ENTERPRISE PROGRAM TERMS AND CONDITIONS
What is VidMob?
VidMob, Inc.’s (“VidMob” or “we”) mobile applications (the “App”), website(s) located at www.vidmob.com (the “Website”) and its proprietary software platform collectively create the VidMob platform (the “Platform”). The VidMob Platform enables a revolutionary new virtual market place for video content creators (collectively “Creators” and individually a “Creator”) to upload and share content and to find, hire and pay video content editors (collectively “Editors” and individually an “Editor”) to edit their video content in a safe, simple, and secure digital environment! For Editors, the Platform is a place to find work as an independent contractor for Creators in need of editing services. VidMob is not an employer of Editors, nor does it act as an agent for Creators; rather, VidMob is a digital platform where Editors and Creators can contract directly with each other.
Your use of the Platform as a Creator is governed by the Enterprise Program Terms and Conditions and this Rider (together, the “Terms and Conditions” or “Terms”) as fully set forth herein. You agree that you have read and reviewed all terms and conditions applicable to your use of the Platform and that you agree to these terms and conditions, as applicable.
SECTION 1 – GENERAL TERMS
You may be asked to reaffirm your adherence to these Terms and Conditions for each Project and if you do not agree with these Terms and Conditions, you shall not be allowed to use the Platform.
1.2. Confidentiality/Disclosure of Information
“Confidential Information” shall mean any nonpublic information whether disclosed orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. However, Confidential Information will not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the disclosing party, (ii) was known to the receiving party prior to its disclosure by the disclosing party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the disclosing party, or (iv) was independently developed by the receiving party.
Confidential Information may be accessed, monitored, and used as necessary to provide and run the Platform and may be disclosed: (i) when we have a good faith belief that we are required to disclose the information in response to legal process (for example, a court order, search warrant or subpoena); (ii) to satisfy any applicable laws or regulations; (iii) where we reasonably believe that the Platform is being used in the commission of a crime, including to report such criminal activity or to exchange information with other companies and organizations for the purposes of fraud protection and credit risk reduction; (iv) when we have a good faith belief that there is an emergency that poses a threat to the health and/or safety of you, another person or the public generally; and (v) when necessary to perform obligations under these Terms. By entering into these Terms, you hereby provide your irrevocable consent to such monitoring, access and disclosure during your use of the Platform subject to this provision. Except as otherwise provided herein or pursuant to applicable laws, upon termination or the disclosing party’s written request, the receiving party shall promptly return to the disclosing party or delete (and certify to such deletion) all Confidential Information furnished to the receiving party hereunder or in the receiving party’s possession, as directed by the disclosing party. Notwithstanding the foregoing, the receiving party shall not be required to erase or delete any computer records or files containing Confidential Information that have been created pursuant to its standard archiving or backup procedures, or contained in any archived electronic communications (e.g. emails). The confidentiality obligations contained in these Terms shall apply to the archived copy so long as it exists.
1.3. Use of the Platform
The following rules shall apply to your use of the Platform:
– You may not use the Platform for any commercial purpose except as expressly authorized by Company in these Terms and Conditions or other applicable agreement.
– You may not use the Platform in a manner that violates any law, statute, or ordinance and/or in the furtherance of any illegal activity.
– You may not abuse, hack, attack, interfere with, or otherwise disrupt the Platform or do anything contrary to these Terms of Service.
– You may not access the Platform in a way that could violate applicable law, or in any manner not expressly authorized by VidMob under these Terms and Conditions.
– You may not use the Platform to advertise, solicit, or transmit any commercial advertisements (other than editing services as intended), including chain letters, junk e-mail, or repetitive messages.
– You may not use the Platform to harass, threaten, or abuse others, or post or upload obscene, pornographic, or otherwise objectionable materials.
– You may not use the Platform to harm or exploit children by exposing them to inappropriate content or otherwise.
– You may not post any content that contains anything that VidMob reasonably deems to be unlawful, harmful, abusive, racially or ethnically offensive, infringing, invasive of personal privacy, harassing, libelous, threatening, or otherwise deemed offensive.
– You may not create, store, or share any content which violates third party rights of any kind, including, without limitation, any Intellectual Property Rights or rights of privacy. For purposes of these Terms and Conditions, “Intellectual Property Rights” include all patent rights, copyrights, mask work rights, trademarks, rights of publicity, moral rights, service mark rights, goodwill, trade secret rights, or any other intellectual property rights now in existence or which may otherwise come into existence, under any applicable law, statute, or regulation.
VidMob, in its sole discretion, may remove any Content from the Platform and/or may disable and/or terminate any Account found to be in violation of these rules.
1.4. Intellectual Property Rights
The Platform, including without limitation any patents, trademarks, software including source and object code, incorporated in or displayed on the Platform, are owned by VidMob. VidMob reserves all rights, including without limitation, all intellectual property rights or other proprietary rights, in connection with the Platform. You agree not to modify, rent, lease, loan, sell, assign, distribute, reverse engineer, or create derivative works based on, any element of the Platform, except as expressly authorized by VidMob in writing.
As a Creator, subject to these Enterprise Terms and Conditions, VidMob grants you a personal, non-transferable, non-exclusive license to access the Platform, provided that such license does not include the right to broadcast, copy, or incorporate any aspect of the Platform, including, but not limited to any VidMob or third party trademark, service mark, trade dress, or information (including other users’ personal information), outside of the Platform.
The VidMob Platform allows Creators and Editors the ability to create and share Projects that may contain photographs, video clips, music, sounds, narration, and pictures and images. Editors and Creators may not always own the Intellectual Property Rights to those creative elements. When using the Platform to create any Project, Creators must ensure that they have obtained the rights to use any and all creative elements, including Intellectual Property Rights owned by third parties. VidMob disclaims any liability for your use of creative elements or Content owned by a third party and VidMob will not be responsible for the consequences of any such use, including but not limited to legal action, injunctions, and cease and desist requests.
1.5. Copyright Notices and Complaints
It is VidMob’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act (“DMCA”).
If you believe that your copyrighted work has been copied, reproduced, displayed, duplicated, performed, distributed, or otherwise infringed upon without your authorization and is available on the Platform in a way that may constitute copyright infringement, you may provide notice of your claim to VidMob using the method listed below. For your notice to be effective, it must include the following information:
– A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
– A description of the copyrighted work that you claim has been infringed upon;
– A description of where the material that you claim is infringing is located;
– Information reasonably sufficient to permit VidMob to contact you, such as an address, telephone number, and, if available, an e-mail address at which you may be contacted;
– A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
– A statement that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Please notify us of any alleged copyright claims by emailing us at email@example.com.
If your Content or other information has been affected by reason of a notification under the DMCA, you may make a counter-notification pursuant to sections 512(g)(2) and (3) of the DMCA. You will be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that your Content or your activity is not infringing the copyrights of others. When we receive a counter-notification, we may reinstate the material in question.
To file a counter-notification with us, you must provide us with a written communication sent to VidMob at firstname.lastname@example.org setting forth the following items:
– An identification of the URLs or other unique identifying information or material that Company has removed or to which VidMob has disabled access;
– Your name, address, telephone number, email address, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located (or Los Angeles 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 the DMCA or an agent of such person;
– A statement, under penalty of perjury, that you have a good faith belief that Content at issue was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
– Your physical or electronic signature.
Company reserves the right to terminate, without notice, any user’s (whether an Editor or a Creator) access to the Platform if that user is determined by VidMob, in its sole discretion, to be a “repeat infringer.” In addition, VidMob accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials.
1.6. Updates to the Platform
You understand that the Platform is constantly evolving. VidMob may require that you accept updates to the Platform, and may automatically update the Platform or any portion thereof at any time with or without notifying you, provided that if any update materially decreases the functionality or security of the Platform, VidMob will notify you via email at least 10 days in advance. You may need to update third party software from time to time in order to access the Platform.
You agree to indemnify, save, and hold VidMob, its affiliated companies, contractors, employees, officers, agents and third-party suppliers, licensors, and partners (the “VidMob Parties”) harmless from any third party claims, suits, proceedings, actions, losses, damages, liabilities, including legal fees and expenses (“Claims”), arising out of your use or misuse of the Platform or any breach of the representations, warranties, and agreements made by you in these Terms.
VidMob agrees to indemnify, defend, and hold you, your affiliated companies, contractors, employees, officers, agents and third-party suppliers, licensors, and partners harmless from all third party Claims arising out of (i) any breach of the representations, warranties, and covenants made by VidMob herein, or (ii) a Claim that the Platform infringes a third party’s intellectual property right.
The parties agree that the provisions in this paragraph 1.7 will survive any termination of your Account(s) or of the Platform.
1.8. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
a. USE OF THE PLATFORM IS AT YOUR SOLE RISK AND THE PLATFORM IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (EXCEPT ONLY TO THE EXTENT PROHIBITED UNDER APPLICABLE LAW WITH ANY LEGALLY REQUIRED WARRANTY PERIOD).
b. VIDMOB DOES NOT WARRANT THAT THE PLATFORM WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, ERROR-FREE, OR SECURE.
c. YOU USE, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS AND CONTENT THROUGH THE PLATFORM AT YOUR OWN RISK, AND VIDMOB IS NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS.
d. NO ADVICE OR INFORMATION OBTAINED FROM VIDMOB SHALL CREATE ANY WARRANTY NOT STATED IN THESE TERMS AND CONDITIONS.
e. PROJECTS AND SERVICES PROVIDED BY EDITORS INVOLVE THE CREATIVE PROCESS AND THERE IS NO GUARANTEE THAT YOU WILL LIKE THE WORK PERFORMED BY AN EDITOR.
f. NEITHER VIDMOB NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY EDITOR, OTHER CREATOR OR VISITOR TO THE PLATFORM AND YOU HEREBY RELEASE VIDMOB AND ITS AFFILIATES OR LICENSORS FROM ANY LIABILITY RELATED THERETO. EXCEPT AS PROVIDED HEREIN, VIDMOB AND ITS AFFILIATES AND LICENSORS WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THE PLATFORM
1.9. LIMITATION OF LIABILITY
THE PARTIES ACKNOWLEDGE AND AGREE THAT NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING FOR LOSS OF PROFITS, GOODWILL OR DATA, IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE PLATFORM.
YOU FURTHER SPECIFICALLY ACKNOWLEDGE THAT VIDMOB IS NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD VIDMOB LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER USERS OF THE PLATFORM AND OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF THE PLATFORM AND EXTERNAL SITES AND OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 1.7 OR A BREACH OF CONFIDENTIALITY HEREUNDER, EACH PARTY’S TOTAL CUMULATIVE LIABILITY TO THE OTHER FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY WILL BE LIMITED TO AND WILL NOT EXCEED AN AMOUNT EQUAL TO THE FEES PAID TO VIDMOB IN THE 12 MONTHS PRECEDING THE CLAIM.
NOTHING IN THESE TERMS AND CONDITIONS IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THOSE ABOVE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND VIDMOB’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
1.11. DISPUTE RESOLUTION; APPLICABLE LAW
If a dispute arises between you and VidMob, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, we strongly encourage you to first contact us directly to seek an informal resolution through our customer support team. The customer support team can be contacted via email at support@VidMob.com or via letter by physical mail at 54 Thompson Street, 4th Floor, New York, NY 10012.
If any dispute cannot be settled informally, then any legal action, suit, or proceeding between you and Vidmob in connection with these Terms will be governed by the law of the state of New York, without regard to choice of law provisions. The parties agree to submit to the exclusive jurisdiction of the state or federal courts of the State of New York, and agree that any such action, suit, or proceeding may be brought only in such courts. The parties waive any right they might have to a trial by jury in any such suit, action or proceeding.
Notwithstanding the foregoing, VidMob shall have the following equitable rights and remedies:
a. You acknowledge that the rights granted and obligations made under these Terms and Conditions to VidMob are of a unique and irreplaceable nature, the loss of which shall irreparably harm VidMob and which cannot be replaced by monetary damages alone. Accordingly, VidMob shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you.
b. You irrevocably waive all rights to seek injunctive or other equitable relief, or to enjoin or restrain the operation of the Platform, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Platform or any content or other material used or displayed through the Platform and agree to limit your claims to claims for monetary damages (if any).
1.12. GENERAL PROVISIONS
Neither party may assign or delegate these Terms, in whole or in part, to any person or entity at any time with or without the other party’s consent except pursuant to an affiliate or its parent company or pursuant to a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any unauthorized assignment and delegation by you is void and ineffective.
VidMob may publish additional policies related to specific services or products. Creator’s right to use such services is subject to those specific policies of which Creator is made aware and these Terms and Conditions.
These Terms and Conditions, including any other terms applicable to specific VidMob products or services, contain the entire understanding between you and VidMob, and supersede all prior understandings of the parties hereto relating to the subject matter hereof, whether electronic, oral or written, or whether established by custom, practice, policy or precedent, between you and us with respect to the Platform.
Either party’s failure to require or enforce strict performance by the other party of any provision of these Terms and Conditions or failure to exercise any right under them shall not be construed as a waiver or relinquishment of such party’s right to assert or rely upon any such provision or right in that or any other instance.
Except as expressly and specifically set forth in this these Terms and Conditions, no representations, statements, consents, waivers, or other acts or omissions by either party or any of that party’s employees or representatives shall be deemed a modification of these Terms and Conditions nor be legally binding, unless documented in physical writing, hand signed by you and a duly appointed officer of VidMob.
We may notify you via postings on the Websites and Apps and via e-mail or any other communications means to contact information you provide to us. All notices given by you or required from you under these Terms and Conditions shall be in writing and addressed to: VidMob, Inc., Attn: Legal Department, 54 Thompson Street, 4th Floor, New York, NY 10012 or shall be sent via email to email@example.com.
Any notices that you provide without compliance with this Section on Notices shall have no legal effect.
You and VidMob agree that if any portion of these Terms and Conditions is found to be unenforceable by any court of competent jurisdiction, such provision shall, as to such jurisdiction, be ineffective solely to the extent of such unenforceability, and the remaining terms shall continue in full force and effect.
No Third Party Beneficiaries
Except as otherwise expressly provided in these Terms and Conditions, there shall be no third party beneficiaries to these Terms and Conditions.
1.13. REPRESENTATIONS AND WARRANTIES
VidMob represents and warrants that (i) the Platform does not infringe or violate any third party’s intellectual property or other rights or violate applicable law, (ii) to VidMob’s knowledge, the Platform does not contain any virus, time-bomb, trojan horse, worm or other harmful or disabling code (“Harmful Code”), and (iii) VidMob shall implement and maintain reasonable security procedures and practices appropriate to the nature of the information disclosed to or accessible by VidMob and other users of VidMob in order to protect such information from unauthorized access, destruction, use, modification or disclosure.
SECTION 2 – CREATOR TERMS
– By accepting these Terms and Conditions, you agree that these Terms and Conditions govern all of your subsequent interactions with the Platform.
– By accepting a Bid (as defined below), you are committing to hiring the Editor you’ve selected (Section 2.2) and agreeing to the specific Terms and Conditions applicable to your engagement of that Editor.
– You understand that editing is a creative process and there is no guarantee that you will like the work created by the Editor.
– You understand that the Editor has proposed to provide a certain number of iterations of the Project in his Bid and that additional iterations may require additional Projects (Section 3.1).
– Your satisfaction is our top priority. If you have any complaints, please direct them to firstname.lastname@example.org (Section 2.5).
– Content submitted in connection with a Project will remain private unless you chose to have it publicly displayed on the Website or otherwise (Section 2.7).
2.2. HOW THE VIDMOB PLATFORM WORKS FOR YOU AS A CREATOR
As described in greater detail in Section 1 – General Terms, the VidMob Platform enables connections between you, the digital content creators and owners (“you or “Creator(s)”), and Editors for the provision of editing services. Creators will be able to upload video content to the Platform only through the App and have various Editors place bids (each a “Bid”) on the completion of a specific editing project (each a “Project”).
You understand that the Editor has proposed to give you a certain number of Project iterations as part of their Bid (as outlined in the Bid) and that additional iterations, beyond the iterations specified in the Bid, will require an additional Project and subsequent Bid.
Prior to being able to upload any content to the Platform, you will be required to register an account (an “Account”). You are responsible for maintaining the confidentiality of your Account login information, and you are solely responsible for anything that happens through your Account. You may cancel any Account registered to you at any time by emailing us at email@example.com.
2.3. VIDMOB IS A PLATFORM NOT A SERVICE PROVIDER
VidMob is providing you with the Platform for you as Creators to find Editors and Editors to find you as Creators who need their services and for you and them to enter into contracts directly.
Creators contract directly with Editors via the Terms and Conditions found in Section 3 Creators and Editors Business Terms. VidMob will not be a party to any contracts for the Projects between Creators and Editors.
Each Editor is an independent contractor and not an employee of VidMob.
Editors do not have authority to enter into written or oral — whether implied or express — contracts on behalf of VidMob.
Each Creator acknowledges that VidMob does not, in any way, supervise, direct, or control an Editor’s work or services performed for any Project in any manner.
VidMob does not set an Editor’s work hours or location of work.
VidMob will not provide any equipment, labor, or materials needed for a particular Project or Bid.
VidMob is not responsible for the Bids or the performance of the Editors on the Projects, nor does it have control over the quality, timing, legality, failure to provide, or any other aspect whatsoever of Editors, nor of the integrity, responsibility, or any of the actions or omissions whatsoever of any Editors.
VidMob makes no representations about the suitability, reliability, timeliness, or accuracy of the Bids or work provided by Editors identified through the Platform whether in public, private, or offline interactions.
When interacting with Editors and other Creators, you should exercise caution and common sense to protect your safety and property, just as you would when interacting with other persons whom you don’t know.
2.4. PAYMENTS TO EDITORS
Editors will be paid for each Project out of the fees paid to VidMob for your participation in the Enterprise Program, as set forth in the Proposal.
2.5. CREATOR COMPLAINTS ABOUT EDITORS
Your satisfaction is of paramount importance to us. If an Editor misrepresented their skills or if you believe an Editor is otherwise unfit to perform the services requested, please let us know by providing us a detailed description of your complaint. Please send all complaints via email to firstname.lastname@example.org. Any disputes with an Editor on any Project shall be controlled by the dispute resolution provision(s) found in Section 3 – Creators and Editors Business Terms.
2.6. SUSPENSION AND TERMINATION OF ACCOUNT
VidMob reserves the right to suspend or revoke your Account and/or your access to the Platform upon VidMob’s written notification to you of a breach of these Terms and Conditions and your failure to cure that breach within fifteen (15) days. VidMob may suspend your Account if VidMob reasonably believes Creator’s use of the Platform or any of Creator’s Content infringes on any third party’s rights or otherwise violates, or could place VidMob in violation of, applicable law.
VidMob reserves the right to stop offering and/or supporting the Platform or a particular part of the Platform at any time either permanently or temporarily. In such event, VidMob shall have no liability in connection with such discontinued elements of the Platform, and shall not be required to provide refunds, benefits or other compensation.
2.7. CREATOR CONTENT AND PROJECT CONTENT
“Creator Content” means any information, data, text, images, videos, sounds, or other material publicly posted, uploaded, stored, or transmitted on the Platform by you as a Creator.
“Project Content” means any data, text, images, videos, sounds, or other materials transmitted by the Platform for the completion of a Project. Project Content will not be publicly displayed on the Platform unless you elect to toggle the Project Content over to “public” in order to make it publicly available on the Platform (whether in the “MobFeed” or otherwise), whereby it will become Creator Content.
Project Content and Creator Content may sometimes be collectively referred to as “Content.”
VidMob claims no ownership over your Content.
By submitting Project Content to an Editor for completion of a Project, you grant Editor a non-exclusive, royalty-free license to modify the Content in connection with the completion of the Project.
You acknowledge that VidMob does not guarantee the security of any Content you transmit to the Platform. If you wish to keep any Content or other information of yours a secret, do not publicly post it to the Platform. You agree that VidMob has no responsibility or liability for deletion or failure to store any Content posted, stored, or transmitted via the Platform.
2.8. RESPONSIBILITY AND LIABILITY FOR CREATOR CONTENT
All Content is the sole responsibility of the Creator from which the Content originated and was uploaded to the Platform, and Creator shall not upload any Content that contains Harmful Code.
Creator represents and warrants that (i) the Content does not infringe upon the copyrights, trademarks, patents, or any other rights of any person or company; (ii) Content shall comply with all applicable laws and regulations and is free from any Harmful Code; and (iii) to the extent that any Content contains any copyrighted material that is not original to your Content or in which you do not otherwise own the copyright and/or other Intellectual Property Right, Creator has cleared all rights to use the Content and all elements therein.
2.9. MONITORING OF CREATOR CONTENT
VidMob shall have the unlimited right, but not obligation, to monitor all Content, appearing on the Platform, whether Creator Content or Project Content, and VidMob reserves the right to remove, or refuse any Content for any reason in its sole discretion. VidMob will have no responsibility to ensure that Content is appropriate.
SECTION 3 – CREATORS AND EDITORS BUSINESS TERMS
This Section 3 – Creators and Editors Business Terms forms a binding agreement between the Editor and the Creator and shall govern the interaction between an Editor and a Creator following a Creator’s acceptance of an Editor’s Bid, whether through an auto-Bid or otherwise.
3.1. Services, Compensation & Conflict Resolution.
a. Bid. The Editor will perform the services described in the Bid in accordance with the terms of this Section 3. Each new engagement with new Content or a new Creator shall require a new Bid and acceptance (whether by auto-Bid or otherwise), and each new Bid shall create a new agreement between such Creator and Editor in accordance with the terms hereof.
b. Project Description. The Project’s description and services involved in the Project’s completion are as detailed on the Bid submitted by the Editor and accepted by the Creator. A Bid cannot be changed once it has been accepted.
c. Iterations. The maximum number of Project iterations that an Editor must create prior to a Creator’s acceptance of the Project shall be set forth in the Bid. If the Bid does not specify the number of iterations, the number of iterations shall be set at three (3), by default.
d. Audio & Music. The Creator and Editor represent and warrant that (a) to the extent that any Project contains any copyrighted material that is not an original work to either the Editor or the Creator or in which the Editor and Creator do not otherwise own the copyright or other Intellectual Property Right thereto, the parties have obtained all rights, licenses, consents, and permissions necessary in order to use that copyrighted material in connection with the creation and/or dissemination of the Project.
e. Payment Terms. The Editor shall be paid the Project Fee upon the Creator’s acceptance of the Project. If the Creator and the Editor disagree about the Project’s acceptance and the Editor has performed the maximum number of Project iterations, the Editor and Creator agree to submit their dispute in accordance with the Dispute Resolution provisions found in this Section 3.1.
f. Expenses. Editor will bear all expenses incurred in performing the Project. Any expense(s) in excess of the Project Price shall be the responsibility of the Editor.
g. Control; Approvals. Subject to the requirements of these Terms and Conditions and any applicable Bid, Editor shall have control over the manner and means of performing the Project, and the Creator will have the right to approve or disapprove all aspects of the Work Product (as defined in Section 3.3) in its sole discretion. The foregoing notwithstanding, the Editor is only obligated to submit the maximum number of agreed upon Project iterations as detailed in the Bid.
Editor will not use subcontractors to perform any part of the Project.
a. Work Product. The Creator will be the sole owner of all deliverables and any materials, works of authorship, and data, including any and all intellectual property made, created, by Editor in connection with performing the Project (“Work Product”). The Work Product shall be deemed a “work made for hire,” as such term is defined in the United States Copyright Act, for Creator as copyright owner; and to the extent the Work Product does not qualify as a “work made for hire” as defined by the United States Copyright Act, Editor hereby irrevocably assigns and transfers to Creator and its successors and assigns all rights in and to the Work Product, including, but not limited to, copyrights, trademarks, trade secrets, patents, and other rights and all renewals or extensions thereof (collectively referred to as the “Rights”). If all or any part of the Work Product or any Rights therein are not legally assignable by Editor, then Editor hereby grants the Creator an unlimited, perpetual, transferable, fully sub-licensable, royalty-free, fully paid-up license to use such Work Product and/or Rights for any purpose worldwide. Editor will cooperate with the Creator by, among other things, signing any documentation reasonably required by the Creator to vest title to the Work Product or in the Creator, and to prepare and file any applications with any governmental authority to protect the Work Product. Editor hereby irrevocably designates and appoints Creator as its agent and attorney-in-fact, coupled with an interest and with full power of substitution, to act for and in its behalf to execute and file any document and to do all other lawfully permitted acts to further the purposes of this Section 3.3 with the same legal force and effect as if executed by Editor.
b. Editor Property. Editor will retain all rights in all materials and intellectual property, including general skills, other than Work Product, that are developed by or on behalf of Editor (“Editor Property”). If Editor incorporates any Editor Property into any Work Product, the Creator will have a nonexclusive, fully paid-up, royalty-free, perpetual, irrevocable, worldwide license to make, copy, modify, use, distribute, and display such Editor Property (in whole or in part) for any purpose in connection with the Work Product.
c. Use. Editor shall not use the Work Product and/or the Project Content for any purpose outside of providing the Project for the Creator as set forth herein; provided, however that upon receipt of the Creator’s prior written consent, which consent may be revoked at any time in the Creator’s sole discretion, the Editor may use the Work Product and/or a portion thereof for any pre-approved, non-commercial purpose, including, but not limited to use of the Work Product in the Editor’s demo reel.
a. Definition. Any and all Project Content shall be considered “confidential” and shall not be disclosed to any third party.
b. Non-Disclosure. Editor will use Project Content only to provide the serviced detailed in the Bid, and will not disclose Project Content, including any Work Product and/or portion thereof, to any third party without the Creator’s prior written consent, which may be revoked at any time in the Creator’s sole discretion. Editor shall take measures to safeguard the confidentiality of the Project Content that are at least as strong as the measures used to guard Editor’s own confidential information, but not less than reasonable measures.
c. Exceptions. The Editor may disclose Creator Content in response to a valid order by a court or other governmental body, as otherwise required by law; provided, however that Editor shall provide VidMob and Creator with prior written notice of any such disclosure, and shall provide reasonable assistance in obtaining a protective order, and then shall only disclose to the extent required by law.
d. Remedies. Editor agrees that a monetary remedy for Editor’s breach of this Section 3.4 will be inadequate, and that money damages will be impracticable and extremely difficult to prove, and further agrees that such a breach would cause the Creator irreparable harm. In the event of any such breach or threatened breach, the Creator shall be entitled to injunctive relief without the necessity of posting a bond, proving irreparable harm or proving actual damages.
3.5. INDEPENDENT EDITOR STATUS
In performing the Project, Editor will act and represent itself as an independent contractor and not as an employee or agent of the Creator. Editor has no authority to obligate the Creator by contract or otherwise. Editor is not entitled to receive any employee benefits of the Creator. Editor may not include the Creator’s name or mark in business cards, letterhead, or email signatures.
The Creator will not withhold and remit applicable taxes due unless required by law, and each party shall be responsible for its own taxes, dues, assessments, and other state and federal payments required by law in connection with the use of the Platform.
This Section 3 will commence upon the Creator’s acceptance of the Editor’s Bid and will remain in effect until completion of the Bid or terminated by Creator as provided in Section 3.8 below.
a. By Creator For Convenience. The Creator may terminate this Section 3 or any individual Bid, for any reason or no reason, immediately upon written notice to Editor.
b. Effect of Termination. Upon the expiration or early termination of any Bid, Editor will promptly deliver to the Creator all Work Product (whether completed or in progress) via the VidMob Platform, any and all other Confidential Information, and any and all other materials specifically requested by the Creator. Sections 3.3 and 3.4, and 3.8-3.14 will survive the termination of this Section 3 for any reason.
3.9. REPRESENTATIONS AND WARRANTIES
By Editor: Editor represents and warrants that: (a) the Project will be performed faithfully, diligently, to the best of its ability and in a professional and workmanlike manner; (b) the Project will be performed in compliance with all applicable laws and regulations; (c) neither the Project nor the Work Product will infringe the rights of any third party or violate any law; (d) Editor has full power and authority to enter into this agreement and to complete the Project in accordance with the Bid and Section 3 of these Terms and Conditions.
By Creator: The Creator represents and warrants that (i) it has full power and authority to enter into this agreement with the Editor; (ii) the Content is an original work of authorship; (iii) the Content does not infringe upon the copyrights, trademarks, patents, or any other rights of any person or company; (iv) Content shall comply with all applicable laws and regulations and shall be free from any viruses; (v) Creator has cleared all rights to use the Content and all elements therein including music, rights of publicity and rights of privacy.
By Editor: Editor shall indemnify, defend, and hold Creator and its officers, directors, employees, agents, subsidiaries and other affiliates harmless against all potential or actual claims, expenses, or liabilities of any kind (including attorneys’ fees) relating to Editor’s breach of any obligation, representation, or warranty in Section 3 of these Terms and Conditions.
By Creator: Creator shall indemnify and hold Editor harmless against all claims, expenses, or liabilities of any kind (including attorneys’ fees) relating to Creator’s breach of any of its representations and warranties in this agreement. Creator shall indemnify, defend, and hold Editor and its officers, directors, employees, agents, subsidiaries and other affiliates harmless against all potential or actual claims, expenses, or liabilities of any kind (including attorneys’ fees) relating to Creator’s breach of any obligation, representation, or warranty in Section 3 of these Terms and Conditions.
In the event any provision of this Section 3 is determined to be invalid, prohibited or unenforceable by a court or other body of competent jurisdiction, this Section 3 shall be construed as if such invalid, prohibited or unenforceable provision has been more narrowly drawn so as not to be invalid, prohibited or unenforceable.
No waiver of any provision of this Section 3 will be effective unless it is in writing and signed by both parties, and no such waiver will result in the waiver of any other provision of this Agreement. Failure of either party at any time to enforce any of the provisions of this Agreement or any Bid will not be construed as a waiver of such provisions or in any way affect the validity of this Agreement, such Bid, or parts thereof.
Neither party may not assign its rights or obligations under this this Section 3 and/or any Bid.
Editor’s remedy, if any, for any breach of the terms of this Section 3 shall be solely in damages and Editor shall not be entitled to equitable relief by way of injunction or otherwise. Except as otherwise provided in this Section 3, rights and remedies herein or otherwise shall be cumulative and none of them shall be in limitation of any other right or remedy in law and/or equity.
3.15. CONFLICT RESOLUTION
If the Editor and the Creator disagree about any aspect of a Project, including, but not limited to, Project acceptance, Project completion, Project scope of work, and the Editor and Creator cannot amicably solve the dispute, then the Editor and the Creator agree to first submit the dispute to VidMob for a dispute resolution proceeding (“Dispute Resolution Proceeding”). A request for a Dispute Resolution Proceeding should be sent via email to email@example.com. A Dispute Resolution Proceeding shall be conducted by VidMob and both the Editor and the Creator shall be able to present their recitation of the dispute. Upon providing the Editor and the Creator an opportunity to present their recitation of the dispute, VidMob, in its sole discretion, will determine a course of action (“Resolution Plan”). Either party is free to agree or disagree with the proposed Resolution Plan.
If either party disagrees with the Resolution Plan, the dispute will be resolved through binding, non-appearance-based arbitration. The arbitration shall be conducted by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures, which are available at the JAMS website www.jamsdr.com/. The venue for the arbitration will be mutually agreed by the parties, and if the parties are unable to agree, VidMob shall select the venue in its sole discretion. The arbitration shall be conducted by a single arbitrator. The parties waive the right to seek punitive damages and the arbitrator shall have no authority to award such damages. The arbitrator will provide a detailed written statement of the decision, which will be final and capable of entry in any court of competent jurisdiction. Except as may be otherwise ordered by the arbitrator, each party shall bear its own costs and expenses in connection with any proceeding commenced under this section, including, without limitation, legal fees and disbursements, travel expenses, witness fees and costs, photocopying and other preparation expenses. The costs and other fees charged by JAMS shall be shared equally between the parties.
In the event of an arbitration, the arbitrator shall follow New York law and the Federal Rules of Evidence in adjudicating the Claim. Each party agrees to submit to the personal jurisdiction of the courts located New York, New York in connection with any entrance of an arbitrator’s judgment or decision or any dispute with respect to the arbitration.
1. access and restrictions.
1.1 Access Right. Subject to the terms and conditions of this Agreement and the Order Form, VidMob grants Licensee a nonexclusive, nontransferable, non-sublicensable, and revocable right to access and use the Service during the Beta Period (defined below) solely for Licensee’s internal business purposes. The license includes the right for Licensee’s employees and third-party contractors designated by Licensee (“Authorized Users”) to access and use the Service solely on behalf of Licensee, provided that Licensee is responsible for all activities of Authorized Users in connection with such access and use. The license granted in this Section 1.1 includes the right to use any modifications, improvements, bug fixes, or other new versions of the Service elements subscribed to by Licensee made available to all VidMob customers as part of their standard subscription at no additional cost (each, an “Update”), as and when each Update is made available. Updates are applied automatically to the Service.
1.2 Restrictions. Licensee will not, nor attempt to (a) use the Service for any illegal or unauthorized purpose or in any manner that damages or interferes with its operation; (b) remove any copyright, trademark or other proprietary rights notices contained in or on the Service or any reports or outputs thereof; (c) sublicense, sell, lease (including on a service bureau basis), share, or transfer the Service or make it available to anyone except for Authorized Users; (d) modify, create derivative works of, reverse engineer, reverse compile, or disassemble the Service or any elements thereof (except as this restriction (d) is prohibited by applicable law); (e) use or access the Service for competitive or benchmarking purposes; or (f) circumvent any security measures or use restrictions in the Service. If Licensee or any Authorized User violates these restrictions, VidMob may suspend or block Licensee’s or such Authorized User’s access to the Service.
2. vidmob obligations.
2.1 Technical Support. VidMob will provide technical support by telephone and email, Monday through Friday (excluding holidays) and during the hours of 9:00AM – 5:00PM Eastern Time, to assist in Licensee’s access to and use of the Service. Licensee may contact VidMob at firstname.lastname@example.orgVidMob will respond to and complete any necessary technical repairs within a commercially reasonable amount of time.
2.2 Training. Licensor will provide a single training session in the use of the Services for up to ten (10) Authorized Users during the Initial Term. Training sessions are scheduled as mutually convenient, may take place in person or via live video, and last up to two (1) hour. Advanced training is available for an additional fee.
2.3 Security. VidMob will maintain appropriate administrative, technical and physical safeguards to protect the security, confidentiality and integrity of the Service and any Licensee Content (as defined below) stored on, or accessible via, the Service.
2.4 Availability. VidMod will use commercially reasonable efforts to maintain the availability of the Service 24/7/365, except for scheduled maintenance, of which VidMob will provide at least three (3) business days’ notice, or temporary suspension of the Service required, in VidMob’s sole discretion, to protect the integrity or security of the Service and / or Licensee Data. Licensee is responsible for any network or internet connectivity required to access or use Service over the Internet. Licensee consents to the processing and storage of Licensee Content on hardware owned or controlled by VidMob’s third party hosting provider (AWS).
2.5 Updates. VidMob will automatically apply all Updates applicable to the Service elements received by Licensee when they are made available.
3.1 General. VidMob makes the Service available to Licensee for the access fee set forth on the Order Form (the “Access Fee”). The Access Fee includes VidMob’s performance of its obligations set forth in Section 2. Fees for any additional work performed by VidMob in relation to the Services, including implementation, are set forth on the Order Form (if applicable). Access Fees for a Renewal Term (as defined below) may be increased by VidMob upon written notice to Licensee provided at least fifteen (15) days prior to the end of the then-current Subscription Period.
3.2 Taxes. The Access Fee and any other fees exclude all applicable sales, use and other taxes, and Licensee will be responsible for payment of all such taxes, fees, duties and charges imposed on Licensee’s use of the Service (other than taxes based on VidMob’s income). VidMob will list any such taxes that it is responsible for collecting and remitting on the applicable invoice.
3.3 Payment. All payments are due within thirty (30) days of the date of invoice. VidMob may impose a late payment fee of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, if less, on any overdue payments. In addition, if undisputed payments remain unpaid thirty (30) days after they were due, VidMob may suspend Licensee’s access to the Service until all outstanding amounts owed have been paid.
4. LICENSEE CONTENT.
4.1 Ownership. Except for the limited license provided in Section 4.3, Licensee retains full ownership of all data and other information uploaded or posted to, or otherwise made accessible to, the Service by Licensee, including data regarding End Users (the “Licensee Content”), and any intellectual property rights or other proprietary rights thereto. All rights in the Licensee Content not expressly granted herein are reserved by Licensee, with the exception that the Licensee agrees to refrain from comparison of platforms, as defined in 11.2, for external purposes. . As used herein, an “End User” means an individual who views or otherwise interacts with Licensee Content that is recognized by the Service.
4.2 Responsibility. Licensee is solely responsible for all Licensee Content as provided by Licensee to VidMob. Licensee acknowledges and agrees that VidMob may, but is not obligated to, review the Licensee Content from time to time, and may delete or remove from the Service (without notice to Licensee) any Licensee Content that in VidMob’s discretion might be offensive or illegal, or might harm or violate the rights or threaten the safety of our users or third parties. Licensee agrees that each time it provides Licensee Content to VidMob through the Service, Licensee will retain a copy of such Licensee Content, and VidMob will not under any circumstances have possession of the only copy of such Licensee Content.
4.3 Limited License. Licensee grants VidMob a nonexclusive, nontransferable (except as set forth herein), non-sublicensable (except as set forth herein), fully-paid, worldwide, revocable, limited license to: (a) use, copy, prepare derivative works of (including excerpting, in whole or in part), distribute and display the Licensee Content solely on and as required to deliver the Service, and solely for the benefit of Licensee, during the Subscription Period; (b) anonymized aggregate data for normative and benchmarking purposes; and (c) collect data regarding End User actions with respect to Licensee Content (such data, “Actions Data”), and use the Actions Data for VidMob’s internal business purposes in perpetuity. For the avoidance of doubt, Actions Data does not include any personally identifiable information. In furtherance of the foregoing, Licensee authorizes VidMob to store copies of Licensee Content for the Subscription Period, as necessary to facilitate providing the Service to Licensee. VidMob will not use the Licensee Content for any purpose other than as permitted in this Section 4.3.
5. INTELLECTUAL PROPERTY RIGHTS IN the SERVICE.
5.1 Reservation of Rights.Except for the license granted in Section 1.1, all rights in the Service, excluding Licensee Content, are reserved by VidMob. Nothing in this Agreement is intended to be a sale of the software or associated documentation underlying the Service, or any derivations thereof. VidMob may modify the Service at any time, providedsuch modification does not expand in any manner the use of Licensee Content by VidMob compared to its use as of the Effective Date, or adversely affect functionality or accessibility of the Service.
5.2 Title to Service. The Service (including the software and all associated documentation) is proprietary and trade secret information and property of VidMob. Title, ownership rights and intellectual property rights, including copyright and patent rights in the Service, and all derivatives thereof, will remain with VidMob and its licensors. Licensee will not take any action to jeopardize, limit or interfere in any manner with such ownership or other rights.
5.3 Trademarks. All trademarks, service marks, logos and trade names associated with either Party, whether registered or unregistered, are proprietary to such Party (or to other companies where so indicated). The other Party will not use any such marks in connection with any product or service or in any manner that is likely to cause confusion, and will not copy, imitate, or use any such marks, in whole or in part, without the prior written permission of the owning party. All use of a Party’s marks hereunder will inure to the benefit of the owning party.
6. TERM AND TERMINATION.
6.1 Term. This Agreement will commence on the Effective Date and remain in effect for the period set forth on the Order Form (the “Initial Term”), if no such other period is specified. Following the Initial Term, this Agreement may be renewable for a mutually agreeable seat cost for an additional one (1) year (each a “Renewal Term”, and all Renewal Terms, together with the Initial Term, the “Subscription Period”) unless otherwise terminated by either party in writing at least thirty (30) days prior to the expiration of the then-current Term.
6.2 Termination. VidMob may terminate this Agreement and in the event that Licensee and VidMob do not reach Renewal Terms by February 26, 2019 this agreement will automatically terminate. Either Party may also terminate this Agreement prior to the end of the Subscription Period if the other Party has committed a material breach of this Agreement and failed to cure such material breach within 30 days after receiving written notice of the breach from the non-breaching Party.
6.3 Effects of Termination. Upon expiration or termination of this Agreement for any reason, VidMob will disable Licensee’s access to the Service. Termination of this Agreement will not relieve either Party from its obligation to comply with any terms of this Agreement that call for performance prior or subsequent to the effective date of such termination, including Licensee’s obligation to pay for access to the Service for periods prior to such termination date and Sections 4.1, 4.3(b), 6.3, 7, 9, 10, and 11.
7.1 Confidential Information. The terms of this Agreement and all information that is either identified as “confidential” or the equivalent when disclosed or that a reasonable person would recognize as proprietary, sensitive or confidential from its nature or the circumstances of its disclosure (“Confidential Information”) of either Party (“Disclosing Party”) provided to the other Party (“Receiving Party”) hereunder will be maintained in confidence and will not be disclosed by the Receiving Party except (a) to the Receiving Party’s personnel who have a need to know such information in connection with the Agreement, and (b) to the Receiving Party’s advisors, accountants, attorneys, and actual and potential lenders, investors and/or acquirers (in both (a) and (b) where such recipient is under a written obligation respecting confidentiality that is materially similar to this Section 7). The Receiving Party will maintain the confidentiality of Disclosing Party’s Confidential Information with the same degree of care that it exercises with its own confidential information of a similar nature, and in no event less than a reasonable degree of care. The Services, documentation, and Actions Data will be Confidential Information of VidMob. Licensee Content and Licensee Output will be Confidential Information of Licensee.
7.2 Exceptions. Confidential Information will not include, and Section 7.1 will not apply to, information that the Receiving Party can demonstrate (a) was generally known to the public other than as a result of the Receiving Party’s breach of its obligations hereunder; (b) was rightfully known to the Receiving Party prior to the date of disclosure; or (c) was independently developed by the Receiving Party without use of or reference to the Confidential Information of the Disclosing Party. In addition, the terms of Section 7.1 will not apply to the extent that the Receiving Party is required to disclose information by applicable law; provided, however, that, to the extent permitted by law, the Receiving Party will not make any such disclosure without first notifying the Disclosing Party and allowing the Disclosing Party a reasonable opportunity to seek injunctive relief from (or a protective order or confidential treatment with respect to) the obligation to make such disclosure.
7.3 Injunctive Relief. The Receiving Party agrees that (a) the remedies at law for any breach of this Section 7 are inadequate and that the damages resulting from any such breach may not be adequately addressed by monetary compensation, and (b), therefore, upon any breach by it of this Section 7, the Disclosing Party will be entitled to immediate injunctive relief and may obtain any order restraining any threatened or future breach from any court of competent jurisdiction without the requirement to post bond. Such relief will be in addition to any remedies at law or in equity available to the Disclosing Party for a breach by the Receiving Party of any of the provisions of the Agreement.
7.4 Return of Information. Upon expiration or termination of the Agreement, the Receiving Party will return to the Disclosing Party all Confidential Information of the Disclosing Party obtained in the performance of the Agreement, including all copies thereof, under its possession or control, or, at the Disclosing Party’s option, destroy or purge its own systems and files, of all such Confidential Information of the Disclosing Party, with the exception of anonymized aggregate data, and, upon request by the Disclosing Party, deliver to the Disclosing Party a written confirmation of such destruction and purging.
8. Warranty AND Disclaimer.
8.1 Mutual Warranties. Each Party represents and warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement.
8.2 By VidMob. VidMob represents and warrants that:
(a) the Service will perform substantially in accordance with the documentation made available to Licensee, which may be online. VidMob’s sole obligation, and Licensee’s sole remedy, in the event of any default of this warranty will be to update the Service in order to correct the non-conformity.
(b) VidMob has all rights, licenses, and consents necessary to grant the license in Section 1.1.
8.3 Licensee represents and warrants that Licensee has all rights, licenses, and consents necessary to grant the license in Section 4.3, including under any and all intellectual property rights, as well as any rights of privacy, rights of publicity or similar rights of any type, in or to the Licensee Content made available on or through the Service. This representation and warranty applies equally to Licensee Content that is hosted on third party sites (“Third Party Hosted Content”), and Licensee further represents and warrants that Licensee’s grant of access to Third Party Hosted Content does not violate the terms of Licensee’s agreements with the applicable third party on whose service such content resides.
8.4 Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND THE PARTIES EXPRESSLY DISCLAIM ALL OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE. VIDMOB DOES NOT GUARANTEE ANY SPECIFIC RESULT FROM USE OF THE SERVICE, AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICE IS ERROR-FREE OR WILL PROVIDE COMPLETE INFORMATION.
9.1 Indemnification by VidMob.
(a) VidMob will indemnify, defend, and hold harmless Licensee, and its officers, directors, employees and agents, from and against all claims, damages, losses, liabilities, costs, expenses, and reasonable attorneys’ fees incurred as a result of any third-party claim(s) alleging that Licensee’s use of the Service as authorized hereunder infringes or misappropriates any third party’s intellectual property rights. In the event of any claim for which Licensee seeks indemnification from VidMob under this Section 9.1, Licensee will promptly notify VidMob in writing of the claim, cooperate with VidMob in defending or settling the claim at VidMob’s expense, and allow VidMob to control the defense and settlement of the claim, including the selection of attorneys (provided, however, that VidMob may not enter into any settlement that imposes liability of any kind, including an admission of wrongdoing, upon Licensee without Licensee’s prior, written consent).
(b) In addition, in the event any claim arises that is subject to subsection (a) of this Section 9.1, or in VidMob’s opinion is likely to arise, VidMob may in its sole discretion (i) procure the right for Licensee to continue using the Service, (ii) replace or modify any of the Service to make it noninfringing, or (iii) terminate this Agreement and immediately revoke Licensee’s access to the Service, and provide Licensee with a pro-rata refund as applicable.
(c) THIS SECTION 9.1 STATES THE ENTIRE OBLIGATION OF VIDMOB AND THE EXCLUSIVE REMEDIES OF LICENSEE WITH RESPECT TO ANY THIRD PARTY CLAIMS SUBJECT TO INDEMNIFICATION UNDER THIS SECTION 10.1.
9.2 Indemnification by Licensee. Licensee will indemnify, defend, and hold harmless VidMob, and its officers, directors, employees and agents, from and against all claims, damages, losses, liabilities, costs, expenses, and reasonable attorneys’ fees incurred as a result of any claim by a third party alleging that any of the Licensee Content infringes or misappropriates any third party’s intellectual property or other proprietary rights (except to the extent such claim alleges that the Service infringes a third party’s intellectual property rights and would be subject to subsection (a) of Section 9.1 if asserted against Licensee). In the event of a claim for which VidMob seeks indemnification from Licensee under this Section 9.2, VidMob will promptly notify Licensee in writing of the claim, cooperate with Licensee in defending or settling the claim at Licensee’s expense, and allow Licensee to control the defense and settlement of the claim, including the selection of attorneys (provided, however, that VidMob may not enter into any settlement that imposes liability of any kind, including an admission of wrongdoing, upon Licensee without Licensee’s prior, written consent).
10. LIMITATION OF LIABILITY.
10.1 Disclaimer; Limits. SUBJECT TO SECTION 10.2, (A) NEITHER PARTY WILL HAVE ANY LIABILITY TO THE OTHER PARTY WITH RESPECT TO CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, MULTIPLE, PUNITIVE OR OTHER INDIRECT DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (B) IN NO EVENT WILL A PARTY’S TOTAL LIABILITY IN CONNECTION WITH OR UNDER THE AGREEMENT EXCEED THE FEES PAID OR PAYABLE BY LICENSEE UNDER THE AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH CLAIM.
10.2 Exclusions. The limitations in Section 10.1 will not apply to (a) indemnification obligations; (b) claims related to unauthorized disclosure of Confidential Information; (c) claims related to one Party’s misappropriation, infringement or violation of the other Party’s intellectual property rights; (d) Licensee’s failure to make payments due hereunder; or (e) a Party’s gross negligence, willful misconduct or fraud.
c. Essential Element. The Parties acknowledge and agree that the foregoing limitations of liability are essential elements of the bargain and that in the absence of such limitations, the financial and other terms of this Agreement would be substantially different.
12. Independent Contractors. The Parties are independent contractors and In no event will either Party make any commitments, representations or warranties on behalf of the other Party, or purport to act as an agent or representative of the other Party for any purpose.
12.1 Assignment. This Agreement may not be assigned by either Party without the prior written consent of the other; provided, however, that a Party may assign this Agreement to any person or entity that is an affiliate, or acquires by sale, merger or otherwise, all or substantially all of its assets, stock or business. Any attempted assignment or delegation in violation of this Section will be null, void and of no effect.
12.2 Notices. All notices, consents, and approvals under this Agreement must be delivered in writing by courier or by certified or registered mail, (postage prepaid and return receipt requested) to the other Party at the address set forth in preamble, and will be effective upon receipt or when refused. Operational communications, including changing a Party’s notice address, may be made via email.
12.3 Governing Law; Disputes. This Agreement will be governed by the laws of the State of New York, without reference to its conflicts of law principles. That would require a different result. The United Nations Convention for the International Sale of Goods will not apply to this Agreement. Any dispute, controversy or claim arising out of or relating to this Agreement, will be made exclusively in the state or federal courts located in New York County, New York, and the Parties hereby submit to the jurisdiction and venue of such courts.
12.4 Waivers; Severability. All waivers must be in writing. 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. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
12.5 No Third Party Beneficiaries. The covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns.
12.6 Force Majeure. Any delay in the performance of any duties or obligations of either party 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 the affected Party makes commercially reasonable efforts to mitigate the effect of such event.
12.7 Testimonials; Publicity. Neither Party will use the name or any trademark of the other Party in any press release, marketing materials, or other disclosures without the prior written consent of such other Party, except that VidMob may list Licensee on standard, current customer lists, including on the VidMob website, during the Subscription Period.
12.8 Notices. Any notice or consent required or permitted to be given under this Agreement will be in writing, and will be deemed to have been given when delivered personally, or sent via a nationally recognized overnight courier, or sent via registered mail return receipt requested, to the other Party’s address specified in the preamble of this Agreement.
12.9 Complete Agreement. This Agreement (including all Exhibits hereto) constitutes the entire agreement, both written and oral, between the Parties with respect to the subject matter hereof.