SUBSCRIPTION SERVICES AGREEMENT
Effective January 1, 2015
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE ACCESSING OR USING ANY OF THE ENTERTAINMENT PARTNERS SUBSCRIPTION SERVICES (AS DEFINED BELOW).
THIS SUBSCRIPTION SERVICES AGREEMENT (THE "AGREEMENT") GOVERNS ACCESS TO AND USE OF THE SUBSCRIPTION SERVICES HOSTED BY ENTERTAINMENT PARTNERS. ("EP").
YOU MAY ACCESS AND USE THE EP SUBSCRIPTION SERVICES SOLELY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. BY ACCESSING OR USING THE SUBSCRIPTION SERVICES, YOU INDICATE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND ACCEPT ALL OF ITS TERMS WITHOUT LIMITATION. IF YOU DO NOT ACCEPT ALL OF THE TERMS OF THIS AGREEMENT YOU WILL NOT BE AUTHORIZED TO ACCESS OR USE THE SUBSCRIPTION SERVICES, AND YOU MUST CEASE ANY ACCESS TO OR USE OF THE SUBSCRIPTION SERVICES. IF YOU AGREE TO THESE TERMS ON BEHALF OF A BUSINESS, ACADEMIC OR RESEARCH INSTITUTION, OR GOVERNMENT AGENCY, YOU REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY TO BIND THAT BUSINESS, INSTITUTION, OR AGENCY TO THIS AGREEMENT, AND YOUR AGREEMENT TO THESE TERMS WILL BE TREATED AS THE AGREEMENT OF THE BUSINESS, INSTITUTION, OR AGENCY. IN THAT EVENT, "YOU" AND "YOUR" REFER HEREIN TO THAT BUSINESS, INSTITUTION, OR AGENCY.
EP RESERVES THE RIGHT, IN ITS SOLE DISCRETION, TO MODIFY THIS AGREEMENT AT ANY TIME BY POSTING A NOTICE ON THE SCENECHRONIZE WEBSITE, OR BY SENDING YOU A NOTICE VIA EMAIL. YOU SHALL BE RESPONSIBLE FOR REVIEWING AND BECOMING FAMILIAR WITH ANY SUCH MODIFICATIONS. SUCH MODIFICATIONS ARE EFFECTIVE UPON FIRST POSTING OR NOTIFICATION, AND USE OF THE SUBSCRIPTION SERVICES BY YOU FOLLOWING SUCH POSTING OR NOTIFICATION CONSTITUTES YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AS MODIFIED. YOU AGREE TO REVIEW THIS AGREEMENT REGULARLY TO ENSURE THAT YOU ARE UPDATED AS TO ANY CHANGES.
2. DEFINITIONS2.1 "Authorized User" means you, your employees and contractors that have (i) been assigned a unique username-password combination to access and use the Subscription Services, and (ii) registered online to access and use the Subscription Services. 2.2 "Customer Data" means data, information, and content that is input into and/or stored in the Subscription Services by Authorized Users. 2.3 "Intellectual Property Rights" means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world. 2.4 "Subscription Services" means the hosted applications, functionality, and services made available to you by EP and generally referred to as "Scenechronize". 2.5 "Project" means the project listed in your online registration form.
3. SUBSCRIPTION SERVICES3.1 Subject to your compliance with the terms and conditions of this Agreement, EP will use reasonable efforts to provide the Subscription Services to you for access by Authorized Users. EP reserves the right at any time to modify or discontinue, temporarily or permanently, the Subscription Services (or any part thereof) with or without notice. You may access and use the Subscription Services solely for your internal business purposes in connection with Your Project, and such access and use shall be expressly limited to Authorized Users. Certain features of the Subscription Services are made available in exchange for fees, as described in EP’s Fees Page, which is incorporated herein by this reference. EP may charge fees for all or some of the Subscription Services in its sole discretion. You will not be entitled to a refund of any unused portion of any fees, except to the extent required under applicable law. 3.2 You will not attempt to interfere with or disrupt the Subscription Services or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the Subscription Services). You will not allow access to or use of the Subscription Services by anyone other than Authorized Users, or for any purposes other than Your Project. You will not: (a) copy, modify or distribute any portion of the Subscription Services; (b) rent, lease, or provide access to the Subscription Services on a time-share or service bureau basis; (c) misappropriate any part of the Subscription Services or modify, disassemble, decompile, reverse engineer, copy, reproduce or create derivative works from or in respect of the Subscription Services or any part thereof; or (d) transfer any of your rights hereunder. 3.3 You acknowledge and agree that EP does not monitor or police communications, content, or data uploaded to the Subscription Services or transmitted through the Subscription Services, and that EP will not be responsible for any such communications, data or content. You will use the Subscription Services exclusively for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others. You will not use the Subscription Services to transmit any bulk unsolicited commercial communications. You will keep confidential and not disclose to any third parties any user identifications, account numbers and account profiles. 3.4 In the event of any loss or corruption of Customer Data, EP will use reasonable efforts to restore the lost or corrupted Customer Data from the latest backup of such Customer Data maintained by EP. EP will not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Customer Data. EP’S EFFORTS TO RESTORE LOST OR CORRUPTED CUSTOMER DATA PURSUANT TO THIS SECTION 3.4 WILL CONSTITUTE EP’S SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF CUSTOMER DATA.
4. YOUR OBLIGATIONS4.1 By registering for the Subscription Services, you represent and warrant that (i) all registration information you submit is accurate and truthful; (ii) you are 18 years of age or older; and (iii) your use of the Subscription Services does not violate any applicable laws or regulations. Your access to the Subscription Services may be terminated without warning if EP believes that you are in breach of any of the foregoing representations and warranties. As a condition to EP’s obligations hereunder, you will at all times permit EP’s account manager and project manager to access your account and Customer Data solely for purposes of supporting your use of the Subscription Services. 4.2 You hereby authorize EP to disclose to the public its providing of the Subscription Services to you, and, upon release or first airing of the Project, as applicable, that the Subscription Services were used in connection with Your Project; provided however that any press release shall be subject to your prior written consent, such consent not to be unreasonably conditioned, withheld or delayed. 4.3 You are responsible for maintaining the security of your account and password. You will ensure that all Authorized Users comply with the terms and conditions of this Agreement, including, without limitation, with your obligations set forth in Sections 3.3 and 3.4. You will promptly notify EP of any suspected or alleged violation of the terms and conditions of this Agreement and will cooperate with EP with respect to: (a) investigation by EP of any suspected or alleged violation of this Agreement and (b) any action by EP to enforce the terms and conditions of this Agreement. EP may suspend or terminate any Authorized User’s access to the Subscription Services upon notice to you in the event that EP reasonably determines that such Authorized User has violated the terms and conditions of this Agreement. You will be liable for any violation of the terms and conditions of this Agreement by any Authorized User. 4.4 You acknowledge and agree that your and Authorized Users’ use of the Subscription Services is dependent upon access to telecommunications and Internet services. You will be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Subscription Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing. EP will not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services. 5. OWNERSHIP. As between EP and you, the Subscription Services, and all Intellectual Property Rights therein or relating thereto, are and will remain the exclusive property of EP or its licensors. 6. CONFIDENTIALITY. Each party agrees that all code, inventions, algorithms, know-how and ideas and all other business, technical and financial information they obtain from the other are the confidential property of the disclosing party ("Confidential Information" of the disclosing party). EP Confidential Information includes, without limitation, the Subscription Services and any software whether in source or executable code, and the results of any performance tests of the Subscription Services. Customer Data is your Confidential Information. Except as expressly and unambiguously allowed herein, the receiving party will hold in confidence and not use or disclose any Confidential Information of the disclosing party and shall similarly bind its employees in writing. The receiving party shall not be obligated under this Section 6 with respect to information the receiving party can document: (i) is or has become readily publicly available without restriction through no fault of the receiving party or its employees or agents; or (ii) is received without restriction from a third party lawfully in possession of such information and lawfully empowered to disclose such information; (iii) is rightfully in the possession of the receiving party without restriction prior to its disclosure by the other party; or (iv) is independently developed by the receiving party without use of the disclosing party’s Confidential Information. The receiving party may make disclosures required by law or court order provided the receiving party uses reasonable efforts to limit disclosure and to obtain confidential treatment.
7. NO WARRANTYYou assume sole responsibility and liability for results obtained from the use of the Subscription Services and for conclusions drawn from such use. THE SUBSCRIPTION SERVICES AND ANCILLARY SERVICES ARE PROVIDED BY EP "AS IS". EP MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR THE SUBSCRIPTION SERVICES OR THE ANCILLARY SERVICES. WITHOUT LIMITING THE FOREGOING, EP DISCLAIMS ANY WARRANTY THAT THE SUBSCRIPTION SERVICES WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. EP FURTHER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE SUBSCRIPTION SERVICES AND ANCILLARY SERVICES AS TO MERCHANTABILITY, ACCURACY OF ANY INFORMATION PROVIDED, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. EP FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM EP OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
8. TERM AND TERMINATION8.1 This Agreement will commence on the Effective Date and will continue until the earlier of (i) the conclusion of principal photography on Your Project or (ii) one (1) year after the Effective Date, unless terminated earlier as provided in this Agreement (the "Term"). 8.2 EP may terminate this Agreement and your access to the Subscription Services immediately upon notice in the event that you or any Authorized User breaches this Agreement or if your account becomes delinquent. 8.3 You may terminate your account at any time by notifying support at scenechronize dot com. 8.4 Upon expiration or termination of this Agreement, you and Authorized Users’ rights to access and use the Subscription Services will immediately terminate, you and Authorized Users will immediately cease all use of the Subscription Services, each party will return and make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to the other party, and EP may destroy or otherwise dispose of any Customer Data in its possession. 8.5 Sections 2 (Definitions), 3.2 (Restrictions), 4.5 (Telecommunications and Internet Services), 5 (Ownership), 6 (Confidentiality), 8.4 (Rights and Obligations Upon Expiration or Termination), 8.5 (Survival), 9 (Limitation of Liability), and 10 (General) will survive any expiration or termination of this Agreement.
9. LIMITATION OF LIABILITYNOTWITHSTANDING ANYTHING IN THIS AGREEMENT OR OTHERWISE, EXCEPT FOR BODILY INJURY, NEITHER PARTY SHALL BE LIABLE OR OBLIGATED WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE AMOUNTS PAID BY YOU TO EP FOR THE SUBSCRIPTION SERVICES DURING THE SIX (6)-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE, (II) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; (III) FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES; OR (IV) FOR INTERRUPTION OF USE OR BUSINESS, OR LOSS OR CORRUPTION OF DATA. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU OR EP. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EP WILL HAVE NO LIABILITY FOR ANY CLAIMS, LOSSES, OR DAMAGE CAUSED BY ERRORS OR OMISSIONS IN THE SUBSCRIPTION SERVICES OR THE ANCILLARY SERVICES OR ARISING OUT OF OR IN CONNECTION WITH YOUR OR ANY AUTHORIZED USER’S USE OF THE SUBSCRIPTION SERVICES, INCLUDING WITHOUT LIMITATION ANY COST OVERRUNS, PRODUCTION DELAYS, OR OTHER ISSUES ARISING WITH RESPECT TO YOUR PROJECT AS A RESULT OF THE SUBSCRIPTION SERVICES OR ANCILLARY SERVICES.
10. GENERAL10.1 This Agreement and all matters arising out of or relating to this Agreement will be governed by the laws of the State of California, without regard to its conflict of law provisions. Any legal action or proceeding relating to this Agreement will be brought exclusively in the state or federal courts located in the Northern District of California. The parties hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding. 10.2 The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach. 10.3 Any notice or report required or permitted by this Agreement, except as otherwise set forth in this Agreement, will be in writing and will be deemed sufficient upon receipt, when delivered personally or by courier, overnight delivery service, e-mail, or confirmed facsimile, or forty-eight (48) hours after being deposited in the regular mail as certified or registered mail (airmail if sent internationally) with postage prepaid, if such notice is addressed to the party to be notified at such party’s address or facsimile number. 10.4 In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. 10.5 Each party agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, any export laws and regulations of the United States. 10.6 Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent. 10.7 Neither party may assign or transfer this Agreement, in whole or in part, without the other party’s written consent except in the event of a Change of Control (as defined below). Any attempted assignment or transfer in violation of this Section will be null and void. "Change of Control" means, with respect to a party: (a) the direct or indirect acquisition of either (i) the majority of voting stock of such party or (ii) all or substantially all of the assets of such party, by another entity in a single transaction or a series of transactions; or (b) the merger of such party with another entity. Subject to the foregoing restrictions, this Agreement will inure to the benefit of the successors and permitted assigns of the parties. 10.8 This Agreement constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party. 10.9 Except as set forth in Section 3.4, the exercise by either party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. 10.10 Each party acknowledges that a breach by the other party of any confidentiality or proprietary rights provision of this Agreement may cause the non-breaching party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, the non-breaching party may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy will be cumulative and not exclusive, and a party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity. However, in no event may EP seek to enjoin, restrain or otherwise interfere with the promotion, distribution or exploitation of the Project.