ooyala

OOYALA, INC.

END USER LICENSE AGREEMENT

BACKLOT AND VIDEO PLAYER

 

REDISTRIBUTION NOT PERMITTED

This End User License Agreement is for the Ooyala, Inc. Backlot Software and Video Player.

Last updated: November 20, 2008.

IMPORTANT – PLEASE READ CAREFULLY: This End User License Agreement (“EULA”) constitutes a legal agreement between you (either an individual or an entity) and Ooyala, Inc., its suppliers and licensors (collectively, "Ooyala") and governs your use of the Ooyala Backlot Software (“Backlot”) and the Ooyala Video Player (the “Player”).

By clicking on the "I Accept" button and installing, copying or otherwise using Backlot and/or the Player (collectively the “Technologies”), you agree that your use is subject to this EULA. All uses of any Ooyala products or services are subject to Ooyala’s Privacy Policy located at http://www.ooyala.com/company/privacy ("Privacy Policy") and Ooyala’s Terms of Use located at http://www.ooyala.com/company/tou (‘Terms OF USE”), EACH OF WHICH MAY BE UPDATED FROM TIME TO TIME BY OOYALA.

OOYALA RESERVES THE RIGHT, AT ITS SOLE DISCRETION, TO ALTER OR UPDATE THE TECHNOLOGIES INCLUDING, WITHOUT LIMITATION, FEATURES, SPECIFICATIONS, CAPABILITIES, FUNCTIONS, LICENSING TERMS, RELEASE DATES, GENERAL AVAILABILITY OR OTHER CHARACTERISTICS. By continuing to use the Technologies after any SUCH changes, you agree to be bound by subsequent CHANGES and acknowledge that Ooyala shall have no liability to you as a result of any such CHANGES.

YOUR USE OF THE TECHNOLOGIES ACKNOWLEDGES THAT YOU HAVE READ THIS EULA, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, CLICK ON THE "Cancel" BUTTON AND DO NOT DOWNLOAD, INSTALL OR USE THE TECHNOLOGIES.

 

1.   Definitions.

1.1   “Account” means a user profile created by you when installing Backlot and used to make selections with respect to the presentation, management, distribution and end user access to Content.

 

1.2   “Content”means any and all audio and video materials including, without limitation, text, logos, artwork, graphics, pictures, advertisements, sound and other related intellectual property contained in materials uploaded or provided to Ooyala by you.

 

1.3   “Technologies”means Backlot and the Player.

 

 

2.   Grant of Licenses; Scope of License; Restrictions.

            2.1   Grant of Licenses.

(a) Technologies. Provided you comply with the terms and conditions of this EULA, Ooyala hereby grants to you during the term permitted by Ooyala, a non-exclusive, non-transferable, limited license, without right of sublicense, to: (i) download and use Backlot; and (ii) use the Player in executable code to reproduce, transmit and display Content.

(b) Content Delivery. You hereby grant Ooyala a world-wide, royalty-free, non-exclusive license to: (i) deliver Content in accordance with the preferences you set using your Account; (ii) secure, encode, reproduce, host, cache, route, reformat, analyze and create algorithms and reports based on access to and use of the Content; (iii) exhibit, broadcast, publicly display, publicly perform, distribute, copy, store, and/or reproduce the Content on or through the Technologies; and (iv) utilize Content to test Ooyala’s internal technologies and processes.

 

            2.2   Scope of Use.

 

(a) Responsibility for Content. You are solely responsible for all matters arising out of or in connection with the Content including, without limitation, ensuring that the Content does not include Prohibited Content and does not violate any third party rights, as further described elsewhere in this EULA.

(b) Content. The Technologies are passive conduits of online Content. You acknowledge Ooyala is not responsible for preventing or identifying infringement of intellectual property rights and assumes no responsibility for monitoring for possible infringement or enforcing your intellectual property rights. For any infringement or suspected infringement of intellectual property rights, notify Ooyala in accordance with Ooyala’s DMCA Notification Policy, available at http://www.ooyala.com/company/tou .

(c) Third Party Materials. The Technologies may include third party components that may be subject to their own, separate license agreements.

(d) The Player. The Player contains software to track and capture user activity to assist Ooyala in optimizing delivery of Content. Your use of the Player constitutes acceptance of this feature. For further information on how such software is used, please review Ooyala’s Privacy Policy located at http://www.ooyala.com/company/privacy. If you enable, via your Account, syndication of your Content on third party websites, you, and not Ooyala, are solely responsible for notifying each such third party website that Ooyala may track information regarding the third party users.

            2.3    Restrictions.

(a) Technologies. You are expressly prohibited from: (a) selling, renting, leasing, sublicensing otherwise transferring or distributing any copies of the Technologies to third parties; (b) modifying, translating, reverse engineering, decompiling, or disassembling the Technologies or altering any accompanying documentation; (c) creating derivative works based upon the Technologies; (d) altering, destroying or otherwise removing any proprietary notices, images or logos displayed, provided on or embedded within the Technologies; (e) restricting or inhibiting others use or enjoyment of the Technologies; (f) gaining unauthorized access to other Accounts; (g) impersonating or otherwise misrepresenting any person or entity, or making false or misleading indications of origin or fact; or (h) interfering with or disrupting the Technologies or Ooyala’s servers or networks connected thereto, or disobeying any requirements, procedures, policies or regulations of networks connected to the Technologies.

(b) Content. Nothing in this EULA shall be construed to grant, by implication, estoppel, or otherwise, any license or right to use any third party Content accessed via the Technologies, without the prior written permission of the Content owner. Any and all rights not expressly granted herein are reserved to Ooyala, its licensors, suppliers or third party Content owners. You are solely responsible for all matters arising out of or in connection with the Content including, without limitation, compliance with all applicable laws, rules and regulations, and obtaining all third party or other rights, approvals, licenses, consents, waivers, and other permissions necessary for the Technologies to be utilized hereunder. You are solely responsible for maintaining copies of the Content and shall take precautionary measures to backup and protect it. Ooyala has no obligation to provide you (or any third party) with backup or archival copies of any Content uploaded or distributed via the Technologies.

(c) Prohibited Content. You shall not use the Technologies 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 the Technologies; (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 Technologies (collectively, the “Prohibited Content”).

(d) Age Restriction for Backlot. Any person under the age of eighteen (18) or who does not have permission from their parent or guardian is not authorized to use Backlot and must immediately cease all use of Backlot.

 

3   Beta Release. Ooyala may make certain Technologies available as a beta release, which shall be identified as such (“Beta Version”). The Beta Version may contain different features than the final version that Ooyala intends to distribute commercially. Ooyala reserves the right at any time not to release a commercial version of the Beta Version, or, if released, to alter features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics. You agree that the Beta Version may not be suitable for production or commercial use and may contain bugs or errors affecting its proper operation. You shall comply with all conditions associated with a Beta Version, including, without limitation, installing updated versions of the Technologies to replace a Beta Version.

 

4.   Automatic Updates/Communication Features. The Technologies automatically communicate with Ooyala's servers to check for automatic updates such as bug fixes, patches, enhanced functions, security related patches or updates, and new versions of the Technologies. At no charge to you, Ooyala may require the installation of software updates deemed reasonably necessary to address errors, bugs or other performance issues in the Account (collectively, “Updates”). Updates (if any) shall be subject to the same terms and conditions of this EULA. Ooyala may, from time to time, post notices on the Ooyala website explaining Updates and provide instructions to end users associated with such Updates.

 

5.   Compliance with U.S. Laws. The Technologies are of U.S. origin. You shall adhere to all applicable state, federal, local and international laws and treaties in all jurisdictions in which you use the Technologies, including, without limitation, all end-user, end-use and destination restrictions issued by U.S. and other governments and the U.S. Export Administration Act and its associated regulations. For clarity, you, and not Ooyala, shall be responsible for ensuring that your use of the Technologies, does not constitute a criminal offense, give rise to civil liability or otherwise violates 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.

 

6.   Termination. Ooyala may terminate or suspend your access to the Technologies: (a) should you fail to comply with a term or condition this EULA and/or any applicable services agreement between you and Ooyala; (b) for any conduct that Ooyala believes is or may be directly or indirectly harmful to other users, to Ooyala or its subsidiaries, affiliates, or business contractors, or to other third parties; (c) for any conduct that violates any local, state, federal, or foreign laws or regulations; (d) for user inactivity; or (e) if Ooyala reasonably determines that your access to the Technologies may be detrimental to Ooyala or any third party.

 

7.   Title. Ooyala owns all right, title and interest in and to the Technologies including associated intellectual property rights under copyright, trade secret, patent, trademark and/or other applicable domestic and international laws. Any and all trademarks that Ooyala uses in connection with the Technologies are owned by Ooyala and any goodwill associated with the use of such marks shall inure to the benefit of Ooyala. Ooyala is not required to accept unsolicited feedback. If you provide any feedback about the Technologies to Ooyala, Ooyala shall own all rights in and to such feedback and any derivative technologies developed on such feedback. You shall take all necessary actions to affect Ooyala’s rights in and to such feedback.

 

8.   Disclaimer of Warranties. OOYALA MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE OF THE SUITABILITY OF THE TECHNOLOGIES FOR YOUR PURPOSES, THAT THE USE OF THE TECHNOLOGIES SHALL BE SECURE, UNINTERRUPTED OR ERROR-FREE, OR THAT THE TECHNOLOGIES SHALL FUNCTION PROPERLY IN COMBINATION WITH ANY THIRD PARTY TECHNOLOLGY, HARDWARE, SOFTWARE, SYSTEMS OR DATA. THE TECHNOLOGY IS 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 TECHNOLOGY 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.

 

9.   Warranty; Indemnification. You represent and warrant that you are solely responsible and liable for: (a) obtaining all necessary consents, permissions, licenses and waivers from copyright owners, artist(s), actors, directors, performers, writers, producers, or any other individuals who appear in the Content or the results and proceeds of whose services are utilized in the Content; (b) obtaining any required synchronization and master use licenses from the owners of the musical compositions and sound recordings embodied in the Content (or their designated representatives); (c) any payments to any labor unions and guilds, to the extent required under applicable collective bargaining agreements or otherwise (e.g., residuals, re-use, rerun and other similar fees); (d) obtaining public performance licenses from public performance rights collection organizations (e.g., ASCAP, BMI or SESAC); (e) complying with all laws, rules and applicable regulations; (f) any Prohibited Content; and (g) abiding by all the terms of this EULA. You shall defend, indemnify and hold Ooyala harmless against any and all claims, damages, costs and expenses (including reasonable attorneys’ fees and litigation expenses) arising out of or in connection with your breach of this EULA, including but not limited to any of the representations or warranties set forth herein..

 

10.   Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL OOYALA BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS EULA OR THE USE OF OR INABILITY TO USE THE TECHNOLOGIES, EVEN IF OOYALA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR EXCLUSIVE REMEDY AND OOYALA’S TOTAL AGGREGATE LIABILITY RELATING TO, ARISING OUT OF, IN CONNECTION WITH, OR INCIDENTAL TO THIS EULA FOR ANY REASON SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES INCURRED BY YOU, UP TO THE GREATER OF THE AMOUNTS PAID DIRECTLY TO OOYALA FOR USE OF THE TECHNOLOGIES OR ONE THOUSAND U.S. DOLLARS ($1,000.00). THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE FOR ANY REASON. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU. THE PROVISIONS OF THIS SECTION DO NOT WAIVE OR LIMIT OOYALA’S ABILITY TO OBTAIN INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR BREACH OF THIS EULA.

 

11.    Government Restricted Rights. If the Technologies are licensed for use by the United States or in the performance of a U.S. government prime contract or subcontract, you agree that the Technologies are delivered as: (a) “commercial computer software” as defined in DFARS 252.227-7013, Rights in Technical Data—Noncommercial Items (Oct 1988), DFARS 252.227-7014 Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation (Jun 1995), and DFARS 252.211-7015 Technical Data Commercial Items (May 1991); (b) as a “commercial item” as defined in FAR 2.101; or (c) as “restricted computer software” as defined in FAR 52.227-19, Commercial Computer Software—Restricted Rights (Jun 1987); whichever is applicable. The use, duplication, and disclosure of the Technologies by the Department of Defense shall be subject to the accompanying license agreement provided in DFARS 227.7202 (Oct 1998). All other use, duplication or disclosure of the Technologies by the U.S. government will be subject to the accompanying license agreement and restrictions set forth in FAR 52.227-19©, Commercial Computer Software—Restricted Rights (Jun 1987), or FAR 52.227-14, Rights in Data—General Alternative III (Jun 1987). Contractor/licensor is Ooyala, Inc., 800 W El Camino Real, Suite 350, Mountain View, CA 94040.

 

12.   Governing Law; Dispute Resolution. This EULA shall be governed by the laws of the State of California as such laws apply to contracts between California residents performed entirely within California, without regard to conflict of law provisions. Any action or proceeding arising from or relating to this EULA may be brought in the State and Federal courts located in Santa Clara, California and each party irrevocably submits to such exclusive jurisdiction and venue.

 

13.   Entire Agreement. This EULA constitutes the complete and exclusive agreement between you and Ooyala with respect to its subject matter; provided, however, that if you and Ooyala enter into a written services agreement or some other written agreement that expressly incorporates this EULA by reference, then this EULA shall be subject to such other agreement as set forth therein. If any provision of this EULA is held unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and such decision shall not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances. You and Ooyala are independent contractors, no joint venture, partnership, employment, agency or exclusive relationship exists between you and Ooyala as a result of this EULA or your use of the Technologies as authorized hereunder. The failure of you or Ooyala to enforce any right or provision in this EULA shall not constitute a waiver of such right or provision. You may not transfer or assign this EULA or any rights or obligations hereunder, directly or indirectly, by operation of law or otherwise, without the prior written consent of Ooyala. This Agreement shall inure to the benefit of and be binding upon Ooyala’s or your respective successors and permitted assigns