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Zencoder Services Agreement
Last Updated: March 26, 2013
PLEASE READ CAREFULLY — THIS IS A BINDING CONTRACT
THIS ZENCODER CUSTOMER AGREEMENT ("AGREEMENT") IS A BINDING AGREEMENT BETWEEN ZENCODER, INC. ("ZENCODER") AND YOU AND, IF APPLICABLE, THE COMPANY OR LEGAL ENTITY THAT YOU REPRESENT (COLLECTIVELY "YOU"). THIS AGREEMENT INCORPORATES BY REFERENCE THE TERMS OF SERVICE POSTED AT ZENCODER.COM (THE "ZENCODER SITE") AS MODIFIED BY ZENCODER FROM TIME TO TIME.
YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU ARE AUTHORIZED TO BIND THAT LEGAL ENTITY TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY OR DID NOT WISH TO BE BOUND TO THE TERMS OF THIS AGREEMENT, DO NOT USE THE SERVICE. YOUR USE OF THE SERVICE SHALL CONSTITUTE YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
1. Services and Payment Terms. In exchange for your payment of the fees set forth on the Zencoder Site, Zencoder will provide the services described on the Zencoder Site (the "Services"). Zencoder will use reasonable efforts to provide the Services in accordance with the Service Level Agreement posted on the Zencoder Site. The Services shall be provided at the fees set forth on the Services registration page or as otherwise described on the Zencoder Website (the "Services Fee"). Zencoder offers different Services and each may be subject to separate Services Fees. Please review the Services Fees for each applicable Service before using such Service. The Services Fee (and all applicable sales, use or value-added taxes) shall be paid by you by credit or debit card. You shall provide Zencoder with the credit card and/or debit information required by Zencoder to accept payment of the Services Fee. You hereby authorize Zencoder to use such information to debit or credit, as applicable, your credit or debit card for payment of the Services Fee. All Service Fees are non-refundable. In addition to any other rights granted to Zencoder herein, Zencoder reserves the right to suspend or terminate this Agreement and/or your access to the Services if Zencoder is unable to use your credit or debit card for payment of the Services Fee. To the extent that this Agreement is terminated pursuant to Section 3 below, Zencoder will have no obligation to provide a refund or issue a credit (on a pro-rata basis or otherwise) to you related to the remaining portion of the Services term.
2. Changes to this Agreement. You agree that we may amend the terms and conditions of this Agreement, or any policy or other terms referenced in this Agreement ("Additional Policies") at any time by posting a revised version of the Agreement or Additional Policy on the Zencoder Site. Any revised terms will become effective fifteen (15) days after we post them to the Zencoder Site or, if we provide you a click-through or other means of accepting the revised terms, upon your acceptance. By continuing to use the Services after the revised terms become effective, you agree to be bound to the revised terms.
3. Term and Termination. This Agreement is effective when you accept the terms and conditions of this Agreement and will continue in effect until terminated by you or Zencoder in accordance with this section. Either You or Zencoder may terminate this agreement effective immediately upon written notice to the other for any reason. The following sections of the Agreement shall survive termination of this Agreement: 4.4, 7, 8 and 9.
4. Content Submissions.
4.1. Ownership. All data that you submit to Zencoder and all output files that you create in your use of the Services ("Your Data") remain your property. Zencoder makes no claim of ownership in Your Data.
4.2. Content. Your Data and/or your use of the Services may not: (i) interfere in any manner with the functionality or proper working of the Services; (ii) constitute, promote, facilitate or permit gambling; (iii) include, promote or facilitate child pornography or other illegal activities, including without limitation, activities that might be libelous or defamatory, invasive of privacy or publicity rights, abusive, or otherwise malicious or harmful to any person or entity, or that discriminate based on race, sex, religion, nationality, disability, sexual orientation or age; (iv) primarily consist of content that is that is libelous, defamatory, obscene, pornographic, invasive of privacy or publicity rights, abusive, that would constitute or encourage a criminal offense or that would otherwise give rise to liability or violate any law; (v) distribute, share or facilitate the distribution or sharing of unauthorized data, malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code; or (vi) violate, misappropriate or infringe the intellectual property, privacy, publicity, contractual or other proprietary rights of any third party.
4.3. License. You grant to Zencoder a worldwide, royalty-free, non-exclusive, sublicensable right and license to use, copy, and modify Your Data as necessary to perform the Services. You acknowledge that Zencoder may compile certain general information related to the use of the Services. You agree that Zencoder is authorized to use, reproduce and generally make such information available to third parties in the aggregate, provided that such information shall not include personally identifiable information of users of the Service or be attributable to You. Zencoder shall have the right to list and name You as a customer.
4.4. Third party royalties. Your further use, transmission, broadcast, display or other distribution of Your Data following Zencoder's performance of the Services may require that you obtain a license from and/or pay royalties to the owners of certain third party audio and video formats. You are solely responsible for obtaining such licenses and paying such royalties.
5. Warranties. Zencoder represents and warrants that it has the legal right to enter into this Agreement and to perform the Services. You represent and warrant that you have the legal right to enter into this Agreement and that Your Data and your use of the Services do not violate the terms of this Agreement.
6. Disclaimer. YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN "AS IS" BASIS. EXCEPT FOR THE ZENCODER WARRANTIES SET FORTH IN SECTION 5 ABOVE AND THE SERVICE LEVELS SET FORTH IN ZENCODER SERVICE LEVEL AGREEMENT (WWW.ZENCODER.COM/SLA/), ZENCODER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH REGARD TO THE SERVICES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. ZENCODER DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES WILL BE ACCURATE OR RELIABLE OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE.
7. Indemnification. You agree that you will indemnify and defend Zencoder from and against any and all liabilities, damages, losses, expenses, demands, claims, suits or judgments, including reasonable attorneys' fees, costs and expenses arising from: (a) your unauthorized use of the Services; (b) claims that Your Data infringes any intellectual property or other right of any third party; or (c) your breach of this Agreement or violation of any law, rule or regulation through your use of the Services.
8. Limitation of Liability. ZENCODER SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY UNDER ANY CIRCUMSTANCES, OR UNDER ANY LEGAL THEORY, REGARDLESS OF THE CAUSE, FOR THE EFFECTIVENESS OR ACCURACY OF THE SERVICES, FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, THE SERVICES OR YOUR DATA THROUGH ACCIDENT, FRAUD OR OTHER MEANS. ZENCODER SHALL NOT BE LIABLE TO YOU FOR LOST PROFITS OR LOST SALES, OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, MULTIPLE OR CONSEQUENTIAL DAMAGES ARISING FROM OR OCCASIONED BY YOUR USE OF THE SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ZENCODER'S LIABILITY TO YOU FOR ANY CLAIM ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAID TO ZENCODER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ACCRUED.
9. Miscellaneous. You may not assign or otherwise transfer, including by operation of law, any of your rights or obligations under this Agreement without Zencoder's prior written consent. Zencoder will be entitled to equitable relief, including injunctive relief without the posting of any security, to prevent any breach or continuing breach of this Agreement or any infringement or continuing infringement of any intellectual property or other proprietary rights. This Agreement will be governed by and interpreted under the laws of the Commonwealth of Massachusetts, without reference to any choice of laws principles. Any dispute arising out of or in connection with this Agreement will be resolved exclusively in the Federal or state courts located in Boston, Massachusetts. All notices under this Agreement will be in writing and will be effective only if delivered, if to Zencoder, to Zencoder, Inc., 149 9th Street, Suite 300, San Francisco, CA 94103, and if to you, to the e-mail address that you provided when registering for the Services. No waiver of any provision of this Agreement will be binding unless it is in writing. Except as otherwise provided herein, this Agreement may be amended only by a written document signed by both parties. If any provision or part of any provision contained in this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions or portions thereof, will not be in any way affected or impaired thereby. Independent Contractors: You and Zencoder are independent contractors under this Agreement and nothing herein shall be construed to create a partnership, joint venture or agency relationship. You and Zencoder each waive any right to a jury trial in connection with any and all disputes arising out of or related to this Agreement. Notwithstanding any law providing a longer statute of limitations, any claim or cause of action arising out of or related to this Agreement and/or Your use of the Services must be filed within 1 year after such claim or cause of action arose, without regard to the date such claim or cause of action was discovered, or such claim or cause of action shall be forever barred. Each party shall comply with all applicable United States and international export control laws and regulations. You specifically represent (i) that You are not located in any country or jurisdiction that is subject to U.S. economic sanctions, nor are You acting on behalf of the government of any such country and (ii) that You are not identified on the U.S. Department of the Treasury's Office of Foreign Assets Control's Specially Designated Nationals List, as amended from time to time, nor are You owned or controlled by any such entity. The Services are licensed to the U.S. government or any entity acting on its behalf as a Commercial Item, as that term is defined at 48 C.F.R. §2.101, and licensed only with those rights as are granted to all other entities or individuals entering into an agreement to use the Services. Any instruments, including purchase orders, work orders, acknowledgments and vendor registration forms not signed by both parties ("Instruments") shall not add to, supersede or modify, the terms of this Agreement and in the event any term of an Instrument purports to add to, supersede or modify any term of this Agreement, such term of the Instrument shall be void and without effect.