Terms of Service
Enterprise Plan 1/14/2016
Vidlet Service Agreement
Terms of Service
By signing this Order Form (the “Contract”), Company (named on Order Form or Service Agreement provided separately) hereby accepts the terms of the Contract, and any exhibit to the Contract. All capitalized terms not otherwise defined in these Terms of Service shall have the meanings defined on the Cover Page.
2.1 “Account” means a user profile created by Company when installing Vidlet and used to make selections with respect to the presentation, management, distribution and/or end user access to Content.
2.2 “Vidlet” means Vidlet’s integrated content delivery and monetization solution.
2.3 “Content” means any and all audio and video materials including, without limitation, text, images, logos, artwork, graphics, pictures, advertisements, sound and any intellectual property contained in any such materials uploaded or otherwise provided by, or viewed by, Company and/or Company’s agents and/or Company’s users in connection with the Services.
2.4 “Contract” means a “Vidlet Service Agreement,” “Services Agreement and Order Form,” supplemental order form, and/or similar document(s) provided by Vidlet and/or its technology partners which Company has signed and/or an online agreement to which Company has agreed by way of clicking to accept and/or a statement of work and/or other written agreement between Company and Vidlet or its technology partners or other authorized agents.
2.5 “Vidlet Fees” means all fees relating to any or all of the Services including, without limitation, all fees set forth in a Contract.
2.6 “Player” means Vidlet’s cross-platform video player powered by Vidlet.
2.7 “Services” means any and all of the following products and/or services that are provided and/or made available to Company by or through Vidlet and/or its authorized technology partners, licensors and/or suppliers: (i) Vidlet and the Player, and (ii) any other products or services provided to Company by or through Vidlet and/or its authorized technology partners, licensors, and/or suppliers pursuant to a Contract such as (but not limited to) technical support, engineering work, and/or any other professional services.
2.8 “Term” and “Initial Term” have the meanings set forth in Section 6 of these Terms of Service.
2.9 “Company” and “Company’s” means the individual, corporation or other entity which (i) has entered into a Contract, (ii) has received a demonstration account through Vidlet or one of its technology partners, and/or (iii) otherwise uses the Services. Nothing herein permits Company to use the Services without first obtaining the necessary rights and consents described herein and in any Contract.
3. Grant of Licenses; Scope of License; Restrictions.
These Terms of Service govern all use of the Vidlet website Vidlet.com (“Vidlet Website”), Vidlet’s (including its licensors’, suppliers’ and partners’) technology, all Contracts, and all Services which are provisioned, provided, and/or performed by Vidlet and/or its licensors, suppliers, partners and/or resellers, including but not limited to that in connection with Vidlet, the related Player, and/or other technologies provided by or through Vidlet and/or its licensors, suppliers, partners and/or resellers. By having access to, receiving, and/or using the Services, Company agrees, without limitation or qualification, to be bound by and to comply with these Terms of Service and any other posted guidelines or rules required by Vidlet that are applicable to any other website where the Services are found.
3.1 Grant of Licenses.
(a) Right to Use the Services. Provided Company complies at all times with all terms and conditions of Company’s Contract(s), these Terms of Service, and the AUP, Vidlet grants to Company, during the Term specified in the Contract(s) or the limited time period specified for the Demo Account issued to Company, a non-exclusive, non-transferable, revocable, limited license, without right of sublicense, to use the Services.
(b) Content. Company hereby grants Vidlet a worldwide, royalty-free, non-exclusive, transferable, license to perform such acts with respect to the Content solely as are reasonable or necessary to provide the Services including, without limitation, the right to: (i) deliver Content in accordance with the preferences Company sets using Company’s Account and any authorized subaccounts; (ii) secure, encode, reproduce, host, cache, route, reformat, analyze and create algorithms and reports based on access to and use of the Content; (iii) use, exhibit, broadcast, publish, publicly display, publicly perform, distribute, promote, copy, store, and/or reproduce (in any form) the Content on or through the Services; and (iv) utilize Content to test Vidlet’s internal technologies and processes.
3.2 Scope of Use.
(a) Responsibility for Content. Company is solely responsible for all matters arising out of or in connection with the Content including, without limitation, ensuring that the Content does not include Prohibited Content (as defined in the AUP) and does not violate any third party rights, as further described therein and elsewhere in these Terms of Service.
(b) Content. Vidlet and the Services are passive conduits of the Content and Vidlet has no obligation to undertake to edit, review, monitor or oversee Content submitted, uploaded, distributed, retrieved, or viewed in connection with use of the Services, and assumes no responsibility or liability relating thereto. Company acknowledges and agrees that by using the Services, Company may be exposed to Content that is offensive, indecent or objectionable. Company further acknowledges and agrees that the Services and the Content provided by third parties may contain errors or omissions. Company acknowledges and agrees that Vidlet does not screen or review published Content on the Services to determine whether it contains false or defamatory material, or material which is offensive, indecent, objectionable, or which contains errors or omissions. Under no circumstances will Vidlet be liable in any way for any user or other third party Content, including, but not limited to, for any defamation, infringement, falsehoods, errors or omissions in any such Content, or for any loss or damage of any kind incurred as a result of the use or publication of any such Content posted, delivered, emailed or otherwise transmitted via the Services. Vidlet does not guarantee that any Content will be to Company’s satisfaction. Company acknowledges Vidlet is not responsible for preventing or identifying infringement of intellectual property rights or other violations associated with the Content, and Vidlet assumes no responsibility for screening or monitoring for possible (i) infringement or enforcing Company’s rights or third party rights with respect to Content, (ii) unlawful, inappropriate or unpermitted use, (iii) libel, falsehoods, errors or omissions contained in Content, or (iv) noncompliance with FCC or other governmental laws and/or regulations.
(c) Third Party Materials/Products/Services. Any third party products, Content, services or links displayed on or through the Services are not referrals or endorsements of any product, service or provider; any and all such offerings are displayed solely for convenience only. The Services may in some cases be permitted for use with third party components or services that may be subject to their own, separate license agreements or special pass-through terms, and Company assumes all risks and liabilities associated with the use of any such third party offerings. For clarity, nothing in this Section 3.2(c) diminishes Vidlet’s obligations to Company under these Terms of Service with respect to Vidlet’s (or its licensors’ or suppliers’) technology within the Services (the “Vidlet IP”), but instead relates to any access and/or use of third party products and/or services that Company elects to utilize in connection with the Vidlet IP (regardless of whether Vidlet provides integration services at Company’s request in connection with third party products and/or services). If Company utilizes YouTube in connection with the Services, YouTube wants Company to know that it is not charging Company to view its content, and as such the Vidlet Fees never include charges for the YouTube content itself.
(e) Content Preservation and Disclosure. Company expressly acknowledges and agrees that Vidlet may preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce a Contract or these Terms of Service; (iii) respond to claims that any Content violates the rights of third-parties; or (iv) protect the rights, property, or personal safety of Vidlet, its licensors, suppliers, partners, resellers, or users and/or the public. Company acknowledges and agrees that the technical processing and transmission of the Services, including the Content, may involve (i) transmissions over various networks; and/or (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
(f) Trial Accounts. At Vidlet’s discretion, Company may receive a Trial Account that may include limited access to test certain features and functionality of the Services free of charge. Vidlet is permitted to suspend or terminate the Trial Account at any time with or without notice. At the end of any demonstration period as determined by Vidlet, Company is responsible for paying applicable fees for use of the Services pursuant to the payment terms and prices designated in a separate agreement between Company and Vidlet.
All fees under the Term due under this Agreement, are payable as of the Effective Date and, unless otherwise provided for in writing, are billed as follows: the License Fee is billed [monthly or quarterly or annually] as of the Effective Date; any One-time Fees are due as of the Effective Date; additional Bandwidth and/or Storage fees (if any) are billed monthly in arrears, as they accrue; and additional User or Site or Contact fees are billed in full at the time such additional User or Site is requested and thereafter on the first day of each Renewal Term. Unused Bandwidth, Storage, Users and Sites do not carry over from Initial Term to Renewal Term or Renewal Term to Renewal Term. All fees and entitlements apply across all sites and devices for Content delivered by Vidlet. Except as may otherwise be provided in the Agreement, all fees set forth in this Order are non-refundable. Company is solely responsible for all applicable sales, use, import or export taxes, duties, fees, value-added taxes, surcharges, tariffs or other amounts attributable to the exploitation of the Content under the Contract(s). Vidlet Fees not paid when due shall be subject to a late fee equal to the lesser of one and one half percent (1.5%) of the unpaid balance per month or the highest monthly rate permitted by applicable law. Vidlet may, with or without notice, suspend or terminate access to the Services if Company is more than thirty (30) days delinquent in paying any portion of the Vidlet Fees. In the event that a Contract is terminated prior to the end of the Term for any reason other than an uncured material breach by Vidlet, all committed fees for the Term shall be immediately due in full.
5. Term and Termination.
The term of all Contracts shall be the initial committed term (the “Initial Term”) and all renewals (collectively referred to herein as the “Term”). Upon the termination of a Contract any reason, Company shall immediately discontinue all use of the Services and Vidlet is not obligated to provide Company with any Services. Company may suspend or terminate a Contract if Vidlet materially breaches a term or condition of the Contract and such breach has not been cured within thirty (30) days of written notice by providing Vidlet with written notice of such suspension or termination, provided however that all Vidlet Fees that were incurred prior to the date of termination shall be immediately due and payable upon termination. Vidlet may in its sole discretion terminate or suspend the Contract and/or Company’s access to the Services: (a) should Company fail to comply with a term or condition of the Contract, these Terms of Service and/or the AUP; (b) based on any conduct that Vidlet believes is or may be directly or indirectly harmful to other users, to Vidlet or its suppliers (including their respective systems and/or the Services); (c) based on any conduct that Vidlet reasonably believes may be a violation of law, third party rights, and/or Vidlet’s Prohibited Activities or restrictions on Prohibited Content (each as described in the AUP), or repeated breaches thereof; and/or (d) in the event of any legal restriction imposed on Company, Vidlet, and/or its suppliers with respect to provision of the Services. Vidlet’s right to suspend or terminate Services as set forth in this Section shall not absolve Company of any payment or indemnification obligations described herein or diminish any other remedy available to Vidlet or its partners/suppliers/resellers. All terms and conditions set forth herein that should by their nature survive termination (including without limitation all provisions relating to payment, intellectual property, ownership, and indemnification) in order to be given full effect shall continue in full force and effect after any expiration or termination of the Contract(s).
The Contract shall automatically renew into successive 12-month periods (the Renewal Term) on the first day following the end of the Initial Term unless either party has provided notice to the other of non-renewal at least 30 days in advance of the end of the Initial Term or, if applicable, the then-current Renewal Term. Notwithstanding the prior sentence, all Orders for free Accounts, unless earlier terminated by either Company or Vidlet, shall remain in effect for the period of time indicated during the Account registration process.
6. Title and Ownership.
Vidlet and its suppliers and licensors own all right, title and interest in and to the Services including associated intellectual property rights under copyright, trade secret, patent, trademark and/or other applicable domestic and international laws. As between Company and Vidlet, any and all trademarks that Vidlet uses in connection with the Services are owned by Vidlet and Vidlet and any goodwill associated with the use of such marks shall inure to the benefit of Vidlet and Vidlet. In no event shall the Services be deemed sold or assigned to Company. Any and all rights not expressly granted by Vidlet are reserved to Vidlet and its suppliers and licensors. Vidlet is not required to accept unsolicited feedback. If Company provide any feedback about the Services to Vidlet, Vidlet and Vidlet shall own all rights in and to such feedback and any derivative technologies and compilations based on or developed through or by using such feedback. Company shall take all necessary actions to affect Vidlet’s rights in and to such feedback.
Company represents and warrants that Company is solely responsible and liable for: (i) obtaining all necessary consents, permissions, licenses and waivers from copyright owners, artist(s), actors, directors, performers, writers, producers, or any other individuals who appear in the Content or the results and proceeds of whose services are utilized in the Content; (ii) obtaining any required synchronization and master use licenses from the owners of the musical compositions and sound recordings embodied in the Content (or their designated representatives); (iii) any payments to any labor unions and guilds, to the extent required under applicable collective bargaining agreements or otherwise (e.g., residuals, re-use, rerun and other similar fees); (iv) obtaining public performance licenses from public performance rights collection organizations (e.g., ASCAP, BMI or SESAC); (v) complying with all laws, rules and applicable regulations; (vi) any Prohibited Content; and (vii) abiding by all the terms of these Terms of Service.
8. Disclaimer of Warranties.
VIDLET MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE OF THE SUITABILITY FOR COMPANY’S PURPOSES OF THE SERVICES OR CONTENT COMPANY MAY RETRIEVE BY OR THROUGH THE SERVICES, THAT THE USE OF THE SERVICES SHALL BE SECURE, UNINTERRUPTED OR ERROR-FREE, OR THAT THE SERVICES SHALL FUNCTION PROPERLY IN COMBINATION WITH ANY THIRD PARTY TECHNOLOGY, HARDWARE, SOFTWARE, SYSTEMS OR DATA. THE SERVICES AND ANY CONTENT RETRIEVED BY OR THROUGH THE SERVICES ARE PROVIDED “AS IS” AND ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE SERVICES MAY BE SUBJECT TO INTERRUPTION, LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF INTERNET APPLICATIONS AND ELECTRONIC COMMUNICATIONS AND VIDLET IS NOT RESPONSIBLE FOR ANY SUCH DELAYS, MISDELIVERY, UNTIMELY DELIVERY, DELIVERY FAILURES, OR ANY OTHER DAMAGE RESULTING FROM EVENTS BEYOND VIDLET’S REASONABLE CONTROL. COMPANY UNDERSTANDS AND AGREES THAT ANY CONTENT OR OTHER MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT COMPANY’S OWN DISCRETION AND RISK AND THAT COMPANY WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO COMPANY’S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS IN THE DOWNLOAD OF SUCH CONTENT OR OTHER MATERIAL. Some jurisdictions do not allow the disclaimer of implied warranties. In such jurisdictions, the foregoing disclaimers may not apply to Company insofar as they relate to implied warranties.
Company shall defend, indemnify and hold harmless Vidlet and its suppliers, licensors, partners, and resellers and their respective officers, employees, licensors, agents, and affiliates, and all successors in interest to the foregoing, from and against any and all third party claims, damages, costs and expenses (including reasonable attorneys’ fees and litigation expenses) relating to, arising out of, or in connection with the Content and/or Company’s use (which includes use by Company’s employees, agents, customers, and users) of the Services, including but not limited to claims relating to, arising out of, or in connection with Prohibited Activities or Prohibited Content or Company’s breach of any of these Terms of Service, the AUP, and/or Company’s Contract(s), including but not limited to any of the representations or warranties set forth in any of the foregoing.
10. Limitation of Liability.
COMPANY EXPRESSLY UNDERSTAND AND AGREE THAT UNDER NO CIRCUMSTANCES SHALL VIDLET OR ITS SUPPLIERS, RESELLERS, PARTNERS, OR LICENSORS OR ANY OF THEIR SUCCESSORS IN INTEREST (COLLECTIVELY HEREIN, “VIDLET”) BE LIABLE TO COMPANY OR ANY USER BASED ON COMPANY’S OR THAT USER’S USE OR MISUSE OF AND/OR RELIANCE ON THE SERVICES OR THE CONTENT COMPANY RETRIEVES BY OR THROUGH THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL VIDLET BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THESE TERMS OF SERVICE OR THE USE OF OR INABILITY TO USE THE SERVICES OR RETRIEVE THE CONTENT BY OR THROUGH THE SERVICES, EVEN IF VIDLET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY’S EXCLUSIVE REMEDY AND VIDLET’S TOTAL AGGREGATE LIABILITY RELATING TO, ARISING OUT OF, IN CONNECTION WITH, OR INCIDENTAL TO THE SERVICES, THE CONTRACT(S) AND/OR THESE TERMS OF SERVICE FOR ANY REASON SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES INCURRED BY COMPANY UP TO THE GREATER OF THE VIDLET FEES FOR USE OF THE SERVICES THAT COMPANY PAID DIRECTLY TO VIDLET IN THE TWELVE MONTH PERIOD PRECEDING THE CLAIM OR ONE THOUSAND U.S. DOLLARS ($1,000.00). BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE DISCLAIMER MAY NOT APPLY TO COMPANY. SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED IN THE SERVICES, AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED ON THE SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED IN OR THROUGH THE SERVICES. SUCH LIMITATION SHALL APPLY, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, OR LOST DATA. In some jurisdictions, limitations of liability are not permitted. In such jurisdictions, the foregoing limitation may not apply to Company.
11. Compliance With Laws; Government Restricted Rights.
The Services are of U.S. origin. Company shall adhere to all applicable state, federal, local and international laws and treaties in all jurisdictions in which Company uses the Services, including, without limitation, all end-user, end-use and destination restrictions issued by U.S. and other governments and the U.S. Export Administration Act and its associated regulations. If the Services are licensed for use by the United States or in the performance of a U.S. government prime contract or subcontract, Company agrees that the Services are delivered as: (a) “commercial computer software” as defined in DFARS 252.227-7013, Rights in Technical Data” ”Noncommercial Items (Oct 1988), DFARS 252.227-7014 Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation (Jun 1995), and DFARS 252.211-7015 Technical Data Commercial Items (May 1991); (b) as a “commercial item” as defined in FAR 2.101; or (c) as “restricted computer software” as defined in FAR 52.227-19, Commercial Computer Software””Restricted Rights (Jun 1987); whichever is applicable. The use, duplication, and disclosure of the Services by the Department of Defense shall be subject to the accompanying license agreement provided in DFARS 227.7202 (Oct 1998). All other use, duplication or disclosure of the Services by the U.S. government will be subject to the accompanying license agreement and restrictions set forth in FAR 52.227-19, Commercial Computer Software Restricted Rights (Jun 1987), or FAR 52.227-14, Rights in Data General Alternative III (Jun 1987). Contractor/licensor is Vidlet, Inc., 55 New Montgomery St. Suite 608, San Francisco, California 94105.
12. Publicity and Marketing.
Vidlet shall be permitted to line-list Company as a customer and use Company’s standard logo for Vidlet’s promotional and marketing use during the Term.
13. Governing Law; Dispute Resolution.
Company understands and agrees that the Contract(s) and these Terms of Service shall be governed by the laws of the State of California as such laws apply to contracts between California residents performed entirely within California, without regard to conflict of law provisions. Any action or proceeding arising from or relating to these Terms of Service may only be brought in the State and Federal courts located in Santa Clara, California and each party irrevocably submits to such exclusive jurisdiction and venue.
In the event of any conflict between or among any Contract(s) executed by both Company and Vidlet and these Terms of Service, the Contract shall control to the extent of such conflict and all other terms and conditions of each shall continue to remain in full force and effect.
15. General Provisions.
16. Service Level Agreement
16.1 During the Initial Term and any subsequent term requested by Company, Vidlet will provide the Services and provide updates at no additional cost to Company in accordance with this Service Level Agreement. Vidlet will provide and maintain all hardware and network resources necessary for the operation of the Hosted Service.
16.2 Support – Vidlet’s support hours are 9:00 am to 6:00 pm Pacific Time Zone, Monday through Friday, (excluding holidays). Vidlet’s support personnel are properly trained in the use of the Service. Vidlet’s support email address is firstname.lastname@example.org.
16.3 Service Level Commitment for Enterprise Plan Customers – Vidlet Services will be available to Company twenty-four (24) hours per day, seven (7) days per week with a 99.9% uptime guarantee, if and only if Company is eligible as a paying subscriber to the Vidlet Enterprise Service Plan. Other Service Plans do not have an uptime guarantee. For avoidance of doubt, all provisions of Section 16 of this Agreement apply only toward customers on Enterprise Service Plans. Your Sales Executive can assist you to determine which Service Plan you may have. For eligible Companies, average login time is five (5) seconds or less. Pages load within three (3) seconds or less. Scheduled maintenance for updates will not apply to the uptime commitment referenced above. Vidlet shall notify the Company, in writing, which can be sent via electronic mail, of the scheduled maintenance at least forty-eight (48) hours in advance. Company will coordinate all scheduled routine maintenance during weekends in accordance with the Pacific Time Zone, such scheduled maintenance will take no longer than three (3) hours unless otherwise approved in writing by Company. Vidlet will provide maintenance to all computer systems located at the Vidlet hosting facility including reasonable database maintenance.