Ooyala: Terms of Use

Ooyala Terms of Use

Last updated: March 1, 2008

A. APPLICATION OF TERMS OF USE

This World Wide Web site and any variations or successors to this website (www.ooyala.com, the "Ooyala Site") is owned by Ooyala, Inc., its subsidiary and affiliate corporations, successors, and assigns (collectively referred to as "Ooyala"). Any Ooyala computer software downloadable or otherwise available from the Ooyala Site ("Ooyala Software") is provided under the terms of the accompanying User Agreement (defined below). Any Ooyala services purchased or otherwise provided from the Ooyala Site ("Ooyala Services") are subject to the additional terms of any applicable services agreement. These Terms of Use ("Terms") apply to all users ("Users") of the Ooyala Site, the Ooyala Software and the Ooyala Services (collectively, the "Ooyala Properties").

B. MODIFICATION

Ooyala may modify, update, change, discontinue, add or remove any or all parts of the Ooyala Properties or these Terms at any time. Changes to these Terms and the Ooyala Site will be effective on the date posted on the Ooyala Site. Each of the Ooyala Properties may have separate registration procedures, terms and conditions, terms of service, user agreements, and/or similar legal agreements governing the use of such Ooyala Properties, which are also subject to subsequent change, modification or revocation under their terms ("User Agreements"). Unless explicitly stated otherwise, all new or modified versions of the Ooyala Properties shall also be subject to these Terms.

C. THIRD PARTY PRODUCTS AND SERVICES

Ooyala may offer third party products and/or services from the Ooyala Site. Users assume all risks and liabilities associated with the use of any such third party offerings. Each User's rights are governed by the separate user agreement or other terms of use provided by the applicable third party provider. Any third party products, Content (defined below), services or links displayed on the Ooyala Site are not referrals or endorsements of any product, service or provider. These offerings are displayed solely for convenience only.

D. BETA RELEASES

Ooyala may make certain Ooyala Properties available in a pre-release form or format ("Beta Versions"). The Beta Versions may contain different features than the final version that Ooyala intends to distribute commercially. Ooyala reserves the right at any time not to release commercial versions of the Beta Versions, or, if released, to alter features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics. The Beta Versions may not be suitable for production or commercial use and may contain bugs or errors affecting their proper operation. No Beta Versions should be used to support Òmission criticalÓ applications or in environments requiring fail safe or error free performance.

E. OWNERSHIP OF OOYALA PROPERTIES

The Ooyala Properties are owned by Ooyala, its suppliers and licensors. In no event shall any Ooyala Properties be deemed sold or assigned to any User of the Ooyala Properties. Any and all rights not expressly granted in any User Agreements are reserved to Ooyala and its suppliers and licensors.

F. ACCESS AND USE OF OOYALA PROPERTIES BY MINORS

Use of the Ooyala Properties is not intended for minors under the age of 18 ("Minors"). Minors are not authorized by Ooyala to use the Ooyala Properties, even if Minors set up an Account or accept the terms of any User Agreement. Parents or guardians may authorize Minors between the ages of 13 and 17 to use the Ooyala Properties, provided they assume all responsibility and legal liability for the conduct of such Minor including, without limitation, monitoring the Minor's access and use of the Ooyala Properties. If Ooyala learns that anyone under the age of 13 is using the Ooyala Properties, Ooyala will require verified parental or guardian consent, in accordance with the Children's Online Privacy Protection Act of 1998 ("COPPA").

G. REGISTRATION AND PRIVACY

1. Account and Registration. Prior to using one or more of the Ooyala Properties, Ooyala may require certain information to create an individual account ("Account"). Failure to provide all required data to create an Account may prevent access to any or all Ooyala Properties, and failure to maintain accurate Account information may result in suspension or termination of access to any or all Ooyala Properties. All Account information is the exclusive property of Ooyala. Ooyala shall protect and maintain all data collected in setting up the Account in the manner described in the Ooyala Privacy Policy located at http://www.ooyala.com/privacy. Users may edit or update their personally identifiable Registration Data at any time by following the instructions located in the Ooyala Privacy Policy.

2. Password. Access to the Account and many Ooyala Properties requires a secure, individual password. Passwords must be protected from disclosure or unauthorized use. In the event of a suspected or actual breach of security related to any Ooyala Property, Ooyala must be immediately notified. Although Ooyala will use commercially reasonable efforts to provide assistance, Ooyala is not liable for any loss or damage resulting from the security of any Account or a User's failure to maintain the confidentiality of passwords.

3. Termination/Suspension of Account. Unless otherwise set forth in a User Agreement, Ooyala may immediately terminate or suspend access to the Ooyala Properties (including Accounts) for conduct that includes, without limitation: (a) violation of third party rights such as copyright, trademark and rights of privacy and publicity; (b) interference with the proper functionality of any or all Ooyala Properties; or (c) unlawful conduct in any local, state, federal or foreign jurisdiction.

H. USE OF OOYALA PROPERTIES

1. Content. Users are solely responsible for any and all audio and video materials uploaded or provided to Ooyala by Company and/or provisioned by Company into the Ooyala Properties including, without limitation, text, logos, artwork, graphics, pictures, advertisements, sound and other related intellectual property contained in such materials (collectively, "Content"). Ooyala Properties are passive conduits of all Content submitted or accessed through the Ooyala Properties and Ooyala is not responsible for the: (1) selection, acquisition, distribution and licensing of Content in the Ooyala Properties; and (2) acquisition and payment of any third party licenses, rights clearances or other permissions needed from unions, guilds or other entities to use Content in the manner authorized by a User in their Account. Ooyala has no obligation (and undertakes no responsibility or liability for any obligation) to review, monitor or oversee any Content submitted, uploaded, distributed or retrieved in connection with the use of the Ooyala Properties. Furthermore, Ooyala assumes no responsibility for protecting or enforcing third party rights with respect to Content, including, without limitation, monitoring the Content, determining whether Content is lawful, appropriate or permitted by third parties, for libel, falsehoods, errors or omissions contained in Content or compliant with FCC or other governmental regulations, or for taking legal action against actual or suspected infringers of Content.

2. Test Credits. Users of the Ooyala Properties may receive a certain number of test credit hours ("Test Credit") to test certain features and functionality of the Ooyala Properties free of charge. Once any such Test Credit has been exhausted, Users are responsible for paying applicable fees for use of the Ooyala Properties. Payment terms and usage prices are designated in the User Agreement or on the Ooyala Site.

3. Third Party Publishers. Users may, in their Account, indicate their preference to distribute Content via one or more online publisher(s) (each a "Publisher"), and in such case the User assume all risks and liabilities associated with the distribution of Content to such Publishers including, without limitation, the obligations set forth in Paragraph H (1) above.

4. Ooyala Software. The Ooyala Software contains tracking code used by Ooyala to track and capture User activity, which assists Ooyala to optimize certain features and functionality of the Ooyala Properties. If a User elects, via their Account, to syndicate Content on third party sites the User, and not Ooyala, is solely responsible for notifying each such third party site that Ooyala may track information regarding the third party users, solely in connection with their access of User Content.

I. COPYRIGHT INFRINGEMENT NOTIFICATION PROCEDURE

Ooyala respects the intellectual property rights of others and expects Users to do the same. In accordance with the Digital Millennium Copyright Act of 1998, the text of which may be found on the U.S. Copyright Office website at http://www.copyright.gov/legislation/dmca.pdf, Ooyala will respond expeditiously to claims of potential copyright infringement committed using Ooyala Properties. Copyright owners or a party authorized to act on behalf of an owner, should please report potential copyright infringement by completing the following DMCA notice and delivering it to the Ooyala Designated Copyright Agent. Upon receipt, Ooyala will take whatever action, in its sole discretion, it deems appropriate, including removal of the potentially infringing material and/or termination of the potential infringer's Account.

Please send either an email to copyright@Ooyala.com (Subject: DMCA Notification), a facsimile to: 650-618-1832 (Attn: DMCA Notification), or letter to the address provided below with all of the following information:

1. Identify the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.

2. Identify the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to locate the material. Providing URLs in the body of an email is the best way to help Ooyala locate Content quickly.

3. Provide Information reasonably sufficient to permit Ooyala to contact you, the complaining party, such as an address, telephone number, and, if available, an electronic mail address.

4. A statement that you, as the complaining party, or as one who has authorization to act on behalf of the copyright owner, has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law. As an example, "I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner or its agent."

5. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. As an example, "I hereby state that the information in this notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed."

6. Provide your full legal name and your electronic or physical signature.

Such written notice should be sent to Ooyala's designated agent as follows:

Ooyala

Attn: DMCA Notification
800 W El Camino Real, Suite 350
Mountain View CA 94040

Fax: 650-618-1832
Email: copyright@Ooyala.com

J. COPYRIGHT INFRINGEMENT COUNTER-NOTIFICATION

The process for counter-notifications is governed by Section 512(g) of the Digital Millennium Copyright Act: http://www.copyright.gov/legislation/dmca.pdf. To file a counter-notification with Ooyala, a written communication that sets forth the items specified below must be provided.

Please note that under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability. Ooyala will terminate any User who is a repeat infringer. Accordingly, any User is not sure whether certain material infringes the copyright of others, should contact an attorney.

1. Elements of Counter-Notification

To file a Counter-Notification, please send either an email to copyright@Ooyala.com (Subject: DMCA Counter-Notification), a facsimile to: 650-618-1832 (Attn: DMCA Counter-Notification), or letter to the address provided below with all of the following information:

To expedite Ooyala's ability to process counter notifications, please use the following format (including section numbers):

(a) Identify the specific URLs of material that Ooyala has removed or to which Ooyala has disabled access.

(b) Provide your full name, address, telephone number, and email address, and the username of the Account.

(c) Provide a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located (or San Francisco County, California if your address is outside of the United States), and that you will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.

(d) Include the following statement: "I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled."

(e) Sign the notice. If you are providing notice by e-mail, a scanned physical signature or a valid electronic signature will be accepted.

Such written notice should be sent to Ooyala's designated agent as follows:

Ooyala

Attn: DMCA Counter - Notification
800 W El Camino Real, Suite 350
Mountain View CA 94040

Fax: 650-618-1832
Email: copyright@Ooyala.com

2. What happens next?

After Ooyala receives a counter-notification, Ooyala will forward it to the party who submitted the original claim of copyright infringement. Please note that when Ooyala forwards the counter-notification, it will includes any personal information provided to Ooyala and submitting a counter-notification requires unencumbered consent to having such information revealed in this way. Ooyala will not forward the counter-notification to any party other than the original claimant.

After Ooyala sends out the counter-notification, the claimant must then notify Ooyala within ten (10) days that he or she has filed an action seeking a court order to restrain the infringer from engaging in infringing activity relating to the material distributed via the Ooyala Properties. If Ooyala receives such notification, Ooyala will be unable to restore the Content to the Ooyala Properties until resolution of any court action. If Ooyala does not receive such notification, Ooyala may, at its sole discretion, reinstate the Content.

K. PROHIBITED CONDUCT

1. The Ooyala Properties may not be used to intentionally or unintentionally violate any applicable local, state, national or international law, including, without limitation, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law or use Ooyala or the Ooyala Properties to sell, purchase, or offer to sell or purchase any registered or unregistered securities, or upload, post, email, otherwise transmit, or post links to any material that is false, misleading, or designed to manipulate any equity, security, or other market.

2. Users agree to comply with all applicable laws, rules and regulations that apply to their use of the Ooyala Properties. Users, and not Ooyala, shall be responsible for ensuring that their use of the Ooyala Properties does not constitute a criminal offense, give rise to civil liability or otherwise violate any applicable law, regulation or ordinance, including, without limitation, U.S. law, regarding the transmission of copyrighted, trademarked Content or personally identifiable information or controlled technical data.

3. Users shall not use the Ooyala Services to upload, download, post, e-mail, transmit, transfer, distribute, display or link to Content that: (a) promotes illegal activity, or provides instructions for illegal activity; (b) exploits images or discloses personally identifiable information of children under eighteen (18) years of age or otherwise harms minors in any way; (c) it does not have the right to use for the purposes of this Agreement; (d) is unlawful, harmful, threatening, abusive, violent, harassing, tortious, defamatory, vulgar, obscene, pornographic, libelous, invasive of privacy or publicity rights, hateful or racially, sexually, ethnically or otherwise objectionable; (e) infringes the intellectual property or proprietary rights of any third party; (f) is in any way related to any raffle, sweepstakes, contest or game requiring a fee by participants; (g) directly or indirectly is used for "junk mail", "spam", "chain letters", "pyramid schemes", or any other like form of solicitation; and (h) contains any malicious or invasive software, or that could diminish the quality of, interfere with the performance of, or impair the functionality of the Ooyala Services (collectively, the "Prohibited Content").

L. FEEDBACK

Ooyala does not accept unsolicited feedback, suggestions or other information about Ooyala, the Ooyala Properties or any other Ooyala products and services. Ooyala shall be free to use any feedback provided to Ooyala for any purpose, such as improving its products and services (including Ooyala Properties) and creating derivative technologies based upon such feedback. All feedback is provided voluntarily and free of any third party rights or encumbrances.

M. Disclaimer of WarrantieS. OOYALA MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE OF THE SUITABILITY OF THE OOYALA PROPERTIES FOR COMPANY'S PURPOSES, THAT THE USE OF THE OOYALA PROPERTIES OR ACCOUNT SHALL BE SECURE, UNINTERRUPTED OR ERROR-FREE, OR THAT THE OOYALA PROPERTIES SHALL FUNCTION PROPERLY IN COMBINATION WITH ANY THIRD PARTY TECHNOLOLGY, HARDWARE, SOFTWARE, SYSTEMS OR DATA. THE OOYALA PROPERTIES ARE PROVIDED "AS IS" AND ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE OOYALA PROPERTIES MAY BE SUBJECT TO INTERRUPTION, LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF INTERNET APPLICATIONS AND ELECTRONIC COMMUNICATIONS AND OOYALA IS NOT RESPONSIBLE FOR ANY SUCH DELAYS, DELIVERY FAILURES, OR ANY OTHER DAMAGE RESULTING FROM EVENTS BEYOND OOYALA'S REASONABLE CONTROL.

N. Limitation of Liability.OOYALA'S LIMITATION OF LIABILITY WITH RESPECT TO ANY OF THE OOYALA PROPERTIES IS SET FORTH IN THE APPLICABLE USER AGREEMENT.

O. CONTACTING OOYALA

Ooyala, Inc.

800 W El Camino Real, Suite 350

Mountain View CA 94040