READ THIS AGREEMENT CAREFULLY. WE ARE WILLING TO ALLOW YOU TO USE THE MODULATES SERVICE ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS IN THIS AGREEMENT.
Your use of the Modulates Service is governed by the terms in this document (the "Agreement"). Together these documents constitute a legal, electronic contract between you and us, and your affirmative act of accessing the Modulates Service signifies your agreement to be bound by this contract, which has the same force and effect as a written contract signed by you.
If there is any dispute about or involving the Modulates Service, you agree that the dispute shall be governed by the laws of the State of California, USA, without regard to conflict of law provisions and you agree to exclusive personal jurisdiction and venue in the state and federal courts of the United States located in the State of California, City of Los Angeles. The foregoing shall not prevent Modulates from seeking injunctive relief in a court of competent jurisdiction.
BY ACCEPTING THIS AGREEMENT, YOU ARE AGREEING TO THE TERMS, INCLUDING THE DISPUTE RESOLUTION PROCESS IN LOS ANGELES, CALIFORNIA, USA. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ACCESS OR USE THE MODULATES SERVICE.
a. Definitions. The following definitions apply in this Agreement:
- "API" means application programming interfaces.
- "API Key" means a unique identifier issued by us that gives you access to certain APIs.
- "Destination" means an internet website, television broadcaster, or personal digital devices broadcaster to which you provide a video for distribution or display to end users, including without limitation Your Product.
- "Modulates Service" means the software application(s), code (in object or source code form, and instructions) provided by us, including any APIs and related documentation, data, content and services. The Modulates Video Service is hosted by IBM and allows you to access the Modulates Service remotely via the Internet to record Videos, manipulate your Videos into various formats, publish such Videos to Your Product or other Destination, download such Videos to your own services, and generate reports regarding certain data relating to viewing of such Videos by end users.
- "User Credentials" means either the User ID or the API Key.
- "User ID" means a unique identifier issued by us that gives you access to certain features of the Modulates Service.
- "Video" means a file containing information, data, text, software, sound, photographs, graphics, video, messages, or other materials, recorded using the Modulates Service.
- "We," "us" or "Modulates" means Modulates Inc. and its corporate affiliates.
- "You" and "your" means both you and such person or entity on whose behalf you act, if any.
- "Your Product" means any product developed by you that is based upon, incorporates, references or interacts with the Modulates Service, including without limitation, Web sites, online services or software applications on or through which Videos can be recorded and displayed.
b. Changes to the Agreement.
- To the maximum extent provided by law, Modulates may modify this Agreement at any time. You shall assume all responsibility in reviewing this Agreement periodically at http://Modulates.com so that you will be apprised of any changes. If you continue to use the Modulates Service after we post changes to these terms, you are signifying your acceptance of the new terms. If you disagree with any changes to this Agreement, you must discontinue your use of the Modulates Service and provide written notice to us, and all rights and licenses granted to you under this Agreement terminate immediately.
You are required to register with us to obtain User Credentials. You may not use any additional User Credentials issued by us to you to circumvent any usage limits for the Modulates Service. You must provide accurate identification, contact, and other information required as part of the registration process. You may not create any script or other automated tool that attempts to create multiple developer accounts. We may in our sole discretion reject any registration for any reason.
a. Video Recorder Agreement
You hereby grant MODULATES.COM and its clients the right to videotape me and to record my voice, performances, poses, actions, plays and appearances, and use my video, photograph, silhouette and other reproductions of my physical likeness in connection with Modulates.com client video testimonials.
You hereby grant their successors, assigns and licenses the perpetual right to use, as you may desire, all still and motion pictures and sound track recordings and records which you may make of me or of my voice, and the right to use my name or likeness in or in connection with the exhibition, advertising, exploiting and/or publicizing of the picture. You further grant the right to reproduce in any manner whatsoever any recordings including all instrumental, commercial, or other sound effects produced by me, in connection with the production and/or post production of the testimonials.
You agree that you will not assert or maintain against Modulates.com or Modulates.com clients, successors, assigns and licenses, any claim, action, suit or demand of any kind or nature whatsoever, including but not limited to those grounded upon invasion of privacy, rights of publicity or other civil rights, or for any reason in connection with your authorized use of my physical likeness and sound in the Picture as herein provided.
By my digital or in person checkmark agreeing to Modulates.com terms and Privacy you understand that you will, to the best of your ability, adhere to the schedule agreed to prior to the beginning of your engagement. Additionally, you agree, to the best of your ability, to make yourself available should it be necessary, to re record your video testimonials.
Should you not be able to perform such sound work, you understand that Modulates.com or its clients may enter into agreement with another person to rerecord your dialogue and/or record voice-overs and use this sound work over your picture or however they deem appropriate.
You hereby certify and represent that you are over 18 years of age and have read the foregoing and fully understand the meaning and effect thereof.
a. Payment Method.
You agree to pay for any fee-based version of the Modulates license and Service, and we may charge any payment method you have provided for any such payments. Enterprise accounts are responsible for sub license accounts under their master account. For your convenience, you authorize us to store your payment information and process all charges associated with the version of the Modulates Service purchased by you. If you purchase a subscription to the Modulates Service, periodic charges to your account will be billed in advance, unless otherwise expressly noted. We may in some instances continue charging a payment method past its expiration date at our discretion and subject to the payment processors' or issuing bank's approval. Please note that once you purchase the Modulates Service on a periodic or subscription basis, your account will be charged as long as it remains active, even if you have not embedded or used the Modulates Service or accessed your Modulates Service account. All prices quoted on the pricing page http://Modulates.com are in U.S. Dollars and all charges to your account will be made in U.S. Dollars unless we indicate another currency.
b. Subscription Fees.
If the version of the Modulates Service you purchase is based on a monthly or other periodic subscription fee, the subscription fee will be automatically charged to your credit card or other payment method that you provided to us. At the expiration of each subscription term we will automatically renew your subscription and charge the credit card or other payment method you have provided to us, unless you cancel your subscription. Your subscription to the Modulates Service will be automatically renewed at the then-current price, excluding promotional and discount pricing. At any time, you may elect not to have your subscription to the Modulates Service renewed automatically by canceling as provided in "Cancellation" below.
You may cancel your paid subscription to the Modulates Service at any time if you are not under an annual contract. Your service will be discontinued immediately and your payment method will be credited pro rata, based on the number of days remaining in the billing period. We require a 30 days written notice for cancelation of accounts. Please note that it is your responsibility to maintain your online account, including current payment information, in exchange for continuing to receive monthly use of a subscription-based version of the Modulates Service. If your account is in default you will lose your video content in your videos page of your dashboard. If your payment method or other online account information becomes invalid at any time, we may suspend or terminate your access to the paid version of the Modulates Service. In such an event, we will attempt to notify you, but may not do so in all cases, and you should not rely on us to ensure that your online account and payment information are current. We retain the discretion to suspend or terminate your account or any particular version of the Modulates Service you have purchased at any time and we reserve the right to assess an additional 1.5 percent (or the highest amount allowed by law, whichever is lower) per month late charge if your payment is more than 30 days past due and to use alternate means to collect any unpaid charges. You are liable for any fees, including attorney and collection fees incurred by us in our efforts to collect any remaining balances from you.
d. Free Trials.
We may offer from time to time free video streaming trial so that you may try the Modulates Service without charge or obligation ("Free Trial"). Any Free Trial is limited to one free trial per customer.
The following terms apply to your access and use of the Modulates Service:
a. User Credentials.
We may require that you obtain a User Credentials to use certain features of the Modulates Service. Your User Credentials will be uniquely associated with the Videos recorded on or through Your Product. Your Product must at all times incorporate the applicable User Credentials in compliance with this Agreement. You may not obtain a User Credentials under false pretenses, including without limitation, "spoofing" an IP address or misrepresenting any URLs that will incorporate a Video. We have the right at all times to block attempts to access our networks with an invalid or revoked User Credentials or if Your Product exceeds the usage limits for the Modulates Service (if any). We, in our sole discretion, shall determine the number of unique User Credentials that we provide to you. You may not share, loan, provide, transfer or sublicense your User Credentials to any other person or party. We have the right, in our sole discretion and without limiting our other legal remedies, to terminate any User Credentials and/or to prevent access to our network. In addition to any other restrictions contained in this Agreement, you may not register for more than one User Credentials for each of Your Products. You may not use any additional User Credentials issued to you to circumvent any usage limits for the Modulates Service.
b. Your Responsibilities.
You provide Your Products and use the Modulates Service at your sole option. We are not responsible for the subsequent use or misuse by end users who record or upload Videos through your Product. You are responsible for.
(i) all activity under your User Credentials and Your Products, (ii) keeping your User Credentials confidential and (iii) notifying us immediately if you believe your User Credentials have been misappropriated. You agree to implement any feasible procedure that is or may become available to secure your User Credentials from misuse by others. You will work with us immediately to correct any security deficiencies that may have been caused as a result of the misappropriation by any party of your User Credentials. You acknowledge that the technical processing and transmission of Videos may involve (x) transmissions over various networks and (y) changes to conform and adapt to technical requirements of connecting networks or devices. Should any Video be found or reported to be in violation of the terms of service, or any other applicable terms or rules, of the applicable Destination, we reserve the right to (1) require you to remove the Video or (2) remove the Video immediately without notice to you.
c. Usage limitations.
You shall abide by any usage limits that we may impose on the Modulates Service, including without limitation, the number of times your User Credentials or Your Product may "call" or invoke the Modulates Service. If you wish to exceed a usage limitation, you must obtain our prior written permission and you may be required to enter into a separate license agreement. We may change usage limitations at any time in our sole discretion.
d. Disclaimers; Attributions.
You shall incorporate into Your Products such disclaimers, terms and attributions that we may request or require for a specific Application, including any branding elements. More specifically, you must incorporate into Your Product or other Destination a "notice and takedown" process that is legally sufficient under the Digital Millennium Copyright Act and any similar or successor statute.
You shall post and present to users of your Developer Products such consent forms or user acknowledgements that we prepare and/or require for use with the Modulates Service. You agree that you shall not modify or conceal from view any such consent form or user acknowledgement prepared by us.
f. End User Terms.
You shall require that end users of your Developer Products agree to an enforceable end-user agreement (an "End User Agreement") that is protective of us and contains at least the following specific, minimum terms: (i) you, and not Modulates, are responsible for Your Product; (ii) the recording capability provided by the Modulates Service is provided as-is, without any warranties, and that we expressly disclaims all implied or express warranties, including the implied warranties of merchantability, accuracy, fitness for a particular purpose and non-infringement; (iii) a prohibition against modifying or creating derivative works of any portion of Modulates code included as part of Your Product; (iv) a prohibition against decompiling, reverse engineering, disassembling, and otherwise reducing any portion of Modulates code included as part of Your Product to a human-perceivable form, to the full extent allowed by law; (v) a provision indicating that ownership of the Modulates Service resides with Modulates; (vi) a disclaimer of indirect, special, incidental, punitive, and consequential damages; (vii) a complete and accurate disclosure to end users of the privacy practices and policy applicable to Your Products, and, (viii) such other terms as may be required by us.
You shall, to the extent that it is reasonably feasible, provide us with information that we may request from time-to-time related to your use of the Modulates Service. Such information may include, without limitation, bugs that you have identified and/or bug fixes that you may have developed through your use of the Modulates Service.
i. Usage Data.
Our servers record information when you visit our websites or when Your Products or User Credentials call or invoke our services. This information may include, without limitation, the URL, IP address, browser type, User Credentials and access times and dates. We may use this information to promote, operate, and improve Modulates.com services and properties, including the Modulates Service, and deliver the services that you or the end users of Your Products have requested.
Our standard plans include limited views each month. These amounts are more than enough for the vast majority of businesses; however, additional views are always available for purchase, our contact us for more info on additional traffic.
j. Removal of Videos.
If you have elected to have us host and store any Videos created by you or your end users ("Modulates Hosted Videos"), you agree to (i) immediately notify us of any take-down request or other infringement notice regarding a Modulates Hosted Video; and (ii) promptly remove the Modulates Hosted Video from the Destination or, if you cannot unilaterally remove the Modulates Hosted Video from the Destination, promptly request that the applicable Destination remove the Modulates Hosted Video from such Destination. Additionally, upon our reasonable request, you will promptly remove any Modulates Hosted Video from any Destination or, if you cannot unilaterally remove the Modulates Hosted Video from the Destination, request that such Destination remove the Modulates Hosted Video(s) from such Destination. Any clients videos pushed to Youtube from modulates dashboard will have a modulates watermark on the video in YouTube.
We don't provide a license for video testimonials for illegal products or services, we don't provide modulates license for testimonials for prescription medications or adult material. We request you prequalify before signing up for our services.
l. Social Media.
You have social media features on your videos, you have the option to remove the social media plugins from your master settings of your dashboard for your videos, Modulates is not responsible for your social media campaigns on your videos.
m. Quality of testimonials.
We have the right to cancel your account if we received legal complaint that your videos are fabricated and are not legitimate.
n. White Label Solution.
We have the right to cancel your white label account and take legal action if you or your employees replicate Modulates business model or use our source to replicate a similar business model like modulates to compete with Modulates. White label solution business accounts have access to email support, and enterprise white label solution get dedicated account managers.
Modulates gives order attribution to the channel/affiliate with the last click before an order occurs. If there is a click in–between the initial affiliate click and the Modulates order, the Affiliate will not get credit for the order. Orders generated from Share sites, pre–created projects, or where the last click was from another channel will not receive credit. Your website must not be a loyalty site, as Modulates is focused on driving NEW customers through the program. We require 25% + new customer ratio as part of the program. Modulates will not accept Affiliates with side-by-side competitive advertising. If you are promoting Modulates in a customer email, blog posting or other mechanism, please share it with us at via our contact page. We must approve these posting to cover affiliates under legal agreements.
Modulates Publishers choose which advertisers they wish to work with. We can't force publishers to work with our advertisers. The better your reward campaigns the higher chance of increased number of publishers. You are not allowed to use Modulates publishers information for any business outside of Modulates affiliate program.
q. Modulates is not responsible for publisher content or traffic quality
Title, ownership rights and intellectual property rights in the Videos that you upload yourself from your hard drive and Your Product shall remain in you, your licensors and/or other providers. Videos that get reordered using Modulates recorder belong to Modulates unless you have an unique agreement with Modulates which would allow you to download recorded videos from your Modulates license account. You can submit your request for downloading those videos so we can grant you the rights based on your agreement.Title, ownership rights, and intellectual property rights in the Modulates Service and all content, software, services and material offered on or through the Modulates Service shall remain in us, our licensors and/or other providers ("Our IP Rights"). Our IP Rights are protected by copyright, patent, trade secret and other intellectual property laws and by international treaties. You shall not take any action to jeopardize, limit or interfere in any manner with Our IP Rights. You acknowledge and agree that you obtain no intellectual property rights or licenses by this Agreement except for those licenses expressly granted in this Agreement.
Subject to the terms of this Agreement, you may use the Modulates Service for the limited purpose of enabling you or your end users to create, display and distribute and record Videos on or through Your Products/service or other Destinations. The rights we grant to you under this Agreement are licensed, not sold. This license is non-exclusive and revocable. You may not transfer or sub-license this right to any other person or entity. You shall not distribute any API or other code provided by Modulates in any manner except as expressly authorized by this Agreement. You shall not use the Modulates Service in a manner that exceeds the limitations set forth in this Agreement. We and our licensors reserve all rights not expressly granted to you.
For purposes of this Agreement, the term "Trademarks" means all trademarks, trade names, service marks, logos, domain names, along with any other distinctive brand features of each party. You may use only the Trademarks that we specifically authorize you to use for the purpose of identifying Your Product's utilization of the Modulates Service. The rights we grant to you under this Agreement constitute a nontransferable, non-sub licensable, nonexclusive license during the term of this Agreement to display such Trademarks solely as set forth expressly in any specific authorization. We may terminate or modify your right to use any specific Trademark at any time for any reason. Your license to use such Trademarks expires immediately upon termination of this Agreement, if we modify or withdraw such license in our discretion, or if you discontinue the use of the Modulates Service. You may use our Trademarks only in accordance with our guidelines. You hereby grant to us a nontransferable, nonexclusive license during the term of this Agreement to use your Trademarks in our promotions or press releases (as determined by us in our sole discretion) regarding your participation in the Modulates Service and to the extent that it is necessary for us to provide the Modulates Service to you.
Display any of our Trademarks in any manner that implies a relationship or affiliation with, sponsorship by, or endorsement by us, other than your use of the Modulates Service, or that can be reasonably interpreted to suggest editorial content has been authored by, or represents the views or opinions of Modulates, its officers, directors, employees, agents or affiliates; - use any of our Trademarks to disparage Modulates and/or its affiliates or any of its products or services;- display any of our Trademarks on Your Product if it contains or displays adult content or promotes illegal activities, gambling, or the sale of tobacco or alcohol to persons under twenty-one (21) years of age;
display any of our Trademarks as the most prominent element on any page of your website or Your Product;
display any of our Trademarks in a manner that is misleading, defamatory, infringing, libelous, disparaging, obscene or otherwise objectionable to us as determined by us in our sole discretion;
display any of our Trademarks on Your Product in a manner that violates any law or regulation; or
remove, distort or alter any element of any of our Trademarks (this includes squeezing, stretching, inverting, discoloring, etc.).
You understand and agree that we have the sole discretion to determine whether your use of our Trademarks is in accordance with the above restrictions.
Except as set forth in this section, nothing in this Agreement shall grant or shall be deemed to grant you any right, title or interest in or to our Trademarks. All use by you of our Trademarks (including any goodwill associated therewith) shall inure to our benefit. At no time during or after the term of this Agreement shall you challenge or assist others to challenge our Trademarks (except to the extent such restriction is prohibited by law) or the registration thereof by Modulates or any of its affiliates, nor shall you attempt to register any Trademarks (including domain names) that are confusingly similar in any way (including but not limited to, sound, appearance and spelling) to those of Modulates.com.
You may not use or allow or assist anyone to use the Modulates Service in any way that (a) exceeds the usage restrictions set forth in this Agreement; (b) violates the terms of this Agreement; (c) violates the rights of others; (d) facilitates the generation of SPIM, SPAM, or other bulk unsolicited communications; (e) removes or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels from the Modulates Service or from any content or materials on the Modulates Service; (f) encumbers, sells, rents, leases, sublicenses, or otherwise transfer rights to the Modulates Service or any aspect of the Modulates Service; (g) attempts to decompile, disassemble, reverse engineer, or derive the source code for any software product provided by us to you in object code format only; (h) causes or enables the distribution of any viruses, Trojan horses, trap doors, back doors, worms, time bombs, cancelbots, adware, spyware or other computer programming routines designed or intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (i) facilitates illegal activities of any type, the distribution of pornography, online gambling, regulated activities without obtaining appropriate licenses from governmental authorities, sex lines, solicitation of minors, and any other activity determined by us in our discretion and judgment to be an inappropriate use of the Modulates Service; (j) misleads or attempts to mislead users; (k) interferes with the rights of others to use the Modulates Service; (l) use the Modulates Service as a means to engage in conduct that reflects poorly upon, disparages or devalues our reputation or goodwill, as determined in our sole discretion; or (m) causes damage to or interferes with the proper functioning of any software, network or services provided by us. You may not use the Modulates Service for any mission critical application where human life or property may be at stake. You may not attempt to gain unauthorized access to any services, user accounts, computer systems or networks, through hacking, password mining or any other means. We may take any legal and technical remedies to prevent the violation of this provision and to enforce this Agreement.
We respect the intellectual property of others. If you believe that your work has been copied and is accessible on the Modulates Service in a way that constitutes copyright infringement, please Contact us www.modulates.com on how to report possible copyright infringement.
The Modulates Service may include links to third party websites, including links provided as automated search results. Some of these sites may contain materials that are objectionable, unlawful, or inaccurate. These links do not mean that we endorse these third party sites or services. You acknowledge and agree that we are not responsible or liable for any content or other materials on these third party sites. Any dealings that you have with advertisers found on the Modulates Service are between you and the advertiser and you acknowledge and agree that we are not liable for any loss or claim you may have against an advertiser.
You agree to comply fully with all import and export laws, regulations, rules and orders of the United States, or any foreign government agency or authority, and that you will not directly or indirectly export, re-export, transfer and/or release any software, related technology, or any product thereof, for any proscribed end-use, or to any proscribed country, entity or person (wherever located), without proper authorization from the U.S. and/or foreign government. You bear responsibility for and assume all expenses relating to your compliance with the described laws, regulations, rules and orders, and for obtaining all necessary authorizations and clearances.
You warrant to us that: (a) you have the full legal power and authority to enter into this Agreement; (b) you own and/or have obtained the necessary legal rights to provide all content contained in your Submissions; (c) all information provided by you to us in connection with your registration for and use of the Modulates Service is true and accurate; (d) that your use of the Modulates Service, and Your Products (i) shall not be used in any commercially unreasonable manner; (ii) shall not infringe any intellectual property rights of any third party including without limitation, any right of privacy, publicity, copyright, trademark, or patent; and (iii) shall comply with all applicable laws, rules and regulations, including without limitation, consumer protection, data security, and privacy laws.
You understand and agree that we reserve the right to use whatever technical and legal remedies available to us to prevent abuses to the Modulates Service. We reserve the right to investigate or monitor in our own discretion and by any means we deem appropriate (a) your compliance with this Agreement and (b) any activity or conduct that we believe violates the terms of this Agreement. In addition to any other rights that we may have in this section and in the Agreement, we reserve the right to request an audit to investigate compliance with this Agreement.
In consideration of the licenses granted herein, and other consideration provided by us to you under this Agreement, you covenant not to sue or otherwise assert any patent rights against us or any of our affiliates or licensees for any alleged patent infringement during the term of this Agreement by any product or service that uses the Modulates Service.
Your use of certain features of the Modulates Service may be subject to a fee, which is disclosed in the pricing section of the Modulates Service (http://Modulates.com). We may change the fees and/or add new fees from time to time in our sole and exclusive discretion. If you elect to use the Modulates Service in a manner that is subject to a fee, you hereby agree to pay any and all fees described on the pricing page (http://Modulates.com). We may terminate this Agreement without notice to you in the event you fail to pay the fees as set forth in this Agreement. All payments made by you under this Agreement shall exclude, and you shall pay, any sales, use, excise, gross receipts or other taxes associated with such payments or this Agreement.
AS IS. THE MODULATES SERVICE (INCLUDING ALL SERVICES, SOFTWARE PRODUCTS AND APIS) ARE PROVIDED WITH ALL FAULTS ON AN "AS IS" BASIS. YOU ARE USING THE MODULATES SERVICE AT YOUR OWN RISK. WE, OUR LICENSORS AND OTHER PROVIDERS DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES THAT THE MODULATES SERVICE IS FREE OF DEFECTS, VIRUS FREE, AND ABLE TO OPERATE ON AN UNINTERRUPTED BASIS, THAT THE FUNCTIONALITY OF THE MODULATES SERVICE WILL MEET YOUR REQUIREMENTS, OR THAT ERRORS IN THE MODULATES SERVICE WILL BE CORRECTED. WE DISCLAIM THE IMPLIED WARRANTIES THAT THE MODULATES SERVICE AND THE APPLICATIONS ARE MERCHANTABLE, OF SATISFACTORY QUALITY, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING, UNLESS SUCH IMPLIED WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. FURTHER, WE, OUR LICENSORS AND PROVIDERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE MODULATES SERVICE IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US OR AN AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY THAT CANNOT BE DISCLAIMED UNDER APPLICABLE LAW. YOU BEAR THE ENTIRE RISK AS TO THEIR QUALITY AND PERFORMANCE AND YOU ASSUME THE ENTIRE COST OF ANY SERVICE AND REPAIR. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
WE, OUR LICENSORS AND PROVIDERS HAVE NO LIABILITY WITH RESPECT TO YOUR USE OF THE MODULATES SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE OR OUR AFFILIATES, DIRECTORS, EMPLOYEES, DISTRIBUTORS, LICENSORS, SUPPLIERS, AGENTS OR RESELLERS (COLLECTIVELY, THE "MODULATES GROUP") BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE MODULATES SERVICE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOST PROFITS, LOSS OF DATA, COMPUTER FAILURE OR MALFUNCTION. IN ADDITION, THE MAXIMUM AGGREGATE LIABILITY OF THE MODULATES GROUP FOR ANY CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE FOLLOWING AMOUNTS : (A) ONE HUNDRED DOLLARS (US $100) FOR ANY SERVICE OR API PROVIDED AT NO CHARGE, IN WHICH THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK UNDER THIS AGREEMENT; OR (B) FOR ANY APPLICATION PROVIDED FOR A FEE, NOT MORE THAN THE TOTAL AMOUNT PAID DURING A ONE-YEAR PERIOD FOR THE SPECIFIC APPLICATION AT ISSUE.
You shall indemnify, hold harmless and, at our request, defend us and/or our licensors, officers, directors, employees, agents and representatives from and against any and all claims, liabilities, losses, damages, expenses and costs (including attorneys' fees and costs) relating to your breach of any provision under this Agreement or otherwise arising out of your use of the Modulates Service, including, but not limited to, any claim related to infringement or misappropriation of intellectual property rights, which includes but is not limited to, infringement by Your Product and/or any Video or other content contained therein. We shall give you prompt notice of any such claim made against it, and you shall cooperate with us in the defense of any such claim, suit or proceeding, including appeals, negotiations and any settlement or compromise thereof, provided that we must approve the terms of any settlement or compromise, and such approval shall not be unreasonably withheld.
We may change, suspend, or discontinue all or any aspect of the Modulates Service, including its availability, at any time, and may terminate your use of the Modulates Service at any time prior to or after your development and/or deployment of Your Product, without notice, for no reason or for any reason, including but not limited to your breach of any condition hereunder. You may terminate this Agreement by ceasing use of the Modulates Service, including without limitation by removing any and all Videos stored on the Modulates Service, or software or other code provided by us, from Your Product or other Destination, and providing notice of cancellation as set forth in Section 3 of this Agreement. You agree that once the Agreement is terminated, you will not use the Modulates Service or display or distribute any Videos that are stored on the Modulates Service. If we discontinue the Modulates Service and you have paid a subscription fee, we will credit your payment method pro rata, based on the number of days remaining in your billing period.
The Modulates Service is not fault–tolerant and is not designed, manufactured or intended for use in environments in which its failure could lead directly to death, personal injury, or severe physical or environmental damage, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems ("High Risk Activities"). ACCORDINGLY, WE AND OUR LICENSORS SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES. YOU AGREE THAT THE MODULATES GROUP WILL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING FROM THE USE OF THE MODULATES SERVICE IN CONNECTION WITH HIGH RISK ACTIVITIES.
The Modulates Service, Videos and any other software products are a "commercial item," as that term is defined in 48 C.F.R. 2.101, consisting of "commercial software" and "commercial computer documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995) and 48 C.F.R. 227.7202 (June 1995). Consistent with 48 C.F.R. 12.212, 48 C.F.R. 27.405(b) (2) (June 1998) and 48 C.F.R. 227.7202, all U.S. Government End Users acquire the Modulates Service and Videos with only those rights as set forth herein.
YOU AGREE TO TRANSACT WITH US ELECTRONICALLY. WE MAY PROVIDE NOTICES TO YOU ELECTRONICALLY (1) VIA E-MAIL IF YOU HAVE PROVIDED US WITH A VALID EMAIL ADDRESS OR (2) BY POSTING THE NOTICE ON A WEBSITE DESIGNATED BY US FOR THIS PURPOSE. The delivery of any Notice is effective when sent or posted by us, regardless of whether you read the Notice or actually receive delivery. You can withdraw your consent to receive Notices electronically by discontinuing your use of the Modulates Service.
You acknowledge and agree that, notwithstanding any other provisions of this Agreement, your breach or threatened breach of this Agreement shall cause us irreparable damage for which recovery of money damages would be inadequate and that we, therefore, may obtain timely injunctive relief to protect its rights under this Agreement in addition to any and all other remedies available at law or in equity.
We have no obligation to provide support services for the Modulates Service, although we may do so in our sole discretion. We are under no obligation to provide you with any error corrections, updates, upgrades, bug fixes and/or enhancements of the Modulates Service. This Agreement does not grant you any right to any version enhancement update, or to a continuous availability of the Modulates Service.
Your use of the Modulates Service does not create any partnership, joint venture or agency relationship between you and us. Neither you nor we have the power to direct or control the day to day activities of the other or to create or assume any obligation on behalf of the other.
Sections 3(c), 4(a), 5, 8, 9, 10, 11, 13, 15, 17, 19-22, 24-27 and 28 – 32 shall survive expiration or termination of this Agreement. We shall not be liable to you for damages of any sort resulting from terminating this Agreement.
You agree that the laws of the State of LOS ANGELES govern this Agreement and any claim or dispute that you may have against us, without regard to LOS ANGELES conflict of laws rules, and that the United Nations Convention on Contracts for the International Sale of Goods shall have no applicability. You further agree that any disputes or claims that you may have against us will be resolved by a court located in the State of CALIFORNIA and you agree and submit to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action.
(a) This Agreement constitutes the entire agreement between you and us concerning the subject matter of this Agreement, which may only be modified by us.
(b) This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
(c) If any part of this Agreement is held invalid or unenforceable, that part shall be construed to reflect the parties' original intent as nearly as practicable, and the remaining portions remain in full force and effect, or we may at its option instead terminate this Agreement.
(d) The controlling language of this Agreement is English. If you have received a translation into another language, it has been provided for your convenience only.
(e) A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof.
(f) You may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein. We may assign this Agreement to any entity at its sole discretion.
(g) This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns.
(h) Neither party shall be in default or be liable for any delay, failure in performance or interruption of service resulting directly or indirectly from any cause beyond its reasonable control.