End User License Agreement
Section 1. Definitions
Words used in this Agreement with their initial letters capitalized will have the meanings specified in Appendix 1.
Section 2. License
2.1 License to Use Services.
Subject to the terms hereof, Postudio hereby grants to Customer a limited, nonexclusive, non-transferable, non-sublicensable, revocable license during the Term to use the Postudio Services for Customer’s internal business purposes.
2.2 Downloadable Software.
If Customer receives Software from Postudio, including Software downloaded separate from this Agreement or from a third party marketplace, or uses Software as Service from Postudio, its use is governed in one of two ways: if Customer is presented with license terms that it must accept in Order to use the Software, those terms apply; if no license is presented, this Agreement applies. Postudio reserves all other rights to the Software. Any Software is licensed, not sold. Unless Postudio notifies Customer otherwise, the Software license ends when Customer’s license to use the Postudio Services ends. Customer must then promptly uninstall the Software from its computers or devices, or Postudio may disable it. Customer must not work around any technical limitations in the Software. The Software and related technology are subject to applicable Indian laws and regulations. Customer must comply with all applicable laws and regulations with respect to the Software and related technology.
2.3 Restrictions; Limitations.
Customer may not use the Postudio Services in any manner or for any purpose other than as expressly permitted by this Agreement. Without limitation of the foregoing, the license granted under this Section 2 does not include or authorize: (a) publicly performing or publicly displaying any of the Postudio Services; (b) modifying, disassembling, decompiling, reverse engineering or otherwise making any derivative use of any of the Postudio Services or using or accessing any of the Postudio Services to build a competitive product or service; (c) using any data mining, robots or similar data gathering or extraction methods; (d) downloading (other than page caching) of any portion of the Postudio Services or any information contained in the Postudio Services; (e) performing or disclosing any benchmarking or performance testing of the Postudio Services; (f) selling, licensing, renting, leasing, assigning, distributing, displaying, hosting, disclosing, outsourcing or otherwise commercially exploiting the Postudio Services or any vulnerability data to any third party other than a user authorized by Customer; or (g) using any infringing User Content in connection with the Postudio Services or otherwise using any of the Postudio Services other than for their intended use. During and after the Term, Customer will not assert, nor authorize, assist or encourage any third party to assert, against any of the Postudio Parties, any patent infringement or other intellectual property infringement claim regarding any Postudio Services that Customer has used.
2.4 Changes to Postudio Services.
Postudio may change any of the Postudio Services or change or remove features or functionality of the Postudio Services from time to time. Postudio will notify Customer of any discontinuation of the Postudio Services.
PREVIEWS ARE PROVIDED "AS-IS," "WITH ALL FAULTS," AND "AS AVAILABLE," AND ARE EXCLUDED FROM THE SERVICE LEVEL AGREEMENTS, LIMITED WARRANTY, AND ANY OTHER ASSURANCES EXPLICIT OR IMPLICIT. Postudio will supply best efforts to support services for Previews, but there is no guarantee of resolution by Postudio, and these efforts are not prioritized in the same manner as to support efforts for officially-released software and services. Previews may be subject to reduced or different security, compliance, and privacy commitments, as well as any additional notices provided with the Preview. CUSTOMERS SHOULD NOT USE PREVIEWS TO PROVIDE SENSITIVE DATA, CRITICAL DATA, OR OTHERWISE IMPORTANT ASSETS THAT ARE SUBJECT TO HEIGHTENED COMPLIANCE REQUIREMENTS.
Postudio MAY AT ANY TIME CHANGE OR DISCONTINUE PREVIEWS WITH OR WITHOUT NOTICE.
A Preview constitutes a limited and controlled test of new functionality to further the understanding of the ideal use and operation of this intellectual property and the value that the intellectual property represents, which serves to inform further technical and commercial development. Postudio reserves the right to protect the intellectual property in Previews, or any future permutations thereof, at any time now or in the future, through patenting, copyrighting, trademarking, trade secrets, trade dress or any other legal means available to the company in India and other countries.
Postudio owns any user feedback provided in connection with a Preview for any purpose that does not violate any Privacy or Consumer Protection laws when applicable.
2.5 Suspension of Postudio Services.
Postudio may, in its sole discretion, immediately temporarily suspend access to or use of the Postudio Services by Customer if Customer violates any provision within the ‘License’, ‘Eligibility’, ‘Payments and Taxes’, ‘Customer Responsibilities’, or ‘Proprietary Rights; Support’ sections of this Agreement, or if in Postudio ’s reasonable judgment, the Postudio Services or any component thereof are about to suffer a significant threat to security or functionality. Postudio will provide advance notice to Customer of any such suspension in Postudio ’s reasonable discretion based on the nature of the circumstances giving rise to the suspension. Postudio will use reasonable efforts to re-establish the affected Postudio Services promptly after Postudio determines, in its reasonable discretion, that the situation giving rise to the suspension has been cured. Postudio may terminate Customer access to the Postudio Services under an Order if any of the foregoing causes of suspension is not cured within thirty (30) days after Postudio ’s initial notice thereof. Any suspension or termination by Postudio under this Section 2.5 will not excuse Customer from its obligation to make payment(s) under this Agreement. If any User breaches any term or condition of this Agreement or any Policies, then, in addition to any other remedies available to Postudio , Postudio will have the right, in its sole discretion, to immediately suspend access to the Postudio Services by the Customer who failed to comply with the terms and conditions of this Agreement or any Policies. Any suspension under this Section shall remain in effect until the applicable breach, if curable, is cured.
Section 3. Eligibility; Registration
Where Customer is an individual or Customer authorises certain individuals to use the Services (each a ‘User’), such user must be at least 18 years old to access or use the Postudio Services. Any minor desirous to use or transact on Site, is required to conduct such transaction through their legal guardian or parents.
In Order to access and use the Postudio Services, each User (as an individual or a corporation) will need to register for a Postudio Account on the Site and accept this Agreement. Customer will ensure that each User will: (a) provide accurate, truthful, current and complete information when creating a Postudio Account; (b) maintain and promptly update the Users’ Postudio Account information; (c) maintain the security of Users’ Postudio Account by not sharing its password with others who are not authorized and restricting access to the Postudio Account and their computer or mobile device; (d) promptly notify the Administrator or Postudio if the User discovers or otherwise suspect any security breaches related to the User’s Postudio Account; and (e) take responsibility for all activities that occur under a User’s Postudio Account and accept all risks of unauthorized access. Each User’s login password should be chosen carefully and not contain any personal or other information that may be easily guessed by anyone else. Upon termination of the Term of the Postudio Services Customer ordered, Users’ right to access and use the Postudio Services will terminate.
Section 4. Payments and Taxes
Unless otherwise agreed upon in writing, Customer will pay Postudio the fees, compensation and other amounts specified in the applicable Order and in accordance with the payment terms specified therein. All amounts payable under this Agreement are denominated in Indian Rupees and Customer will pay all such amounts in lawful currency of India. The Order can have charges for various services such as storage, data transfer, workstation application, software licensing fees, and other fees.
(a) If Customer elects to “rent” an Application, use the Postudio Services on an hourly basis, and/or a combination of both, Customer may either pre-pay for a specified number of hours or pay Customer’s use on a per-hour / per month basis. Customer may pay by payment card or, if approved for credit, Customer will be invoiced and pay in accordance with Section 4.2(b) below. If Customer pays by payment card, Customer hereby authorizes Postudio or its authorised third-party payments service provider to charge the applicable charges to the payment card Customer provides at the time that Customer pre-pays for hours or at the end of each of Customer’s User’s use session / month, as applicable.
(b) Except for pre-paid hours or pay per-hour use as described in Section 4.2(a) above or as otherwise set forth in the applicable Order, Postudio will issue invoices for amounts payable to Postudio under this Agreement. Unless otherwise agreed upon in writing, Customer will pay each of Postudio ’s invoices within 7 (seven) days after Customer’s receipt of the invoice. Unless otherwise agreed upon in writing, payment will be made at the address for Postudio set forth on the Order.
Any amount not paid when due will bear interest at the rate of one and one-half percent (1.5%) per month computed and compounded daily from the date due until the date paid. Further, in the event of any action by Postudio to collect any amount not paid when due, Customer will pay or reimburse Postudio ’s costs of collection (including, any attorneys’ fees and court costs). Postudio may accept any check or payment in any amount without prejudice to Postudio ’s right to recover the balance of the amount due or to pursue any other right or remedy. No endorsement or statement on any check or payment or in any letter accompanying a check or payment or elsewhere will be construed as an accord or satisfaction.
Unless otherwise agreed upon in writing, the fees, compensation and other amounts payable to Postudio under this Agreement do not include any taxes, customs, duties, fees or other charges assessed or imposed by any governmental authority other than taxes imposed on or measured by Postudio ’s net income. Customer will pay or reimburse Postudio for all such taxes and charges imposed on any Party with respect to any Postudio Service or measured by any amount payable to Postudio under this Agreement upon demand or provide certificates or other evidence of exemption.
Section 5. Term and Termination
The term of this Agreement will commence on the commencement date set forth in the Order, or, if none is provided or no Order exists, the day the Administrator login name and password are issued to Customer to access the Postudio Services (the “Commencement Date”), and will continue for the period set forth in the Order or otherwise agreed upon by the Parties unless and until terminated pursuant to Section 2.5, 5.2, 5.3, or 9.3 of this Agreement (the “Term”).
5.2 Termination for Convenience.
Customer may terminate the Term for convenience at any time on at least thirty (30) days’ prior written notice to Postudio . Postudio will not provide any refund of any pre-paid fees where such fees can include fees for storage, workstation hours, data transfer fees, and other fees.
5.3 Termination for Material Breach.
If either Party commits a material breach of or default under this Agreement, then the other Party may give notice that the breach or default has occurred (including, but not necessarily limited to, a statement of the facts relating to the breach or default, the provisions of this Agreement that are in breach or default, and the action required to cure the breach or default) and that the Term will terminate pursuant to this Section 5.3 if the breach or default is not cured within thirty (30) days after receipt of notice (or such later date as may be specified in such notice). If the specified breach or default is not cured within thirty (30) days after receipt of such notice (or such later date as may be specified in such notice), then the Term will terminate. Without limiting the foregoing, Postudio may immediately terminate the Term on notice to Customer for Customer’s breach of Sections 2.3(g), 6.1 or 6.2.
5.4 Effect of Termination.
In the event of any termination of the Term:
(a) all of Customer’s and each Users’ rights under this Agreement will immediately terminate, the license granted to Customer in this Agreement will terminate and Customer and all Users will immediately cease any access or use of the Postudio Services;
(b) if Customer terminates the Term for convenience under Section 5.2 or Postudio terminates the Term for material breach by Customer under Section 5.3, then Customer will remain responsible for all fees that Customer has incurred through the date of termination and Customer must pay within seven (07) days all amounts that have accrued prior to such termination of the Term, as well as all sums remaining unpaid for the Postudio Services Order under the Agreement plus related taxes and expenses;
(c) Postudio will provide Customer with read only access to its User Content (i.e. Customer can download its User Content but not edit or change its User Content) for thirty (30) days after the effective date of termination or expiration of the Term where such User Content will be deleted and it is the responsibility of the Customer to obtain their User Content before such deletion, unless Postudio has received any notice or allegation that the User Content infringes a third party copyright, in which case such User Content will not be made available to Customer; and
(d) sections 1, 2.3, 4, 5.4, 6.3, 6.4, 6.5, 7, 8.1, 8.4, 8.6, 9, 10 and 11 of this Agreement, together with any other provisions that by their nature are intended to survive, will continue to apply in accordance with their terms.
Section 6. Customer Responsibilities
6.1 Bring Your own License.
Unless Customer has elected to “rent” an Application in the manner described in Section 4.2(a), Customer is required to obtain its own Applications (and related Applications Licenses) and upload the relevant Applications to the Postudio Services in Order to use the Postudio Services. Customer is solely responsible and warrants that its use of the Applications with or through the Postudio Services complies with the applicable Applications License or that Customer has permission from the Applications licensor to use such Applications with the Postudio Services, and that Customer otherwise complies in all respects with its Application License.
6.2 User Content.
Customer is solely responsible for obtaining all rights to the User Content and for any claims related to User Content. Customer represents and warrants to Postudio that: (a) Customer has all rights in the User Content necessary to use the User Content in connection with the Postudio Services and to otherwise exploit the User Content in the manner exploited by Customer; and (b) none of the User Content or Customer’s use of the Postudio Services by Customer or any Users will violate the any Policies or applicable law.
6.3 Security and Backup.
Customer is responsible for maintaining appropriate security, protection and backup of the User Content. Further Postudio is not responsible for the actions taken by the Customer on the platform. Without limiting Postudio ’s obligations elsewhere in this Agreement, Postudio is not responsible for any unauthorized access to, alteration of, or the deletion, destruction, or loss of, or damage to, or failure to store or encrypt, any User Content or other data that Customer or any User submits, accesses from or uses in connection with the User’s Postudio Account or the Postudio Services (including as a result of Customer or any User’s errors, acts or omissions).
6.4 User Violations.
Customer is responsible for any access or use of the Postudio Services under each User’s Postudio Account, including by any third parties that use any User’s Postudio Account. For this Agreement, the acts or omissions of any User or third party under a User’s Postudio Account are considered the User’s acts or omissions, as applicable.
(a) General. Customer will defend, indemnify, and hold harmless the Postudio Parties from and against all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim arising out of or related to: (a) Customer’s or Users’ unauthorized use of the Postudio Services other than as permitted under this Agreement; (b) any claim related to Applications or an Applications License, including any claim involving alleged infringement or misappropriation of third-party rights, contributory infringement of third-party rights or contribution or inducement to breach any Applications License; (c) sales, use, gross receipts, value added, property, or any other taxes or fees assessed or imposed by any governmental authority on Postudio or any other person with respect to the Postudio Services or measured by any amount payable to Postudio under this Agreement (other than taxes imposed on or measured by Postudio ’s net income); or (d) the User Content or the combination of the User Content with other applications, content or processes, including any claim involving alleged copyright or patent infringement, take down action or misappropriation of third-party rights by the User Content or ( e ) Any virus attack, ransomeware or other security attack due to actions / errors of the Customer. If Postudio is obligated to respond to a third party notices or other compulsory legal order or process described above, Customer will also reimburse Postudio for reasonable attorneys’ fees, as well as the time and materials spent by Postudio ’s employees and contractors responding to the third party notices or other compulsory legal order or process at Postudio’s then-current hourly rates.
(b) Process. Postudio will promptly notify Customer of any claim subject to Section 6.5(a) of this Agreement, but Postudio’s failure to promptly notify Customer will only affect Customer’s obligations under Section 6.5(a) of this Agreement to the extent that such failure prejudices Customer’s ability to defend the claim. Customer may: (i) use counsel of its own choosing (subject to Postudio ’s written consent) to defend against any claim; and (ii) settle the claim as Customer deems appropriate, provided that Customer obtain Postudio ’s prior written consent before entering into any settlement. Postudio may also assume control of the defense and settlement of the claim at any time.
Section 7. Confidential Information
7.1 Confidentiality Agreement.
If Postudio and Customer previously entered into a nondisclosure agreement (the “Confidentiality Agreement”) then the terms of this Section 7.1 will apply. The Confidentiality Agreement remains in full force and effect and will apply to the Parties’ discussions and other activities under this Agreement. Whenever used in this Agreement with initial letters capitalized, the term “Confidential Information” will have the same meanings as set forth in the Confidentiality Agreement and this Agreement. The Confidentiality Agreement will apply to any Confidential Information made available by either Party to the other pursuant to any provision of this Agreement. Further, except as set forth in this Agreement, the terms of this Agreement will be treated as Confidential Information of each Party.
7.2 Confidentiality Generally.
If Postudio and Customer have not previously entered into a nondisclosure agreement, then the terms of this Section 7.2 will apply. Each Party reserves any and all right, title and interest (including, any Intellectual Property Rights) that it may have in or to any Confidential Information (as defined in Section 1 of this Agreement) that it may disclose to the other Party under this Agreement. The Recipient will protect Confidential Information of the Discloser against any unauthorized use or disclosure to the same extent that the Recipient protects its own Confidential Information of a similar nature against unauthorized use or disclosure, but in no event will use less than a reasonable standard of care to protect such Confidential Information; provided that the Confidential Information of the Discloser is conspicuously marked or otherwise identified as confidential or proprietary upon receipt by the Recipient or the Recipient otherwise knows or has reason to know that the same is Confidential Information of the Discloser. The Recipient will use any Confidential Information of the Discloser solely for the purposes for which it is provided by the Discloser. This Section 7.2 will not be interpreted or construed to prohibit: (a) any use or disclosure which is necessary or appropriate in connection with the Recipient’s performance of its obligations or exercise of its rights under this Agreement; (b) any use or disclosure required by applicable law (e.g., pursuant to applicable securities laws or legal process), provided that the Recipient uses reasonable efforts to give the Discloser reasonable advance notice thereof (e.g., so as to afford the Discloser an opportunity to intervene and seek an Order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure); or (c) any use or disclosure made with the written consent of the Discloser. In the event of any breach or threatened breach by the Recipient of its obligations under this paragraph, the Discloser will be entitled to injunctive and other equitable relief to enforce such obligations.
Section 8. Proprietary Rights; Support
8.1 The Postudio Services.
As between Postudio and Customer, Postudio owns all right, title, and interest in and to the Postudio Services. Except as otherwise specified in Sections 2.1 and 2.2 of this Agreement, Customer does not obtain any rights under this Agreement from Postudio to the Postudio Services, including any related Intellectual Property Rights.
Customer will provide Postudio with reasonable Feedback and will make Users available to Postudio on a reasonable basis for this purpose. Customer will not provide any such Feedback to any third party without Postudio ’s prior written consent in each instance. Except for Feedback that contains Customer’s Confidential Information, which Confidential Information included in such Feedback may only be used for Postudio ’s internal development purposes to improve or modify the Postudio Services, Customer hereby grants to Postudio an exclusive, royalty-free, irrevocable, perpetual worldwide right and license to reproduce, use, disclose, exhibit, display, transform, create derivative works and distribute any such Feedback without limitation. Further, Postudio will be free to use any ideas, concepts, know-how or techniques contained in such Feedback for any purpose whatsoever, including, developing, making, marketing, distributing and selling products and services incorporating such Feedback. Postudio will have no obligation to consider, use, return or preserve any Feedback Customer provides to Postudio. Except with respect to Customer Confidential Information contained in Feedback, any Feedback Customer provides to Postudio may or may not be treated confidentially by Postudio , and Postudio will have no obligation or liability to Customer for the use or disclosure of any Feedback. Customer should not expect any compensation of any kind from Postudio with respect to Feedback. Postudio will exclusively own any improvements or modifications to the Postudio Services based on or derived from any Feedback, including all Intellectual Property Rights therein or thereto.
As between Postudio and Customer, Postudio owns all right, title and interest in and to the Postudio Marks and any goodwill arising out of the use of the Postudio Marks will remain with and belong to Postudio and its licensors. The Postudio Marks may not be copied, imitated or used without the prior written consent of Postudio or the applicable trademark holder.
8.4 Additional Protection of Proprietary Rights.
Customer will not infringe or violate, and will take appropriate steps and precautions for the protection of, the Postudio Services and related Intellectual Property Rights referred to in Section 8.1. Without limiting the generality of the foregoing, Customer will not: (a) make any Postudio Service or Documentation available to any Excluded End User; (b) remove, obscure or alter any notice of copyright or other Intellectual Property Right appearing in or as part of the Postudio Services; or (c) engage in or permit any Unauthorized Use. Customer will immediately notify Postudio of any Unauthorized Use that comes to Customer’s attention. In the event of any Unauthorized Use relating to the activities of Customer, Users or any employees, agents, or representatives of any such entity, Customer will take all steps reasonably necessary to terminate such Unauthorized Use. Customer will immediately notify Postudio of any legal proceeding initiated by Customer in connection with any such Unauthorized Use. Postudio may, at its option and expense, assume control of such proceeding. If Postudio assumes such control, Postudio will have exclusive control over the prosecution and settlement of the proceeding, and Customer will provide such assistance related to such proceeding as Postudio may reasonably request. Customer will assist Postudio in enforcing any settlement or order made in connection with such proceeding.
During the Term, Postudio will provide e-mail support to Customer and the Administrator relating to the use and operation of the Postudio Services. Email support will be made available 24 hours a day, seven days a week, excluding holidays observed by Postudio . Email support can be reached at firstname.lastname@example.org
8.6 User Content.
As between Postudio and Customer, Customer retains all right, title and interest in and to any User Content. Except as provided in this Section 8, Postudio obtains no rights under this Agreement from Customer to the User Content, including any related Intellectual Property Rights. Customer hereby consents to Postudio ’s use of the User Content to provide the Postudio Services to Customer and will hold Postudio harmless from any infringement or unauthorized misappropriation action involving User Content.
Section 9. Limited Warranties and Remedies
Postudio warrants that the Postudio Service will perform in all material respects with the applicable Documentation when operated in accordance with the applicable Documentation.
Subject to this Section 9.2, Postudio will use commercially reasonable efforts to correct any Postudio Services that do not comply with the warranties set forth in this Section 9.1; provided that Customer gives Postudio written notice of the noncompliance within ninety (90) days after the Postudio Services are first made available to Customer. If, after the expenditure of commercially reasonable efforts, Postudio is unable to correct the noncompliance, Postudio may terminate this Agreement and/or provide to Customer alternative services through a third party costing up to the amount of the Order.
Postudio ’s warranties and remedies under Section 9.1 and 9.2 do not apply to any claim arising out of or related to any: (a) User Content; (b) use not in accordance with this Agreement; (c) use of Applications or any Applications License; (d) modifications, damage, misuse or other action of Customer or any third party; or (e) any failure of Customer to comply with this Agreement. Further, Postudio does not warrant that the Postudio Service are free from bugs, errors, defects or deficiencies.
THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF Postudio AND THE REMEDIES OF CUSTOMER SET FORTH IN THIS SECTION 9 ARE EXCLUSIVE AND IN LIEU OF, AND CUSTOMER HEREBY WAIVES, RELEASES, AND DISCLAIMS, ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING ANY Postudio SERVICE, INCLUDING ANY WARRANTY THAT THE Postudio SERVICE WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, THAT THE Postudio SERVICE WILL BE COMPATIBLE WITH CUSTOMER’S APPLICATIONS OR THAT USE OF THE Postudio SERVICE WITH CUSTOMER’S APPLICATIONS WILL BE PERMITTED BY THE APPLICATIONS LICENSE, OR THAT ANY MATERIALS OR USER CONTENT PROVIDED BY CUSTOMER OR A THIRD PARTY WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, Postudio AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
9.5 Third Party Services.
Postudio may make Third Party Services available to Customer in conjunction with the Postudio Services. Use of any Third Party Services is at Customer’s sole risk and will governed by separate terms and conditions, including separate fees and charges.
Section 10. Limitations of Liability
10.1 Force Majeure.
Neither Party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement (except with respect to monetary obligations) as a result of any cause or condition beyond such Party’s reasonable control (including, any act or failure to act by the other Party). This paragraph will not apply to any payment obligation of either Party.
10.2 Limitation of Liability.
IN NO EVENT SHALL ANY OF THE Postudio PARTIES BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE Postudio SERVICES OR THE SITE, INCLUDING THE INFORMATION, CONTENT AND MATERIALS CONTAINED THEREIN, INCLUDING ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY CUSTOMER ON ANY INFORMATION OBTAINED FROM Postudio , OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO Postudio ’S RECORDS, PROGRAMS, Postudio SERVICE OR THE SITE. EXCEPT FOR (A) A PARTY’S VIOLATION OF SECTION 4 (PAYMENTS AND TAXES), SECTION 7 (CONFIDENTIAL INFORMATION), OR 8.4 (ADDITIONAL PROTECTION OF PROPRIETARY RIGHTS) OF THIS AGREEMENT, (B) A PARTY’S VIOLATION OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS OR (C) CUSTOMER’S OBLIGATIONS TO INDEMNIFY THE Postudio PARTIES, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF ANY OF THE Postudio PARTIES, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED THE COMPENSATION PAID BY CUSTOMER, IF ANY, TO Postudio FOR SUCH Postudio SERVICE FOR THE TWELVE (12) MONTHS PRIOR TO THE DATE OF THE EVENT GIVING RISE TO LIABILITY.
Section 11. Miscellaneous
11.1 Independent Contractors.
Each Party is an independent contractor and not a partner or agent of the other. This Agreement will not be interpreted or construed as creating or evidencing any partnership or agency between the Parties or as imposing any partnership or agency obligations or liability upon either Party. Further, neither Party is authorized to, and will not, enter into or incur any agreement, contract, commitment, obligation or liability in the name of or otherwise on behalf of the other Party.
11.2 Reference Program.
Customer will consult with Postudio and work in good faith to agree on quotes and statements about Customer’s experience with the Postudio Services. Postudio may, at its option, use such quotes and statements in connection with its sales and marketing activities with Customer’s prior consent, which will not be unreasonably withheld or delayed. Customer’s consent will be deemed granted if Customer fails to respond to Postudio ’s request for consent within five (5) days from the date of such request. Upon request and upon Customer’s prior consent, which will not be unreasonably withheld or delayed, Customer will participate in and act as a reference in connection with Postudio sales and marketing activities that may include one or all of the following: press releases, a reasonable number of press, analyst and customer calls, and event presentations with case studies. Such right shall be unlimited in duration, unless otherwise agreed upon.
11.3 No Third Party Beneficiaries.
This Agreement does not create any third party beneficiary rights in any individual or entity that is not a Party to this Agreement.
Customer may not assign this Agreement or any right, interest or benefit under this Agreement without prior written consent of Postudio . Any attempted assignment in violation of the foregoing will be void. Subject to the foregoing, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by any permitted assignee.
The failure of either Party to insist upon or enforce performance by the other Party of any provision of this Agreement, or to exercise any right or remedy under this Agreement or otherwise by law, will not be construed as a waiver or relinquishment of such Party’s right to assert or rely upon the provision, right, or remedy in that or any other instance; rather the provision, right or remedy will be and remain in full force and effect.
11.6 Dispute Resolution Procedures.
(a) The Parties will attempt to resolve through good faith discussion any dispute that arises under this Agreement. Any such dispute may at any time, at the election of either Party, be referred to a senior executive of each Party for discussion and possible resolution. If the senior executives are unable to resolve the dispute within sixty (60) days after delivery of written notice of the dispute, then either Party may, by notice to the other Party, demand arbitration under the Indian Arbitration and Conciliation Act, 1996 where seat and venue of the arbitration shall be Mumbai. The Parties give up their right to litigate their disputes and may not proceed to arbitration without first attempting mediation, except that the Parties are NOT required to arbitrate any dispute in which either Party seeks equitable and other relief from the alleged unlawful use any Intellectual Property Rights by the other Party. Whether the dispute is heard in arbitration or in court, the Parties will not commence against the other a class action, class arbitration or other representative action or proceeding.
(b) In respect of Arbitration, the language of all proceedings and filings shall be English. The arbitrator shall render a written opinion including findings of fact and law and the award and/or determination of the arbitrator shall be binding upon the Parties, and their respective administrators and assigns, and shall not be subject to appeal. Judgment may be entered upon the award of the arbitrator in any court of competent jurisdiction. The expenses of the arbitration shall be shared equally by the Parties unless the arbitration determines that the expenses shall be otherwise assessed and the prevailing Party may be awarded its attorneys’ fees and expenses by the arbitrator. It is the intent of the Parties that, barring extraordinary circumstances, arbitration proceedings shall be concluded within ninety (90) days from the date the arbitrator is appointed. The arbitrator may extend this time limit only if failure to do so would unduly prejudice the rights of the Parties. Failure to adhere to this time limit shall not constitute a basis for challenging the award. Consistent with the expedited nature of arbitration, pre-hearing information exchange shall be limited to the reasonable production of relevant, non-privileged documents, carried out expeditiously.
If any provision of this Agreement shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.
11.8 Applicable Law.
This Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of India. Customer hereby consents to the exclusive jurisdiction of courts located in Mumbai with respect to any claim arising under or by reason of this Agreement.
11.9 Interpretation; Entire Agreement.
This Agreement, together with any agreement, policy or guideline referenced in this Agreement, constitutes the complete and exclusive statement of all mutual understandings between the parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, oral or written. Any use of the word “including” will be deemed to be without limitation and any use of the word “partner” will not refer to a legal partnership unless otherwise stated.
“Acceptable Use Policy” means the acceptable use policy currently available at www.postud.io, as it may be updated by Postudio from time to time.
“Administrator” means the individual designated by Customer as the administrator of Customer’s activities under this Agreement and as having authority to users.
“Acceptable Use Policy” means the acceptable use policy currently available at www.postud.io, as it may be updated by Postudio from time to time.
“Application” means any Third Party Services, tools, plugins, or other software, tools or technology used for editing and/or providing post production for digital audio, video, virtual reality, augmented reality, or other content.
“Applications License” means a license granted by a third party licensor of Applications that permits Customer to use such Applications.
“Postudio Account” means an electronic account permitting a User to access and use the Postudio Services.
“Postudio Marks” means any trademarks, service marks, service or trade names, logos, and other designations of Postudio and its affiliates.
“Postudio Parties” means Postudio and its affiliates, independent contractors and service providers, and each of their respective members, directors, officers, employees and agents.
“Postudio Services” means any Postudio Software, service, or software as a service provided by Postudio under this Agreement.
“Confidential Information” means any information that is proprietary or confidential to the Discloser or that the Discloser is obligated to keep confidential (e.g., pursuant to a contractual or other obligation owing to a third party). Confidential Information may be of a technical, business or other nature (including, but not limited to, information which relates to the Discloser’s technology, research, development, products, services, pricing of products and services, customers, employees, contractors, marketing plans, finances, contracts, legal affairs, or business affairs). However, Confidential Information does not include any information that: (a) was known to the Recipient prior to receiving the same from the Discloser in connection with this Agreement; (b) is independently developed by the Recipient; (c) is acquired by the Recipient from another source including any end user of the Postudio Services without restriction as to use or disclosure; or (d) is or becomes part of the public domain through no fault or action of the Recipient.
“Deletion” means a removal of User Content from Postudio Services after a termination of this agreement.
“Discloser” means a Party that discloses any of its Confidential Information to the other Party.
“Documentation” means the user manuals, technical manuals, specifications and other documentation relating to any Postudio Services furnished or made available by Postudio to Customer under this Agreement.
“Feedback” means information and feedback (including, questions, comments, suggestions, or the like) regarding the performance, features, functionality and overall Customer experience using the Postudio Services.
“Intellectual Property Rights” means any patent, copyright, trademark, service mark, trade name, trade secret, know-how, moral right or other intellectual property right under the laws of any jurisdiction, whether registered, unregistered, statutory, common law or otherwise (including any rights to sue, recover damages or obtain relief for any past infringement, and any rights under any application, assignment, license, legal opinion or search).
“Party” means Postudio or Customer.
“Preview” has the definition in Section 2.4.
“Recipient” means a Party that receives any Confidential Information of the other Party.
“Site” means www.postud.io, and any successor or related web site designated by Postudio.
“Term” has the definition in Section 5.1.
“Third Party Services” means software or services acquired or licensed by Postudio from a third party that is included in the Postudio Services or otherwise made available to Customer or its Users.
“Unauthorized Use” means any use, reproduction, modification, distribution, disposition, possession, examination, inspection, viewing, disclosure or other activity involving the Postudio Services, Documentation or Confidential Information of Postudio that is not expressly authorized under the Agreement or otherwise in writing by Postudio
“Users” means Administrator and any of Customer’s employees, independent contractors, agents and consultants who are authorized or otherwise designated, invited or permitted by the Administrator to access and use the Postudio Services. Users excludes any Excluded End Users.
“User Content” means software, source code, information or other materials (including projects) in any format that Customer or any User provides, uploads to the Postudio Services, creates using the Postudio Services (i.e., user generated edit decision lists, user generated data) or otherwise uses in connection with the Postudio.