Please read these Terms and Conditions ("Terms and Conditions") carefully as they govern your access to and use of Covideo services including the Covideo Platform and any other services, plans, features, products, content, applications, software, maintenance and training offered by us from time time (collectively the "Services") identified in one or more Covideo sales order documents ("Order Form" or "Order Forms") or made available by us from time to time.
ACCEPTANCE. By using or visiting the Services, you accept and agree to be bound by (1) these Terms and Conditions, (2) all Order Form(s) which are incorporated herein by reference and (3) our Privacy Policy, found at https://www.covideo.com/privacy-policy/ (the "Privacy Policy") which is incorporated herein by reference (collectively referred to as the "Agreement"). This Agreement constitutes a binding agreement between the customer ("Customer," "you," and "your") and Covideo LLC ("Covideo," "us," "we," and "our"). This Agreement represents the parties' entire understanding regarding the Services and shall govern over any prior oral or written agreement or discussions or different or additional terms or conditions of any purchase order, invoice or other non-Covideo ordering document. No other terms or conditions of any purchase order, invoice or other non-Covideo ordering document shall apply to the Services, unless agreed to in writing by both parties.
OUR SERVICES
SUBSCRIPTION SERVICES. Unless otherwise provided in an Order Form, Services are purchased by Customers as subscriptions. Subject to your compliance with this Agreement, Covideo grants you a non-transferable, non-exclusive, worldwide right to access and use the Services during the term set out in the applicable Order Form ("Subscription Term") for a single location, as defined in Covideo's sole discretion. You are responsible for obtaining and maintaining all hardware, software, and third-party services necessary to connect to, access and use the Covideo Services.
COVIDEO ACCOUNTS. In order to use the Services, you will have to register and create an Account with us and provide one or more names, email addresses, login usernames and passwords (each a "Covideo ID"). Covideo IDs are Confidential Information and you are responsible for maintaining the confidentiality of your Covideo IDs. Covideo IDs are for individual use only and may not be shared, except where expressly agreed otherwise in writing between the parties. You are responsible for any and all activity that occurs on your Account. If you suspect any unauthorized use with your Account, you must notify us immediately.
FEES AND PAYMENT
FEES. You agree to pay all fees set out in an Order Form ("Fees"). All Fees are non-cancellable and non-refundable, other than: (i) as expressly set out in this Agreement; (ii) as determined in Covideo's sole discretion; or (iii) as required by Applicable Law. Fees are based on subscriptions and/or Services purchased and not actual usage. For the avoidance of doubt, you shall not be entitled to any refund in the event of a cancelled subscription or unused Services.
PAYMENT TERMS. Unless otherwise set out in the Order Form, Fees are payable in advance within thirty (30) days after the date of invoice. All fees are exclusive of taxes, levies or duties imposed by taxing authorities (collectively "Taxes"), and Customer shall be responsible for payment of all such Taxes (excluding taxes based on Covideo's income), even if such amounts are not listed on an Order Form. All fees are payable in U.S. Dollars without set-off or deduction.
SUSPENSION RIGHTS. We reserve the right to immediately suspend the Services if: (i) the billing or contact information provided by you is false or fraudulent; (ii) you fail to make any payment due within 10 business days after we have provided you with notice of such failure; or (iii) you violate Sections 5 or 6. Any suspension of the Services by us under this section shall not relieve you of your payment obligations under this Agreement. We will not be liable to you nor to any third party for any suspension of the Services. Services that we provide are subject to usage limits and restrictions.
COVIDEO CONTENT AND LICENSE
COVIDEO CONTENT. The Services contain Content, Documentation, and Software owned by Covideo, its suppliers or licensors ("Covideo Content"). Covideo, its suppliers and licensors, own and retain all rights, including all intellectual property rights, in and to the Services and the Covideo Content.
OWNERSHIP AND LICENSE. The Services and Covideo Content are licensed and not sold to you. All rights not expressly granted to you in this Agreement are reserved and retained by us. We grant you a limited, revocable, non-sublicensable license to access and use the Covideo Content in connection with using the Services during the Subscription Term. Except as contemplated by this Agreement and the Documentation, neither the Services, nor any part of any Services, may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without our written consent. You may use the Services only as permitted by Applicable Law. The licenses granted by Covideo may be suspended or terminated immediately without notice if you breach this Agreement.
RESTRICTIONS. Customer shall not (and shall not permit others to): (i) license, sub-license, sell, transfer, distribute or share the Services or Covideo Content or make any of them available to any third parties; (ii) create derivative works based on, build upon, or otherwise modify the Services or Covideo Content without express written consent from Covideo; (iii) disassemble, reverse engineer or decompile the Services or Software or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any Software, Documentation or data related to or provided with the Services; (iv) access the Services or Covideo Content in order to develop a competing product or service; (v) violate any Applicable Law; (vi) intentionally include, send, store or run software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs from the Services; (vii) intentionally cause a computer to malfunction, regardless of how long the malfunction persists; or (viii) alter, disable, or erase any computer data, computer programs or computer software without authorization.
FEEDBACK. Customer grants to Covideo a worldwide, perpetual, irrevocable, royalty-free permission to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction, or other feedback provided by Customer.
MODIFICATIONS. We are entitled to modify or update the Services from time to time without notice in order to adapt it technically, to change menu guidance or layouts or to expand or limit functionality in a way that does not materially alter the Services.
CUSTOMER CONTENT AND LICENSE
CUSTOMER CONTENT. As a Covideo Account holder, you and/or your Users and/or your Viewers may submit and publish Content on the Covideo Platform ("Customer Content"). Customer Content is the Content that you upload to the Services. Covideo and the Services are passive conduits of the Customer Content. You are exclusively responsible for all Customer Content and the consequences of submitting and publishing your Content on the Services. We do not verify the accuracy, quality, content or legality of Customer Content. We may, but are under no obligation to, monitor, view, or analyze any Customer Content. We are not responsible for preventing or identifying infringement of intellectual property rights or non-compliance with Applicable Laws. Covideo will not be liable, directly or indirectly, in any way for any damage or loss caused or alleged to be caused by or in connection with Customer Content.
REPRESENTATIONS AND WARRANTIES. You represent and warrant that: (i) you own or have the necessary licenses, rights, consents and permissions to use and publish the Content you submit; (ii) the uploading of your Content on the Services and the licenses granted to Covideo under this Agreement do not and will not violate the rights of any Person; and (iii) no payments of any kind shall be due by Covideo to any organization for the use or distribution of Customer Content.
RESPONSIBILITY TO OBTAIN CONSENTS. You are responsible for obtaining all necessary consents, licenses and waivers required to create, record, submit, publish and use Customer Content in connection with the Services. These may include, but are not limited to, consents, licenses and waivers from: (i) copyright owners, artists, actors, directors, performers, writers, producers or any other individuals appearing in Customer Content; (ii) public performance rights collection organizations (e.g., SOCAN, ASCAP, BMI or SESAC); and (iii) the owners of musical compositions and sound recordings embodied in the Customer Content. In addition, you are responsible to pay all applicable royalties, fees and other amounts owing to any Person in connection with the use of any Customer Content including payments to any labor unions, guilds and public performance rights collection organizations. Any consent required shall meet the requirements of data laws, particularly with respect to the security, protection and disclosure of personal information. You will also inform individuals that are the subject of the personal information (the "Data Subjects"): (i) about your collection of such personal information from Data Subjects; (ii) the use and purpose of collection of such personal information; (iii) the use of Covideo to collect, store, or process such personal information; (iv) that such personal information may be processed in a country other than where the Data Subject resides or is accessing your services; and (v) of the Data Subject's rights as afforded to the Data Subject in accordance with applicable law(s).
OWNERSHIP AND LICENSE. As between you and us, you retain all rights of ownership in the Customer Content. By uploading, displaying or publishing your Content to the Services, you grant us a worldwide, royalty-free, fully paid-up, non-exclusive, sublicensable and transferable license to use, reproduce, distribute, display, personalize and reformat your Content for the sole purpose of providing the Services. This license allows us to: (i) deliver Customer Content in accordance with the preferences set by Customer utilizing the Covideo 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, enhance, personalize, exhibit, broadcast, publish, publicly display, distribute, promote, copy, store, and/or reproduce (in any form) Customer Content on or through the Services; and (iv) utilize Customer Content to test Covideo's internal technologies and processes. You also grant us, and allow us to grant each Viewer or other user of the Services, a non-exclusive license to view Customer Content through the Services. We reserve the right to retain (but not display, distribute or publish) server copies of Customer Content that have been removed or deleted from the Services to the extent such data is stored in any automatic electronic archiving or back-up system or pursuant to record retention policies for legal and regulatory considerations.
PROHIBITED CONTENT. You agree that you will not upload or use in connection with the Services any prohibited Content including, without limitation, Content that: (i) is pornographic, sexually explicit or offensive or contains a link to an adult website; (ii) contains graphic or gratuitous violence; (iii) encourages or glorifies drug use; (iv) is predatory in nature, or is submitted for the purpose of harassment or bullying; (v) is highly repetitive and/or unwanted including "Spam" messages; (vi) promotes or incites physical harm of any kind against any group or individual; (vii) 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; (viii) furthers or promotes criminal activity or provides instructional information about illegal activities; or (ix) violates or attempts to violate the privacy rights, publicity rights, copyrights, trademark rights, contract rights or any other rights of any Person. We reserve the right to investigate and take appropriate action against anyone who, in our sole discretion, violates these provisions including removing the offending Content without prior notice, terminating or suspending Customer's Account or access to the Services and/or reporting such Content or activities to law enforcement authorities.
COMPLIANCE WITH LAWS. You are responsible for compliance with all laws, rules, requirements, and other obligations governing the monitoring or recording of conversations via the Services. You are solely responsible: (i) for such recordings, and any personal data, and the means by which such personal data is acquired, collected, retained, recorded, or otherwise processed, including any activities conducted by Covideo as directed or instructed by you, in accordance with these Terms and Conditions; (ii) and shall continue to be responsible for complying with all the relevant provisions of the applicable data protection and privacy laws; and (iii) for securing all necessary consents to collect, retain, transmit, or otherwise direct Covideo to process, or instruct Covideo to collect, retain, transmit such recordings.
CONTENT PRESERVATION AND DISCLOSURE. We may preserve and store Customer Content and/or 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 this Agreement; (iii) respond to claims that any Customer Content violates the rights of any Person; or (iv) protect the rights, property, or personal safety of Covideo, Viewers and/or the public.
CUSTOMER DATA
CUSTOMER DATA. The Customer Data is property of Customer and all rights not granted to Covideo hereunder shall remain with Customer. Customer grants to Covideo a limited, personal, royalty free, non-sublicensable, non-exclusive, non-transferable (other than as set out herein), worldwide license to (i) process and analyze Customer Data for the purposes of providing the Services; (ii) generate statistics and produce reports for Customer based on Customer Data; and (iii) use anonymized Customer Data (in accordance with Section 6.IV herein) to improve and customize the Services. Except as set out in this Agreement, Covideo will not share Customer Data with third parties without the consent of Customer and shall take all reasonably appropriate confidentiality and security measures to protect such Customer Data.
ANALYTICS CODE. The Services contains software to track, capture, and aggregate information about Viewers ("Analytics Code"). Covideo owns all rights in the Analytics Code. Nothing in this Agreement shall be deemed an assignment or transfer of Covideo's ownership rights in the Analytics Code to Customer.
LAWFUL BASIS. Customer acknowledges, agrees and warrants that it has all rights necessary to collect, use, process, transfer and disclose Customer Data to Covideo, and that Customer's use of such Customer Data is conducted pursuant to a lawful basis (as defined by Applicable Law), including consent where required by Applicable Law (collectively "Privacy Consents"). Upon request by Covideo, Customer shall provide proof of such lawful basis. Covideo relies exclusively on Customer to obtain all Privacy Consents from, and provide all required disclosures to, Viewers as required under Applicable Law.
STATISTICAL INFORMATION. Covideo may monitor Customer and Viewers' use of the Services and the Covideo Platform and compile this data with other data in an aggregate and anonymous manner to derive statistical and performance information ("Statistical Information"). Covideo uses Statistical Information to produce reports and improve and customize the Covideo Services. Covideo may make such Statistical Information publicly available, provided that such Statistical Information: (i) is not able to be de-anonymized; (ii) does not include any data that would enable the identification of Customer, a User, or a Viewer; or (iii) would not constitute the disclosure of Confidential Information. Covideo retains all rights, title and interest in and to such Statistical Information.
SECURITY
Covideo shall maintain appropriate administrative, physical, and technical safeguards designed to protect the security of the Services and Customer Data in accordance with the Covideo security standards.
SUBCONTRACTORS
We may use third party subcontractors to provide limited parts of the Services ("Subcontractors"). You consent to us subcontracting these services to the Subcontractors, provided that Covideo shall remain liable to Customer for any breach of this Agreement by a Subcontractor.
THIRD PARTY SERVICES
NON-COVIDEO SERVICES. Customer may choose to integrate, connect, or otherwise use the Covideo Services with other services not provided by Covideo ("Non-Covideo Services") and in doing so grants Covideo permission to interoperate with the Non-Covideo Services and share Customer Data and Customer Content with the Non-Covideo Services as directed by Customer or the Non-Covideo Services. If Customer uses Non-Covideo Services: (a) Customer warrants that if it uses the Services to upload or make public Customer Content to third-party services, including but not limited to YouTube, that such Customer Content shall comply with the third-party terms of use (for example YouTube's Terms of Service) in effect and as updated from time to time; (b) Covideo does not warrant or support Non-Covideo Services; (c) as between Covideo and Customer, Customer assumes all responsibility for the Non-Covideo Services and any disclosure, modification or deletion of Customer Data by the Non-Covideo Services; and (d) Covideo shall have no liability, and Customer is not relieved of any obligations under the Agreement or entitled to any refund, credit, or other compensation, due to any unavailability of the Non-Covideo Services or any change in the ability of Covideo to interoperate with the Non-Covideo Services.
ARTIFICIAL INTELLIGENCE
Covideo may offer products, features, or tools as part of the Covideo Platform that are powered by Artificial Intelligence (collectively, the "Artificial Intelligence Features" or "AIF"). The terms in this section govern the use of the AIF within the Covideo Platform provided by Covideo to Customer under these Terms and Conditions.
The availability of Artificial Intelligence and some of the AIF in Customer's account may be toggled on or off by Customer upon written request to Covideo.
Input and Output. Customer, also on behalf of its users, is responsible for any text, images, or other content uploaded or submitted to the AIF ("Input") as well as the text, images, or other content generated by the AIF based on Customer's or authorized users' Input ("Output"). Customer will ensure that Customer and authorized users' use of the AIF, including Input and Output, complies with these Terms and Conditions and applicable law. Customer acknowledges that (i) Input will not be treated as Confidential information, therefore, Customer shall not include any data or information in Input that is restricted from using or sharing (for example, third-party confidential information or intellectual property); (ii) Input will not include any sensitive personal data (including data that reveals racial or ethnic origin, political opinions, religious or philosophical beliefs, health data or data concerning anybody's sex life or sexual orientation); (iii) Output will not be Confidential Information; (iv) Output may not be accurate or reliable and a human should independently review all Output before using or sharing it; and (v) a human will manually review each Output before using, sharing or while streaming.
Certain Prohibitions to the Use of AIF. Customer shall not: (i) mislead anyone that the content generated by AIF is human-generated; (ii) provide legal or financial advice; (iii) generate contracts or legally binding obligations; (iv) generate political content; (v) generate source code; (vi) generate spam, ransomware, keyloggers, viruses or other software; (vii) generate nudity or shocking content including obscene gestures, or other profane subjects; (viii) generate or disseminate information to be used for the administration of justice or other legal purposes; (ix) implement fully-automated decision making.
Terms and Conditions that Apply to Input and Output. Between Customer and Covideo, Customer retains all rights, title, and interest (including all intellectual property rights) in and to any Input or Output, and Covideo retains all rights, title, and interest to AIF. This means that Customer can use Input and Output for any lawful purpose, provided that Customer complies with these Terms and Conditions and accepts that any such use is at its own risk. Customer acknowledges that Output may not be unique across users and that the AIF may generate the same or similar Output for Customer or a third party.
DISCLAIMERS. CUSTOMER ACKNOWLEDGES THAT OUTPUT IS GENERATED BY MACHINE LEARNING CAPABILITIES AND FUNCTIONALITY, AND COVIDEO MAKES NO WARRANTY OF ANY KIND AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF THE OUTPUT. THE OUTPUT MAY CONTAIN BUGS, ERRORS, OR OMISSIONS. AIF IS PROVIDED "AS IS" AND COVIDEO EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. CUSTOMER'S USE OF AIF IS AT ITS SOLE RISK, AND COVIDEO MAKES NO WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF AIF OR THE ACCURACY OF ANY INFORMATION OBTAINED THROUGH AIF. DUE TO THE NATURE OF ARTIFICIAL INTELLIGENCE AND MACHINE LEARNING, INCLUDING CHANGES AND UPDATES TO THE DATA MODELS AND UNDERLYING DATA USED BY THESE MODELS, OUTPUT MAY CONTAIN MATERIAL INACCURACIES. CUSTOMER SHOULD INDEPENDENTLY VERIFY THE VALIDITY OF THE OUTPUT. COVIDEO MAKES NO WARRANTY THAT CUSTOMER'S DATA, INPUT, OR OUTPUT WILL NOT BE LOST OR DAMAGED WHEN USING AIF. COVIDEO DOES NOT MAKE ANY WARRANTY REGARDING THE AVAILABILITY OR UPTIME OF AIF AND MAY DISCONTINUE OR MODIFY THE AVAILABILITY OF AIF OR THESE TERMS AND CONDITIONS AT ANY TIME IN ITS SOLE DISCRETION. DUE TO THE NATURE OF AIF, (I) OUTPUT MAY NOT BE UNIQUE TO CUSTOMER AND AUTHORIZED USERS, (II) OUTPUT DOES NOT REPRESENT COVIDEO'S VIEWS, AND (III) COVIDEO HAS NOT VERIFIED THE ACCURACY OF THE OUTPUT. CUSTOMER ACKNOWLEDGES THAT COVIDEO MAY DISCLOSE SUCH CONTENT TO LAW ENFORCEMENT OR OTHER GOVERNMENTAL AUTHORITIES OR IN RESPONSE TO A COURT ORDER.
Availability and Modifications. Covideo does not guarantee the availability of the AIF in any or all geographical areas or at all times. Notwithstanding anything to the contrary in these Terms and Conditions, any production downtime impacting the AIF will not be included in any availability guarantees. Notwithstanding anything to the contrary in these Terms and Conditions, Covideo may make changes to the AIF that materially reduce the functionality provided to Customer and authorized users during the Term or change the limits to the use of the AIF that apply to Customer at any time in Covideo's sole discretion. Some AIF are not available in languages other than English.
PROFESSIONAL SERVICES
SERVICE DELIVERY. Covideo shall provide the professional services, including but not limited to support services, ("Professional Services") (if any) purchased as set forth in the applicable Order Form. The parties acknowledge that the scope of the Professional Services under this Agreement consists solely of either: (a) assistance with deployment and usage of the Services; or (b) development or delivery of additional service related to the Services. Customer shall have a license right to use anything delivered as part of the Professional Services subject to the terms of its license to use the Services, but Covideo shall retain all right, title, and interest in and to any such work product, code or deliverable and any derivative, enhancement or modification thereof. The scope of Professional Services, fees, dependencies and other technical specifications or related information shall be as set forth in a Statement of Work ("SOW") executed by both parties or as set forth in or attached to the applicable Order Form. Customer shall pay Covideo at the rates set forth in the applicable Order Form or SOW (or, if not specified, at Covideo's then-current standard rates). Customer will reimburse Covideo for reasonable travel and lodging expenses as pre-approved and incurred.
WARRANTIES
WARRANTY. We work hard to provide the best products, however, you understand and expressly agree that use of the Services is provided "as is," and we make no guarantees that it always will be safe, secure, or error-free, or that it will function without disruptions, delays, or imperfections. To the extent permitted by law, we also DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
DISCLAIMER OF WARRANTIES. Except for the warranties expressly stated in this Section, to the maximum extent allowed by Applicable Law, Covideo disclaims all warranties of any kind, express or implied, including warranties and conditions arising under statute, warranties of merchantability, non-infringement or fitness for a particular purpose.
MAINTENANCE AND REPAIRS. Covideo shall use commercially reasonable efforts to ensure that availability of the Services will be uninterrupted and that transmissions will be error-free. However, your access to Services may be occasionally suspended or restricted to allow for repairs, maintenance or the introduction of new facilities or services. We will attempt to limit the frequency and duration of any such suspension or restriction, and we will use commercially reasonable efforts to alert or notify you in the event of any scheduled or non-scheduled suspension of Services. Due to the nature of technical outages, we cannot guarantee notice prior to unplanned outages. We will not be held responsible for any delay or failure to comply with our obligations under these conditions if the delay or failure arises from any cause which is beyond our reasonable control.
INDEMNIFICATION
CUSTOMER INDEMNIFICATION. Customer shall indemnify, defend and hold harmless Covideo from and against all liabilities, damages and costs (including settlement costs and reasonable attorneys' fees) arising out of any claim against Covideo or its affiliates regarding: (i) Customer Content or Customer Data; (ii) failure by Customer to obtain any of the necessary Consents required by Sections 5 or 6; (iii) Customer's use of the Services in violation of this Agreement; (iv) violations of Customer's obligations of privacy to any Person; (v) your violation of law; and/or (vi) your negligence or willful misconduct.
COVIDEO INDEMNIFICATION. We will indemnify, defend and hold harmless Customer from and against all liabilities, damages and costs (including settlement costs and reasonable attorneys' fees) arising out of any claim by a third party against Customer to the extent based on an allegation that Covideo's technology used to provide the Services to Customer infringes or misappropriates any copyright, trade secret, patent or trademark right of a third party that is issued or registered in the United States. In no event will we have any obligations or liability under this section arising in whole or in part from or related to any content, information, or data provided by Customer, Viewer or other third parties. Covideo shall not indemnify Customer in the event of: (a) modification of the Services by Customer, its employees, or contractors in conflict with Customer's obligations or as a result of any prohibited activity as set forth herein; (b) use of the Services in a manner inconsistent with the Documentation; (c) use of the Services in combination with any other application, product, or service not provided by Covideo if such claim would not have occurred without such combination; or (d) use of the Services in a manner not otherwise contemplated by this Agreement.
POSSIBLE INFRINGEMENT. If we believe the Services infringe or may be alleged to infringe a third party's intellectual property rights, then we may: (i) obtain the right for you (at our expense) to continue using the Services; (ii) provide a non-infringing functionally equivalent replacement; or (iii) modify the Services so that they no longer infringe. If we do not believe that the options described in this section are commercially reasonable, then we may suspend or terminate Customer's use of the affected Services (with a pro-rata refund of prepaid fees for the suspended or terminated Services).
PROCESS. The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party will have full control and authority over the defense, except that: (i) any settlement requiring the party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld or delayed; and (ii) the other party may join the defense with its own counsel at its expense.
EXCLUSIVE REMEDY. The indemnities above are Covideo's and Customer's only remedy under this Agreement for third party infringement claims and actions.
LIMITATION OF LIABILITY AND DAMAGES
LIMITATION OF LIABILITY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE MAXIMUM AGGREGATE LIABILITY OF COVIDEO UNDER THIS AGREEMENT, WHETHER BASED ON CONTRACT, IN TORT OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL BE LIMITED TO THE LESSER OF (1) AMOUNTS PAID BY CUSTOMER FOR THE SERVICES GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY OR (2) $10,000.00 USD.
EXCLUSION OF DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, COVIDEO SHALL NOT BE LIABLE UNDER THIS AGREEMENT FOR: (I) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES; OR (II) LOSS OF USE, DATA, BUSINESS, REVENUE OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE FORESEEABLE.
PRIVACY AND CONFIDENTIAL INFORMATION
PRIVACY POLICY. Our collection and use of your information and information regarding Viewers is governed by our Privacy Policy. You understand that through your use of the Services, you consent to the collection and use of this information. As part of providing you the Services, we may need to provide you with certain communications, such as service announcements and administrative messages. These communications are considered part of the Services and your Account.
CONFIDENTIAL INFORMATION. Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's business (together "Confidential Information" of the Disclosing Party). Such information includes, without limitation, information relating to pricing of Services, Customer Data and your Covideo ID. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use (except as permitted in this Agreement) or divulge to any third person such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to Confidential Information after five years following the termination of this Agreement or any Confidential Information that the Receiving Party can demonstrate 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; (iv) was independently developed by the Receiving Party without reference to the Disclosing Party's Confidential Information; or (v) is deemed non-confidential by law. Receiving Party may disclose Confidential Information where disclosure is required by a court of competent jurisdiction or other governmental authority, provided, however, that the Receiving Party provides prior written notice to the other of any such order, to the extent permitted by Applicable Law, and limits disclosure to the scope of such order. The Receiving Party shall promptly return to the Disclosing Party or destroy (with certification of such destruction provided by the Receiving Party upon request) all Confidential Information of the Disclosing Party in its possession or control upon request from the Disclosing Party.
TERM AND TERMINATION
TERM. This Agreement shall commence on fifteen (15) days after the Order Form is signed and shall remain in effect through the end of the Subscription Term in any current Order Form, unless terminated earlier pursuant to the terms of this Agreement (the "Initial Term"). Your annual subscription will automatically renew at the end of the Initial Term for an additional 12-month term and shall continue to renew for successive 12-month terms thereafter (each a "Renewal Term") unless you provide us with written notice of your intent not to renew at least thirty (30) days before the expiration of the Initial Term or the Renewal Term. Your monthly subscription will automatically renew at the end of the Initial Term for an additional 1-month term and shall continue to renew for successive 1-month terms thereafter (each a "Renewal Term") unless you provide us with a thirty (30) day written notice. Payment for Services for the Renewal Term is due on the first day of the Renewal Term and will automatically be charged to the account that you used for the original subscription. The renewal price for any Services for a Renewal Term may be increased by Covideo at its sole discretion.
TERMINATION. Either party may terminate this Agreement effective immediately upon written notice if the other party materially breaches a material obligation under this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from the non-breaching party.
EFFECT OF TERMINATION. Upon expiration or other termination of the Services for any reason, your right to access and use the Services shall terminate. If you terminate this Agreement or any Order Form solely due to a material breach of this Agreement by us, we agree to refund all prepaid fees for the remaining portion of the Subscription Term for the terminated Services within thirty (30) days after the date of termination. If we terminate this Agreement or any Order Form for your material breach, all fees set out on such Order Form shall be immediately due and payable.
RETURN OF CUSTOMER DATA. At the end of the Subscription Term, you will be entitled to extract Customer Content and Customer Data stored on the Covideo Platform for a period of thirty (30) days following termination (the "Extraction Grace Period"). Following the Extraction Grace Period, Covideo shall have the right to delete all of Customer Content and Customer Data at any time and cancel your Account with us. You acknowledge and agree that archived versions of the Services may include archived copies of Customer Content and Customer Data which may be retained by us for an archive cycle.
SURVIVAL. Upon termination of this Agreement for any reason, Customer shall immediately pay all amounts owed hereunder. Sections 3.3, 4.1, 4.4, 5, 6, 12, 13, 14, 15, 16, and 17 of this Agreement, together with any other provision required for their construction or enforcement, shall survive termination of this Agreement for any reason.
GENERAL PROVISIONS
DEFINITIONS. Capitalized terms used in this Agreement, and not otherwise defined in this Agreement, shall have the following meanings:
"Account" means the Covideo account, which includes a username and password, used by Customer to access and use the Services and includes a Customer Demo Account;
"Applicable Laws" means all statutes, codes, rules, regulations, by-laws, judicial or arbitral or administrative or ministerial or departmental or regulatory judgments, orders, decisions, rulings or awards, policies, guidelines, or any provisions of the foregoing, including general principles of common and civil law and equity, binding on or affecting the Person referred to in the context in which such word is used;
"Content" means any and all content, data and other materials including, without limitation, videos, music, sounds, images, live streams, documentation, reports, materials, files, text, images, logos, artwork, graphics, pictures, advertisements, works, works of authorship or any other intellectual property contained in any such materials;
"Customer Data" means non-anonymized electronic data pertaining to Customer, the Users and the Viewers that is collected and/or processed using the Services, including personal information, login credentials, and other information that relates to such parties' use of the Services;
"Demo Account" means a temporary account provided to Customer by Covideo that permits a potential customer to use the Services on a trial basis for a limited time period, free of charge;
"Documentation" means documentation relating to the operation and use of the Services that are provided by Covideo to Customer under this Agreement, as updated by Covideo from time to time;
"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.
"Software" means software products used in connection with the Services, like an embed code for Covideo's embedded video player, and may include code that is licensed under third party license agreements, including open source, made available or provided with the Software, as applicable;
"Users" means Customer's employees, representatives, consultants, contractors or agents who are authorized to use the Services for Customer's benefit and have unique user identifications and passwords for the Services;
"Covideo Platform" means the code, technology and servers used in the operation and provision of the Services and includes the Documentation and Software;
"Viewers" means any Person who may use or view Customer Content;
ASSIGNMENT. Neither party may assign this Agreement, or any of the rights or obligations arising thereof, in whole or in part, to any third party without the prior written consent of the other party except that we may assign this Agreement, as well as any of its obligations or rights, to a successor entity resulting from a merger, acquisition or consolidation.
CONFLICT. In the event of any conflict between these Terms and Conditions and an Order Form, the terms of the Order Form shall govern.
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 an internationally recognized overnight courier (receipt requested); (iii) the second business day after mailing; or (iv) the first business day after sending by email. All notices to Covideo shall be emailed in copy to legal@covideo.com. Notices shall be sent to the parties as set forth on the Order Form, the signature page of this Agreement (if applicable) or as otherwise agreed to by the parties in writing.
PUBLICITY. You permit us to list you as a customer and use your standard logo for our promotional and marketing use during the Subscription Term.
FORCE MAJEURE. Except for your obligation to pay fees for the Services, neither party will be responsible for failure of performance due to causes beyond its control. Such causes include, without limitation, accidents, acts of God, labor disputes, actions of any government agency, shortage of materials, acts of terrorism or the stability or availability of the Internet or a portion of it.
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 this Agreement must be in writing and signed by both parties.
RELATIONSHIP OF THE PARTIES. The parties are independent contractors. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship.
GOVERNING LAW; VENUE; TIME FOR BRINGING ACTION. Except for actions to protect intellectual property rights and to enforce an arbitrator's decision hereunder, all disputes, controversies, or claims arising out of or relating to this Agreement or a breach thereof shall be submitted to and finally resolved by arbitration under the Commercial Arbitration Rules of the American Arbitration Association ("AAA") then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration shall take place in Indianapolis, Indiana, USA in person. The arbitrator shall apply the laws of Indianapolis, Indiana, USA to all issues in dispute. The controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Should you file an action contrary to this provision, Covideo shall be entitled to recover all attorney's fees and costs. No cause of action arising hereunder or relating hereto may be brought more than two (2) years after it first accrues.
EXECUTION. This Agreement may be executed and delivered electronically and the parties agree that such electronic execution and delivery will have the same force and effect as delivery of an original document with original signatures, and that each party may use such electronic signatures as evidence of the execution and delivery of this Agreement by all parties to the same extent that an original signature could be used.
EXPORT. You may not use or otherwise export or re-export the Services except as authorized by United States law and the laws of the jurisdiction(s) in which a lawful approval was obtained. You represent and warrant that You are not (x) located in any country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country, or (y) listed on any U.S. Government list of prohibited or restricted parties including the Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List. You also agree that You will not use the Services for any purposes prohibited by applicable law. We are not currently servicing the European Union at this time.
UPDATING OUR TERMS. We work constantly to improve our services and develop new features to make our Covideo Platform better for you and your teams. As a result, we may need to update these Terms from time to time to accurately reflect our services and practices. We may modify or amend these Terms by updating our website. Once any updated Terms are in effect, you will be bound by them if you continue to use our Covideo Platform.