ONLINE TERMS AND CONDITIONS
These definitions, terms and conditions apply by specific reference to each Agreement which contains the following URL: http://www.licensestream.com/LSProduction/terms/terms.html
These terms and conditions may be changed without notice.
Definitions
“LicenseStream Dashboard” means the online application made available to Customer by ImageSpan for Customer’s use in connection with the Services and pursuant to this Agreement, as such application may be modified, updated, or enhanced by ImageSpan from time to time.
“LicenseStream APIs” means the ImageSpan proprietary Web application programming interfaces licensed by Customer from ImageSpan.
“LicenseStream Platform” means the ImageSpan proprietary software programs used to provide the Services, and any modified, updated, or enhanced versions of such software programs, including, without limitation, LicenseStream Dashboard, and LicenseStream APIs, and the software, hardware, networks, processes, and procedures used by ImageSpan to supply applicable Services to Customer under this Agreement.
“Service Websites” means the ImageSpan websites that are used to provide Services to Customer (and/or its Clients, if applicable).
“Service” or “Services” means the LicenseStream Production services that are licensed by execution of this Agreement.
“Service License” means the license rights granted to Customer to use a Service as described in and subject to the terms of the Agreement.
“Product” or “Products” means the content, including images and/or videos, licensed by ImageSpan to Customer under a Service.
“Product License” with respect to a Product means, the terms and conditions stated in this Agreement or on, or accompanying, the invoice for such Product, which terms and conditions, together with those of this Agreement, govern the use of such Product.
“Documentation” means any documentation, materials or training manuals ImageSpan makes available to Customer in hard copy or electronic form with respect to the Services or any LicenseStream Platform.
“Customer Content” means text, graphics, trademarks, services marks, trade name, logos, software, and all other data and information provided by Customer to ImageSpan for customizing any Service Website, Service, or Documentation, hereunder.
“Clients” means the persons or entities to whom Customer licenses Customer Content or sublicenses Product or with whom Customer conducts other business using one or more of the Services.
“Personal Data” means the personally identifiable data of Customer (and its Clients, if applicable) provided by, or collected from, Customer (and its Clients, as the case may be) in connection with the Services or Service Websites, and includes the Customer ID (and Client IDs, if applicable).
“Aggregate Data” means the non-personally identifiable data or information relating to Customer (or its Clients, if applicable) and its usage of any features or functionality as applicable of the Service Websites, Services, LicenseStream Platform or LicenseStream Dashboard (“Aggregate Data”).
Grant of License. Subject to the terms and conditions of this Agreement, ImageSpan grants only to Customer, a non-exclusive non-transferable, revocable, limited license to the LicenseStream Platform to (a) access and use the LicenseStream Platform and Services through a Services Website, (b) use the LicenseStream Platform to place and manage orders for Products made available through the LicenseStream Production Services, (c) access and use Products, and (d) download Documentation. The following are the permitted uses granted under the Product License for Products ordered through the Service: (a) “Standard Use” means the limited, non-exclusive right to use the Product for a single Client within the Customer’s application (e.g. video of a certain Client may be used solely for said Client); “Extended Use” means the unlimited, non-exclusive right to use the Product for Customer, itself, or for any Client as part of the services and products provided by Customer; “Unlimited Use” means the unlimited, exclusive right to use the Product for any purpose, and ImageSpan shall have no right to use such Product in any manner whatsoever.
Restrictions. Except for the express licenses granted in this Agreement, all rights are reserved to ImageSpan. Customer shall make no attempt to, and shall not permit any third party (including any Clients, if applicable) to, or to make any attempt to: (a) interfere in any manner with the LicenseStream Platform, Services, or Service Websites; (b) sublicense or transfer any of Customer’s rights under this Agreement, except as otherwise expressly provided in this Agreement; (c) reverse engineer, de-compile, disassemble or otherwise attempt to learn the source code, structure, algorithms or ideas underlying the LicenseStream Platform; (d) remove or modify any markings, or notices of proprietary rights of ImageSpan or its licensors from any LicenseStream Platform, Products, Services, Service Websites, or Documentation (except as otherwise permitted herein and provided, that with respect to Products, any markings or notices by ImageSpan shall not be visible or audible or affect Customer’s intended use of such Product); (e) cause or permit the use of the LicenseStream Platform, Products, Services, Service Websites, or Documentation by any third party, except as expressly permitted herein; or (f) sublicense, timeshare, rent, provide service bureau or subscription services or otherwise transfer or provide, except as expressly permitted herein, the LicenseStream Platform, Products, Services, Service Websites or the Documentation to or for the benefit of any third party, as all licenses granted herein are personal to Customer.
Orders; Delivery and Acceptance
Orders. Customer may submit an order to ImageSpan for development of a Product through the Service, providing specifications using the applicable Service menus. Subject to the terms and conditions of this Agreement, ImageSpan will use commercially reasonable efforts to have the applicable Product developed in accordance with the specifications selected by Customer and in no less than three (3) business days following the content production date agreed to by Customer and ImageSpan. Orders cannot be canceled or rescheduled by Customer less than forty-eight (48) hours before the scheduled content production date. The terms of this Agreement will govern all orders for Products submitted by Customer through the Service; no additional or inconsistent term or condition in any such orders submitted by Customer to ImageSpan will have any legal effect.
Delivery and Acceptance. The completed Product will be delivered electronically to Customer through the Service Website, and simultaneous with such delivery an email will be sent to Customer at the email address provided by Customer. The Product shall be deemed delivered, and obligation to produce the Product therefore shall be deemed completed, to Customer at the time the Customer confirms acceptance of the Product through the Service Website. Delivery dates shall not be considered absolute and no breach shall be found to have occurred if the Products are delivered within a reasonable time after the production date agreed upon by Customer and ImageSpan.
Acceptance; Rejection. The Product will be deemed irrevocably accepted when delivered unless ImageSpan receives a written or emailed notice from Customer rejecting the Product and describing the defect in such Product in reasonable detail within three (3) business days immediately following the date the Product is electronically delivered. Upon ImageSpan’s receipt of a written rejection notice from Customer within the period of time specified in the immediately preceding sentence, ImageSpan will review the digital quality of the Product and whether the Product meets the specifications previously agreed upon by Customer and ImageSpan (“Acceptance Criteria”). If (a) ImageSpan determines in its reasonable discretion, that the Product does not meet the Acceptance Criteria, ImageSpan will use commercially reasonable efforts to re-perform the shoot within a fourteen (14) business days and deliver a Product that meets such Acceptance Criteria; or (b) if ImageSpan determines in its reasonable discretion that the Product meets the applicable Acceptance Criteria, ImageSpan will notify Customer of such determination and Customer will be liable for any fees associated with such Product. If ImageSpan receives a written notice from Customer rejecting such Product within three (3) business days immediately following the date of such subsequent notification, ImageSpan’s sole obligation and Customer’s exclusive remedy will be the cancellation of Customer’s order for said Product.
Professional Services; Customer Content Licens
Professional Services. Subject to the terms and conditions of this Agreement, ImageSpan will (a) develop the applicable Service Websites and customize the Service, LicenseStream Dashboard, and Documentation in accordance with any specifications as may be agreed in writing by the parties, and (b) provide ImageSpan’s standard training as (clause (a) and (b) together, “Professional Services”). Customer may, from time to time, request additional Professional Services, and ImageSpan may, at its sole discretion, provide such Professional Services for such fees as the parties may agree on
Customer Content License. During the term of this Agreement, Customer grants to ImageSpan a non-exclusive, irrevocable, non-sublicenseable (except to ImageSpan’s subcontractors), royalty-free, worldwide license to reproduce, distribute, create derivative works of, transmit, publicly perform, publicly display and digitally perform Customer Content solely in connection with fulfilling ImageSpan’s obligations under this Agreement for the benefit of Customer. Customer represents and warrants that it owns all Customer Content, and has all the rights necessary to grant the licenses granted herein to ImageSpan in and to the Customer Content, free and clear of all third party claims.
Hosting Services; Environment; Security
Hosting Services. Subject to the terms and conditions of this Agreement, ImageSpan shall use reasonable commercial efforts to host, support, and maintain the Service Websites and provide the Services as specified in this Agreement and the applicable Appendix (“Hosting Services”), in accordance with the availability levels set forth in this Agreement. Customer’s right (and its Clients’ rights, if applicable) to use the Services are subject to the terms and conditions (including payment obligations) of this Agreement, and is non-transferable and non-exclusive. Each party will designate in writing to the other party a contact person (and one or more backup contacts) to be primarily responsible for coordinating access to the Services and any technical aspects related to the Services. Except as expressly set forth in this Agreement, ImageSpan is not obligated to provide Customer (or any Client, if applicable) any products or services under this Agreement.
Environment. Customer shall be solely responsible, at its own expense, for acquiring, installing and maintaining its own computer networks with web browsers and dedicated broadband connections to connect to, access, and use the applicable Service Websites.
Security. Customer will be assigned one or more unique user identification names and passwords for Customer and its employees’ access to and use of the Services (collectively, the “Customer ID”). Customer shall be responsible for ensuring the security and confidentiality of Customer ID and agrees to maintain a current list of all Customer employees authorized by Customer to access and use the Services and to notify ImageSpan of changes to such list.
Ownership. ImageSpan and its licensors retain all right, title and interest in and to all intellectual property rights in the LicenseStream Platform, Products, Services, Service Websites, Documentation, Customer ID, Aggregate Data and any other materials provided or made available to Customer (or its Clients, if applicable), and to any and all feedback provided to ImageSpan by Customer (or its Clients, if applicable) regarding the LicenseStream Platform, Products, Service Websites, Services or Documentation. Customer retains all right, title and interest in and to all intellectual property rights in Customer Content, and Personal Data
Fees; Payment Terms; Taxes
Payment Terms. Unless otherwise agreed in writing by the parties, all fees will be due and payable by Customer to ImageSpan within thirty (30) days after the date of ImageSpan’s invoice. Any amounts not paid when due will bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate, whichever is lesser, from the due date until paid in full. ImageSpan will be entitled to withhold performance of any Services and discontinue the Services, in whole or in part, until all amounts due are paid in full. In addition, ImageSpan reserves the right, from time-to-time during the term of this Agreement, to increase any fees payable by Customer hereunder upon written notice to Customer. All payments must be in U.S. dollars. All payments shall be made without setoff or deduction
Taxes. All fees are exclusive of all applicable sales, use, value-added and other taxes, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on ImageSpan’s net income), and any related penalties and interest, arising from the payment of any fees to ImageSpan hereunder, the access or use of the Services by Customer (or any Client, if applicable), performance of any services by ImageSpan, or the delivery of any Products in connection with the Services. Customer will make all payments of fees to ImageSpan free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of fees to ImageSpan will be Customer’s sole responsibility, and Customer will provide ImageSpan with official receipts issued by the appropriate taxing authority, or such other evidence as ImageSpan may reasonably request, to establish that such taxes have been paid
Personal Data; Aggregate Data
Personal Data. During the term of this Agreement (and for such time after termination of this Agreement to satisfy any duty or obligation of ImageSpan that may survive termination of this Agreement), Customer grants to ImageSpan a non-exclusive, royalty-free, non-transferable (except as set forth in Section 15.6) license to all Personal Data for ImageSpan to provide Customer (and its Clients, if applicable) the Services pursuant to this Agreement. Customer agrees that the rights described in this Section may be sublicensed by ImageSpan to its subcontractors solely as needed for such subcontractors to perform ImageSpan’s obligations under the Agreement. Customer represents and warrants that it has all the rights necessary to grant the licenses granted herein to ImageSpan to Personal Data and the provision and collection thereof will not violate any applicable law.
Aggregate Data. ImageSpan shall have the right to utilize data capture, syndication, and analysis tools, and other similar tools, to extract, compile, synthesize, and analyze any non-personally identifiable data or information relating to Customer’s (or its Clients’, if applicable) usage of any features or functionality as applicable of the Service Websites, Services or LicenseStream Platform (“Aggregate Data”). To the extent that any Aggregate Data is collected by ImageSpan, such Aggregate Data shall be solely owned by ImageSpan and may be used by ImageSpan for any lawful business purpose without a duty of accounting to Customer, provided that the Aggregate Data is used only in an aggregated form, without specifically identifying the source of the Aggregate Data.
Confidentiality. “Confidential Information” means, with respect to (a) ImageSpan, the LicenseStream Platform, Documentation, Feedback, Products, Customer ID and all other materials and information disclosed under this Agreement relating to the provision of Services hereunder, and (b) Customer, the Personal Data (excluding any Aggregate Data and Customer ID). The receiving party agrees that it will not use or disclose to any third party any Confidential Information of the disclosing party, except as expressly permitted under this Agreement. The receiving party will limit access to the Confidential Information of the disclosing party to those of its employees and in addition, in the case of ImageSpan, to ImageSpan’ subcontractors, who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information. In addition, the receiving party will protect the Confidential Information of the disclosing party from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, and in no event with less than reasonable care. The confidentiality obligations set forth herein will not apply to any information that the receiving party can prove that the information (a) has become generally available to the public through no fault of the receiving party; (b) is lawfully provided to the receiving party by a third party free of any confidentiality duties or obligations to the disclosing party; (c) was already known to the receiving party at the time of disclosure; or (d) was independently developed by employees or contractors of the receiving party who had no access to the Confidential Information of the disclosing party. In addition, the receiving party may disclose Confidential Information of the disclosing party to the extent that such disclosure is necessary for the receiving party to enforce its rights under this Agreement, or is required by law or by the order of a court or similar judicial or administrative body, provided that the receiving party promptly notifies the disclosing party in writing of such required disclosure and cooperates with the disclosing party to seek an appropriate protective order. Upon any termination or expiration of the Agreement, or earlier upon the written request of a party, each party will destroy or return to the other all Confidential Information of the other party in its possession or control, (except for copies retained solely for archival purposes) and upon the disclosing party’s request will certify in writing that it has fully complied with this obligation. Without the other party’s prior written approval, neither party will directly or indirectly disclose to any third party the existence or any of the terms of this Agreement, except as required by law.
Limited Warranty and Disclaimer
Limited Express Warranty. ImageSpan represents and warrants solely to Customer that it will perform the Services under this Agreement in a professional manner. Without expanding any other limited remedy set forth in this Agreement, ImageSpan’s sole obligation and Customer’s sole and exclusive remedy, for any breach of this warranty will be to re-perform such Services such that they do comply with this warranty.
Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 11.1 (LIMITED EXPRESS WARRANTY), THE LICENSESTREAM PLATFORM, PRODUCTS, SERVICES, SERVICE WEBSITES, OR DOCUMENTATION AND ALL MATERIALS AND SERVICES PROVIDED BY IMAGESPAN HEREUNDER ARE PROVIDED “AS IS”, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. IMAGESPAN AND ITS LICENSORS MAKE NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, DATA ACCURACY, OR INTEGRITY, OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. IMAGESPAN DOES NOT WARRANT THAT THE LICENSESTREAM PLATFORM, PRODUCTS, SERVICES, SERVICE WEBSITES, OR DOCUMENTATION WILL BE ERROR-FREE, UNINTERRUPTED, SECURE, VIRUS-FREE, OR RELIABLE OR THAT IMAGESPAN OR ITS LICENSORS WILL CORRECT ALL ERRORS. IMAGESPAN AND ITS LICENSORS AND SUBCONTRACTORS WILL IN NO EVENT BE HELD RESPONSIBLE FOR ANY PROBLEMS WITH THE ACCESSIBILITY OR USE OF THE CONTENT SERVICES OR PROVISION OF THE SERVICES HEREUNDER ATTRIBUTABLE TO THE PUBLIC INTERNET INFRASTRUCTURE OR CUSTOMER’S (OR ANY OF ITS CLIENT’S) ABILITY TO CONNECT TO THE INTERNET. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS SECTION 11 IS REASONABLE AND AN ESSENTIAL ELEMENT OF THIS AGREEMENT AND THAT IN ITS ABSENCE, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
Indemnification
ImageSpan will indemnify, defend and hold harmless, at its own expense, Customer from any and all losses, costs, damages, liabilities or expenses (including reasonable attorneys’ fees) incurred or arising from any claim by a third party to the extent that such claim is based upon a claim that the LicenseStream Platform, Services, Product, Service Websites, or any Documentation, infringes any U.S. copyright or misappropriates any trade secrets recognized as such under the Uniform Trade Secret Act. This indemnity obligation will apply only to the extent that Customer promptly notifies ImageSpan after Customer becomes aware of any claim, grants to ImageSpan the authority to defend, compromise or settle the claim of infringement, and reasonably provides ImageSpan any Customer information relevant to the claim. Notwithstanding the foregoing, ImageSpan shall not settle any claim of infringement without Customer’s prior written consent, which consent will not be unreasonably withheld, unless such settlement (a) includes a full release of all claims against Customer and its Clients, (b) does not require any payment or other obligation by Customer or its Clients and (c) does not admit any liability on the part of Customer or its Clients. Customer shall have the right to participate in any such litigation, at its sole cost and expense, through counsel selected by Customer at Customer's sole cost and expense, and ImageSpan will pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action.
If any of the LicenseStream Platform, Services, Service Websites, or Documentation becomes or in ImageSpan’s opinion is likely to become, the subject of an infringement claim, ImageSpan may, at its option and expense, either (a) procure for Customer (and its Clients, if applicable) the right to continue exercising the rights licensed to Customer (or its Clients, as the case may be) in this Agreement, (b) replace or modify the LicenseStream Platform, Services, Service Websites, or Documentation as applicable, so that they become non-infringing, or (c) terminate this Agreement by written notice to Customer. Notwithstanding the foregoing, ImageSpan will have no obligation under this Section or otherwise with respect to any infringement claim based upon (i) Customer Content, (ii) any unauthorized use of the LicenseStream Platform, Products, Services, Service Websites, or Documentation by Customer (or any of its Clients, if applicable), (iii) any use of the LicenseStream Platform, Products Services, Service Websites, or Documentation in combination with other products, hardware, or software, not supplied by ImageSpan, unless expressly authorized by ImageSpan, (iv) any modification of the LicenseStream Platform, Services, Service Websites, or Documentation by any person other than ImageSpan or ImageSpan authorized representatives. This Section 12 states ImageSpan’s entire liability and Customer’s sole and exclusive remedy for infringement claims and actions.
Customer agrees to defend and indemnify ImageSpan from any and all losses, costs, damages, liabilities or expenses (including reasonable attorney’s fees) incurred or arising from any claim by a third party relating to arising out of any default or breach of any term, condition, covenant, representation or warranty of Customer in this Agreement. This indemnity obligation will apply only to the extent that ImageSpan promptly notifies Customer after ImageSpan becomes aware of any claim, grants to Customer the authority to defend, compromise or settle the claim of infringement, and reasonably provides Customer any ImageSpan information relevant to the claim.
The foregoing obligations are conditioned on the party seeking defense and indemnification notifying the other party promptly in writing of such action, and giving the defending and indemnifying party sole control of the defense thereof and any related settlement negotiations, and cooperating and, at the indemnifying party’s request and expense, assisting in such defense.
Limitation of Liability
IN NO EVENT WILL EITHER PARTY (OR THEIR LICENSORS, CUSTOMERS, OR CLIENTS) BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, USE, OR GOODWILL REGARDING THIS AGREEMENT OR RESULTING FROM OR IN CONNECTION WITH EITHER PARTY’S PERFORMANCE HEREUNDER OR THE USE, MISUSE, OR INABILITY TO USE, IN WHOLE OR IN PART, THE LICENSESTREAM PLATFORM, PRODUCTS, SERVICES, SERVICE WEBSITES, OR DOCUMENTATION HEREUNDER, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR PROCUREMENT COSTS OF SUBSTITUTE PRODUCTS OR SERVICES. THE MAXIMUM CUMULATIVE LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT AND THE LICENSESTREAM PLATFORM, PRODUCTS, SERVICES, SERVICE WEBSITES, AND DOCUMENTATION PROVIDED BY IMAGESPAN WILL NOT EXCEED THE AGGREGATE AMOUNT OF FEES PAID BY CUSTOMER TO IMAGESPAN FOR THE APPLICABLE SERVICE GIVING RISE TO THE CLAIM DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE CLAIM. The existence of one or more claims under this agreement will not increase this limit on either Party’s liability. Both Parties agree that the limitations of liability set forth in this Section will survive and continue in full force and effect despite any failure of an exclusive remedy. Both Parties acknowledge that the fees set forth in this Agreement for the applicable Service reflect the allocation of risk set forth in this Agreement for such Services and the Agreement is entered into by both Parties in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
Customer is solely responsible for maintaining the security of its account, password, files, internal network and user access, and any information Customer transmits through the Internet, and for all uses of Customer’s account, with or without Customer’s knowledge or consent: that Customer shall strictly maintain the confidentiality and security of all logon codes and passwords that ImageSpan may provide to it for the purposes of this Agreement, and shall be responsible to ImageSpan for unauthorized access to or use of the LicenseStream Platform, Products, Services, Service Websites, or Documentation arising from a breach of the foregoing obligation.
Term And Termination
Term. Unless earlier terminated as set forth in this Agreement, this Agreement will commence on the Effective Date and remain in effect for the term set out in the Agreement. This Agreement will automatically renew for consecutive one (1) year terms unless either party provides written notice to the other of its intention not to renew at least thirty (30) days prior to the expiration of the then-current term.
ImageSpan Termination Right. Without limiting the foregoing, ImageSpan reserves the right upon written notice to Customer, to temporarily suspend, indefinitely suspend or terminate Customer’s account for the Service, in whole or in part, if ImageSpan receives rejection notices from Customer pursuant to Section 4 for more than five (5) Products in any six (6) month period, which rejected Products ImageSpan finds meet all Acceptance Criteria for such Products.
Termination for Breach. Except for remedies for non-payment set forth elsewhere in this Agreement, either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach is not cured within thirty (30) days after receipt of written notice of such breach that remains uncured at the time of termination.
Effect of Termination. Upon any termination or expiration of this Agreement, (a) any amounts owed to ImageSpan under this Agreement before such termination or expiration will be immediately due and payable, provided, with respect to any Product orders, ImageSpan has delivered Products in accordance with this Agreement, (b) all licenses granted to Customer under this Agreement will immediately terminate, (c) Customer’s (and its Clients’, if applicable) access to the Services will be discontinued. Product Licenses granted in connection with the Services will survive the expiration or termination of the Agreement in accordance with their terms. The following Sections will survive any termination or expiration of this Agreement: 1, 9, 10, 11, 12, 13, 14, 15, 16, and 17.
Miscellaneous
Governing Law and Venue. This Agreement and any action related thereto will be governed, controlled, interpreted, and defined by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the laws of a different state. Customer hereby expressly consents to the exclusive jurisdiction and venue in the state and federal courts for the County of San Francisco, California for any matter that it raises from or related to this Agreement. ImageSpan hereby expressly consents to the exclusive jurisdiction and venue in the state and federal courts for the County of San Francisco, California for any matter that it raises from or related to this Agreement.
Cooperation with Authorities. ImageSpan will cooperate with legal authorities and private parties investigating claims of illegal activity, including but not limited to illegal transfer or use of copyrighted or other protected material, postings or e-mail containing threats of violence, or other illegal activity, or any activity that may give rise to civil liability. ImageSpan’s cooperation will include, when required by legal authority with jurisdiction over the parties and in accordance with the terms herein, identification of all Customer’s and other data relating to Customer’s and their use of the Services provided by ImageSpan. Subject to the provisions of Section 10, Customer hereby authorizes ImageSpan to release any and all information to legal authorities with jurisdiction over the parties.
Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Without limiting the generality of the foregoing, Customer agrees that Section 13 will remain in effect notwithstanding the unenforceability of any exclusive remedy.
Waiver. 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.
Remedies. Customer and ImageSpan each acknowledges that any actual or threatened breach of this Agreement or any licenses granted, or restrictions imposed will constitute immediate, irreparable harm to ImageSpan or Customer, as the case may be, for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.
Assignment. Neither party may assign this Agreement, or any rights or obligations under this Agreement, without the prior written consent of the other party, which approval shall not be unreasonably withheld, provided, however, that upon at least 30 days prior written notice, this Agreement may be assigned to a third party in connection with any merger, corporate reorganization and/or any sale of all or substantially all of such party’s assets where such third party is the acquirer, surviving entity from a merger, or successor-in-interest of the other party. Any attempted assignment, delegation, or transfer in violation of the foregoing will be null and void.
Binding Nature: Except as may otherwise be provided herein, this Agreement shall be binding upon and shall inure to the benefit of the respective heirs, executors, administrators, and permitted successors and assigns of the parties hereto.
Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, Internet outage, power outage, failure of ImageSpan’s internet service provider, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.
Change in Services. ImageSpan reserves the right to change, modify, and otherwise convert the technology used to provide the Services, provided that the basic functionality and quality of the Services will not be reduced.
Independent Contractors. Customer’s relationship to ImageSpan is that of an independent contractor, and neither party is an agent or partner of the other.
Notices. Each party must deliver all notices or other communications required or permitted under this Agreement in writing to the other party at the address set forth in the Agreement, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Notice will be effective upon receipt or refusal of delivery. If delivered by certified or registered mail, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark. If delivered by courier or express mail service, any such notice will be considered to have been given on the delivery date reflected by the courier or express mail service receipt. Each party may change its address for receipt of notice by giving notice of such change to the other party.
Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.
Construction. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.”
Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of ImageSpan and Customer.