MUVI RESPECTS ARTISTS’ RIGHTS, YOU MUST OWN ALL RIGHTS TO YOUR CONTENT. MUVI DOESN’T SUPPORT ANY ILLEGAL CONTENT. YOUR ACCOUNT MAY BE DISABLED IN OUR SOLE DISCRETION IF YOU DO NOT COMPLY WITH THE TERMS OF THIS AGREEMENT.
MUVI HAS A STRICT NO REFUND POLICY AS WE INCUR A FIXED COST DUE TO HOSTING AND STORAGE. YOU CAN CANCEL YOUR SUBSCRIPTION ANYTIME, THERE IS NO LOCK-IN PERIOD. HOWEVER, THERE IS NO REFUND TO ANY RECURRING PAYMENT THAT YOU HAVE ALREADY PAID.
THIS TERMS OF SERVICE AGREEMENT (“AGREEMENT”) GOVERNS YOUR FREE TRIAL OF THE MUVI SERVICE.
IF YOU PURCHASE THE MUVI SERVICE, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THE MUVI SERVICE.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR BY USING THE MUVI SERVICE, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE MUVI SERVICE.
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
You may not access the Muvi Service if you are our direct competitor, except with our prior written consent. In addition, You may not access the Muvi Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on November 20, 2015. It is effective between you and Muvi as of the date you accept this Agreement (the “Effective Date”).
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject. “Control” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this Terms of Service Agreement.
“Application” shall mean computer-based software or an Internet-accessible system that interacts with a user.
“Application Programming Interface” or “API” shall mean a source code interface that causes an Application to respond to automated requests for data or services made by other Applications.
“Authorized User” means any individual who is your employee or such other person or entity as you may authorize, to access the Muvi Service pursuant to your rights under this Agreement.
“Content” means any information, text, graphics, videos, photos or other materials uploaded, downloaded or appearing on the Muvi Service any content used with the Muvi Service.
“Documentation” means the technical materials provided by Muvi to Subscriber in hard copy or electronic form that describe the features, functionality or operation of the Muvi System.
“Domain Name” means a domain name specified by Subscriber in a Statement of Work for its linking the Subscriber’s site to the hosted Media Platform.
“End User” means Subscriber’s customers who are users of Media Platform.
“End User Information” means all information collected by Muvi from End Users regarding any aspect of any transaction as well as any traffic data collected by Muvi regarding End Users use of a Media Platform.
“Error” means a reproducible failure of the Muvi Service to substantially conform to the Documentation.
“Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
“Link” means a hypertext link on a Subscriber site that links to the Media Platform which will forward End Users to the Media Platform without any intervening pages, links, pop-up menus, or screens. Links will also include links from Subscriber-affiliated mobile computing applications and social media pages to the Media Platform.
“Muvi” means Muvi LLC, a Delaware limited liability company with its principal address at of 103 Patroon Dr, Suite 8, Guilderland, NY 12084.
“Muvi Service” means the products and services as described in an applicable Order Form that are ordered by Subscriber under an Order Form and delivered by Muvi to Subscriber using the Muvi System.
“Muvi System” means the technology, including hardware and software, used by Muvi to deliver the Muvi Service to Subscriber.
“Consulting Services” means any services provided pursuant to the Consulting Addendum by Muvi to Subscriber in addition to and separate from the Muvi Services, including but not limited to custom design, custom development, or marketing services, and provided pursuant to a mutually-acceptable written document that sets forth the specific Consulting Services to be provided, deliverables, if any, Subscriber obligations, the schedule for performance of the Consulting Services, fees and payment terms, the acceptance or approval process, and such other matters upon which the parties agree.
“Order Form” means the online order form where you place order for Muvi services.
“User” means either an Authorized User or an End User.
- USE OF THE SERVICES.
This is a contract between you and Muvi. You must read and agree to these terms before using the Muvi Service. If you do not agree, you may not use the Muvi Service. If you are accepting this Agreement and using the Muvi Service on behalf of a company, organization, government, or other legal entity, you represent and warrant that you are authorized to do so. You may use the Muvi Service only if you can form a binding contract with Muvi, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Muvi Service by anyone under the age of 13 is strictly prohibited and in violation of this Agreement. If you are under the age of 18, you may only use the Muvi Service with your parent or guardian’s permission. The Muvi Service is not available to any Users previously removed from the Muvi Service by Muvi.
Your Muvi account gives you and your Authorized Users, if any, access to the Muvi Service. We may maintain different types of accounts for different types of Users, and these different accounts may have different functionalities available to them. You may never use another User’s account. When creating your account, you must provide accurate and complete information, and you must keep this information up to date. You are solely responsible for the activity that occurs on your account and the accounts of your Authorized Users, if any, and you must keep your account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account. You must notify Muvi immediately of any breach of security or unauthorized use known to you. Muvi will not be liable for any losses caused by any unauthorized use of your account. You may control your account and how you interact with the Muvi Service by changing the settings in your administration dashboard. By providing Muvi your email address you consent to our using your email address to send you notices related to the Muvi Service, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Muvi Service and special offers. If you do not want to receive such email messages, you may opt out or change your preferences in your administration dashboard. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
Subject to the terms of this Agreement, Muvi shall use commercially reasonable efforts to
- maintain the security of the Muvi Service; and
- provide the support set forth in in an applicable Order Form, if any. Requests for support may be made after you’ve logged into your account by creating a support ticket on the support page.
- Service Rules.
You agree not to engage in any of the following prohibited activities:
- copying, distributing, or disclosing any part of the Muvi Service in any medium, including without limitation by any automated or non-automated “scraping”;
- using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Muvi Service in a manner that sends more request messages to Muvi servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that Muvi grants the operators of public search engines revocable permission to use spiders to copy publically available materials from www.muvi.com for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials);
- transmitting spam, chain letters, or other unsolicited email;
- attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Muvi Service;
- taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure;
- uploading invalid data, viruses, worms, or other software agents through the Muvi Service;
- collecting or harvesting any personally identifiable information, including account names, from the Muvi Service;
- using the Muvi Service for any commercial solicitation purposes;
- impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity;
- interfering with the proper working of the Muvi Service;
- accessing any Content on the Muvi Service through any technology or means other than those provided or authorized by the Muvi Service; or
- bypassing the measures we may use to prevent or restrict access to the Muvi Service, including without limitation features that prevent or restrict use or copying of any Content or enforce limitations on use of the Muvi Service or the Content therein.
We may permanently or temporarily terminate or suspend your access to the Muvi Service without notice if, in our sole determination, you violate any provision of this Agreement.
You are solely responsible for your interactions with End Users. We reserve the right, but have no obligation, to monitor disputes between you and End Users. Muvi shall have no liability for your interactions with End Users, or for any User’s action or inaction.
- FREE SERVICES.
If you receive a free or unsubscribed access subscription (“Free Access Subscription”) to the Muvi Service, then you may use the Muvi Service in accordance with the terms and conditions of this Agreement for the period designated in the Order Form or otherwise by Muvi. Muvi may terminate or immediately suspend your Free Access Subscription at any time for any reason without liability to you. You acknowledge your Free Access Subscription may not be complete or fully functional and may contain bugs, Errors, omissions and other problems. NOTWITHSTANDING ANYTHING IN THIS Agreement TO THE CONTRARY, MUVI WILL HAVE NO WARRANTY, INDEMNITY OR SUPPORT OBLIGATIONS WITH RESPECT TO FREE ACCESS SUBSCRIPTIONS OR BETA RELEASES.
- PAID SERVICES.
- Paid Services.
Subject to the terms of this Agreement, an Order Form, and payment of applicable fees stated therein, Muvi hereby grants to you, during the term of this Agreement, a non-exclusive, non-transferable, non-sublicensable right to use the Muvi Service, for your
- internal business purposes solely as necessary to develop, maintain and support the Authorized Products; and
- access and use the Muvi Service solely as necessary to distribute and support the applicable Content you provide to Muvi to make
available to the appropriate End Users of the Content. Muvi reserves all rights not expressly granted herein in the Muvi Service.
- Usage Limits.
The Muvi Service is subject to usage limits, for example, each subscription to the Muvi Service may be used in association with a single Domain Name and has entitlement to the usage limits set forth in an applicable Order Form (current usage limits are available at: www.muvi.com/pricing.html). If the Muvi Service is accessed in a way that exceeds the specified contractual storage or bandwidth limit, you agree to pay any invoice for excess usage in accordance with the section titled Payment and Fees
- DEVHOURS AND RELATED TRANSACTIONS.
Muvi allows you to pre-purchase Professional Services to be performed by Muvi at a future date (“DevHours”). To purchase, redeem, and keep DevHours, you must create and maintain an account on the Muvi Service in good standing, registered with a valid credit card.
- Purchasing DevHours.
When you make a purchase of DevHours, you agree to provide a valid funding instrument to load DevHours to your account balance (“DevHours Balance”). When you have successfully completed this funding transaction, the purchased DevHours will appear in your DevHours Balance and be available for use. Each purchased DevHour is redeemable for one (1) hour of Consulting Services.
- Age. You must be at least 18 years old to purchase DevHours.
- DevHours Purchase. We want to make DevHours convenient, so we allow you to fund your DevHours purchase transactions using credit cards and debit cards. All DevHours purchase transactions on the Muvi Service are processed using a third-party payment processor. You acknowledge and agree that Muvi is not liable or responsible for any breaches of credit card or debit card security by such third-party processor. When you provide a funding instrument to us, you confirm that you are permitted to use that funding instrument. When you purchase Dev Hours, you authorize us (and our designated payment processor) to charge the full amount to the funding instrument you designate for the transaction. You also authorize us to collect and store that funding instrument, along with other related transaction information. If you pay by credit or debit card, we may obtain a pre-approval from the issuer of the card for an amount, which may be as high as the full price of your purchase. We will bill your card at the time you load DevHours to your DevHours Balance, or shortly thereafter. If you cancel a transaction before completion, this pre-approval may result in those funds not otherwise being immediately available to you. If you fund a payment by debit card and your load transaction results in an overdraft or other fee from your bank, you alone are responsible for that fee. You agree to pay all charges incurred by users of your credit card, debit card, or other method of payment. If we offer discounts on the purchase of DevHours, we may modify or discontinue those discounts at any time without notice to you. You acknowledge and agree that Dev Hours are a form of pre-paid service which may only be exchanged for Consulting Services and the amounts of any Dev Hours Balance do not refer to any credit balance of real currency or its equivalent. Any Dev Hours Balance shown in your account does not constitute a real-world balance or reflect any stored value, but instead constitutes a measurement of the extent of your ability to procure Consulting Services.
- Restrictions. Unless required by law, DevHours are non-transferrable and are not redeemable for cash. We may limit the number of DevHours you can purchase or receive within certain periods of time, or implement other restrictions on the receipt or use of DevHours, including but not limited to, imposing expiration dates for use of DevHours.
- No Refunds. You may cancel your account on the Muvi Service at any time. However, you understand and agree that In the event your Muvi account is cancelled, suspended or terminated for any reason, except where required by law, Muvi will not issue you a refund or accept returns of purchased DevHours. All purchases of DevHours are final. If you believe any DevHours were not properly credited to your DevHours Balance, please contact Muvi support by creating a support ticket on the support page.
- Unclaimed Property. If you leave a DevHours Balance unused for the period of time set forth by your state, country, or other governing body in its unclaimed property laws, or if you delete your account and leave a DevHours Balance, or if we deactivate your account and you do not meet any conditions necessary to reinstate it within six (6) months, we may process your DevHours Balance in accordance with our legal obligations, including by submitting funds associated with your DevHours Balance to the appropriate governing body as required by law.
- No Deposits. Muvi is not a bank and DevHours are not real currency or any type of stored value or financial instrument, so DevHours Balances are not deposits and they do not earn interest. DevHours Balances are not insured by the Federal Deposit Insurance Corporation, the Financial Services Compensation Scheme, or any other entity or insurance scheme, whether governmental or private.
- Duty to Notify Muvi. If you believe that an unauthorized or otherwise problematic transaction has taken place under your account, you agree to notify us immediately, so that we may take action to prevent anyloss. Unless you submit the claim to us within thirty (30) days after the charge, you will have waived, to the fullest extent permitted by law, all claims against us arising out of or otherwise related to the transaction.
- Use of DevHours
- Redeeming DevHours. DevHours are redeemable for Consulting Services. To place a request for Consulting Services, please log into your account and file a ticket with Muvi support online at Support > All Ticket on the support page. If Muvi, in its sole discretion, determines that your request constitutes a requests for Consulting Services, Muvi will respond to your request with a proposal for Consulting Services, which will include an estimate of the number of DevHours required to complete the requested Consulting Services. You acknowledge and agree that the estimated DevHours provided to you prior to your receipt of any Consulting Services are estimates. Actual DevHours required to complete the Consulting Services may vary. Upon completion of the Consulting Services, DevHours in an amount equal to the actual hours spent to complete the Consulting Services will be deducted from your DevHours Balance.
- Taxes. You will be responsible for payment of all taxes (other than taxes based on Muvi’s income), fees, duties, and charges and any related penalties and interest, arising from the purchase and/or redemption of DevHours and the provision of Consulting Services to you.
- DEVHOURS AND RELATED TRANSACTIONS.
- Muvi Technology.
You acknowledge that Muvi retains all right, title and interest in and to the all Content created by Muvi, as well as the Muvi System, Muvi Service, Documentation and all software and all Muvi proprietary information and technology used by Muvi or provided to you in connection with the Muvi Service (the “Muvi Technology”), and that the Muvi Technology is protected by Intellectual Property Rights owned by or licensed to Muvi. Other than as expressly set forth in this Agreement, no license or other rights in the Muvi Technology are granted to you. You hereby grant to Muvi a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Muvi Service any suggestions, enhancement requests, recommendations or other feedback provided by you relating to the Muvi Service. Muvi shall not identify you as the source of any such feedback.
- Content. The Content originated by you that is hosted by Muvi as part of the Muvi Service, and all worldwide Intellectual Property Rights therein, is your exclusive property. You hereby grant to Muvi a non-exclusive, worldwide, royalty-free and fully paid license (i) to use the the Content originated by you as necessary for purposes of providing the Muvi Service to you and (ii) to use your trademarks, service marks, and logos as required to provide the Muvi Service to you. You agree that Muvi may use the Content originated by you on an aggregated and anonymized basis for Muvi’s internal business purposes. All rights in and to the Content originated by you not expressly granted to Muvi in this Agreement are reserved by you. You agree that Muvi may use the Your Content created by you on an aggregated and anonymized basis for Muvi’s internal business purposes. All rights in and to the the Content created by you not expressly granted to Muvi in this Agreement are reserved by you. Muvi has the right (but not the obligation) in its sole discretion to remove any of Content that is shared via the Muvi Service.
- CONTENT RESTRICTIONS.
You agree not to post Content to the Muvi Service that:
- may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal;
- may create a risk of any other loss or damage to any person or property;
- seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise;
- may constitute or contribute to a crime or tort;
- contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, obscene, or otherwise objectionable;
- contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets);
- contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or
- contains any information or content that you know is not correct and current or
- violates any school or other applicable policy, including those related to cheating or ethics.
You agree that any Content that you originate on the Muvi Service does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights (as defined below) or rights of privacy. To the extent that any Content that you originate on the Muvi Service contains music, you hereby represent that you are the owner of all the copyright rights, including without limitation the performance, mechanical, and sound recordings rights, with respect to each and every musical composition (including lyrics) and sound recording contained in such Content and have the power to grant the license granted below. Muvi reserves the right, but is not obligated, to reject and/or remove any Content that Muvi believes, in its sole discretion, violates any of these provisions. You understand that publishing Content on the Muvi Service is not a substitute for registering it with the U.S. Copyright Office, the Writer’s Guild of America, or any other rights organization.
In connection with any Content that you make available through the Muvi Service, you affirm, represent and warrant the following:
- You have the written consent of each and every identifiable natural person in the Content, if any, to use such person’s name or likeness in the manner contemplated by the Service and this Agreement, and each such person has released you from any liability that may arise in relation to such use.
- You have obtained and are solely responsible for obtaining all consents as may be required by law to post any Content relating to third parties.
- The Content and Muvi’s use thereof as contemplated by this Agreement and the Service will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights.
- Muvi may exercise the rights to the Content granted under this Agreement without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.
- To the best of your knowledge, all Content originated by you and other information that you provide to us is truthful and accurate.
SHARING ON THIRD-PARTY SERVICES. Muvi provides you features that enable you to share your content to third party services such as Facebook or Youtube. The following would apply to you, only if you are using these features to share your content on third party services. Content includes but is not limited to social media posts, videos, live videos, texts, images, and other types of works:
- You agree that Muvi may transfer information to and from the applicable third party service
- The third-party services are not under the control of Muvi, and therefore Muvi is not responsible for any third-party service’s use of your exported content or information
- By linking your Muvi account to YouTube, you are agreeing to be bound by YouTube’s Terms of Service.
We strongly recommend you to read the terms and conditions as well as privacy policies of any third party service provider with which you would link your Muvi account.
Muvi takes no responsibility and assumes no liability for any Content that you or any other User or third party posts, sends, or otherwise makes available over the Muvi Service. You shall be solely responsible for the Content you originate and the consequences of posting, publishing it, sharing it, or otherwise making it available on the Muvi Service, and you agree that we are only acting as a passive conduit for your online distribution and publication of Content originated by you. You understand and agree that you may be exposed to Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that Muvi shall not be liable for any damages you allege to incur as a result of or relating to any Content that is not originated by Muvi.
- END USERS.
- You retain the sole right to collect revenue from your End Users through the payment gateway available on the Muvi Service.
- You hereby acknowledge that the terms of service for each of the Media Platforms you create using the Muvi Service is solely between you and the End User and conforms to applicable law, and Muvi shall not be responsible for, and shall not have any liability whatsoever under, any terms of service or any breach by you or any End User of any of the terms and conditions of any such End User agreement.
- PAYMENT AND FEES..
- Subscription Fees. Muvi offers the Muvi Service on a subscription basis (for a list of current subscription rates, visit: www.muvi.com/pricing.html). In consideration for the access rights granted to you and the services performed by Muvi under this Agreement, you will pay Muvi the then applicable fees described in an applicable Order Form for the Muvi Service in accordance with the terms therein (the “Subscription Fees”). Each subscription to the Muvi Service is authorized for use with one Domain Name. In the event that Subscriber wishes to use the Muvi Service in association with additional Domain Names, beyond the number of Domain Names for which Subscription Fees have been paid, Subscriber shall be required to pay additional Subscription Fees associated with the increased number of Domain Names.
- Billing. If you provide Muvi with valid credit card information, you authorize Muvi to charge such credit card for the Subscription Fees and Overage Fees (together, “Fees”) associated with the initial term and any renewal term(s). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, Muvi will invoice you in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net thirty (30) days from the invoice date. In the event that your corresponding Fees are overdue, Muvi shall be entitled to (in addition to any other rights or remedies Muvi may have) discontinue the Muvi Service and suspend your access, including your Authorized Users’ access, to the Muvi Service until such amounts are paid in full. Any amounts not paid when due shall bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less.Muvi reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of a term, upon thirty (30) days prior notice to Customer (which may be sent by email). If you believe that Muvi has billed you incorrectly, you must contact Muvi no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Muvi’s customer support department .by creating a support ticket once you’ve logged into your account.
- Third-party Fees. The issuer of your credit card may charge you a foreign transaction fee or other charges for subscribing to the Muvi Service. It is your responsibility to check with your credit card issuer regarding these details.
- Taxes. The fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and you will be responsible for payment of all such taxes (other than taxes based on Muvi’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of access to the Muvi Service to you. You will make all payments of fees to Muvi free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of fees to Muvi will be your sole responsibility, and you will provide Muvi with official receipts issued by the appropriate taxing authority, or such other evidence as Muvi may reasonably request, to establish that such taxes have been paid. You shall indemnify and defend Muvi in connection with any proceedings brought by any taxing authorities in connection with this Agreement.
- No Refunds. Notwithstanding any contrary terms in this Agreement or an applicable Order Form, the Fees paid for the Muvi Service are non-cancelable and non-refundable. You can cancel your subscription to the Muvi Service at any time from within the Muvi Service. Upon Muvi receiving your notice of termination Muvi will continue to provide you access to the Muvi Service through the remainder of the then-current term. Your access to the Muvi Service will be terminated effective as of the final day of the then-current term.
- Confidential Information. During the term of this Agreement, each party (the “Disclosing Party”) may provide the other party (the “Receiving Party”) with certain information regarding the Disclosing Party’s business, technology, products, or services or other confidential or proprietary information (collectively, “Confidential Information”). The Disclosing Party will mark all Confidential Information in tangible form as “confidential” or “proprietary” or with a similar legend, and identify all Confidential Information disclosed orally as confidential at the time of disclosure and provide a written summary of such Confidential Information within thirty (30) days after such oral disclosure. Regardless of whether so marked or identified, the Muvi Service, Muvi System or Documentation, and all enhancements and improvements thereto will be considered Confidential Information of Muvi.
- Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Subscriber) or to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to Muvi). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party shall provide to the Disclosing Party a written affidavit certifying compliance with this sentence.
- Exceptions. The confidentiality obligations set forth in this section will not apply to any information that
- becomes generally available to the public through no fault of the Receiving Party;
- is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations;
- was already known to the Receiving Party at the time of disclosure; or
- the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information.
In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
- Term and Termination. This Agreement commences on the Effective Date and remains in effect for the initial term, as set forth in an Order Form. Unless earlier terminated as set forth below, this Agreement shall be automatically renewed for consecutive terms equal in length to the initial term unless either party provides written notice to the other of its intention not to renew thirty (30) days prior to the expiration of the then-current term.
- Termination for Cause. Muvi may terminate this Agreement immediately upon breach of the Confidentiality or Proprietary Rights sections of this Agreement.
- We reserve the right to modify, suspend or terminate the Muvi Service (or any part thereof), your right or your Authorized Users’ rights, or End Users’ rights to access and use the Muvi Service, and remove, disable and discard any Content if we believe that you, your Authorized Users, or End Users have violated this Agreement. This includes the removal or disablement of Content in accordance with our Copyright Policy. Unless legally prohibited from doing so, we will use commercially reasonable efforts to contact you directly via email to the email associated with your account to notify you when taking any of the foregoing actions. We shall not be liable to you, your Authorized Users, End Users or any other third party for any such modification, suspension or discontinuation of your rights to access and use the Muvi Service. Any suspected fraudulent, abusive, or illegal activity by you, Authorized Users or End Users may be referred to law enforcement authorities at our sole discretion.
- Effect of Termination. Upon termination or expiration of this Agreement for any reason:
- all rights and obligations of both parties, including all licenses granted hereunder, shall immediately terminate; and
- within ten (10) days after the effective date of termination, Muvi shall discontinue all use of the Content you originated on the Muvi Service and may destroy all copies of the same in our possession.
The sections intended to survive termination of this Agreement shall survive, including but not limited to the sections and subsections titled Definitions, DevHours and Related Transactions, Limitations, Warranties and Disclaimers, Limitation of Liability, Confidentiality, Indemnification, Effect of Termination, and Miscellaneous.
- WARRANTIES AND DISCLAIMERS.
- Limited Warranty. Muvi warrants to you that, when used as permitted by Muvi and in accordance with the Documentation, the Muvi Service will operate free from Errors during the term of the Agreement. Provided that you notify Muvi in writing of any breach of the foregoing warranty during the term hereof, Muvi shall, as your sole and exclusive remedy, provide the support set forth in this Agreement and an applicable Order Form. This warranty gives you specific legal rights, and you may also have other rights which vary from jurisdiction to jurisdiction.
- Disclaimer. THE LIMITED WARRANTY SET FORTH IN THIS SECTION IS MADE FOR THE BENEFIT OF YOU ONLY. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE MUVI SERVICE, MUVI SYSTEM AND DOCUMENTATION ARE PROVIDED “AS IS,” AND MUVI MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE MUVI SERVICE, MUVI SYSTEM OR DOCUMENTATION (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO YOU BY MUVI. MUVI DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE MUVI SERVICE AND MUVI SYSTEM SHALL BE UNINTERRUPTED, SECURE, OR ERROR-FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. TO THE EXTENT ANY DISCLAIMER OR LIMITATION OF LIABILITY DOES NOT APPLY, UNLESS OTHERWISE STATED HEREIN, ALL APPLICABLE IMPLIED, AND STATUTORY WARRANTIES WILL BE LIMITED IN DURATION TO A PERIOD OF THIRTY (30) DAYS AFTER THE DATE ON WHICH YOU FIRST USED THE MUVI SERVICES, AND NO WARRANTIES SHALL APPLY AFTER SUCH PERIOD.
- No Representations. The Muvi Service is controlled and operated from facilities in the United States. Muvi makes no representations that the Muvi Service is appropriate or available for use in other locations. Those who access or use the Muvi Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.
- LIMITATION OF LIABILITY.
- Types of Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MUVI, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THE MUVI SERVICE. UNDER NO CIRCUMSTANCES WILL MUVI BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MUVI ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY
- ERRORS, MISTAKES, OR INACCURACIES OF CONTENT;
- PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE;
- PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE;
- ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN;
- ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE;
- ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY;
- ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR
- USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY.
- Amount of Damages. IN NO EVENT SHALL MUVI, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO MUVI DURING THE SIX (6) MONTHS PRECEDING THE ACT, OMISSION, OR OCCURRENCE GIVING RISE TO SUCH LIABILITY HEREUNDER OR $100.00, WHICHEVER IS GREATER. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
- Basis of the Bargain. The parties agree that the limitations of liability set forth in this section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
You agree to defend, indemnify and hold harmless Muvi and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from:
- your use of and access to the Muvi Service, including any data or Content transmitted or received by you;
- your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above;
- your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights;
- your violation of any applicable law, rule or regulation;
- Content originated by you on the Muvi Service or any content that is submitted via your account including without limitation misleading, false, or inaccurate information;
- your willful misconduct; or
- any other party’s access and use of the Muvi Service with your or any of your Authorized User’s’ unique username, password or other appropriate security code. Muvi shall notify you in writing of any threatened or actual claim or suit; (b) Muvi shall have sole control of the defense or settlement of any claim or suit; and (c) Muvi shall cooperate with the you to facilitate the settlement or defense of any claim or suit.
- GOVERNING LAW, ARBITRATION, AND CLASS ACTION/JURY WAIVER.
- Governing Law. You agree that:
- the Muvi Service shall be deemed solely based in New York; and
- the Service shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than New York. This Agreement shall be governed by the internal substantive laws of the State of New York, without respect to its conflict of laws principles.
The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in New York County, New York for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that New York County, New York is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
- Arbitration. READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM MUVI. For any dispute with Muvi, you agree to first contact us and attempt to resolve the dispute with us informally. In the unlikely event that Muvi has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in New York County, New York, unless you and Muvi agree otherwise. If you are using the Muvi Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Muvi Service for non-commercial purposes:
- JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS;
- the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and
- you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process.
Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Muvi from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.
- Class Action/Jury Trial Waiver.WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND MUVI ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
- Export. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Muvi, or any products utilizing such data, in violation of the United States export laws or regulations.
- Compliance Notice Pursuant to 18 U.S.C. Section 2257. All pictures, graphics, videos, and other visual media displayed on the Muvi Services are exempt from 18 U.S.C. § 2257 and 28 C.F.R. 75 because they do not consist of depictions of conduct as specifically listed in 18 U.S.C. § 2256 (2) (A) – (D), but are merely, at most, depictions of non-sexually explicit nudity, or are depictions of simulated sexual conduct, or are otherwise exempt because the visual depictions were created prior to July 3, 1995. Muvi is not the primary producer of the visual content contained in the Muvi Services.
- Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Without limiting the generality of the foregoing, you agree that the section titled Limitation of Liability will remain in effect notwithstanding the unenforceability of any provision in the subsection titled Limited Warranty.
- Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- Remedies. Except as provided in the sections titled Limited Warranty and Indemnification, the parties’ rights and remedies under this Agreement are cumulative. You acknowledge that the Muvi Service, Muvi System or Documentation contain valuable trade secrets and proprietary information of Muvi, that any actual or threatened breach of the sections titled Proprietary Rights or Confidentiality or any other breach by you of your obligations with respect to Intellectual Property Rights of Muvi will constitute immediate, irreparable harm to Muvi for which monetary damages would be an inadequate remedy. In such case, Muvi will be entitled to immediate injunctive relief without the requirement of posting bond, including an order that any software, Documentation, or any portions thereof, that you attempt to import into any country or territory be seized, impounded and destroyed by customs officials. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.
- California Residents. The provider of services is set forth herein. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
- No Assignment. Neither party shall assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without the consent of the other party. The terms of this Agreement shall be binding upon the parties and their respective successors and permitted assigns.
- Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
- Independent Contractors. Your relationship to Muvi is that of an independent contractor, and neither party is an agent or partner of the other. You will not have, and will not represent to any third party that it has, any authority to act on behalf of Muvi.
- Notification Procedures and Changes to this Agreement. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon:
- personal delivery,
- the second business day after mailing,
- the second business day after sending by confirmed facsimile, or
- the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim).
- Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.
- Entire Agreement. This Agreement, including all exhibits and addenda hereto and all applicable Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail.
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