Updated January 2021
Terms of Use Agreement
This Terms of Use Agreement (“Terms of Use”) is made as of the Effective date (“Effective Date”) indicated on the signed and executed Hosted Software Application Agreement together with all Purchase Agreements incorporated therein and/or other mutually agreed upon form of agreement for Services (“Agreement”), between uStudio, Inc. (“uStudio”) and the customer (“Customer”) as identified in the signed and executed Agreement.
General Terms and Conditions
1.PROVISION OF SERVICES
uStudio will make the following purchased services available to Customer, subject to the terms and conditions of Terms of Use and each Agreement signed or otherwise accepted by both Customer and uStudio, including without limitation: (a) use of the Subscription Services; (b) professional services, custom software development and training services (“Professional Services”); and (c) any additional services (collectively the “Services”).
2. SERVICES
2.1. Subscription Service
An Agreement for Subscription Services specifies the term of authorized use of the Subscription Services (“Subscription Term”), the fees and other charges for the Subscription Services, any special payment terms, the scope of use, and capacity at or through which Customer is permitted to use the Subscription Services. If Customer exceeds its permitted use of the Subscription Services, Customer agrees to pay such Overage fees as set out in the applicable Agreement. uStudio may review Customer’s use of the Subscription Services, and Customer shall provide any reasonable assistance, to verify Customer’s compliance with the Agreement. uStudio may suspend Customer’s use of the Subscription Services after giving thirty (30) days’ written notice of non-compliance identified in such review, in addition to any other rights or remedies uStudio may have.
2.2. Professional Services
Professional Services to be provided to Customer shall be described in one or more Agreement signed by uStudio and Customer.
2.3. Payment Terms
Except as expressly set forth in the applicable Agreement(s): (a) Subscription Services fees are invoiced annually in advance; (b) Professional Services fees are invoiced in advance of the work being performed; and (c) Customer shall pay each invoice in full within thirty (30) days after the date of invoice in (United States dollars). If Customer specifies in an Agreement that it is issuing a purchase order for such Agreement, then uStudio shall reference the applicable Customer purchase order number on its invoices (solely for administrative convenience) so long as Customer provides the purchase order number to uStudio at least five (5) business days prior to the date of the applicable uStudio invoice. Late payments shall accrue interest at a rate of one and one-half percent (1.5%) per month or the legal maximum interest rate, whichever is lower. If Customer is delinquent in payment of amounts for the Services owed hereunder, uStudio may give notice to Customer of such delinquency and, in such case, Customer will have fifteen (15) days from the date of uStudio’s written notice to cure the delinquency. If Customer fails to cure the delinquency, uStudio may, in addition to its other rights and remedies provided hereunder or at law, terminate or suspend the affected Service.
2.4. Taxes
All payments required by Terms of Use are exclusive of federal, provincial, local and foreign taxes, duties, tariffs, levies and similar assessments. Customer agrees to bear and be responsible for the payment of all taxes, duties, tariffs, levies, fees and charges of any kind, including sales, use, excise or value added taxes, and all other similar charges (collectively, “Taxes”) which are imposed on transactions under Terms of Use by or under the authority of any government body, excluding Taxes based solely upon uStudio’s net income. Customer shall make all payments required without deduction of any Taxes, except as required by law, in which case the amount payable shall be increased as necessary so that after making any required deductions and withholdings, uStudio receives and retains (free from any liability for payment of Taxes) an amount equal to the amount it would have received had no such deductions or withholdings been made. If Customer is a tax-exempt entity or claims exemption from any Taxes under Terms of Use, Customer shall provide a certificate of exemption upon execution of Terms of Use and, after receipt of valid evidence of exemption, uStudio shall not charge Customer any Taxes from which it is exempt.
2.5. Affiliates
“Affiliates” shall mean any person or entity directly or indirectly Controlling, Controlled by or under common Control with a party to the Agreement, where “Control” means the legal power to direct or cause the direction of the general management of the company, partnership or other legal entity. Customer may, subject to uStudio’s prior written approval, provide access to the Subscription Services to one or more of its Affiliates (“Customer Affiliates”) subject to the terms, conditions and restrictions in the Agreement. Customer shall be responsible for the acts and omissions of the Customer Affiliate for its use of the Subscription Services. No Customer Affiliate shall have the right to take any legal action against uStudio under the Agreement or any Agreement unless such Customer Affiliate executes an Agreement directly with uStudio.
3. GRANT OF USE RIGHTS; OWNERSHIP; CUSTOMER RESTRICTIONS
3.1. uStudio Applications
uStudio hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable restricted, limited, worldwide right to allow Authorized Users to (i) remotely access and use the uStudio Platform as explicitly set forth in applicable Agreement; and (ii) remotely access and use the associated Documentation, solely in accordance with the terms and conditions of Terms of Use and the uStudio Terms of Use.
3.2. uStudio Content
The Subscription Services may contain Content (as defined below) owned by uStudio or its providers or licensors (“uStudio Content”). uStudio Content is protected by copyright, trademark, patent, trade secret and other laws, and uStudio owns and retains all rights in the uStudio Content and the Subscription Services. Customer is hereby granted a limited, revocable, non-sublicensable license to view, or listen to, as applicable, the uStudio Content solely for Customer’s personal, internal use in connection with viewing and using the Subscription Services.
3.3. Third Party Services
The Subscription Services may contain features or functionality designed to interoperate and/or integrate with software, applications or services that are provided by a Person other than uStudio (e.g., uStudio applications) (“Third Party Services”). To use such features, Customer may be required to obtain access to such Third Party Services from their providers (which may require Customer to pay fees to the provider of such Third Party Services). If the provider of any such Third Party Services ceases to make the Third Party Services available for interoperation with the corresponding Services features or functionality, uStudio may cease providing such features or functionality without entitling Customer to any refund, credit, or other compensation.
3.4. Documentation
uStudio hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable restricted, limited, worldwide right during the Subscription Term to access and use the uStudio Online Help Knowledgebase (the “Documentation”), as updated by uStudio from time to time (“Documentation”).
3.5. Customer Data
Customer may upload to the uStudio Platform, or provide to uStudio by other means, videos, files, content and other information (“Customer Data”). Customer hereby grants uStudio a non-exclusive, non-transferable, non-sublicensable restricted, limited, worldwide right to use Customer Data solely as required for uStudio to perform the Services.
3.6. Software
uStudio may provide uStudio software products (“Software”) for use in connection with the Subscription Services. Any Software is licensed and not sold (even if for convenience uStudio makes reference to words such as “sale” or “purchase”), and uStudio grants Customer a non-exclusive, non-transferable, non-sublicensable restricted, limited, worldwide license to install and execute the Software on machines operated by or for Customer solely to permit Customer to use the Subscription Services during the Subscription Term in accordance with the terms and conditions of Terms of Use. The Software or Deliverables (as defined in Section 3.18) may include code that is licensed under third party license agreements, including open source, made available or provided with the Software or Deliverables as applicable.
3.7. Accounts
Customer represents and warrants that all information that Customer submits or has submitted when registering Customer’s Account is accurate, current and complete, and that Customer will keep the Customer Account information accurate, current and complete. Customer is solely responsible for the activity that occurs on Customer’s Account, whether authorized by Customer or not, and Customer agrees to keep Customer’s Account information secure. Customer may not share or otherwise allow anyone else to use Customer Account. Customer is solely responsible for the confidentiality and use of Customer Account. Customer may not transfer Customer Account to any third party without uStudio’s prior written approval. Customer must notify uStudio immediately of any breach of security or unauthorized use of Customer’s Account or known or suspected breach of the Subscription Services. USTUDIO WILL NOT BE LIABLE FOR ANY LOSS INCURRED DUE TO ANY UNAUTHORIZED USE OF CUSTOMER’S ACCOUNT. CUSTOMER, HOWEVER, MAY BE LIABLE FOR ANY LOSS INCURRED BY USTUDIO OR OTHERS CAUSED BY CUSTOMER’S ACCOUNT (INCLUDING, BUT NOT LIMITED TO, ANY ACTIVITY UNDER OR THROUGH CUSTOMER’S ACCOUNT), WHETHER CAUSED BY CUSTOMER OR BY AN UNAUTHORIZED PERSON. The foregoing sentence shall survive the termination or expiration of Terms of Use.
3.8. Title and Ownership
(a) Customer acknowledges and agrees that: (i) except as expressly and specifically set forth in the Agreement and Terms of User, uStudio retains all right, title and interest in and to the uStudio Platform, the Subscription Services and the Documentation, and any copies and/or derivative works thereof including, without limitation, associated intellectual property rights under copyright, trade secret, patent, trademark and/or other applicable domestic and international laws; (ii) any configuration or deployment of the uStudio Platform shall not affect or diminish uStudio’s rights, title and interest in and to all or any portion of the uStudio Platform; (iii) uStudio may modify, revise or update the uStudio Platform or associated Documentation, provided any such revision does not materially decrease the functionality of the uStudio Platform.
(b) As between Customer and uStudio, any and all trademarks that uStudio uses in connection with the Services are owned by uStudio and any goodwill associated with the use of such marks shall inure to the benefit of uStudio. In no event shall the Subscriptuion Services be deemed sold or assigned to Customer. The Subscription Services (including, but not limited to, all uStudio Content (as defined below)) remain the property of uStudio and are licensed and not sold to Customer under Terms of Use. Customer acknowledges and agrees that there are no implied licenses granted under Terms of Use, and all rights, not granted to Customer hereunder shall remain with uStudio. Nothing in Terms of Use shall adversely affect any rights and recourse to remedies, including, but not limited to, injunctive relief, that uStudio may have under any applicable laws relating to the protection of uStudio intellectual property or other rights.
3.9. Customer Content
(a) uStudio does not claim any ownership rights in any Content the Customer uploads to the Subscription Services (“Customer Content”). After upload of Customer Content on, through, or in connection with the Subscription Services, Customer continues to retain any such rights that Customer may have in Customer Content, subject to the following limited license granted by Customer in Terms of Use. By uploading any Content on, through or in connection with the Subscription Services, Customer hereby grants to uStudio a worldwide, royalty-free, fully paid-up, non-exclusive, sublicensable and transferable license to Customer Content in order to perform such acts with respect to Customer Content solely as are reasonable or necessary to provide the Subscription Services, including without limitation, the right to: (i) deliver Customer Content in accordance with the preferences set by Customer utilizing the uStudio Platform; (ii) secure, encode, reproduce, host, cache, route, reformat, analyze and create algorithms and reports based on access to and use of Customer Content; (iii) use, exhibit, broadcast, publish, publicly display, publicly perform, distribute, create derivate works of, promote, copy, store, and/or reproduce (in any form) Customer Content on or through the Subscription Services; and (iv) utilize Customer Content to test uStudio’s internal technologies and processes. Customer also hereby grants, or allows uStudio to grant, each Visitor, or other user of the Subscription Services a non-exclusive license to use, access and view Customer Content through the Subscription Services, and to use, reproduce, distribute, display and perform Customer Content as permitted through the functionality of the Subscription Services and under Terms of Use. The foregoing licenses granted by Customer in Customer Content terminate after the earlier of when (a) Customer removes or deletes Customer Content from the Subscription Services, or (b) the termination or expiration of Terms of Use. Customer acknowledges and agrees, however, that uStudio may retain, but not display, distribute, or perform, server copies of Customer Content that have been removed or deleted. uStudio reserves the right to limit the storage capacity of Customer Content as set out in the Agreement.
(b) Customer represents and warrants that: (i) it owns the Customer Content or otherwise has the right to grant the licenses set forth in Section 3.9(a), (ii) the uploading of Customer Content on, through, or in connection with the Subscription Services does not and will not violate the privacy rights, personal, publicity rights, copyrights, contract rights or any other rights of any Person; and (iii) no fees or payments of any kind shall be due by uStudio to any organization for the distribution of Customer Content as contemplated by Terms of Use and Customer agrees to pay for all royalties, fees, and any other monies owing to any Person by reason of the use of any Customer Content.
(c) Customer also represents and warrants that Customer is solely responsible and liable for: (i) obtaining all necessary consents, permissions, licenses and waivers from copyright owners, artist(s), actors, directors, performers, writers, producers, or any other individuals who appear in the Customer Content or the results and proceeds of whose services are utilized in the Customer Content which Customer provides; (ii) obtaining any required synchronization and master use licenses from the owners of (or their designated representatives) the musical compositions and sound recordings embodied in the Customer Content; (iii) any payments to any labor unions and guilds, to the extent required under applicable collective bargaining agreements or otherwise (e.g., residuals, re-use, rerun and other similar fees) with respect to Customer Content and the use thereof pursuant to the Subscription Services; and (iv) obtaining public performance licenses from public performance rights collection organizations (e.g., SOCAN, ASCAP, BMI or SESAC).
(d) Customer acknowledges that the technical processing and transmission of the Videos may involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices. Should any Video be found or reported to be in violation of, but not limited to, the terms of service of any applicable Destination, network carrier or other necessary third-party service, the Parties shall work together in good faith to resolve such issues.
(e) Customer acknowledges that any transmission of a Customer Video to any Destination by an Authorized User is and shall be the sole responsibility and liability of Customer.
(f) Customer acknowledges that that uStudio shall have the right in its sole discretion to refuse to accept, transmit, or move, any Video that is available via the uStudio Platform relating to any violation of the restrictions set forth in Terms of User.
(g) Customer indemnifies, defends, and holds uStudio and its subsidiaries, affiliates, employees, officers, directors and contractors harmless against any third party liabilities, claims, demands, suits (including costs and attorney fees) arising from or related to any Customer Data infringing a registered trademark or copyright to the extent that such infringement is not the result of uStudio’s actions.
3.10. Content on the Subscription Service
Customer acknowledges and agrees that uStudio and the Subscription Services are passive conduits of the Customer Content and uStudio has no obligation to edit, review, monitor or oversee Customer Content submitted, uploaded, distributed, retrieved, or viewed in connection with use of the Subscription Services, and uStudio assumes no responsibility or liability relating thereto. Customer further acknowledges and agrees that the Subscription Services and the Content provided by third parties may contain errors or omissions. Under no circumstances will uStudio be liable in any way for any user or other third party Content or Customer Content, including, but not limited to, for any defamation, infringement, falsehoods, errors or omissions in any such Content, or for any loss or damage of any kind incurred as a result of the use or publication of any such content posted, delivered, emailed or otherwise transmitted via the Subscription Services. uStudio cannot and does not guarantee the accuracy, completeness and quality of any Content appearing on, or otherwise made available by, the Subscription Services, including, but not limited to, any uStudio Content. Customer acknowledges and agrees that reliance on any Content accessible through the Subscription Services is solely at Customer’s own risk. USTUDIO WILL NOT BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR THE USE, MISUSE OR RELIANCE ON ANY CONTENT. Customer acknowledges and agrees that uStudio is not responsible for preventing or identifying infringement of intellectual property rights or other violations associations with any Content available on the Subscription Services, including without limitation Customer Content, and uStudio assumes no responsibility for screening or monitoring for possible (i) infringement or enforcing Customer rights or third party rights with respect to any Content (including, but not limited to, Customer Content), (ii) unlawful, inappropriate or unpermitted use, (iii) libel, falsehoods, errors or omissions contained in any Content, or (iv) noncompliance with Applicable Laws.
3.11. Prohibited Content
Customer is solely responsible for the Content that Customer uploads in connection with the Subscription Services. In connection with Customer use of the Subscription Services, Customer may only upload Content for the lawful, stated purposes of the Subscription Services. uStudio reserves the right to investigate and take appropriate legal action against anyone who, in uStudio’s sole discretion, violates this provision, including, without limitation, removing the offending Content from the Subscription Services, terminating or suspending Customer’s Account or access to the Subscription Services, and Terms of Use and/or reporting such Content or activities to law enforcement authorities. Customer shall not upload or otherwise use in connection with the Subscription Services any Prohibited Content. “Prohibited Content” includes, without limitation, Content that, in the sole discretion of uStudio: (i) is pornographic or contains sexually explicit content (including nudity) or offensive subject matter or contains a link to an adult website; (ii) contains graphic or gratuitous violence; (iii) conveys a message of hate against any individual or group based upon their race, religion, age, gender, nationality, sexual orientation or language; (iv) encourages or glorifies drug use; (v) is predatory in nature, or is submitted for the purpose of harassment or bullying; (vi) is highly repetitive and/or unwanted, including “Spam” messages; (vii) is offensive or promotes or otherwise incites racism, bigotry, hatred or physical harm of any kind against any group or individual; (viii) constitutes or promotes information that Customer knows is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; (ix) furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities including making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses; or (x) violates or attempts to violate the privacy rights, publicity rights, copyrights, trademark rights, contract rights or any other rights of any Person.
3.12. Content Preservation and Disclosure
Customer expressly acknowledges and agrees that uStudio may preserve and store Customer Content and may also disclose Customer Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (i) comply with legal processes; (ii) comply with the terms of Terms of Use; (iii) respond to claims that any Customer Content violates the rights of any Person; or (iv) protect the rights, property, or personal safety of uStudio, its licensors, suppliers, partners, resellers, or users and/or the public.
3.13. Information Rights and User Data
(a) Information and data may be generated and captured in connection with Customer’s use of the uStudio Platform (“Captured Data”). uStudio acknowledges that some of the Captured Data may contain proprietary information as it pertains to Customer and its operations. Customer acknowledges that, in connection with uStudio’s provisioning of the Subscription Services and any related Professional Services, uStudio has the right to access, use, and directly manipulate the Captured Data.
(b) uStudio may aggregate Captured Data in such a way that does not identify Customer or any Authorized User personally (“Aggregated Data”). Data extracted from the uStudio Platform that does not individually identify Customer or any Authorized User and which is aggregated with data of other customers and Authorized Users and their end users shall be the property of uStudio. uStudio may use such Aggregated Data, including without limitation data captured such as end user views, number and duration of views, and Destination related data, to understand how its Subscription Services are used, to develop new products and services, to promote its products and services and their impact on operational and financial results, and uStudio may sell or license or otherwise provide access to such Aggregated Data to third parties. To the extent any such Aggregated Data includes Customer Data (but not including individually identifiable information related to Authorized Users), Customer hereby grants to uStudio an irrevocable, perpetual, royalty-free, nonexclusive license, with the right to sublicense, to use, license, sell and otherwise disclose to third parties such Aggregated Data.
(c) uStudio and its affiliates may retain and use, subject to the terms of its Privacy Policy, information collected in Customer’s use of the Subscription Services. Except for Aggregated Data, uStudio will not share Customer’s User Data or any Third Party’s User Data with any third parties unless uStudio (i) has Customer consent for the use of any User Data or any Third Party’s consent for the use of the Third Party’s User Data; (ii) concludes that it is required by law or has a good faith belief that access, preservation or disclosure of User Data is reasonably necessary to protect the rights, property or safety of uStudio, its users or the public; or (iii) provides User Data in certain limited circumstances to third parties to carry out tasks on uStudio’s behalf (e.g., billing or data storage) with strict restrictions that prevent the data from being used or shared except as directed by uStudio. When this is done, other than in connection with Third Party Services, such User Data and Third Party User Data is subject to agreements that oblige those parties to process User Data and Third Party User Data only in accordance with uStudio’s instructions and in compliance with Terms of Use and appropriate confidentiality and security measures. Where Customer elects to use Third Party Services, Customer is deemed to consent to the sharing of User Data with the providers of such Third Party Services as necessary for the provision of those Third Party Services.
3.14. Third Party Materials/Products/Services
Any third party products, Content, services or links displayed on or through the Subscription Services are not referrals or endorsements of any product, service or provider; any and all such offerings are displayed solely for convenience only. The Subscription Services may in some cases be permitted for use with third party applications (including, without limitation, websites, widgets, software, or other software utilities) (“Application(s)”) that interact or integrate with the Subscription Services. These Applications and Third Party Services may import or export data related to Customer Account, activity and/or Content and otherwise gather data from Customer. These Applications and Third Party Services are provided solely as a convenience to Customer, and uStudio is not responsible for such Applications or Third Party Services. Applications and Third Party Services may also be subject to their own, separate license agreements or special pass-through terms, and Customer assume all risks and liabilities associated with the use of any such third party offerings, including, without limitation, the obligation to pay fees in connection therewith. SUCH APPLICATIONS AND THIRD PARTY SERVICES ARE OWNED OR OPERATED BY THIRD PARTIES THAT ARE NOT RELATED TO WITH OR SPONSORED BY USTUDIO AND MAY NOT BE AUTHORIZED FOR USE WITH THE SUBSCRIPTION SERVICE IN ALL COUNTRIES. USE OF AN APPLICATION IS AT CUSTOMER OWN OPTION AND RISK. For clarity, nothing in this Section 3.14 diminishes uStudio’s obligations to Customer under Terms of Use with respect to uStudio’s (or its licensors’ or suppliers’) technology within the Subscription Services (the “uStudio IP”), but instead relates to any access and/or use of third party products and/or services that Customer elects to utilize in connection with the uStudio IP (regardless of whether uStudio provides integration services at Customer request in connection with third party products and/or services).
3.15. Networks
Customer acknowledges and agrees that the technical processing and transmission of the Subscription Services, including Customer Content, may involve (i) transmissions over various networks; and/or (ii) changes to conform and adapt to technical requirements of connecting networks or devices. Customer further acknowledges and agrees that use of or connection to the Internet provides the opportunity for unauthorized Persons to circumvent such precautions and illegally gain access to the Subscription Services, the uStudio Platform or Customer Content. ACCORDINGLY, USTUDIO DOES NOT GUARANTEE THE PRIVACY, SECURITY OR AUTHENTICITY OF ANY CONTENT, DATA OR INFORMATION SO TRANSMITTED OVER OR STORED IN ANY SYSTEM CONNECTED TO THE INTERNET.
3.16. Submission of Feedback and Suggestions
Customer may from time to time provide to uStudio ideas, comments, suggestions or other feedback regarding improvements or additions to the Subscription Services. By submitting to uStudio comments, messages, suggestions, ideas, concepts, feedback or other information about the Subscription Services, uStudio and/or its operations (collectively, “Submissions”), Customer hereby: (a) represents and warrants that none of the Submissions are confidential or proprietary to Customer or to any other Person; (b) represents and warrants that none of the Submissions or the making thereof breach any agreement to which Customer is a party; and (c) grants to uStudio and its Affiliates an exclusive fully paid-up, royalty-free, perpetual, irrevocable, unrestricted, transferable, sub-licensable, worldwide right and license to: (i) use, copy, publish, transmit, perform and display the Submissions for any purpose; (ii) create derivative works from such Submissions; and (iii) implement and use the Submissions and any suggestions, concepts or ideas contained therein without compensation to Customer from uStudio or any other Person. Customer also waives in favor of uStudio and its successors and assigns any and all of Customer moral rights in and to all Submissions. Furthermore, Customer agrees that uStudio is not responsible for the confidentiality of any Submissions.
3.17. Restrictions
Customer shall not (and shall not permit others to): (i) license, sub-license, sell, re-sell, rent, lease, transfer, distribute or time share the Subscription Services, Software, or Documentation, or make any of them available for access by third parties, including without limitation, in the manner of a service bureau or hosted application; (ii) create derivative works based on or otherwise modify the Subscription Services, Software or Documentation; (iii) disassemble, reverse engineer or decompile the Subscription Services or Software; (iv) access the Subscription Services, Software or Documentation in order to develop a competing product or service; (v) use the Subscription Services or Documentation to provide a service for others; (vi) use the uStudio Platform to operate more or different types of applications than permitted under the applicable Agreement(s); (vii) use or send viruses or other harmful computer code; (viii) interfere with the integrity of the Subscription Services or its data; (ix) remove or modify a copyright or other proprietary rights notice on or in the Subscription Services, Software or Documentation; (x) use the Subscription Services to reproduce, distribute, display, transmit or use material protected by copyright or other intellectual property right (including the rights of publicity or privacy) without first obtaining the permission of the owner; (xi) use a computer or computer network to cause physical injury to the property of another; (xii) violate any law or regulation of the United States, any state thereof or other government authority; (xiii) disable, hack or otherwise interfere with any security, digital signing, digital rights management, verification or authentication mechanisms implemented in or by the Subscription Services; (xiv) include, send, store or run software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs from the Subscription Services; (xv) disrupt the integrity of the Subscription Services; (xvi) temporarily or permanently remove, copy, add, modify, halt or disable any computer data, computer programs or computer software from a computer or computer network without authorization; (xvii) cause a computer to malfunction, regardless of how long the malfunction persists; (xviii) alter, disable, or erase any computer data, computer programs or computer software without authorization; (xix) allow any person or entity that is not an Authorized User to use or access any portion of the uStudio Platform; or (xx) export or import, directly or indirectly, all or any portion of the uStudio Platform, or any information pertaining thereto to or from any country to which such export or import is restricted or prohibited or as to which such government or any agency thereof requires a license or other governmental approval at the time of export or import without first obtaining such license or approval and notifying uStudio in writing of same.
Customer shall be responsible for all actions and/or omissions of any Authorized User contemplated by the Agreement(s) and Terms of Use.
3.18. Deliverables
Subject to the provisions of this Section 3.18, uStudio shall assign to Customer any Newly Created IP (as defined below) in Deliverables upon payment in full by Customer of all amounts due for the Professional Service under which the Deliverable was created. A “Deliverable” is a deliverable that is identified in the applicable Agreement for Professional Services and that is created by uStudio for Customer in the performance of the Professional Services. “Newly Created IP” means intellectual property in any inventions or works of authorship that are made by uStudio specifically for Customer, and which are explicitly set forth in the applicable Agreement as “Works For Hire Deliverables”, in the course of performing Professional Services for Customer, other than uStudio Core Technology. “uStudio Core Technology” means: (a) uStudio technology, methodologies and intellectual property (including, without limitation, products, software tools, hardware designs, algorithms, templates, software (in source and object forms), architecture, class libraries, objects and documentation (both printed and electronic) existing as of the Effective Date of Terms of Use or otherwise arising in whole or in part outside of work under a Professional Service for Customer; (b) features and upgrades of the uStudio Platform and/or uStudio Applications and/or new uStudio Applications in development as at the Effective Date or which are part of the then current uStudio product map and all technology, methodologies and intellectual property (including, without limitation, products, software tools, hardware designs, algorithms, templates, software (in source and object forms), architecture, class libraries, objects and documentation (both printed and electronic); (c) any derivatives, improvements, enhancements or extensions of the foregoing, whether or not conceived, reduced to practice or developed during the term of Terms of Use or in performance of Professional Services, as applicable; and (d) any intellectual property anywhere in the world relating to any of the foregoing. To the extent (if at all) any uStudio Core Technology is incorporated into a Deliverable, uStudio grants to Customer a non-exclusive, royalty-free, non-transferable, non-sublicensable worldwide license to use the uStudio Core Technology solely to use the Subscription Services as contemplated under Terms of Use during the Subscription Term. Nothing in Terms of Use shall be deemed to restrict or limit uStudio’s right to perform similar Professional Services for any other party or to assign any employees or subcontractors to perform similar Professional Services for any other party or to use any information incidentally retained in the unaided memories of its employees providing Professional Services.
3.19. Customer Conduct
Customer is responsible for, without limitation, the following: (a) Customer’s implementation of the Subscription Services; (b) protecting the names and passwords of the users to the Subscription Services and preventing and notifying uStudio of unauthorized use of the Subscription Services; (c) in order to obtain support, having an authorized representative of the Customer contact uStudio support through the then current support channels (as amended by uStudio from time to time) which may include email, phone or in-app chat, in accordance with the level of support set forth in the Agreement; (d) the lawfulness of, and results obtained from, all Customer Content submitted by users to the Subscription Services and each user’s acts and omissions; (e) using the Subscription Services within the permitted scope and only in accordance with the numbers, types and identifiers of permitted users, applications, servers, devices, capacity and locations at or through which Customer is permitted to use the Subscription Services as set forth in the Agreement; and (f) using the Subscription Services only in accordance with the Documentation.
4. WARRANTIES
4.1. Security
uStudio shall implement commercially reasonable administrative, physical, and technical safeguards to protect Confidential Information and Customer Data. uStudio will maintain an industry standard written information privacy and security program that includes administrative, technical and physical safeguards appropriate to the size and complexity of uStudio’s operations necessary to perform its obligations under the Agreement(s) and Terms of Use.
4.2. Limited Subscription Service Warranty
Unless expressly set forth in the Agreement, uStudio provides the following Warranty, Uptime Commitment and Customer Support.
WARRANTY
The Subscription Services will perform in accordance with the uStudio Online Help Knowledgebase. Customer’s exclusive remedy for breach of this warranty is for uStudio to correct or work around the defect in accordance with the Service Levels set forth in Section 4.2.
USTUDIO UPTIME COMMITMENT
uStudio will deliver 99.9% Uptime for the Services. “Uptime” shall mean the general availability of the Subscription Services in one (1) minute increments.
“Unavailability” means the Subscription Services are unavailable. Unavailability does not include (i) interruption of the Subscription Services during the Maintenance Window or Emergency Maintenance, (ii) Customer-caused outages or disruptions, (iii) outages caused by Customer’s or its Users’ telecommunications and Internet services, software or hardware not provided and controlled by uStudio (including third party software or websites), (iv) lack of availability of, or errors caused by content, data or other files provided by Customer or third parties, or (v) outages caused by disruptions attributable in whole or in part to Force Majeure events.
“Maintenance Window” shall mean a period scheduled by uStudio generally during minimal traffic times, not to exceed two (2) hours per week, where in uStudio can perform maintenance tasks.
“Emergency Maintenance” means maintenance performed by uStudio that occurs outside of the Maintenance Window and that is caused by a Force Majeure event.
uStudio monitors the uStudio Platform and APIs for system outages on a 24×7 basis and makes commercially reasonable efforts to resolve outages. In the event of a catastrophic outage by uStudio’s hosting facility, uStudio will implement its Disaster Recovery Plan.
USTUDIO CUSTOMER SUPPORT
Standard Support is available through the following communication channels:
- Phone Support: (512) 474-2151 option 2 is available during Business Hours – 9:00 a.m.-5:00 p.m. Central Time
- Email Support: Support@ustudio.com is available 8:00 a.m to 8:00 p.m. Central Time.
- Online Help Knowledgebase: Available 24x7x365
Response is on a first come, first served basis unless the severity of an issue takes precedence, as set forth below.
Severity Level 1 includes issues that produce an emergency situation in which the uStudio Platform is inoperable, produces incorrect results which affect a significant portion of the customer’s business or otherwise fails catastrophically in uStudio’s production system.
Customer Notification | Customer’s authorized representative will submit a Level 1 support ticket setting forth the issue and a valid phone number.
uStudio Response
- Escalate the issue to the Director of Customer Support for resolution
- Within 1 hour, assign a qualified member of its staff to begin to diagnose the issue
- After diagnosis is determined assign a qualified member of its staff to begin to correct the issue
- Provide a response via telephone within one (1) hour during Customer Support Hours
- Notify Customer on an hourly basis until the issue is resolved or an acceptable work-around has been implemented
- Use commercially reasonable efforts to resolve the issue within twenty-four (24) hours of receiving the notification from Customer
- For any error not resolved within twenty-four (24) hours, continue to use commercially reasonable efforts to resolve the issue until resolved
Once uStudio implements an acceptable work-around, the severity classification will drop to a Severity 2 or lower.
Severity Level 2 includes issues that produce a high impact error in the uStudio Platform or cause a major function or subsystem of the uStudio Platform to become non-operational or seriously impaired.
Customer Notification | Customer’s authorized representative will submit a Level 2 support ticket setting forth the issue and a valid phone number
uStudio Response
- Within 4 hours, assign a qualified member of its staff to begin to diagnose the issue
- After diagnosis is determined, assign a qualified member of its staff to begin to correct the issue
- Provide a response via telephone within twenty-four (24) hours during Business Hours
- Use best efforts to resolve the issue or provide a work-around within forty-eight (48) hours of notification
- In the event that the issue is not resolved in forty-eight (48) hours, escalate the issue to the Director of Customer Support
- Use commercially reasonable efforts to provide a permanent fix within ten (10) calendar days
If uStudio determines that the issue is not caused by the uStudio Platform or some other component of its hosting services, uStudio will notify the Customer and the issue will no longer be classified under this SLA.
Severity Level 3 includes issues that produce a situation in which the uStudio Platform is usable, but those services do not provide functionality in the most convenient or expeditious manner or issues that result in cosmetic errors or isolated errors and the Customer suffers little or no significant impact.
Customer Notification | Customer’s authorized representative will submit a Level 3 support ticket setting forth the issue
uStudio Response | Use reasonable efforts to resolve the issue within thirty (30) days of notification
If uStudio determines that the issue is unique to the Customer’s operations, uStudio will notify the Customer, within fourteen (14) calendar days of the notification, with an appropriate recommendation and estimate for resolving the issue and the issue will no longer be classified under this SLA.
Severity Level 4 includes issues that produce a situation in which the Customer is affected in some way that is reasonably correctable by a documentation change or by a future update from uStudio.
Customer Notification
- Customer’s authorized representative will submit a Level 4 support ticket setting forth the issue
- Customer will work in good faith with uStudio to negotiate potential resolution via future uStudio releases
uStudio Response | Work in good faith with Customer to negotiate potential resolution via future uStudio releases
This Section 4.2 sets forth Customer’s exclusive rights and remedies (and uStudio’s sole liability) in connection with any defect or other failure of the Subscription Services to perform in accordance with the uStudio Online Help Knowledgebase or any other manner. Notwithstanding any other provision in Terms of Use, uStudio shall have no obligation to support, and shall have no liability or obligation due to unavailability, malfunction or degradation of performance in the Subscription Services that is due to modifications of the uStudio Applications by any person other than uStudio or a person acting at uStudio’s direction.
4.3. Limited Professional Services Warranty
uStudio warrants that the Professional Services will be performed in a competent and workmanlike manner in accordance with accepted industry standards and practices and all material requirements set forth in the Agreement, as applicable. Customer’s exclusive remedy for breach of this warranty is to notify uStudio in writing of the breach within forty-five (45) days after performance of the non-conforming Professional Services. Upon receipt of such notice, uStudio, at its option, shall either use commercially reasonable efforts to re-perform the Professional Services in conformance with these warranty requirements or shall terminate the affected Professional Services and refund to Customer any amounts paid for the affected Professional Services not performed. This Section 4.3 sets forth Customer’s exclusive rights and remedies (and uStudio’s sole liability) in connection with the performance of Professional Services.
4.4. Disclaimer of Warranties
EXCEPT FOR THE WARRANTIES EXPRESSLY STATED IN TERMS OF USE, TO THE MAXIMUM EXTENT ALLOWED BY LAW, USTUDIO DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES AND CONDITIONS ARISING UNDER STATUTE, WARRANTIES OF MERCHANTABILITY, ACCURACY, TITLE, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTIES ARISING FROM USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, USTUDIO SPECIFICALLY DOES NOT WARRANT THAT THE SERVICES, DELIVERABLES, OR DEVELOPMENT MATERIALS WILL MEET THE REQUIREMENTS OF CUSTOMER OR OTHERS OR THAT THEY WILL BE ACCURATE OR OPERATE WITHOUT INTERRUPTION OR ERROR OR THROUGH THE SERVICES, THAT THE USE OF THE SERVICES SHALL BE SECURE, UNINTERRUPTED OR ERROR-FREE, OR THAT THE SERVICES SHALL FUNCTION PROPERLY IN COMBINATION WITH ANY THIRD PARTY TECHNOLOGY, HARDWARE, SOFTWARE, SYSTEMS OR DATA. CUSTOMER ACKNOWLEDGES THAT IN ENTERING TERMS OF USE IT HAS NOT RELIED ON ANY PROMISE, WARRANTY OR REPRESENTATION NOT EXPRESSLY SET FORTH HEREIN OR INCORPORATED INTO TERMS OF USE BY REFERENCE. USTUDIO IS NOT RESPONSIBLE FOR ANY PROBLEMS OR TECHNICAL MALFUNCTION OF ANY COMMUNICATION NETWORK OR LINES, COMPUTER ONLINE SYSTEMS, SERVERS OR PROVIDERS, COMPUTER EQUIPMENT, SOFTWARE, FAILURE OF ANY EMAIL OR PLAYERS DUE TO TECHNICAL PROBLEMS OR TRAFFIC CONGESTION ON THE INTERNET OR ON THE USTUDIO PLATFORM (OR ANY PART THEREOF) OR THIRD PARTY WEBSITES OR COMBINATION THEREOF, INCLUDING, WITHOUT LIMITATION, ANY INJURY OR DAMAGE TO USERS OR TO ANY PERSON’S COMPUTER RELATED TO OR RESULTING FROM PARTICIPATION OR DOWNLOADING MATERIALS IN CONNECTION WITH THE SERVICES OR THIRD PARTY WEBSITES. CUSTOMER ACKNOWLEDGES AND AGREES THAT IT IS RESPONSIBLE FOR TAKING PRECAUTIONARY MEASURES TO PREVENT THE LOSS OR DESTRUCTION OF CUSTOMER CONTENT AND VERIFYING THE RESULTS OBTAINED FROM USING THE SERVICES, AND USTUDIO SHALL HAVE NO OBLIGATIONS OR LIABILITY WHATSOEVER WITH RESPECT TO ANY SUCH LOSS OR DESTRUCTION, SAVE AND EXCEPT FOR RESTORING CUSTOMER’S CONTENT TO THE LATEST AVAILABLE BACK-UP THEREOF.
5. CONFIDENTIALITY AND NON-USE RESTRICTIONS
5.1. Confidential Information
“Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of the disclosure, including without limitation: each party’s respective business plans and processes; financial and employee data; proprietary technology and product information and designs; the Subscription Services and Software; and Customer Data other than video content. The terms of Terms of Use, Agreement(s) and pricing are Confidential Information of uStudio. Confidential Information excludes information that: (i) is or becomes generally known to the public; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation to the Disclosing Party; (iii) is received from a third party without any obligation of confidentiality to a third party or breach of any obligation of confidentiality to the Disclosing Party; or (iv) was independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information.
5.2. Protection
The Receiving Party shall: (i) at all times protect the confidentiality of the Disclosing Party’s Confidential Information with the same degree of care that it uses to protect its own confidential information, and in no event using less than reasonable care; and (ii) not use Confidential Information of the Disclosing Party except to the extent necessary to exercise its rights or fulfill its obligations under Terms of Use and the Agreement(s). To the extent necessary under Terms of Use, the Receiving Party may disclose the Confidential Information of the Disclosing Party to the Receiving Party’s employees or contractors who are bound by written obligations of confidentiality and non-use and non-disclosure restrictions at least as protective as those set forth herein. In the event of a court order or government regulation compelling disclosure of any Confidential Information, the Receiving Party shall provide the Disclosing Party with prompt written notice thereof, and shall reasonably cooperate with the Disclosing Party, at the expense of the Disclosing Party, to seek confidential or other protective treatment. Each party’s obligations set forth in this Section 5 shall remain in effect during the term and three (3) years after termination of Terms of Use. Upon written request by the Disclosing Party, the Receiving Party shall promptly return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in its possession or control. Provisions for the return of Customer Data, other than video content, are set forth in Section 8.3 (Return of Customer Data). Without limiting the foregoing, Customer acknowledges and agrees that certain Customer Data shall be provided to parties providing Third Party Services.
6. INDEMNIFICATION
6.1. uStudio Obligation
Subject to the exclusions set forth below, uStudio shall: (i) defend Customer, its officers, directors and employees against any third party suit, claim, action or demand (“Claim”) alleging that Customer’s use of the Subscription Services in accordance with Terms of Use infringes any valid patent, copyright, or trademark of a third party that is issued or registered in the United States or Canada; and (ii) pay any court-ordered award of damages or settlement amount, and reasonable attorney fees, to the extent caused by such Claim. If any portion of the Subscription Services becomes the subject of a Claim, uStudio may: (a) contest the Claim; (b) obtain permission from the claimant for Customer’s continued use of the Subscription Services; (c) replace or modify the Subscription Services to avoid infringement, if such replacement or modification has substantially the same capabilities as the Subscription Services; or, if the foregoing (a), (b), and (c) are not available on commercially reasonable terms in uStudio’s judgment, then (d) terminate Customer’s use of the affected Subscription Services upon forty-five (45) days’ written notice and pay to Customer a refund of any prepaid subscription fees covering the remaining portion of the applicable Subscription Term for the affected Subscription Services after the date of termination. Notwithstanding the above, uStudio shall have no indemnification obligation or liability for any Claim arising in whole or in part from: (i) any use of the Subscription Services which exceeds the authorized use permitted under Terms of Use; (ii) Customer Data; (iii) use of the Subscription Services by Customer in violation of applicable law; (iv) use of the affected Subscription Services after termination in accordance with clause (d) of this Section 6.1; (v) modifications to the Subscription Services by any person other than uStudio or a person acting at uStudio’s direction; (vi) modifications made by or at the request of Customer pursuant to a Professional Service; or (vii) use of the Subscription Services in combination with any hardware, software, application or service made or provided other than by uStudio.
6.2. Customer Obligation
Customer shall defend, indemnify and hold harmless uStudio and its suppliers, licensors, partners, and resellers and their respective officers, employees, licensors, agents, and affiliates, and all successors in interest to the foregoing, from and against any and all third party claims, damages, costs and expenses (including reasonable attorneys’ fees and litigation expenses) relating to, arising out of, or in connection with Customer Content, Customer Data and/or Customer’s use (which includes use by Customer’s employees, agents, customers, and users) of the Subscription Services otherwise than permitted herein, including but not limited to claims relating to, arising out of, or in connection with (i) Customer’s breach of any term or condition of Terms of Use, (ii) infringement of any patent, copyright or trademark of a third party, (iii) Customer’s violations of Applicable Laws in connection with the Subscription Services, (iv) any claims made by or on behalf of any Person pertaining directly or indirectly to Customer’s use of the
Subscription Services, Customer Content or Customer Data; and/or (v) violations of Customer’s obligations of privacy to any Person.
6.3. Process
All of the foregoing indemnity obligations of uStudio and Customer are conditioned on the indemnified party notifying the indemnifying party promptly in writing of any actual or threatened Claim, the indemnified party giving the indemnifying party sole control of the defense thereof and any related settlement negotiations, and the indemnified party cooperating and, at the indemnifying party’s request and expense, assisting in such defense.
SECTION 6 STATES EACH PARTY’S ENTIRE LIABILITY AND THE OTHER PARTY’S EXCLUSIVE REMEDY FOR THIRD PARTY INFRINGEMENT CLAIMS AND ACTIONS.
7. Limitations of Liability and Damages
7.1. LIMITATIONS OF LIABILITY
TO THE EXTENT PERMITTED BY LAW, THE TOTAL, CUMULATIVE LIABILITY OF EACH PARTY ARISING OUT OF OR RELATED TO TERMS OF USE OR THE SERVICES PROVIDED HEREUNDER, WHETHER BASED ON CONTRACT, IN TORT OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL BE LIMITED TO THE AMOUNTS PAID BY CUSTOMER FOR THE SERVICE GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS LIMIT. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO: (1) BODILY INJURY OR DEATH; (2) INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS; (3) BREACH OF PRIVACY LAWS AND (4) CUSTOMER’S OBLIGATION TO PAY AMOUNTS OWED FOR SERVICES PROVIDED HEREUNDER.
7.2. Exclusion of Damages
TO THE EXTENT PERMITTED BY LAW, NEITHER USTUDIO NOR CUSTOMER SHALL BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR LOST PROFITS (WHETHER DIRECT OR INDIRECT) OR LOSS OF USE OR DATA, COSTS OF SUBSTITUTE GOODS, OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGE TO BUSINESS, REPUTATION OR GOODWILL), OR INDIRECT DAMAGES OF ANY TYPE HOWEVER CAUSED, WHETHER BY BREACH OF WARRANTY, BREACH OF CONTRACT, IN TORT OR ANY OTHER LEGAL OR EQUITABLE CAUSE OF ACTION EVEN IF SUCH PARTY HAS BEEN ADVISED OF SUCH DAMAGES IN ADVANCE OR IF SUCH DAMAGES WERE FORESEEABLE. THE FOREGOING EXCLUSIONS SHALL NOT APPLY TO: (1) BODILY INJURY OR DEATH; AND (2) INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.
8. TERM AND TERMINATION
8.1. Term and Termination
Terms of Use continues until terminated under the terms of the Agreement. In no event, however, will Terms of Use be terminated while Customer has access to the Subscription Services.
In the event that Term and Termination are not explicitly set forth in the Agreement(s), the term of the Agreement(s) and Terms of Use shall commence on the Effective Date of the Agreement and shall continue for thirty-six (36) months (the “Initial Term”). The Agreement and Terms of Use shall automatically renew for additional successive twelve (12) month terms (each, a “Renewal Term”) unless either party provides written notice to the other party of its intent not to renew at least ninety (90) days prior to the expiration of the then pending term (any Initial Term together with any Renewal Terms, collectively, the “Term”). In addition, the Agreement and Terms of Use, and any exhibit, attachment or schedule referencing the Agreement or Terms of Use may be terminated as follows:
(a) by a non-breaching Party upon thirty (30) days written notice to a breaching Party if: (i) a Party breaches any material duty, obligation or covenant contained in the Agreement or Terms of Use and, to the extent such breach is capable of being remedied, such breach continues un-remedied for thirty (30) calendar days following notice thereof from the non-breaching Party to the breaching Party; or
(b) a Party files a voluntary petition in bankruptcy or insolvency or a petition for reorganization under any bankruptcy law, consents to any involuntary petition in bankruptcy or if a receiving order is given against such party under any bankruptcy law, or an order, judgment or decree is entered by any court of competent jurisdiction, upon the application of a creditor, receiver, trustee or liquidator of all or a substantial part of a Party’s assets, and the same has not been discharged or terminated without prejudice to the other terminating Party’s rights under the Agreement within thirty (30) calendar days.
In no event, however, will Terms of Use be terminated so long as the Customer has access to the Subscription Services.
8.2. Effect of Termination of Service
Upon expiration or other termination of the Subscription Services for any reason, Customer shall stop using, and uStudio shall stop providing, the terminated Subscription Services.
- If the Subscription Services is terminated by Customer due to uStudio’s breach, then uStudio shall refund to Customer, within thirty (30) days after the effective date of termination, all prepaid fees for the remaining portion of the Subscription Term for the terminated Subscription Services after the effective date of termination.
- If Professional Service is terminated by Customer due to uStudio’s breach, then uStudio shall refund to Customer, within thirty (30) days after the effective date of termination, any prepaid amounts for unperformed Professional Service under the applicable Agreement.
- If the Subscription Services is terminated by uStudio due to Customer’s breach, then Customer shall pay to uStudio, within thirty (30) days after the effective date of termination, fees for the terminated Subscription Services that would have been payable for the remainder of the Subscription Term after the effective date of termination.
- Upon expiration or other termination of the Subscription Services for any reason, Customer shall be eligible to request the return of Customer Data in accordance with Section 8.3 (Return of Customer Data).
8.3. Return of Customer Data
Following the end of the Subscription Term, Customer shall be permitted limited access to the Subscription Services to allow Customer to extract Customer Content and Customer Data for a period of seven (7) days following termination (the “Extraction Grace Period”), and (e) following the Extraction Grace Period, uStudio shall delete all of Customer Content and Customer Data as soon as reasonably practical. Notwithstanding item (e) of this Section 8.3, Customer acknowledges and agrees that archived versions of the Subscription Services may include archived copies of Customer Content. As archived data is retained for an archive cycle, all residual copies of the data will be deleted at the end of such cycle. After the end of the archival cycle, uStudio shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, have the right to delete all Customer Data in its systems or otherwise in its possession or under its control and delete Customer’s instances of the Subscription Services.
8.4. Survival
Upon termination of Terms of Use for any reason, Customer shall pay all amounts owed per the terms of the Agreement(s) and Terms of Use. All provisions hereunder required for enforcement of Customer payment obligations shall survive termination of Terms of Use for any reason.
9. GENERAL PROVISIONS
9.1. Definitions
Capitalized terms used in Terms of Use, and not otherwise defined in Terms of Use, shall have the following meanings:
“Account” means the uStudio account, which includes a username and password, used by Customer to access and use the Subscription Services including, but not limited to, making selections with respect to the presentation, management, distribution and/or end user access to Customer Content. This may include a temporary account provided to Customer by uStudio that permits a potential customer to use the Subscription Services on a trial basis for a limited time period, free of charge
“Authorized User” means Customer’s employees, independent contractors and/or agents that are authorized to access and use the uStudio Platform under an Agreement. The number of Authorized Users licensed under an Agreement is set forth in the applicable Agreement. Customer shall ensure that each Authorized User abides by the terms and conditions of this Agreement
“Content” means any all content, data and other materials including, without limitation, audio and video materials or files, text, images, logos, artwork, graphics, pictures, advertisements, sound, documents, reports, works, works of authorship, meta-data or any other intellectual property contained in any such materials.
“Destination” means any third-party application, platform, service, or system including without limitation, any screen, player, mobile device / personal digital devices, computer terminal, internet website, or television broadcaster permitting the distribution or reception of certain content, including without limitation the Videos
“Overages” means the amount of fees payable (generally calculated on a per unit basis) in the event that during a billing cycle (as set out in an Agreement) Customer exceeds the periodic limits set out in Agreement;
“Person” means a natural person or any legal, commercial or governmental entity, such as, but not limited to, a corporation, general partnership, joint venture, limited partnership, limited liability company, trust, business association, group acting in concert, or any person acting in a representative capacity.
“Player” means uStudio’s cross-platform video player which forms part of the uStudio Platform and which controls video playback and other features.
“Report” means the resulting analysis of Customer Content or for the Account that is made available to Customer through the Subscription Services.
“Subscription Services” means certain managed services provide by uStudio to enable Authorized Users to remotely access and use all or any portion of the uStudio Platform, directly and through the use of certain third-party service providers, which include (i) the remote hosting of the uStudio Platform; (ii) the remote storage of Content; and (iii) the management and/or operation of a content delivery network (“CDN”) necessary for the efficient access to and distribution of video Content by Authorized Users of the uStudio Platform; and (iv) the provision of such maintenance of the uStudio Platform as may be necessary to ensure the uStudio Platform operates in accordance with the Documentation and the provisions of the Agreement and Terms of use.
“System” means the systems including, but not limited to, third party hosting facilities, used by uStudio to make the Subscription Services available.
“Third Party” means any Person for which Customer uses the Subscription Services to collect information on that Person’s behalf or on or about that Person or their use of Customer Content.
“Upload” means to upload, transmit, submit, display or post.
“User Data” means the data concerning the characteristics and activities of viewers and/or users of Customer Content (including personal information of such users) that is collected and analyzed by the Subscription Services.
9.2. Assignment
Neither party may assign its rights or obligations, whether by operation of law or otherwise, without the prior written consent of the other party. Notwithstanding the foregoing, either party may, without the other party’s consent: (i) in connection with a merger, reorganization or sale of all or substantially all of the assets or equity of such party, assign Terms of Use in its entirety to such party’s successor; and (ii) assign Terms of Use in its entirety to any company, partnership or other legal entity, or affiliate of such company, partnership or other legal entity, which from time to time directly or indirectly Controls, is Controlled by or is under the common Control with such party. Any attempted or purported assignment in violation of this Section 9.1 will be null and void. Subject to the foregoing, Terms of Use shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
9.3. Notice
Except as otherwise provided herein, all notices shall be in writing and deemed given upon: (i) personal delivery; (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) the second business day after mailing; or (iv) the first business day after sending by email, except that email shall not be sufficient for notices of termination or regarding a Claim. Notices shall be sent to the parties as set forth on the signature page of Terms of Use or as otherwise agreed to by the parties in writing.
9.4. Publicity
Neither Customer nor uStudio will issue any press releases or make public statements relating to Terms of Use without the other party’s prior written approval.
9.5. Force Majeure
No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached Terms of Use, for any failure or delay in fulfilling or performing any term of Terms of Use, when and to the extent such failure or delay is caused by or results from acts beyond the affected party’s reasonable control, including without limitation: strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), trespassing, sabotage, theft or other criminal acts, failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, explosions, collapse of building structures, fires, floods, storms, earthquakes, epidemics or similar events, natural disasters or extreme adverse weather conditions (each a “Force Majeure Event”). The party suffering a Force Majeure Event shall use reasonable efforts to mitigate against the effects of such Force Majeure Event.
9.6. Entirety
Terms of Use, together with the referenced and/or attached documents (including Agreement), is the final and entire agreement of the parties regarding the subject matter of Terms of Use and supersedes all prior or contemporaneous oral or written agreements, representations, understandings, undertakings and negotiations. In the event of any conflict between Terms of Use and any referenced and/or attached documents or Agreement(s), Terms of Use shall govern unless such referenced and/or attached document is signed by both parties and manifests a clear intent to override the terms of Terms of Use. Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of uStudio which is not set out in Terms of Use or applicable Agreement(s). Customer’s orders are not contingent on, and Customer has not relied on, the delivery of any future functionality regardless of any verbal or written communication about uStudio’s future plans.
9.7. Waiver and Amendment
A waiver of any right is only effective if it is in writing and only against the party who signed such writing and for the circumstances given. Any modification of the Agreement(s) and Terms of Use must be in writing and signed by authorized representatives of both parties.
Failure or delay in enforcing any right or provision of the Agreement(s) or Terms of Use shall not be deemed a waiver of such right or provision with respect to any subsequent breach.
9.8. Relationship of the Parties
The parties are independent contractors. Nothing in the Agreement(s) or Terms of Use shall be construed to create a partnership, joint venture or agency relationship. Neither party shall have any right or authority to assume or create any obligation of any kind expressed or implied in the name of or on behalf of the other party. uStudio may at any time subcontract or delegate in any manner any or all of its obligations under the Agreement(s) and Terms of Use to any third party or agent.
Under no circumstances shall any employees of one party be deemed to be the employees of the other for any purpose. Each party shall pay all wages, salaries, and other amounts due its respective employees and contractors relative to the Agreement(s) and the Terms of Use and shall be responsible for all obligations to them relating to income tax withholdings, national insurance contributions, pension plan contributions, and other similar responsibilities.
9.9. Governing Law; Venue; Time for Bringing Action
The Agreement(s) and Terms of Use shall be governed by and interpreted in accordance with the laws of the State of Texas, without regard to any principles of conflict of laws. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed.
9.10. Injunctive Relief
Each Party acknowledges that any breach or threatened breach of any duties and obligations the Agreement(s) or Terms of Use may result in immediate and irreparable harm to the other party. The parties acknowledge and agree that in the event of a material breach of this Agreement, the other party shall be entitled to seek immediate injunctive relief, in addition to whatever remedies it might have at law or in equity.
9.11. Miscellaneous
(a) If any provision of the Agreement or Terms of Use is held by a court of competent jurisdiction to be illegal, unenforceable, or void for any reason, then all parties shall be relieved of all obligations arising under such provision, but only to the extent that such provision is illegal, unenforceable or void, it being the intent and agreement of the parties that the Agreement and/or Terms of Use will be deemed amended by modifying the provision to the minimum extent necessary to make it legal and enforceable while preserving its intent, or if that is not possible, by substituting therefore, another provision that is legal and enforceable and achieves the same objective. If the remainder of the Agreement and/or Terms of Use will not be affected by the declaration or finding and is capable of substantial performance, then each provision not so affected will be enforced to the extent permitted by law.
(b) No terms, provisions, or conditions of any purchase order, acknowledgement, check, or other business form that Customer may use in connection with the acquisition or licensing of the uStudio Platform will have any effect on the rights, duties, or obligations of the parties under the Agreement(s) and/or Terms of Use, regardless of any failure of uStudio to object to such terms, provisions, or conditions.
(c) If uStudio or Customer is required to engage in any proceedings, legal or otherwise, to enforce its rights under the Agreement(s) or Terms of Use, the prevailing party shall be entitled to recover from the other, in addition to any sums due, the reasonable legal fees, costs and necessary disbursements involved in said proceedings.