Last updated: December 4, 2012
2. Grant of Licenses; Scope of License; Restrictions.
2.1 Grant of Licenses. (a) Right to Use the Services. Subject to the terms and conditions of the Contract(s), including without limitation these Terms of Service and the AUP, Ooyala grants to You, during the Term specified in the Contract(s) or the limited time period specified for the Demo Account issued to You, a non-exclusive, non-transferable, revocable, limited license, without right of sublicense, to access and use the Services. (b) Content. You hereby grant Ooyala a worldwide, royalty-free, non-exclusive, transferable (solely to Ooyala’s Agents and Suppliers) license to perform such acts with respect to the Content solely as are reasonable in connection with provisioning the Services including, without limitation, the right to: (i) secure, transcode, encode, reproduce, host, cache, route, reformat, and analyze the Content and create algorithms and reports based on access to and use of the Content by Users and End Users; (ii) use, exhibit, broadcast, deliver, publish, publicly display, publicly perform, distribute, promote, copy, store, and/or reproduce (in any form) the Content on or through the Services; and (iii) utilize Content to test Ooyala’s internal technologies and processes.
3. Automatic Updates/Communication Features.
The Services consist of the most current versions thereof, including without limitation automatic general release updates to the Services such as bug fixes, patches, enhanced functions, and/or security related patches. You agree to accept and/or migrate (as applicable) to any and all new versions of Services, or any portion thereof, that Ooyala may implement and/or otherwise provide to You, and Ooyala shall have no obligation to provide or support any prior versions of the Services or portions thereof.
(a) Fees; Payment Terms. In consideration of Your rights under the Contract(s), You shall timely pay Ooyala in U.S. dollars the Fees designated in the Contract(s). You agree to purchase the Services indicated in each applicable Contract for the Initial Term stated therein and any renewal terms. All recurring Fees (including without limitation, as applicable to the Contract(s): platform fees, support fees, and bundled use allotment fees (e.g. for transcoding, streaming, delivery, processed content, storage, etc.)) are due and payable in advance, all usage-based fees (e.g., for transcoding, streaming, delivery, processed content, storage, etc. in lieu of or in excess of the prepaid allotments, as applicable) are due and payable monthly in arrears, and all non-recurring Fees (e.g. pursuant to statement(s) of work) are due and payable on the effective date of the order unless otherwise stated in a particular statement of work. Any unused portions of included and/or bundled use allotments that may be stated in the Contract(s) (including without limitation use allotments relating to streams, transcoding, processed content, and/or delivery) will expire at the end of each time increment stated in the Contract(s) and will not rollover to subsequent timeframes or time increments. (b) Taxes. You are solely responsible for all applicable sales, use, import or export taxes, duties, fees, tax due at source (TDS), value-added taxes (VAT), surcharges, tariffs or other amounts attributable to the Services and exploitation of the Content under the Contract(s) and any withholdings of the same required by Ooyala will be invoiced back to You. (c) Fees not paid when due shall be subject to a late fee equal to the lesser of one and one half percent (1.5%) of the unpaid balance per month or the highest monthly rate permitted by applicable law. Ooyala may, with or without notice, suspend access to the Services and/or terminate the Contract(s) if You are delinquent in paying all or any portion of the Fees. In the event that a Contract is terminated prior to the end of the Term for any reason other than an uncured material breach by Ooyala, all committed fees for the Term shall become immediately due and owing in full. In addition, You will be liable for any collection costs (including without limitation attorneys fees and other legal fees and expenses, collection agency fees and expenses, court costs, collection bonds, and reasonable staff costs at standard billing rates for time spent in efforts to collect) incurred by Ooyala and/or its Agents to collect sums due and owing under the Contract(s). After the Initial Term of a Contract or renewal thereof (as applicable), the Fees shall be subject to Ooyala’s standard pricing changes.
5. Term and Termination.
The term of a Demo Account shall be as determined by Ooyala in its sole discretion. The term of all other Contracts shall be the initial committed term indicated in the Contract(s) (the “Initial Term”) and all renewals (collectively referred to herein as the “Term”). Each Contract will automatically renew for consecutive twelve (12) month terms unless either party terminates the applicable Contract effective as of the end of the then-current term by notifying the other party in writing or email at least sixty (60) days prior to the end of then-current term. Upon the termination of a Contract any reason, You shall immediately discontinue all use of the Services and Ooyala is not obligated to provide you with any Services. You may terminate a Contract if Ooyala materially breaches a term or condition of the Contract and such breach has not been cured within thirty (30) days of written notice by providing Ooyala with written notice of such suspension or termination, provided however that all Fees that were incurred prior to the date of termination shall be immediately due and payable upon termination and provided further that nothing herein shall be deemed a waiver of any claims that Ooyala may have against You. Ooyala may in its sole discretion suspend Your access to the Services (or any portion thereof) and/or terminate the Contract(s): (a) should You fail to comply with a term or condition of the Contract(s), including without limitation these Terms of Service and/or the AUP; (b) based on any conduct that Ooyala believes is or may be directly or indirectly harmful to other users, to Ooyala or its suppliers (including their respective systems and/or the Services); (c) based on any conduct that Ooyala reasonably believes may be a violation of law, third party rights, and/or Ooyala’s Prohibited Activities or restrictions on Prohibited Content (each as described in the AUP), or repeated breaches thereof; and/or (d) in the event of any legal restriction imposed on You, Ooyala, and/or its Suppliers with respect to provision of the Services. Ooyala’s right to suspend or terminate Services as set forth in this Section shall not absolve You of any payment or indemnification obligations described herein or diminish any other right or remedy available to Ooyala and/or its Suppliers. All terms and conditions set forth herein that should by their nature survive termination (including without limitation all provisions relating to payment, intellectual property, ownership, and indemnification) in order to be given full effect shall continue in full force and effect after any expiration or termination of the Contract(s).
6. Title and Ownership.
As between You and Ooyala, You and Your suppliers and licensors own all right, title and interest in and to Content (excluding any content that might be provided by Ooyala and/or its Suppliers) including associated intellectual property rights under copyright, trademark and/or other applicable domestic and international laws. Ooyala and its Suppliers own all right, title and interest in and to the Services (including any content that might be provided by Ooyala and/or its Suppliers) including associated intellectual property rights under copyright, trade secret, patent, trademark and/or other applicable domestic and international laws. In no event shall the Services (or any portion thereof) or any content (including without limitation advertisements) that might be provided by Ooyala and/or its Suppliers be deemed sold or assigned to You. Any and all rights not expressly granted by Ooyala are reserved to Ooyala and its Suppliers. Ooyala is not required to accept unsolicited feedback. If You provide feedback about the Services to Ooyala, Ooyala shall own all rights in and to such feedback and any derivative technologies, methodologies, compilations and/or any other resultant uses based on or developed through or by using such feedback and You shall take all necessary actions that may be requested by Ooyala to perfect Ooyala’s rights in and to such feedback.
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 these Terms of Service.
8. Disclaimer of Warranties.
OOYALA MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE OF THE SUITABILITY OF THE SERVICES (OR ANY CONTENT, INCLUDING WITHOUT LIMITATION ADVERTISEMENTS, THAT IT OR ITS SUPPLIERS MAY PROVIDE TO YOU) FOR YOUR PURPOSES, THAT THE USE OF THE SERVICES SHALL BE SECURE, UNINTERRUPTED OR ERROR-FREE, OR THAT THE SERVICES SHALL FUNCTION PROPERLY IN COMBINATION WITH ANY THIRD PARTY SERVICES, TECHNOLOGY, HARDWARE, SOFTWARE, SYSTEMS OR DATA. THE SERVICES, AND ANY CONTENT PROVIDED BY OOYALA AND/OR ITS SUPPLIERS, 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 SERVICES MAY BE SUBJECT TO INTERRUPTION, LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF INTERNET APPLICATIONS AND ELECTRONIC COMMUNICATIONS AND OOYALA AND ITS SUPPLIERS ARE NOT RESPONSIBLE FOR ANY SUCH DELAYS, MISDELIVERY, UNTIMELY DELIVERY, DELIVERY FAILURES, OR ANY DAMAGES RESULTING THEREFROM AND/OR FROM EVENTS BEYOND OOYALA’S REASONABLE CONTROL. THIS SECTION 8 SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
10. Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (I) IN NO EVENT SHALL OOYALA OR ITS AGENTS OR SUPPLIERS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR OTHER INDIRECT DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, BUSINESS INTERRUPTION, OR LOSSES OF BUSINESS PROFITS, BUSINESS INFORMATION, GOODWILL, USE, DATA, OR ANY OTHER INTANGIBLE OR OTHER PECUNIARY LOSSES) ARISING OUT OF THE CONTRACT(S) OR THE USE OF OR INABILITY TO USE THE SERVICES OR RETRIEVE THE CONTENT BY OR THROUGH THE SERVICES, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (II) YOUR EXCLUSIVE REMEDY AND OOYALA’S TOTAL AGGREGATE LIABILITY FOR ALL CLAIMS COMBINED RELATING TO, ARISING OUT OF, IN CONNECTION WITH, OR INCIDENTAL TO THE SERVICES, THE CONTRACT(S) AND/OR THESE TERMS OF SERVICE FOR ANY REASON SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES INCURRED BY YOU UP TO THE GREATER OF THE FEES FOR USE OF THE SERVICES THAT YOU ACTUALLY PAID DIRECTLY TO OOYALA IN THE TWELVE MONTH PERIOD PRECEDING THE FIRST SUCH CLAIM OR ONE THOUSAND U.S. DOLLARS ($1,000). YOU EXPRESSLY UNDERSTAND AND AGREE THAT UNDER NO CIRCUMSTANCES SHALL OOYALA OR ITS AGENTS OR SUPPLIERS OR ANY OF THEIR SUCCESSORS IN INTEREST BE RESPONSIBLE NOR LIABLE FOR ANY DAMAGES BASED ON MISUSE OF AND/OR RELIANCE ON THE SERVICES AND/OR ADVERTISING OR OTHER CONTENT THAT YOU MAY RECEIVE FROM OOYALA OR ITS AGENTS OR SUPPLIERS BY OR THROUGH THE SERVICES. THIS SECTION 10 SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
11. Compliance With Laws; Government Restricted Rights.
The Services 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 Services, 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. The Services are protected by copyright laws and international treaty provisions. You agree that the Services, and any accompanying documentation and/or technical information, is subject to applicable export control laws and regulations of the USA. You agree not to export or re-export the Services, directly or indirectly, to any countries that are subject to USA export restrictions. If the Services 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 Services are delivered as a “commercial item,” as that term is defined at 48 C.F.R. 2.101, and more specifically shall be identified as “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, the Services and related documentation provided to U.S. Government end users is provisioned (a) only as a commercial end item and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Contractor/licensor is Ooyala, Inc., 800 W. El Camino Real, Suite 350, Mountain View, California 94040.
12. Publicity and Marketing.
Ooyala shall be permitted to line-list You as a customer and use Your standard logo for Ooyala’s promotional and marketing use during the Term.
13. Trademark Information; Copyrights.
Ooyala, Backlot, Ooyala Actionable Analytics, Ooyala Now, Ooyala Discovery, Ooyala Community, the Ooyala dots design mark, the Ooyala word mark, and other Ooyala logos and product and service names are trademarks of Ooyala, Inc. (collectively, the “Ooyala Marks”). You agree not to remove any Ooyala Marks or any copyright notices that are contained within and/or affixed to the Services (or any portion thereof) provided to You. Except with respect to the foregoing, You agree not to display or use in any manner the Ooyala Marks without Ooyala’s prior written permission. All Content within the Ooyala website and Services are: Copyright 2008-2012. Ooyala, Inc. All rights reserved (as shall be deemed updated from year to year without need to amend these Terms of Service). Ooyala and Backlot are registered trademarks of Ooyala, Inc. in the United States, Japan, and European Community and other geographical regions.
14. Governing Law; Dispute Resolution.
You understand and agree that the Contract(s), including without limitation these Terms of Service, 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 the Contract(s), including without limitation these Terms of Service, may only be brought in the State and Federal courts located in Santa Clara, California and each party irrevocably submits to such exclusive jurisdiction and venue.
15. General Provisions.
Ooyala copyright 2008-2012. Ooyala and Backlot are the registered trademarks of Ooyala, Inc.