shall restore normal services promptly upon the clearance of any such disputed amounts.
6.6 Taxes. Unless otherwise required by applicable law, the Fees and expenses due to VidLoft as set forth in the Agreement shall be paid free and clear of any deduction or withholding on account of taxes. Company shall be responsible for all sales, use, value-added, ad valorem or other taxes (including fees, tariffs, levies, duties or charges in the nature of a tax) imposed by any governmental entity upon the sale, use or receipt of the Services (other than taxes based solely on VidLoft’s income). If and when VidLoft has the legal obligation to collect such taxes, VidLoft will invoice Company the amount of such taxes, and Company will pay such amount, unless Company provides VidLoft with a valid tax exemption certificate authorized by the appropriate taxing authority. Company will provide VidLoft with official receipts issued by the appropriate taxing authority or such other evidence as is reasonably requested by VidLoft to establish that such taxes have been paid. The Parties shall reasonably cooperate to more accurately determine each Party’s tax liability and to minimize such liability to the extent legally permissible.
7. Company Obligations.
7.1 Technical Requirements. Company must have the required equipment, software, and Internet access to be able to use the Platform. Acquiring, installing, maintaining and operating equipment, as well as Internet access, is solely Company’s responsibility, except as otherwise expressly provided in an Order Form. VidLoft neither represents nor warrants that the Platform will be accessible through all internet browser releases or all versions of tablets, smartphones, or other computing devices, except for the browsers expressly set in the Documentation made available by VidLoft, if and as applicable, and which VidLoft may update from time to time in its sole discretion.
7.2 Use of Services Restrictions. Company shall not and shall not knowingly permit others in using the VidLoft website, the Platform, or the Services to: (i) defame, abuse, harass, stalk, threaten or otherwise violate or infringe the legal rights (such as rights of privacy, publicity and intellectual property) of others or VidLoft; (ii) publish, ship, distribute or disseminate any harmful, inappropriate, profane, vulgar, infringing, obscene, false, fraudulent, tortious, indecent, unlawful, immoral or otherwise objectionable material or information (including any unsolicited commercial communications); (iii) publish, ship, distribute or disseminate material or information that encourages conduct that constitutes a criminal offense; (iv) misrepresent or in any other way falsely identify Company’s identity or affiliation, including through impersonation or altering any technical information in communications using the Platform or the Services; (v) knowingly transmit or upload any material through the Platform containing viruses, Trojan horses, worms, time bombs, cancelbots, or any other programs with the intent or effect of damaging, destroying, disrupting or otherwise impairing VidLoft’s, or any other person’s or entity’s, network, computer system, or other equipment; (vi) interfere with or disrupt the Platform, networks or servers connected to the VidLoft systems or violate the regulations, policies or procedures of such networks or servers, including unlawful or unauthorized altering of any of the information submitted through the Platform; (vii) attempt to gain unauthorized access to the Platform, other VidLoft customers’ computer systems or networks using the Platform through any means; (viii) copy, modify or create derivative works or improvements of the Platform; (ix) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Platform, in whole or in part; (x) bypass or breach any security device or protection used by the Platform or access or use the Platform other than through the use of then valid access credentials; (xi) remove, delete, alter or obscure any trademarks, Documentation, warranties or disclaimers, or any copyright, trademark, patent or other Intellectual Property Rights notices from any the Platform; (xii) access or use the Platform for purposes of competitive analysis of the Services or the Platform, or the development, provision or use of a competing software service or product or any other purpose that is to VidLoft’s detriment or commercial disadvantage; or (xiii) interfere with another party’s use of the Platform or the Services. VidLoft has no obligation to monitor Company’s use of the Platform; however, VidLoft reserves the right, at all times, to monitor such use, and to review, retain and disclose any information as necessary to ensure compliance with any applicable law, regulation or governmental request.
7.3 Account Activation. VidLoft will provide Company with a master Account in order to access and use the Platform. Company may further be granted the ability to create additional sub-Accounts for use by its End Users. Company is fully responsible for all actions and activities performed on or through Company’s Account and those of its End Users. Company agrees that Company and each End User will: (a) provide true, accurate, current and complete information as prompted by the registration form; (b) maintain and promptly update the registration data to ensure the information is always true, accurate, current and complete; (c) upon receiving knowledge, immediately inform VidLoft of any unauthorized use of an Account or any other breach of security; and (d) exit from the Account at the end of each work session. VidLoft undertakes no obligation to verify the data provided by Company or its End Users. However, if VidLoft finds or reasonably suspects that the provided information is untrue, inaccurate, not current or incomplete, VidLoft may suspend Company’s Account, and suspend or terminate an End User’s Account until such information is updated and verified.
7.4 Password and Account Confidentiality. Each End User that uses the Platform must choose a password when registering. Company shall cause End Users to maintain the confidentiality of the passwords and Accounts. Company will also be assigned a password or passwords for access to and use of the Platform. Company acknowledges that once the initial password provided to Company is changed, VidLoft does not retain the technical ability to retrieve such passwords. Company is fully responsible for all activities that occur using Company and End User Accounts and passwords. Company acknowledges and agrees that VidLoft shall not be liable for any loss that Company or any End User may incur as a result of someone else using an Account or password that has been assigned to or obtained by Company or its End Users, either with or without the knowledge of Company or the applicable End User; nor shall VidLoft be liable or responsible for any unauthorized access or misuse of the Platform by Company or any of its End Users.
7.5 Compliance with Law. Both Parties represent and warrant that they will observe and comply with all applicable laws in connection with their performance under this Agreement. Company will notify VidLoft, promptly and without any undue delay, of any discovered unauthorized use of the Platform or any other breach of security that is known or reasonably suspected by Company. VidLoft may suspend the Services, upon notice and a reasonable opportunity to cure, in the event of a material violation by Company of any obligation contained in this Section 7, until such violation ceases, and VidLoft receives reasonable assurances that such violation will not continue. If VidLoft believes, in its sole discretion, that the VidLoft Platform or Services are being used for criminal activity, in a manner that violates the legal rights of VidLoft, VidLoft’s customers, any user or other Third Party, or is experiencing an actual data loss or data misappropriation, or that the continued operation of the VidLoft Systems places the VidLoft Systems in potential danger of data loss, data breach, or catastrophic failure, then Vidloft may effect such suspension prior to the giving of such notice to Company.
8. Non-Disclosure; Confidentiality; Data Protection.
8.1 Disclosure. Each Party may disclose to the other party certain Confidential Information of such Party or of such Party’s associated companies, distributors, licensors, suppliers, or customers. For purposes of this Agreement, “Confidential Information” means information, that is of value to its owner and is treated as confidential (including all information which is subject to treatment as a ‘trade secret’ under applicable law); the “Disclosing Party” refers to the Party disclosing Confidential Information hereunder, whether such disclosure is directly from the Disclosing Party or through the Disclosing Party’s employees or agents; and “Recipient” refers to the Party receiving any Confidential Information hereunder, whether such disclosure is received directly or through Recipient’s employees or agents.
8.2 Requirement of Confidentiality.
(a) The Recipient agrees to hold all Confidential Information disclosed by to the Recipient by the Disclosing Party in confidence and not to, directly or indirectly, copy, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed, or otherwise transfer the Confidential Information disclosed by the Disclosing Party to any Third Party, or utilize the Confidential Information disclosed by the Disclosing Party for any purpose whatsoever other than as expressly contemplated by the Agreement.
(b) Company acknowledges that the Platform and Documentation, as well as all each Order Form issued in connection with this Agreement, are the Confidential Information of VidLoft.
(c) With regard to all Confidential Information, the obligations in this Section 8.2 shall continue for the Term of the Agreement and for a period of three (3) years thereafter; provided, however, that, with respect to any Confidential Information which is a trade secret under applicable law, the obligations shall continue in perpetuity for so long as such information is considered a trade secret.
(d) The foregoing obligations shall not apply if and to the extent that: (i) the Recipient establishes that the information communicated was publicly known at the time of the Recipient’s receipt or has become publicly known other than by a breach of this Agreement; (ii) prior to disclosure hereunder was already in the Recipient’s possession without restriction as evidenced by appropriate documentation; (iii) subsequent to any disclosure hereunder, the information is obtained by the Recipient on a non-confidential basis from a Third Party who has the right to disclose such information; or (iv) was developed by the Recipient without any use of any of the Confidential Information as evidenced by appropriate documentation. Notwithstanding anything to the contrary herein, if the Recipient is ordered by an administrative agency or other governmental body of competent jurisdiction to disclose the Confidential Information, then the Recipient may disclose the requested Confidential Information; provided, however, that, the Recipient shall first notify the Disclosing Party prior to disclosure, if allowed by law, in order to give the Disclosing Party a reasonable opportunity to seek an appropriate protective order or waive compliance with the terms of this Agreement and shall disclose only that part of the Confidential Information which the Recipient is required to disclose.
8.3 Return of Materials. Upon the request of the Disclosing Party or upon the expiration or termination of the Agreement, the Recipient shall promptly destroy or deliver to the Disclosing Party its Confidential Information and any notes, extracts or other reproductions in whole or in part relating thereto, without retaining any copy thereof. Notwithstanding the foregoing, the Recipient shall be permitted to retain such copies of Confidential Information as may be reasonably necessary for legal or recordkeeping purposes, including such copies as are embedded in the automated backup of electronic data processing systems.
8.4 Data Use. Company hereby acknowledges and agrees that VidLoft has a perpetual and irrevocable right to use and evaluate all Feedback for VidLoft’s own purposes. Company hereby acknowledges and agrees that VidLoft has a perpetual and irrevocable right to use all Feedback and may use the Feedback without accounting or compensation to Company. Company will not provide any Feedback unless Company has all rights necessary to do so. Company hereby assigns to VidLoft Company’s entire right, title and interest (including, without limitation, all patent rights, design rights, copyrights and trade secrets) in any modifications or improvements to the Platform which Company may propose or make, either alone or jointly with VidLoft. Company agrees that any Feedback may be used for the purposes of analysis, including statistical analysis, trend analysis, creation of data models, and creation of statistical rules; provided that such analysis shall be performed solely by VidLoft and such analysis shall be performed only in conjunction with data derived by VidLoft from VidLoft’s performance of services for other customers, input by other VidLoft customers or obtained from party data sources. The results of such analysis (“De-identified Data”) may be used by VidLoft for any lawful internal purpose, including determining future hardware and communications needs for VidLoft systems and determining trends associated with warehouse use, operation, and efficacy, but shall not be sold to any third-party or used for any other commercial purpose.
8.5 Protection of Company’s Proprietary Information. VidLoft agrees to use its best efforts in accordance with industry best practices to implement administrative, physical and technical safeguards necessary to ensure the security, confidentiality and integrity of Company’s Confidential Information and other proprietary information. Except as otherwise provided herein, VidLoft shall only use Company’s Confidential Information to the extent required for the proper delivery of the Services, including as necessary or appropriate to prevent technical problems (e.g., to resolve issues related to technical support).
9. Limited Warranty; Disclaimer of Warranties.
9.1 VidLoft Representations. VidLoft represents and warrants that: (i) it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) it has all rights, licenses, consents and authorizations necessary to grant the rights and licenses granted in this Agreement; (iii) the Platform will operate substantially in conformity with its Documentation under normal use and circumstances; (iv) it shall comply with applicable federal, state and local laws, rules, and regulations when performing its obligations under this Agreement; and (v) to VidLoft’s knowledge, the Platform does not contain, and will not transmit to Company or its systems, any viruses, Trojan horses, timebombs, or any other code, programs or mechanisms that disrupt, modify, delete, harm, or otherwise impede the operation of computer systems.
9.2 No Other Warranties. OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER VIDLOFT, ITS AFFILIATES, LICENSORS OR SUPPLIERS, NOR THEIR OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS OR REPRESENTATIVES MAKES ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO COMPANY, OR ANY OTHER PERSON OR ENTITY WITH RESPECT TO THE PLATFORM, SERVICES, COMPILATIONS, OR PRODUCTION KITS, OR OTHERWISE REGARDING THE AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED OR STATUTORY, AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PLATFORM, SERVICES, COMPILATIONS, AND PRODUCTION KITS ARE PROVIDED TO COMPANY ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND ARE FOR COMMERCIAL USE ONLY.
9.3 Disclaimer of Warranties. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, THE IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE ARE EXPRESSLY EXCLUDED AND DISCLAIMED. NO WARRANTY IS MADE THAT USE OF THE PLATFORM OR SERVICES WILL BE TIMELY, ERROR FREE OR UNINTERRUPTED, THAT ANY NON-MATERIAL ERRORS OR DEFECTS IN THE PLATFORM OR SERVICES WILL BE CORRECTED, THAT THE SYSTEMS THAT MAKES THE PLATFORM AND SERVICES AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS – INCLUDING BUT NOT LIMITED TO ANY SYSTEMS MAINTAINED BY AN INTERNET SERVICE PROVIDER – OR THAT THE PLATFORM WILL OPERATE IN COMBINATION WITH HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED OR RECOMMENDED BY VIDLOFT, OR THAT THE PLATFORM FUNCTIONALITY WILL MEET COMPANY’S REQUIREMENTS. COMPANY ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE PLATFORM IS ACCURATE OR SUFFICIENT FOR COMPANY’S PURPOSE.
9.4 No Warranties for Third Party Services. VIDLOFT MAKES NO REPRESENTATION OR WARRANTY REGARDING ANY PRODUCTS OR SERVICES OFFERED OR PROVIDED BY ANY THIRD PARTY. ANY AND ALL SUCH THIRD-PARTY PRODUCTS AND/OR SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS.”
10. Limitation of Liability.
10.1 Exclusions of Liability. Except in connection with and to the extent of any breach of a Party’s obligations of confidentiality or any indemnification obligations hereunder, in no event shall either Party, its affiliates, licensors or suppliers, or any of their officers, directors, employees, shareholders, agents or representatives be liable to the other Party, or any other person or entity for any indirect, special, incidental, exemplary or consequential damages or loss of goodwill under or in any way relating to this Agreement or resulting from the use of or inability to use the deliverables or the performance or non-performance of any Services, including the failure of essential purpose, even if such Party has been notified of the possibility or likelihood of such damages occurring, and whether such liability is based on any legal or equitable theory, including, but not limited to, contract, tort, negligence, strict liability, products liability or otherwise.
10.2 Maximum Liability. Except for claims arising (a) in connection with and to the extent of any breach of a Party’s obligations of confidentiality hereunder, (b) in connection with a Party’s obligations of indemnification pursuant to Section 11, or (c) in connection with contractual payment obligations hereunder, in no event shall either Party’s liability for any damages to the other Party, or to any other person or entity, regardless of the form of action, whether based on contract, tort, negligence, strict liability, products liability or otherwise, exceed the pro rata portion of Fees received by VidLoft from Company applicable to the six (6) month period immediately preceding the events giving rise to such action.
11.1 VidLoft Indemnification.
(a) VidLoft shall indemnify, defend, and hold harmless Company and its officers, directors, employees and Affiliates and End Users against any Third Party claims, actions or proceedings arising out of or in connection with, and to the extent caused by any infringement by the Platform against any patent, copyright, or trademark, or the misappropriation of any trade secret (except for claims which are specifically excluded under the terms of Section 11.1(b)). If any part of the Platform becomes, or, in VidLoft’s opinion, is likely to become, the subject of any claim of infringement, VidLoft may, at its sole option, (x) obtain for Company the right to continue using the Platform; (y) replace or modify the affected portion of the Platform so that it becomes non-infringing while providing substantially equivalent functionality; or (z) if such remedies are not available on commercially reasonable terms as determined by VidLoft, terminate the license to use the Services for the affected portion of the Platform, and promptly refund any pre-paid (but unearned) Subscription Fees for the affected portion of the Platform.
(b) Notwithstanding any terms contained in Section 11.1(a), VidLoft shall have no liability for infringement claims if the alleged infringement is based on or arises from (i) the combination or use of the Platform with software or other materials not provided or recommended (in writing) for use by VidLoft, (ii) the modification of the Platform by anyone other than VidLoft, (iii) the use of the Platform not in accordance with the Documentation, Materials, or the Agreement, or (iv) the use of other than the then most current version of the Platform, if the use of the most current version of the Platform would have eliminated the infringement, and Company was notified of and given a reasonable opportunity to use the most current version thereof.
11.2 Company Indemnification. Company will indemnify, defend, and hold harmless VidLoft against all claims, actions or proceedings, arising out of any claim that: (i) any Company software, Marks, Content, or Materials directly provided by Company or its End Users or inputted into the Platform, or the permitted use of the same by VidLoft, infringes or violates any Third Party patent, copyright or trade secret right; (ii) Company’s unauthorized use or reproduction of the Platform or any Services; or (iii) Company’s violation of Section 8 of this Agreement.
11.3 Indemnification Obligations. The indemnification provided in Sections 11.1 and 11.2 is conditioned on (i) the party to be indemnified (the “Indemnified Party”) giving the indemnifying party (the “Indemnifying Party”) prompt written notice of such claim; (ii) the Indemnified Party providing its full cooperation in the defense of such claim, if requested by the Indemnifying Party; and (iii) the Indemnified Party granting the Indemnifying Party the sole authority to defend or settle the claim; provided, however, that any settlement does not deprive the Indemnified Party of any future rights. The Indemnified Party may engage legal counsel to monitor, but not control, any such claim at the Indemnified Party’s expense.
12. Term and Termination; Pausing Subscription.
12.1 Agreement Term. The Agreement shall commence on the Effective Date and continue in effect until terminated in accordance herewith (the “Term”).
12.2 Subscription Term. Company may have the opportunity to purchase one or more Subscriptions during the Term of this Agreement. Each Subscription shall commence on the Subscription Start Date set forth in the corresponding Order Form and shall continue in effect until for the period of time prescribed in the Order Form, until it is terminated in accordance herewith (the “Initial Subscription Term”). Upon the expiration of the Initial Subscription Term of a Subscription, unless otherwise set forth in that Subscription shall be renewed automatically for a subsequent period equal to the Initial Subscription Term, unless a different renewal period is set forth in the Order Form or any amendments thereto (each, a “Renewal Subscription Term” and together with the Initial Subscription Term, the “Subscription Term”).
12.3 Agreement Termination. Without prejudice to any other remedies and in addition to any other termination rights herein, the Parties shall have the right to terminate the Agreement as provided below:
(a) By either Party if the other Party commits a material breach of this Agreement and such breach remains uncured thirty (30) days after written notice of such breach is delivered to such other Party;
(b) By either Party if the other Party makes an assignment for the benefit of creditors, or commences or has commenced against it any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws, laws of debtor’s moratorium or similar laws;
(c) By VidLoft, if VidLoft reasonably determines that further provision of the Services would be (or would present a substantial risk) in contravention of any applicable law or rule of any self-regulatory organization;
(d) By VidLoft if any amounts hereunder which are due and owing and not reasonably in dispute remain unpaid for more than fifteen (15) days following written notice of such unpaid amounts being delivered to Company;
(e) By either Party, upon notice, in the event of any documented verbal or written abuse (including threats of abuse or retribution) by any employee, officer, agent, or representative of the other Party that is directed toward any employee, officer, agent, or representative of such Party; provided that prior notice and a reasonable opportunity to address and reasonably remediate the same shall be provided before any such termination notice may be served effectively hereunder;
(f) By either Party, upon the non-renewal by either Party of all of Company’s Subscriptions in accordance herewith.
12.4 Subscription Termination.
(a) Either Party may terminate a Subscription by electing not to renew it by providing the other Party with sixty (60) days’ advance written notice (or thirty (30) days’ advance written notice in the case of month-to-month Subscriptions) prior to the conclusion of the Subscription Term then in effect. VidLoft may, but is not obligated to, provide Company with the ability to submit a non-renewal request, or to automatically decline Subscription renewal, through Company’s Account.
(b) Terminating one (1) Subscription in accordance with this Section shall not terminate any other Subscription or this Agreement.
(c) All Subscriptions shall automatically terminate upon termination of this Agreement pursuant to Section 12.3 hereof.
12.5 Effect of Termination.
(a) Upon expiration or termination of this Agreement for any reason, all access, rights, and licenses granted by VidLoft hereunder to Company and all End Users will immediately cease, and any monies owed by Company to VidLoft shall become due and payable. Upon any expiration or termination of this Agreement, VidLoft shall make Company’s Content and Compilations available to it for a period of at least thirty (30) days.
(b) Upon expiration or termination of this Agreement or a Subscription, as applicable, all Production Kits shall be returned to VidLoft by Company in accordance with the requirements of Section 4 hereof.
12.6 Survival. Termination of this Agreement or any Subscription will not affect the provisions that, by their nature, are intended to survive the termination hereof, including without limitation, provisions: (a) regarding each Party’s treatment of Confidential Information; (b) regarding each Party’s Intellectual Property Rights; (c) relating to the payments of Fees; (d) regarding indemnification provisions; and (e) the provisions limiting or disclaiming a Party’s liability, all of which shall expressly survive such termination.
13.1 Authority. Each Party represents and warrants that it has the legal power and authority to enter into the Agreement. When executed and delivered by both Parties, the Agreement will constitute the legal, valid and binding obligations of such Party, enforceable against such Party in accordance with its terms.
13.2 Governing Law. The interpretation and enforcement of this Agreement, and any dispute related to this Agreement or the Services, will be governed by and construed and enforced in accordance with the laws of State of Georgia, without regard to conflict of law rules or principles (whether of Georgia or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. You agree that we may initiate a proceeding related to the enforcement or validity of our Intellectual Property Rights in any court having jurisdiction. With respect to any other proceeding under this Agreement, the federal and state courts located in Fulton County, Georgia will have exclusive jurisdiction. Company waives any objection to venue in such courts.
13.3 International Conventions. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply in any respect to this Agreement or the Parties hereunder.
13.4 No Conflicts.
(a) In the event of any conflict between the content in this Agreement or an Order Form (if any), the Order Form will control, unless the Order Form expressly states otherwise.
(b) Notwithstanding the content of any Company Order Form or any other document or record, whether in writing or electronic, relating to the subject matter of this Agreement, the terms of the Agreement shall govern and any conflicting, inconsistent, or additional terms contained in such documents shall be null and void.
13.5 Communications; Notices. All communications and notices which are required or otherwise provided under the Agreement shall be in writing and shall be deemed given when delivered (i) by hand, (ii) by registered or certified mail, postage prepaid, return receipt requested; (iii) by a nationally recognized overnight courier service; or (iv) by electronic mail (with read receipt or other tracking mechanism to confirm receipt), to the respective addresses set forth on the first Order Form of this Agreement and Conditions, as each may be amended by the Parties by written notice to the other Party in accordance with this Section 13.5.
13.6 Assignment. Neither Party may assign its rights and obligations under the Agreement without the prior written consent of the non-assigning Party, which, in the case of any proposed assignment to affiliates or successors in interest, shall not be unreasonably withheld, conditioned or delayed. Any assignment in violation of this Section 13.6 shall be void and of no effect. Notwithstanding the foregoing, VidLoft may assign this Agreement to any Third Party acquiring all or substantially all of VidLoft’s equity or assets pursuant to a merger, sale, reorganization, or consolidation with that Third Party without Company’s consent. VidLoft may further delegate its obligations, in whole or in part, to any of its Affiliates without Company’s consent. The Agreement shall be binding upon and inure to the benefit of the Parties and their successors and permitted assigns.
13.7 Severability. In case any one or more of the provisions of this Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.
13.8 Entire Agreement. The Agreement constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes all written or oral prior agreements or understandings with respect thereto. All Schedules attached to the Agreement or subsequently added hereto by mutual consent of the Parties are incorporated into this Agreement for all purposes.
13.9 Waiver. No failure or delay by a Party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
13.10 Modifications to Services and Platform. VidLoft reserves the right, in its sole discretion, to make any changes to the Services and the Platform that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of VidLoft’s services to its customers, (ii) the competitive strength of or market for VidLoft’s services, or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable law; provided that no such changes have the effect of materially degrading the functionality of the Platform.
13.11 Force Majeure. Neither Party shall be in default in the performance of its obligations under this Agreement if such performance is prevented or delayed by reasons of force majeure (the “Force Majeure”), which includes, without limitation, the following: (i) acts of God, flood, fire, wind, storm, drought, earthquake or other natural disaster; (ii) epidemic or pandemic; (iii) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; (iv) nuclear, chemical or biological contamination or sonic boom; (v) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary license or consent; (vi) collapse of buildings, breakdown of plant or machinery, fire, explosion or accident; (vii) any labor or trade dispute, materials or transport, strikes, industrial action or lockouts; (viii) interruption or failure of utility service; or (ix) for any other cause, whether similar or dissimilar to those enumerated, that is beyond the reasonable control and without the fault or negligence of the Party whose performance is affected.
13.12 No Third-Party Beneficiaries. The Agreement is personal to the Parties and no Third Parties shall be considered beneficiaries hereof, for any purposes.
13.13 Non-Solicitation. During the Term of this Agreement and for a period of one (1) year following the termination hereof, Company shall not, without VidLoft’s prior written consent, directly or indirectly solicit or encourage any person to leave the employment or other service of VidLoft or its Affiliates.
- Definitions. Unless otherwise defined herein, the capitalized terms used herein are defined in this Section.
“Account” means Company’s dedicated access to the Platform, through which Company is able to utilize the Platform’s features, upload and manage Content, request Services, and receive and manage Compilations.
“Add-On Kits” means any number of Production Kits provided by VidLoft to Company for its use in connection with the Platform, such Production Kits being provided in excess of the Production Kits included as part of Company’s Subscription.
“Additional Credits” means any number of Credits purchased by Company for use in connection with the Platform in excess of the Credits included as part of Company’s Subscription.
“Affiliate” means an entity that directly or indirectly controls, is controlled by or is under common control with an entity.
“Agreement” has the meaning set forth in the preamble hereof.
“Billing Period” means the specific period of time that is a billing interval for an active Subscription. The Billing Period is set forth in the Order Form.
“Compilation” means the final audio-visual work product resulting from the Video Editing Service provided by VidLoft to Company, using Content provided by Company.
“Content” means all information, materials, pictures, audio, video, artistic works, writings, and other works of authorship.
“Credit” means a unit of currency for use within the Platform, which may be used by Company solely and exclusively for the purpose of redeeming Use-Based Services. The specific number of Credits provided to Company during each Billing Period depends upon Company’s Subscription level and is set forth in the Order Form. All Credits are issued at the beginning of each Billing Period and must be used during the same Billing Period in which they are issued, without forward or backward carryover. A Credit has no independent value outside of Company’s use within the Platform.
“Derivative Works” means any suggestions, contributions, enhancements, improvements, additions, modifications, data, charts, analytics, research, or other works based on, referring to, or derived from the Platform or other VidLoft Materials.
“Documentation” means the materials, the user documentation, and any other operating, training, and reference manuals relating to the use of the Services, as supplied by VidLoft to Company, as well as any Derivative Works thereof.
“End Users” means the Company’s employees, agents, and individual third parties who are authorized by Company and approved by VidLoft to use the Platform, each having an individual Account to access the Platform.
“Feedback” means feedback, suggestions, and ideas that Company or End Users provide to VidLoft concerning improvements or enhancements to the Platform.
“Fees” means all amounts due by Company under this Agreement, including for access to the Platform, any Subscription, Services (including Use-Based Services), Implementation Services, Add-On Kits, Additional Credits, and any other goods or services made available by VidLoft from time to time and ordered or accessed by Company.
“Helpdesk Services” means the customer support services provided by VidLoft in connection with the Platform.
“Implementation Services” means all services provided by VidLoft to Company in connection with the setup, on-boarding, and user training involving the Platform.
“Intellectual Property Rights” means all industrial and other intellectual property rights comprising or relating to: (a) patents; (b) trademarks; (c) internet domain names, whether or not trademarks, registered by any authorized private registrar or governmental authority, web addresses, web pages, website and URLs; (d) works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; (e) trade secrets; (f) integrated circuit layouts, mask works, topographies and the like; and (g) all industrial and other intellectual property rights, and all rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights or forms of protection under the laws of any jurisdiction throughout in any part of the world.
“Marks” means service marks, trademarks, trade names, logos, and any modifications to the foregoing.
“Materials” means data, materials, pictures, documentation, audio, video, artistic works, writings, and other works of authorship.
“Platform” means the VidLoft Software and other technologies provided by VidLoft to Company under this Agreement.
“Production Kit” means a set of video production equipment that includes, for example, one or more of the following: a video camera, high quality zoom lens, media card, lighting apparatus, wired or wireless microphone, teleprompter, tripod, or other associated audio-visual recording and auxiliary equipment owned or provided by VidLoft.
“Order Form” means the ordering document specifying the particulars of Company’s Subscription, access to the Platform, Services, Fees, and other commercial terms. Each Order Form may be a document executed by the Parties and attached hereto (whether on the Effective Date or thereafter), or a webpage or portal on VidLoft’s website that provides such ordering functionality and references this Agreement.
“Services” means, all initial setup, configuration, instruction and training, initial setup and configuration, professional editing of uploaded Content, and Helpdesk Services that may be offered and provided by VidLoft to Company in connection with the Platform. As used herein, the definition of Services expressly include Use-Based Services and Implementation Services.
“Subscription” means a combined package of Platform access, a defined scope of Services, and a specific number of Credits provided by VidLoft to Company on a recurring basis under this Agreement. The Subscription level applicable to Company shall be set forth in the Order Form.
“Third Party” means any entity – whether authorized by statute or otherwise – or natural person that is not VidLoft or Company.
“Update” means provide periodic updates, upgrades, new releases, adaptations, bug fixes, patches, workarounds and other error corrections in connection with the Platform that VidLoft makes generally available free of charge to its customers with Subscriptions to the Platform. All Updates shall be VidLoft Software, and related documentation shall be Documentation.
“Use-Based Services” means all Services in connection with the Platform that VidLoft may offer and provide to Company, such Services being tracked and paid for based on VidLoft’s provision or Company’s access thereof, through the use of Company’s Credit redemptions.
“Video Editing Service” means a Use-Based Service offered by VidLoft that provides cutting, splicing, transitioning, color correction, or audio volume normalization, as applied to Content submitted by Company. Video Editing Service expressly excludes compositions, animations, creation of custom graphics or images, customizations, or audio mastering or feedback removal.
“VidLoft Software” means the cloud-based software and other applications that provide additional functionalities or extend existing software functionalities, including software enabling the submission and management of Content recorded and uploaded by Company and its End Users.