Terms of Service

Last updated: January 10, 2012

These Terms of Service govern all use of the Ooyala website www.ooyala.com (“Ooyala Website”), Ooyala’s (including it’s Suppliers’) technology, all Contracts, and all Services which are provisioned, provided, and/or performed by Ooyala, Inc. (“Ooyala”) and/or its Suppliers, including but not limited to that in connection with Backlot®, the related Player, and/or other technologies provided by or through Ooyala and/or its Suppliers. By having access to, receiving, and/or using the Services, You agree, without limitation or qualification, to be bound by and to comply with these Terms of Service and any other posted guidelines or rules required by Ooyala that are applicable to any other website where the Services are found.

OOYALA RESERVES THE RIGHT, AT ITS SOLE DISCRETION, TO ALTER OR UPDATE THESE TERMS OF SERVICE AND/OR THE SERVICES AT ANY TIME WITH OR WITHOUT NOTICE INCLUDING, WITHOUT LIMITATION, FEATURES, SPECIFICATIONS, CAPABILITIES, FUNCTIONS, LICENSING TERMS, RELEASE DATES, GENERAL AVAILABILITY OR OTHER CHARACTERISTICS. BY CONTINUING TO USE THE SERVICES 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.

YOU ACKNOWLEDGE AND AGREE THAT ANY AND ALL USES OF THE SERVICES ARE FURTHER SUBJECT TO OOYALA’S PRIVACY POLICY LOCATED AT HTTP://WWW.OOYALA.COM/PRIVACY ("PRIVACY POLICY"), ACCEPTABLE USE POLICY LOCATED AT HTTP://WWW.OOYALA.COM/AUP (“AUP”), AND DMCA PROCEDURE POLICY LOCATED AT HTTP://WWW.OOYALA.COM/DMCA, EACH OF WHICH MAY BE UPDATED FROM TIME TO TIME BY OOYALA WITH OR WITHOUT NOTICE.

1. Definitions.

1.1 “Account” means a Backlot account issued to You under a Contract that contains a profile created by You when installing Backlot and used by You to make selections with respect to the presentation, management, distribution and/or end user access to Content.

1.2 “Agent(s)” means, individually and collectively, Ooyala’s resellers and other business partners.

1.3 “Backlot” means Ooyala’s integrated content delivery and monetization solution.

1.4 “Content”means any and all audio and video materials including, without limitation, text, images, logos, artwork, graphics, pictures, advertisements, sound and any intellectual property contained in any such materials uploaded or otherwise provided by, or viewed by, You and/or Your agents and/or Your users and/or Your end users in connection with the Services.

1.5 “Contract” means an “Ooyala Services Agreement,” “Services Agreement and Order Form,” supplemental order form, and/or similar document(s) provided by Ooyala and/or its Agents that You have signed and/or an online agreement to which You have agreed by way of clicking to accept and/or a statement of work and/or other written agreement between You and Ooyala and/or its Agents.

1.6 “Demo Account” means a temporary Backlot account provided to You by Ooyala or its Agents that permits You as a potential customer to use the Services on a temporary trial basis for a limited time period.

1.7 “Fees” means all fees relating to or arising out of the Services including, without limitation, all fees set forth in the Contracts.

1.8 “Player” means Ooyala’s cross-platform video player.

1.9 “Services” means: (i) Backlot and the Player, and (ii) all other products and/or services provided to You by or through Ooyala and/or its Suppliers pursuant to a Contract including (but not limited to) technical support, engineering work, and/or any other professional services.

1.10 “Suppliers” means third party licensors, subcontractors and/or vendors that supply some or all portions of the Services licensed to You pursuant to a Contract (but excluding third parties that may provision You with products and/or services that integrate with the Services or are otherwise used by You in connection with the Services but which are not actually provided to You by Ooyala).

1.11 “Term” and “Initial Term” have the meanings set forth in Section 5 of these Terms of Service.

1.12 “You” or “Your” means the individual, corporation or other entity that (i) has entered into a Contract, (ii) has received a Demo Account through Ooyala or one of its Agents, and/or (iii) otherwise uses Ooyala’s website and/or the Services or any portion thereof. Nothing herein permits You to use the Services without first obtaining the necessary rights and consents described herein and in any Contract.

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

2.1 Grant of Licenses.

(a) Right to Use the Services. Subject to Your compliance with all terms and conditions of Your 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 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) deliver Content in accordance with the preferences You set using Your Account and any authorized subaccounts; (ii) secure, encode, reproduce, host, cache, route, reformat, analyze and create algorithms and reports based on access to and use of the Content; (iii) use, exhibit, broadcast, publish, publicly display, publicly perform, distribute, promote, copy, store, and/or reproduce (in any form) the Content on or through the Services; 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 (as defined in the AUP) and does not violate any third party rights, as further described therein and elsewhere in these Terms of Service.

(b) Content. Ooyala, its Suppliers and the Services are passive conduits of the Content, and neither Ooyala nor its Suppliers have any obligation to undertake to pre-screen, edit, review, monitor or oversee Content submitted, uploaded, distributed, retrieved, or viewed in connection with use of the Services, and Ooyala assumes no responsibility or liability relating thereto. You are responsible for all Content provided by third parties, including without limitation Content that may contain errors or omissions, false or defamatory material, and/or material that is offensive, indecent, objectionable, and/or infringing. Under no circumstances will Ooyala or its Suppliers be liable in any way for Content, including, but not limited to, for any defamation, infringement, falsehoods, errors or omissions in any such Content, or for any loss or damage of any kind incurred as a result of the use or publication of any such content posted, delivered, emailed or otherwise transmitted via the Services. You acknowledge that neither Ooyala nor its Suppliers will be responsible for preventing or identifying infringement of intellectual property rights or other violations associations with the Content, and that Ooyala and its Suppliers assume no responsibility for screening or monitoring for possible (i) infringement or enforcing Your rights or third party rights with respect to Content, (ii) unlawful, inappropriate or unpermitted use, (iii) libel, falsehoods, errors or omissions contained in Content, or (iv) noncompliance with FCC or other governmental laws and/or regulations. For any infringement or suspected infringement of intellectual property rights, you should notify Ooyala in accordance with Ooyala’s DMCA Notification Procedures available at http://www.ooyala.com/dmca). If You are an end user, You acknowledge and agree that by using the Services, You may be exposed to Content that is offensive, indecent or objectionable and that Ooyala does not guarantee that any Content will be to Your satisfaction.

(c) Third Party Materials/Products/Services. Any third party products, content, services or links displayed on or through the Services are not referrals or endorsements of any product, service or provider; any and all such offerings are displayed solely for convenience only. The Services may in some cases be permitted for use with third party components or services that may be subject to their own, separate license agreements or special pass-through terms, and You assume all risks and liabilities associated with the use of any such third party offerings. For clarity, nothing in this Section 2.2(c) diminishes Ooyala’s obligations to You under these Terms of Service with respect to Ooyala’s (or its Suppliers’) technology that is expressly stated as included within the “Services” in Your Contract (the “Ooyala IP”), but instead relates to any access and/or use of third party products and/or services that You elect to utilize in connection with the Ooyala IP (regardless of whether Ooyala provides integration or other services at Your request in connection with enabling or utilizing third party products and/or services). If You utilize YouTube in connection with the Services, YouTube wants You to know that it is not charging You to view its content, and as such the Fees never include charges for the YouTube content itself.

(d) The Player. The Player contains software to track and capture user activity to assist Ooyala in and Company in optimizing the Services and Company’s use of the Services. Your use of and/or access to the Player constitutes acceptance of this feature. For further information on how such software is used, please review the Privacy Policy. If You enable syndication of Your Content on third party websites (which You may be permitted to do via Your Account), You, and not Ooyala, are solely responsible for notifying each such third party website that Ooyala may track information regarding the third party users.

(e) Content Preservation and Disclosure. You expressly acknowledge and agree that Ooyala may, but is not required to, preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonable or necessary to: (i) comply with legal process; (ii) enforce a Contract or these Terms of Service; (iii) respond to claims that any Content violates the rights of third-parties; or (iv) protect the rights, property, or personal safety of Ooyala, its Suppliers, users and/or the public. You acknowledge and agree that the technical processing and transmission of the Services, including the Content, may involve transmissions over various networks and/or (ii) changes to conform and adapt to technical requirements of connecting networks or devices.

(f) Demonstration Accounts. At Ooyala’s discretion, You may receive a Demo Account that may include limited access to test certain features and functionality of the Services. Ooyala is permitted to suspend or terminate the Demo Account at any time with or without notice. At the end of any demonstration period as determined by Ooyala, You are responsible for paying applicable fees for use of the Services pursuant to the payment terms and prices designated in a separate agreement between You and Ooyala (or one of its Agents) or, if no such agreement has been executed, then pursuant to the Ooyala’s then-current standard pricing schedule, which may (but is not required to) be available on the Ooyala Website or Your Account interface.

3. Automatic Updates/Communication Features.

The Services automatically communicate with Ooyala's servers to check for automatic general release updates such as bug fixes, patches, enhanced functions, and/or security related patches for the particular Services purchased under the Contract(s). 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”). All Updates shall be deemed part of the Services and subject to the same terms and conditions of these Terms of Service. Ooyala may (but is not required to) post notices from time to time on the Ooyala website explaining Updates and provide instructions associated with such Updates.

4. Fees/Taxes.

In consideration of Your rights in and to the Services, You shall timely pay Ooyala in U.S. dollars the Fees designated in your 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: platform fees, bundled fees, and support fees) are due and payable in advance, all usage-based fees are due and payable monthly in arrears, and all non-recurring Fees are due and payable on the date of the order. Recurring Fees may, when appropriate, be prorated for the first billing cycle of the Term based on the Effective Date. 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 do not rollover to subsequent time increments. 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. 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 or terminate access to the Services 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. 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 Contracts (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 suspend or 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 terminate or suspend the Contract and/or Your access to the Services: (a) should You fail to comply with a term or condition of Your Contract, 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 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.

You and Your suppliers and licensors own all right, title and interest in and to Content (excluding any content that might be provided to You 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 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) 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 and compilations based on or developed through or by using such feedback and You shall take all necessary actions to affect Ooyala’s rights in and to such feedback.

7. Warranties.

You represent and warrant that You are solely responsible and liable for: (i) 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; (ii) 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); (iii) 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); (iv) obtaining public performance licenses from public performance rights collection organizations (e.g., ASCAP, BMI or SESAC); (v) complying with all laws, rules and applicable regulations; (vi) any Prohibited Content; and (vii) abiding by these Terms of Service.

8. Disclaimer of Warranties.

OOYALA MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE OF THE SUITABILITY FOR YOUR PURPOSES OF THE SERVICES, 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 TECHNOLOGY, HARDWARE, SOFTWARE, SYSTEMS OR DATA. IF YOU ARE AN END USER, THEN OOYALA ALSO DISCLAIMS ALL LIABILITY FOR CONTENT YOU MAY RETRIEVE BY OR THROUGH THE SERVICES. THE SERVICES, AND ANY CONTENT PROVIDED BY OOYALA AND/OR ITS SUPPLIERS THAT IS RETRIEVED BY OR THROUGH THE SERVICES, 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 OTHER DAMAGE RESULTING FROM EVENTS BEYOND THEIR REASONABLE CONTROL. YOU UNDERSTAND AND AGREE THAT ANY CONTENT OR OTHER MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS IN THE DOWNLOAD OF SUCH CONTENT OR OTHER MATERIAL. THIS SECTION 8 SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.

9. Indemnification.

You shall defend, indemnify and hold harmless Ooyala and its Agents and Suppliers and their respective officers, employees, licensors, agents, and affiliates, and all successors in interest to the foregoing, from and against any and all third party claims, damages, costs and expenses (including reasonable attorneys’ fees and litigation expenses) relating to, arising out of, or in connection with the Content and/or Your use of and/or access to of the Services (which includes use of and/or access to the Services by Your employees, agents, customers, users and/or end users), including but not limited to claims relating to, arising out of, or in connection with Prohibited Activities, Prohibited Content, and/or Your breach of any of these Terms of Service, the AUP, and/or Your Contract(s), including but not limited to any of the representations or warranties set forth in any of the foregoing.

10. Limitation of Liability.

YOU EXPRESSLY UNDERSTAND AND AGREE THAT UNDER NO CIRCUMSTANCES SHALL OOYALA OR ITS AGENTS OR SUPPLIERS OR ANY OF THEIR SUCCESSORS IN INTEREST BE LIABLE TO YOU OR ANY USER BASED ON YOUR OR THAT USER'S USE OR MISUSE OF AND/OR RELIANCE ON THE SERVICES OR THE CONTENT YOU RETRIEVE BY OR THROUGH THE SERVICES. 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, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, GOODWILL, USE, DATA, OR OTHER INTANGIBLE OR OTHER PECUNIARY LOSS) ARISING OUT OF THESE TERMS OF SERVICE 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 ($1,000.00). SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED IN THE SERVICES, AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED ON THE SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED IN OR THROUGH THE SERVICES. SUCH LIMITATION SHALL APPLY, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, OR LOST DATA. THIS SECTION 10 SHALLY 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, the Ooyala logo, and other Ooyala logos and product and service names are trademarks of Ooyala, Inc. (“Ooyala Marks”). Company agrees not to remove any Ooyala Marks that are contained within and/or affixed to the Services as provided to Company. Except with respect to the foregoing, Company agrees not to display or use in any manner the Ooyala Marks without Ooyala’s prior written permission. All contents of the Ooyala website and Services are: Copyright 2008-2012. Ooyala, Inc. All rights reserved. Ooyala and Backlot are registered trademarks of Ooyala, Inc. in the United States, Japan, and European Community. All rights reserved.

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 Contracts, 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. Interpretation.

In the event of any conflict between or among any Contract(s) executed by both You and Ooyala and these Terms of Service, the Contract shall control to the extent of such conflict and all other terms and conditions of each shall continue to remain in full force and effect.

16. General Provisions.

These Contracts, including these Terms of Services and all URLs incorporated herein (i.e., the Acceptable Use Policy located at www.ooyala.com/aup, the DMCA Guidelines located at www.ooyala.com/dmca, and the Ooyala Privacy Policy located at www.ooyala.com/privacy), constitute the complete and exclusive agreements between You and Ooyala with respect to its subject matter; provided, however, that if You accept or enter into a Contract or some other written agreement with Ooyala or its authorized Agents that expressly incorporates these Terms of Service by reference, then these Terms of Service shall be subject to such other agreement as set forth therein. If any provision of a Contract, including without limitation these Terms of Service 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. Notwithstanding anything to the contrary herein, if You procure the Services through one of Ooyala’s Agents instead of directly from Ooyala, then Ooyala has no direct liability to You in connection with the Services regardless of whether Ooyala hosts the Services. You and Ooyala are independent contractors and no joint venture, partnership, employment, agency or exclusive relationship exists between You and Ooyala as a result of the Contract(s) and/or Your use of the Services as authorized thereunder. Any written notice required hereunder may be transmitted via email to the primary email contacts provided or other official email contacts available to a party if such email contacts are no longer relevant due to employee departure or otherwise. The Contract(s) (including without limitation these Terms of Service) constitute the entire agreement between the parties, and supersedes any and all prior written or oral agreement or understanding relating to the same subject matter. A Contract may only be modified by written amendment signed by authorized representatives of both You and Ooyala. All waivers must be made in writing and the failure of You or Ooyala to enforce any right or provision in a Contract or in these Terms of Service shall not constitute a waiver of such right or provision. Any waiver on one occasion shall not imply or constitute a waiver on any other occasion. Ooyala shall not be responsible for any failure to perform, or delay in performing any of its obligations under a Contract or these Terms of Service to the extent that such a failure or delay results from force majeure causes beyond its control, such as acts of God or of the public enemy, acts of the government in its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, freight embargoes, strikes, civil commotion, or the like. You may not transfer or assign these Terms of Service or any rights or obligations hereunder, directly or indirectly, by operation of law or otherwise, without the prior written consent of Ooyala and any such assignment shall be null and void from the beginning. The Contract(s), including without limitation these Terms of Service, shall inure to the benefit of and be binding upon Ooyala’s or Your respective permitted successors and assigns.