Pixellot Terms
In connection with the use of the Services and Software as outlined and defined in the ASP Subscription Agreement for Application Services (this “Agreement”) entered into by Customer and TruMedia, Customer will have access to certain features and content provided by Pixellot Us, Inc. (“Pixellot”). In order to provide Customer with these features and content, Pixellot requires that Customer agree to be bound by the following terms (collectively, the “Terms”). Accordingly, Customer acknowledges and agrees that Customer and its users will abide by these Terms.
1. Definitions:
For the purpose of these Terms, the following terms shall have the meaning ascribed next to them:
1.1. “Broadcast” or “Broadcasting” means the transfer of a digital signal to viewers of the data being recorded by using the System; or the record of data using the System;
1.2. “Content” means information and data related to Customer’s use of the System, layout and the System’s functions and processes as carried out by Customer;
1.3. “Crowdsourced Data” means aggregated data and insights derived from the Content, which do not identify Customer and cannot with reasonable means be attributed or traced back to the Content.
1.4. “Documentation” means the technical specifications, user-guides and tutorials associated with the System, as provided by Pixellot to TruMedia from time to time;
1.5. “Feedback” means information or content concerning enhancements, changes or additions to the System that Customer requests, desires or suggests.
1.6. “Hardware” means those tangible parts of the System;
1.7. “Software” means that software in object code form provided by Pixellot as part of the System;
1.8. “System” means the combination of Hardware and Software together with the access to Pixellot’s SaaS platform;
2. License
2.1. Customer is granted a limited, non-exclusive, non-transferable, non-sublicensable and revocable license, to install and use the System for video production purposes in accordance with the relevant Documentation provided to by Pixellot (the “License”). The use of the System includes broadcasting the output of the System, subject to, and in compliance with, the broadcasting rights of or retained by Customer.
2.2. For clarification purposes, the License does not include the grant and/or award of any broadcasting rights of any kind or nature to Customer or any third party. Customer is solely responsible and liable to obtain and secure, and Customer shall obtain and secure, in advance and prior to each Broadcasting, any and all permissions, informed consents, clearances, releases and waivers concerning broadcasting rights, copyrights, performance rights, publicity and privacy rights, personal data rights, and all other pertinent rights, title and interest, from any third party having any such right, title or interest in or to the Broadcasting or its content (including all individuals depicted, documented or portrayed in each Broadcasting), which may be required to allow Customer to lawfully capture, record, retain, edit, modify, publicly transmit and share and use the Broadcasting, through the System and its features and functionality, throughout any territory in the world (collectively, a "Broadcasting License").
3. Authorized Use of the System; Restrictions
3.1. Customer will not: (i) attempt to reverse engineer, decompile, disassemble, translate or otherwise seek to develop, copy or expose the System, the Software (including the source code), the Hardware, the underlying ideas thereof, or any part thereof or assist or allow any third party to do the same; (ii) use, copy, modify, merge, distribute, transfer or sublicense the System or any part thereof, except as expressly authorized in these Terms or in the Documentation; (iii) use or license the System for the benefit of third parties not in conjunction with the these Terms or the Documentation; (iv) represent that Customer possesses any proprietary interest in the System or any part thereof, nor delete, deface or otherwise erase any proprietary notice of Pixellot from the System, the Software or any part thereof; (v) directly or indirectly, take any action to contest Pixellot's intellectual property and proprietary rights or infringe them in any way; (vi) write or develop any derivative software or any other software program based upon all or any part of the System (including, without limitations, any user manuals) or any other proprietary or confidential information of Pixellot; or (vii) develop, or create, or permit others to develop or create, a product or service similar to or in competition with the System;
3.2. Customer may not engage in or attempt to engage in: (i) any form of testing, scanning, scraping, probing, robotic navigating, bulk extracting or hacking of the System; (ii) breaching the security of the System or identifying any security vulnerabilities thereof; (iii) interfering with, circumventing, manipulating, impairing or disrupting the operation, or the functionality of the System; (iv) working around or circumventing any technical limitations in the System; or (v) activities which may enable features or functionalities which are otherwise disabled, inaccessible or undocumented in the System.
3.3. Without derogation from any applicable laws, it is a violation of these Terms to create or design any hardware, software or system which alters the Hardware or any other component of the System with the intent or resulting effect, of circumventing the License provided herein.
3.4. Customer may not use the System for any activity that constitutes, or encourages conduct that would constitute, a criminal offense, give rise to civil liability or otherwise violate any applicable law or industry standard, including any applicable laws and regulations governing copyrights, computer hacking, privacy and export control.
3.5. “Open Source Software” shall mean software licensed under terms that require Customer to make modifications to the Open Source Software or any software that Customer combines with the Open Source Software freely available in source code form. Customer shall not use any Open Source Software, including software licensed under the GNU General Public License (“GPL”), the Mozilla Public License ("MPL") or the IBM Public License ("IPL"), in the creation of interfaces or in any other way together with or in combination with the System or any part thereof if such use may: (i) create, or purport to create, any obligations on Pixellot with respect to the System; (ii) grant, or purport to grant, to any third party any rights to, waivers of or immunities under Pixellot’s intellectual property or proprietary rights; and/or (iii) cause, or be interpreted or asserted to cause, the System in whole or in part or any modifications or enhancements thereof to become subject to the terms of the GPL, MPL or IPL or other Open Source Software license.
4. Title and Intellectual Property
4.1. The System, including the Software, the Documentation, the Feedback and all ideas underlying the System, including any revisions, corrections, modifications, enhancements, updates and/or upgrades thereto, are and shall remain Pixellot's property and protected under any applicable laws and treaties. All rights, title and interests in and to the System, including associated intellectual property rights (including but not limited to patents, copyrights, trade secrets, trademarks, etc., all whether registered or not), evidenced by or embodied, attached, connected and/or related to the System, and any goodwill associated therewith, are and shall remain Pixellot's sole property. The License granted to Customer hereunder and these Terms do not convey to Customer any interest in or to the System, but only a limited right of use, revocable in accordance with these Terms.
4.2. Nothing in these Terms constitutes a waiver of Pixellot's intellectual property rights under any law. The License and rights for the System granted, pursuant to these Terms, gives Customer a limited right to use the System, but does not constitute a sale of the System.
4.3. Customer agrees to take all reasonable steps to prevent unauthorized copying, use or disclosure of the System or any portion thereof.
5. Term & Termination
5.1. The License and rights granted hereunder shall be in effect for the term specified in the Agreement. Notwithstanding the foregoing, in the event of a breach by Customer of any of the provisions of these Terms that has not been cured (to the extent such breach is curable) in such a manner satisfactory to PIXELLOT, within 30 days from the receipt of a written notice, then (i) the License and all rights hereunder shall automatically terminate; and (ii) Customer shall cease immediately all use of the System. The foregoing shall be without prejudice to any other remedy Pixellot may have under applicable law or agreement. For the avoidance of any doubt, Customer hereby specifically acknowledges and agrees that to the extent any such breach or non-compliance is not cured within the aforesaid 30-day period, Pixellot may enforce its rights under this Section 5.1. without applying to any court of competent jurisdiction. Customer further acknowledges and agrees that Pixellot may enforce the termination rights hereunder independently of any termination right and/or other remedies available hereunder.
5.2. Upon termination or expiration hereof for any or for no reason, the License and all rights granted hereunder shall terminate, and Customer shall not be allowed to further use the System (including the Hardware, Software and all copies of Documentation) or any part thereof. Customer shall have the right to seek a license to use the System directly from Pixellot’s under the then standard terms and conditions of Pixellot. The provisions of paragraphs 3, 4, 5.2, 7, 8 and 9 will survive the termination or expiration of these Terms.
6. Content & Confidentiality
6.1. In the course of its operation, the System may transmit Content to Pixellot. Pixellot may use the Content, Feedback and Crowdsource Data for the following purposes:
6.1.1. To perform its obligations under its agreement with TruMedia, improve and customize the System and, if applicable, the provision of maintenance & support services;
6.1.2. To collect fees, to conduct administrative activities necessary to maintain and provide the System or any part thereof and if applicable, the provision of maintenance & support services, enforce this Agreement, take any action in any case of dispute, or legal proceeding of any kind with respect to the System, and prevent fraud, misappropriation, infringements, identity theft and other illegal activities and misuse of the System;
6.1.3. If Pixellot is required, or reasonably believes that it is required, by law, to share or disclose the Content, or if such sharing or disclosure is required pursuant to a subpoena, order, or decree issued by a competent judicial or administrative authority, provided that, to the extent legally permitted, Pixellot will give Customer or the TruMedia prompt notice of the requirement prior to such disclosure, to allow Customer, at its exclusive cost and expense, to intervene and protect its interests in the Content, should Customer so desire;
6.1.4. Derive information and analyses of statistical information, from the Content, (including without limitations, the Crowdsource Data) in a manner that does not identify Customer, and use such derived information and analyses for any purpose, including commercial purposes. Customer and/or its viewers will not be entitled to any remuneration from Pixellot, for the use by Pixellot of such derived data or analyses.
6.1.5. Pixellot may use and share the Feedback and Crowdsource Data in order to provide the System and related services to Customer and other end-users, to enhance the System, to develop new products and services, for research and testing and for any other purpose Pixellot determines. Customer will not be entitled to any remuneration from Pixellot, for its use of such Feedback and Crowdsource Data.
6.2. Customer acknowledges that the System and all elements thereof, including without limitation, its design, structure, capabilities, functionality, payment details and Documentation, constitute Pixellot’s confidential information. Accordingly, Customer must treat all such information as confidential material in a manner no less protective than Customer uses to protect its own similar assets, but in no event less than reasonable care. Without derogating from the foregoing, Customer will maintain in strict confidentiality any information regarding the System's functionality, capabilities, structure, design and all other details related thereto, any of Pixellot’s business practices, tutorials and training material, and will not disclose them, or have them disclosed, directly or indirectly to any third party without Pixellot’s prior written consent.
6.3. Notwithstanding the foregoing, Customer may disclose confidential information only if and to the extent such disclosure is required in order to comply with a legal obligation including, orders, subpoenas, decrees or request prescribed by a competent judicial, administrative or regulatory authority, provided that, to the extent legally permitted, Customer promptly notifies Pixellot and TruMedia of such legal obligation, in order to give Pixellot an opportunity to challenge the legally required disclosure.
7. Disclaimer of Warranty
7.1. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SYSTEM, INCLUDING THE SOFTWARE, THE HARDWARE AND THE DOCUMENTATION ARE PROVIDED BY PIXELLOT “AS IS” WITHOUT ANY WARRANTY OF ANY KIND, AND PIXELLOT DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESSED, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE, THE OUTCOME OF THE BROADCASTING, SYSTEM INTEGRATION, MAINTENANCE & SUPPORT SERVICES AND ANY WARRANTY OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS; WITHOUT LIMITING THE FOREGOING, PIXELLOT SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES THAT MAINTENANCE & SUPPORT SERVICES OR THE SYSTEM WILL MEET CUSTOMER’S REQUIREMENTS OR FULFILL ANY OF ITS NEEDS. TO THE EXTENT PIXELLOT MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY SHALL BE THE MINIMUM PERMITTED UNDER SUCH LAW. NO LICENSOR, DEALER, TRUMEDIA, RESELLER, AGENT OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THESE TERMS.
7.2. Pixellot will not assume any liability whatsoever for damages incurred or sums paid by Customer, in connection with any fault by Customer or any third party’s harmful components impacting Customer’s computer network (such as computer viruses, worms, computer sabotage, or “denial of service” attacks).
8. Limitation of Liability
8.1. PIXELLOT SHALL NOT BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING AMOUNTS REPRESENTING LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF USE, LOSS OF DATA OR LOSS OF BUSINESS, WHETHER IN ACTION, IN CONTRACT OR TORT, EVEN IF THOSE DAMAGES WERE FORESEEABLE OR RESULTED FROM THE BREACH OF A FUNDAMENTAL TERM HEREIN, OR IF PIXELLOT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT DEROGATING FROM THE FOREGOING, IN THE EVENT THAT BY OPERATION OF LAW PIXELLOT IS FOUND LIABLE FOR DAMAGES OF ANY KIND IN CONNECTION WITH THE SYSTEM, THE SOFTWARE, THE HARDWARE, THE DOCUMENTATION AND/OR THESE TERMS, THEN PIXELLOT’S TOTAL LIABILITY FOR SUCH DAMAGES SHALL NOT EXCEED THE PAYMENT MADE BY CUSTOMER FOR THE SPECIFIC SYSTEM THAT IS THE SUBJECT OF THE CLAIM.
8.2. Pixellot has no responsibility or liability in respect of Customer’s reliance upon, or use of, the System, any actions or omission Customer performs in connection with the Broadcasting, or any consequences resulting therefrom.
9. Miscellaneous
9.1. Injunctive Relief. In the event of breach of these Terms or the License hereunder, Customer hereby acknowledges that such a breach may cause irreparable harm to Pixellot and/or TruMedia for which monetary or other damages may not be an adequate remedy, and therefore, in addition to any other legal or equitable remedies, Pixellot and/or TruMedia, as the case may be, will be entitled to seek an injunction or other equitable remedy against such breach.
9.2. Assignment. Customer may not assign its rights or obligations hereunder without the prior written consent of PIXELLOT and TruMedia. To the greatest extent permissible by law, PIXELLOT may assign these Terms in their entirety, including all right, duties, liabilities, performances and obligations herein, upon notice to Customer and without obtaining Customer’s further specific consent, to a third-party, upon a merger, acquisition, change of control or the sale of all or substantially all of PIXELLOT equity or assets relating to this Agreement. By virtue of such assignment, the assignee assumes PIXELLOT’s stead, including all right, duties, liabilities, performances and obligations hereunder, and PIXELLOT is released therefrom.