PLEASE READ THESE SOFTWARE AS A SERVICE TERMS AND CONDITIONS (“Agreement”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY FLIPNODE LLC (“SUPPLIER”, AS DEFINED BELOW). BY CHECKING THE “I ACCEPT” BOX, YOU AGREE TO BECOME BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT ON BEHALF OF YOURSELF OR THE ORGANIZATION, COMPANY, OR ENTITY FOR WHICH YOU ACT (“Customer” or “You”) AND REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY OR YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT, YOU MUST CLICK ON THE “CANCEL” BUTTON, AND YOU WILL NOT HAVE ANY RIGHT TO USE THE SERVICES OFFERED BY SUPPLIER. SUPPLIER’S ACCEPTANCE IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS; IF THIS AGREEMENT IS CONSIDERED AN OFFER BY SUPPLIER, ACCEPTANCE IS EXPRESSLY LIMITED TO THIS AGREEMENT.
Agreement Definitions
Affiliate: any entity that, directly or indirectly, controls, is under common control with, or is controlled by a party. For this purpose, “control” means the power to direct or cause the direction of the management or policies of such entity, whether through beneficial ownership of voting securities, by contract or otherwise.
Effective Date: means the first date that Customer accesses the Services.
Flipnode: the Flipnode entity, which is a party to this Agreement, being Flipnode LLC, a US based company, having its registered office at 1209 Orange Street, City of Wilmington, 19 801 USA.
Services: Supplier’s hosted, internet accessible, digital signage management solution service, under the name YODECK, made available to Customer on a subscription term basis under this agreement at https://app.www.yodeck.com or any other website address as may be notified to Customer (“Portal”).
Subscription Term:
If Paid Subscription Plan: Means period identified on each Order, for which Supplier has committed to provide, and Customer has committed to pay for online access and use of Supplier’s Services
If Standard Free Plan: Unless otherwise terminated in accordance with the provisions hereof, the Term of the Free plan shall continue indefinitely. If Customer does not log into Account for more than 365 days, account will be permanently deleted. Supplier will provide bimonthly (every 60 days of inactivity) reminder notifications, following first six (6) months of inactivity, before deleting your account giving you the opportunity to retain your Standard Free Plan active or upgrade your account with a paid subscription. Upon account deletion all of your content will become inaccessible and all its content will be permanently deleted without being able to recover.
Authorized User: Any Customer employee, contractor, agent or any other individual authorized by Customer to access and use the Services, via Customer’s purchased subscriptions, for the purpose specified herein. Customer is responsible for Authorized Users compliance with this Agreement.
Software: The object code version of YODECK software and/or any software to which Customer is provided access as part of the Services, including any updates or new versions.
Documentation: The user guides, online help, training materials and any other documentation made available to Customer regarding use of Services
Registered Player: The computer (e.g., Raspberry Pi), or other similar hardware devices operating on Supplier’s software, which Customer has registered according to elected subscription plan (one subscription per Registered Player). Unless Screen (as defined below) is embedded, eachRegistered Player is intended to be connected to a single Customer display, screen and/or monitor (“Screen”), supported by Services, and giving opportunity to Customer to view and project Content (as defined on art. 7.1. below).
Customer is responsible for selection, use and compatibility of Registered Players not provided by Supplier. Customer is responsible to verify with supplier the suitability of the players intended to be used.
Only for Registered Players supplied by Supplier: after one (1) full year of consecutive subscription payments, the Registered Player(s) will be owned by Customer and not subject to return upon termination of the contract. Latter Registered Player(s) supplied by Flipnode are non-transferrable and non-assignable to any other Customer and/or connected to any other Customer(s) Screen(s).
Intellectual Property: means:
(a) any trademarks, trade names, business names, brand names, domain names, service marks, copyrights, including any performing, author or moral rights, designs, inventions, patents, franchises, formulas, processes, know-how, technology and related goodwill;
(b) any applications, registrations, issued patents, continuations in part, divisional applications or analogous rights or license rights therefor; Trade Secret Information; and all other intellectual or industrial property, any trademarks, trade name, business names, brand names, domain names, service marks, copyrights, including any performing, author or moral rights, designs, inventions, patents, franchises, formulas, processes, know-how, technology and related goodwill; any applications, registrations, issued patents, continuations in part, divisional applications or analogous rights or license rights therefor;
(c) Trade Secret Information; and
(d) all other intellectual or industrial property.
Intellectual Property Rights: means the ownership of or license or other right to use any Intellectual Property.
“Order” means an ordering document entered into by and between Supplier and Customer.
Article 1- Grant
Subject to Customer’s compliance with the terms and conditions set forth herein, Supplier hereby grants Customer a non-exclusive, non-assignable, limited right to access and use the Services, solely for Customer’s internal business operations, and up to the maximum number of Registered Players documented herein, during the whole Subscription Term. If You purchase a Subscription, Supplier will use commercially reasonable efforts to provide access to the Services in accordance with the Service Level Agreement available at https://www.yodeck.com/yodeck-service-level-agreement.
Article 2- Registered Players Subscriptions
The maximum number of Registered Players registered by Customer on the Services, via its Authorized Users, shall not exceed the number of Registered Player subscriptions Customer has purchased.
Each subscription corresponds to a unique Registered Player which, once subscribed, will enable Authorized Users to use Services by a password protected access to the Portal. Each Authorized User is responsible for maintaining the security of its account and password. Single login shared by multiple Authorized Users is not permitted. Customer shall permit, upon Supplier’s written request, the latter to audit the Services for any underpaid subscriptions. Any person performing such audit shall protect the Customer’s confidential information and abide by the Customer’s reasonable security procedures. Customer may register unlimited Authorized Users at no additional cost.
Customer shall use all reasonable endeavors to prevent any unauthorized access to, or use of, the Services and/or the Documentation.
Article 3 – Restrictions
Customer shall not willingly:
(a) modify, alter, adapt, copy, translate, perform and display or create derivative works based on Software or Services or proceed to any action that may be properly characterized as copyright infringement by the applicable law.
(b) decompile, reverse engineer, disassemble or otherwise attempt to obtain the source code for Software.
(c) merge or bundle Software with other software
(d) except as permitted under article 1 and 2, sell, license, lease, publish, display (publicly or otherwise), distribute or otherwise transfer or by any means make available –either directly or via another reseller- to a third party the Services.
(e) Duplicate, copy or reuse any portion of the HTML/CSS, Javascript, or visual design elements or concepts (including the look and feel of the Services).
(f) Knowingly access, store, distribute or transmit any viruses or any material during the course of its use of the Services that is unlawful, harmful, defamatory, infringing, facilitates illegal activity, depicts sexually explicit images and/or causes damage or injury to any person or property.
(g) Use the Service for any commercial purpose other than that described in this Agreement.
Without prejudice to any other Supplier’s rights and remedies, Supplier reserves the right, without liability to the Customer, to disable Customer’s access to any material that breaches the restriction provisions of this clause.
Article 3A- Export Controls
Customer acknowledges that the Services may be subject to U.S. and international export control laws and regulations. Customer agrees to comply with all applicable export and reexport control laws and regulations, including the Export Administration Regulations maintained by the U.S. Department of Commerce and trade and economic sanctions maintained by the U.S. Department of the Treasury’s Office of Foreign Assets Control. Customer agrees not to—directly or indirectly—sell, export, reexport, transfer, or divert the service provided by Supplier to any destination, entity, or person or for any end use prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. Additionally, you warrant that you are not (1) resident in or located in Cuba, Iran, North Korea, or Syria, or sanctioned regions of Ukraine including Crimea or DNR and LNR; and (2) a denied, restricted or prohibited party as specified in the regulations listed above; or (3) owned or controlled by anyone listed in 1 or 2. This export control clause shall survive termination or cancellation of this Agreement.
Article 4- Customer’s obligations
Customer undertakes to:
Customer may include a separate end user license agreement (“EULA”) that will govern the relationship between Customer and Authorized Users and such Authorized Users’ access to the Services, including Customer Content. The applicable EULA is solely between Customer and the Authorized User. Supplier shall not be responsible, nor have any liability whatsoever, under any EULA. The EULA must include legally enforceable provisions that obtain all necessary licenses, rights, consents, and permissions from each Authorized User, and comply with the terms, restrictions and conditions in this Agreement and all applicable laws, rules and regulations
Article 5 – Payment for Services (Applies only to Customers on paid subscription plan)
Price
Supplier reserves the right to determine pricing for the Services. Supplier will make reasonable efforts to keep pricing information published on the website up to date, available at https://www.yodeck.com/pricing . We encourage you to check our website periodically for current pricing information. Supplier may change the fees for any feature of the Services, including additional fees or charges, if Supplier gives you advance notice of changes before they apply. Supplier, at its sole discretion, may make promotional offers with different features and different pricing to any of Supplier’ customers. These promotional offers, unless made to you, will not apply to your offer or this Agreement.
Customer shall pay subscription fees to the Supplier for the Registered Players subscriptions and order Services in accordance with this clause and applicable Order.
Customer shall pay all Supplier’s undisputed invoices within 30 days after Customer receives invoice. Payment of the amounts due to Supplier shall be made in accordance with the payment schedule set forth on applicable Order by wire transfer or other immediately available funds. The Customer shall provide to Supplier valid and complete contact and billing details on the Order. Unless expressly provided otherwise, fees are non-refundable. Any physical goods will be shipped out to Customer upon confirmed receipt of the payment.
The fees set forth in the applicable Order are exclusive of all federal, state, municipal, or other government excise, sales, use, value added or other taxes now in force or enacted in the future, and Customer shall pay any such tax (excluding taxes on Supplier’s net income) that Supplier may be required to collect or pay now or at any time in the future with respect to such fees.
You also authorize Supplier or a third-party payment processor to charge all sums for the orders you enter into, orders that you make and any level of Services you select as described in this Agreement or published by Supplier, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, Supplier or a third-party payment processor may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
Subscription Services and Recurring payments
The Services may include automatically recurring payments for periodic charges (“Subscription”). The price and restrictions of any Subscription will be set forth in applicable Order. If Customer activates a Subscription, you authorize Supplier to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums. The “Subscription Billing Date” is the date when you purchase your first Subscription. For information on the “Subscription Fee,” please see our https://www.yodeck.com/pricing page. Your account will be charged automatically on the Subscription Billing Date all applicable fees and taxes for the next Subscription period. The Subscription will continue unless and until you cancel your Subscription or we terminate it. You must cancel your Subscription before it renews in order to avoid billing of the next periodic Subscription Fee to your account. We will bill the periodic Subscription Fee to the payment method you provide to us during registration (or to a different payment method if you change your payment information). You may cancel the Subscription via your Portal or by contacting us at support@yodeck.com. If You terminate the Subscription for convenience within the first thirty (30) days of an annual Subscription, you will be eligible to receive a refund of any pre-paid amounts subject to (A) You returning all Supplier supplied Registered Players -no later than thirty (30) days following Subscription termination, (B) returned Registered Players to Supplier delivered in their original packaging, case with contents and accessories included in no tear and wear condition, and (C) You undertaking any and all associated shipping and delivery Registered Players return costs. Supplier will process a refund of any prepaid amounts to the original payment method used for the Subscription, within thirty (30) days of returned Registered Players prompt and duly delivery to Supplier. Such refund is not available with respect to any renewal Subscription period. If you elect not to renew a Subscription, your account will be downgraded to the Free Plan of the Services, and you acknowledge and accept that this may result to Customer Content becoming inaccessible or permanently deleted.
Article 6 – Ownership of intellectual property
Supplier (including any of its Assignors) retains all Intellectual Property Rights in and to the Software, the Portal, the Services, and their respective components, including the source code, Documentation, appearance, structure, organization, preparatory design material and all other elements of the Services (“Materials”). All Materials in the Services (including proprietary pre-formatted Layouts signage templates) are the property of Supplier or its third-party licensors. Other than the right to use the Services for the term provided in this Agreement, nothing in this Agreement grants Customer any right in the Services. Supplier reserves all rights to the Materials not granted expressly in this Agreement. Customer may not transfer for value or use the Services (including Materials) for any commercial -or otherwise- purpose other than that described in this Agreement.
To the extent Customer provides Supplier with any feedback relating to the Services (including feedback related to usability, performance, interactivity, bug reports and test results) (“Feedback”), Supplier will own all right, title and interest in and to such Feedback (and Customer hereby makes all assignments necessary to achieve such ownership).
Customer shall report promptly to Supplier any third-party claim relating to the intellectual property rights in the Services or the Software or any associated documentation, or in Supplier’s trademarks that comes to the Customer’s attention.
Article 7 –Personal Data
7.1 Customer hereby acknowledges and agrees that Flipnode’s performance of this Agreement requires Flipnode to process, transmit and store personal data under the documented instructions of the Customer and as further specified in the Data Processing Addendum (“DPA”) (available at www.yodeck.com/dpa ), as hereby incorporated by this reference.
7.2 Customer hereby also acknowledges and agrees that Flipnode may process contractual data, as strictly necessary for the purposes of billing and payments and, in aggregated form, service usage data for the purposes of analysis and benchmarking, as further specified in Flipnode’s Privacy Policy, available at https://www.yodeck.com/privacy-policy/, which is incorporated herein by this reference and forms an integral part hereof. Flipnode shall comply with applicable Data Protection Laws and Regulations, as this term is defined in the DPA, and shall undertake data protection obligations no less protective that the obligations set forth by the DPF Principles and Module 1 of the Standard Contractual Clauses (SCCs), as applicable, as the latter are defined in the DPA. Customer hereby acknowledges and agrees that Flipnode shall process the name and email address of the Customer to communicate with the Customer for the presentation and promotion of the Services or of new services. Customer may at any time, free of charge, unsubscribe from such electronic communication, easily by clicking the button “unsubscribe” contained in the electronic communication.
Article 7A- Customer Content
7A.1. Customer Content Generally. Certain features of the Services permit users to upload content to the Services, including messages, reviews, photos, video, images, folders, data, text, and other types of works (“Customer Content”) and to publish Customer Content. You retain any copyright and other proprietary rights that you may hold in the Customer Content that you post to the Services.
7A.2. Limited License Grant to Supplier. Limited License Grant to Supplier. By providing Customer Content to or via the Services, you grant Supplier a worldwide, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your Customer Content, in whole or in part, for providing the Services as described in this Agreement.
7A.3. Customer Content Representations and Warranties. Supplier disclaims any and all liability in connection with Customer Content. You are solely responsible for your Customer Content and the consequences of providing Customer Content via the Services. By providing Customer Content via the Services, you affirm, represent, and warrant to us that:
(a) you are the creator and owner of the Customer Content, or have the necessary licenses, rights, consents, and permissions to authorize Supplier and users of the Services to use and distribute your Customer Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Supplier, the Services, and this Agreement;
(b) your Customer Content, and the use of your Customer Content as contemplated by this Agreement, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including intellectual property rights; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Supplier to violate any law or regulation; and
(c) your Customer Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
7A.4. Customer Content Disclaimer. We are under no obligation to edit or control Customer Content that you or other users post or publish, and will not be in any way responsible or liable for Customer Content. Supplier may, however, at any time and without prior notice, screen, remove, edit, or block any Customer Content that in Supplier’s sole judgment violates this Agreement or is otherwise objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Supplier with respect to Customer Content. If notified by a user or content owner that Customer Content allegedly does not conform to this Agreement, we may investigate the allegation and determine in our sole discretion whether to remove the Customer Content, which we reserve the right to do at any time and without notice. For clarity, Supplier does not permit copyright-infringing activities on the Services.
7A.5 Monitoring Content. Supplier does not control and does not have any obligation to monitor: (a) Customer Content; (b) any content made available by third parties; or (c) the use of the Services by its users. You acknowledge and agree that Supplier reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Services for operational and other purposes.
7B. Copyright and Intellectual Property Protection
7B.1 DMCA Notification. Supplier complies with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. § 512, as amended). If Customer has an intellectual property rights-related complaint about material posted on the Services, Customer may contact our Designated Agent at the following address:
Flipnode LLC
Attn: Legal Department (Copyright Notification) 505 Montgomery Str, 11th Floor
Email: copyright@yodeck.com
7B.2 Content of Notification. Any notice alleging that materials hosted by or distributed through the Services infringe intellectual property rights must include the following information:
(a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
(b) a description of the copyrighted work or other intellectual property that Customer claims has been infringed;
(c) a description of the material that Customer claims is infringing and where it is located on the Services;
(d) Customer’s address, telephone number, and email address;
(e) a statement by Customer that it has a good faith belief that the use of the materials on the Services of which Customer is complaining is not authorized by the copyright or intellectual property owner, its agent, or the law; and
(f) a statement by Customer that the above information in its notice is accurate and that, under penalty of perjury, Customer is the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
7B.3 Repeat Infringers. Supplier will promptly terminate the accounts of users that are determined by Supplier to be repeat infringers.
7C. -Third Party Terms
7C.1 Third-Party Services and Linked Websites. Supplier may provide tools through the Services that enable you to export information, including Customer Content, to third-party services, including through features that allow you to link your account on Supplier with an account on the third-party service (e.g., Twitter or Facebook), or through our implementation of third-party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that Supplier may transfer that information to the applicable third-party service. Third-party services are not under Supplier’ control, and, to the fullest extent permitted by law, Supplier is not responsible for any third-party service’s use of your exported information. The Services may also contain links to third-party websites. Linked websites are not under Supplier’ control, and Supplier is not responsible for their content.
7C.2 Third-Party Software. The Services may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Services are provided to you subject to this Agreement, nothing in this Agreement prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.
Article 8 – Confidential information
During the Term, in connection with this Agreement, each party (a “Disclosing Party”) may disclose to the other party (a “Receiving Party”) confidential or proprietary materials and information of the first party (“Confidential Information”). All materials and information disclosed by Disclosing Party to Receiving Party under this Agreement and identified at the time of disclosure as “Confidential” or bearing a similar legend, and all such other information that the Receiving Party reasonably should have known was the confidential information of the Disclosing Party, will be considered “Confidential Information”; for the avoidance of doubt, the Services, all pricing information and terms of this Agreement, are Confidential Information of Supplier. Receiving Party will maintain the confidentiality of the Confidential Information and will not disclose such information to any third-party without the prior written consent of Disclosing Party. Receiving Party will only use the Confidential Information internally for the purposes contemplated under this Agreement. The obligations in this section will not apply to any information that: (a) is made generally available to the public without breach of this Agreement, (b) is developed by the Receiving Party independently from the Disclosing Party’s Confidential Information, (c) is disclosed to Receiving Party by a third-party without restriction, or (d) was in the Receiving Party’s lawful possession prior to the disclosure to the Receiving Party and was not obtained by the Receiving Party either directly or indirectly from the Disclosing Party. Receiving Party may disclose Confidential Information as required by law or court order; provided that, Receiving Party provides Disclosing Party with prompt written notice thereof and uses its best efforts to limit disclosure. At any time, upon Disclosing Party’s request, Receiving Party will return to Disclosing Party all Disclosing Party’s Confidential Information in its possession, including all copies and extracts thereof. Notwithstanding the foregoing, (i) Receiving Party may disclose Confidential Information to any third-party to the limited extent necessary to exercise its rights, or perform its obligations, under this Agreement; provided that, all such third parties are bound in writing by obligations of confidentiality and non-use at least as protective of the Disclosing Party’s Confidential Information as the terms of this Agreement and (ii) all Feedback be solely, as between the parties, Confidential Information of Supplier.
Article 9 – Limited Warranty and Disclaimer
9.1. Each party warrants that: (a) it is a validly existing and duly incorporated company in accordance with respective local laws; (b) it has full power, legal right and authority to enter into this Agreement, and to do all acts and things and execute and deliver all other documents as are required hereunder to be done, observed or performed by it in accordance with its the terms of this Agreement; (c) it has taken all necessary corporate action to authorize the creation, execution, delivery and performance of this agreement, and to observe and perform the provisions of this agreement in accordance with their terms; and (d) it has all licenses, authorisations, consents, approvals and permits required by applicable Laws in order to perform its obligations under this Agreement.
9.2. Supplier further warrants that during the term of this Agreement, when utilized in accordance with their current User Documentation and under normal use and circumstances, the Services (i) will be provided in a manner consistent with industry best practices and standards applicable to the provision thereof (ii) will operate in material conformance with their User Documentation and (iii) shall be accessible to Customer and its Authorized Users and be adequately functional during the subscription term.
9.3. Except as set forth in the preceding paragraphs of herein Article 9, Supplier makes no representations or warranties or conditions of any kind concerning the Service, the products or their use, accuracy, function and shall not be liable in any manner for any representation or warranty or condition of any kind. Specifically, Supplier and third parties disclaim all warranties, express, implied, or statutory, regarding the Services, the Software, including any warranties of merchantability, fitness for a particular purpose, title, and non-infringement. No representation or other affirmation of fact regarding the Portal and the Services shall be deemed a warranty or guarantee for any purpose or give rise to any Supplier’s liability of third parties whatsoever. Customer acknowledges that it relied on no warranties or statements other than as may be set forth herein.
Article 9a-Limited warranty regarding Registered Players
Supplier warrants that the Registered Players covered by this limited warranty will function properly when used in accordance with normal and customary use of the specific hardware products as intended by Supplier to be used, specifically when used in an ordinary and customary manner and in compliance with all instructions provided by us or the manufacturer, for a period of one year from the date of purchase stated on the Customer’s invoice, subject to all of the terms and conditions of this limited warranty.
Article 10 – Limitation of Liability
10.1. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL SUPPLIER AND ITS AFFILIATES BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO CUSTOMER’S ACCESS TO OR USE OF, OR CUSTOMER’S INABILITY TO ACCESS OR USE, THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY SUPPLIER ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE. TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE SUPPLIER ENTITIES TO CUSTOMER FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICES OR OTHERWISE UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT CUSTOMER HAS PAID TO SUPPLIER FOR ACCESS TO AND USE OF THE SERVICES IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM OR (B) $100.
10.2. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THIS AGREEMENT. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 17 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Article 11 – Indemnification
Customer will defend, indemnify, and hold Supplier harmless from and against all third-party claims, actions, proceedings, regulatory investigations, damages, losses, judgments, settlements, costs and expenses (including attorneys’ fees), arising from or in connection with: (a) Customer’s breach of any laws or regulations (including with respect to privacy); (b) Customer’s or any Authorized User’s use of the services; (c) Customer’s violation of any agreements it has with any Authorized User; and (d) Customer’s misappropriation or infringement of a third party’s intellectual property rights.
Article 12 – Term and Termination
12.1. Term of Agreement. The term of this Agreement will commence on the Effective Date and will continue in effect unless terminated in accordance with this Agreement (the “Term”). On the effective date of termination of this Agreement, all then-current Subscriptions under the Agreement will also terminate unless otherwise agreed by Supplier and Customer.
12.2. Termination for cause– Either party shall have the right at any time, by giving notice in writing, to terminate this Agreement without liability to the other on the occurrence of any of the following events:
a. if the other party commits a breach of any of the terms and conditions of this Agreement and such breach has not been rectified within 30 days after receipt of notice to rectify served on the defaulting party by the other party;
b. if the other party becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits an appointment of a receiver for its business or assets, becomes subject to any proceedings under any bankruptcy or insolvency law, whether domestic or foreign, is liquidated, voluntarily or otherwise, or suffers any similar action in consequence of debt;
c. if Customer engages in illegal activities;
12.3. Termination for Convenience– Customer may terminate this Agreement at any time for convenience by providing Supplier with 30 days prior written notice, in which case any active Subscription will be deemed terminated as well. If Customer terminates this Agreement for convenience, any pre-paid fees to Flipnode corresponding to the unused Subscription term are non-refundable.
12.4. Effect of Termination– In the event of the expiration or termination of this Agreement for any reason:
a. all license granted shall immediately terminate;
b. each party shall return and make no further use of any equipment, property or other’s party’s items.
c. Supplier may destroy or otherwise dispose of any of the Customer Data in its possession.
For Paid Subscription Plan Customers Only:
d. Customer (if on a paid subscription plan) will pay any amount due prior to Termination
e. Articles 3, 3A, 5, 6, 8, 9.3, 10, 11, 12.3, 12.7, 13, 14, 15, 16, 17, 18, 19, 20, 21 and 22 shall survive termination of this Agreement.
12.5. No Refund– Customer acknowledges that should Agreement be terminated for convenience, any pre-paid Fees to Supplier corresponding to the unused Subscription Term are non-refundable.
12.6. Effect of Non-Renewal of paid subscription plan– In the event of Subscription Term non-renewal by the Parties, Customer understands that Services will be downgraded to Standard Free Plan and use and access will be limited and governed by Supplier’s Terms of Service, as displayed at https://www.yodeck.com/terms-of-service and as maybe periodically modified at Supplier’s sole discretion.
12.7 Modification of the Services. Supplier reserves the right to modify or discontinue the Services at any time (including by limiting or discontinuing certain features of the Services), temporarily or permanently, without notice to Customer. Supplier will have no liability for any change to the Services or any suspension or termination of Customer’s access to or use of the Services.
Article 13 – Notices
Any notice, request, instruction or other document to be given under this Agreement to any party hereunder shall be in the English language, in writing, and sent by first class mail, confirmed facsimile or major commercial rapid delivery courier service to the address specified on the Customer’s account or, to Supplier at 505 Montgomery Str, 11th Floor San Francisco, CA 94111 – USA (or such other address as may be properly specified by written notice hereunder). Email notice will be permitted by Supplier if sent to the Customer’s account email address.
Article 14- Modification
Supplier reserves the right to change this Agreement on a going-forward basis at any time upon seven days’ notice. Please check this Agreement periodically for changes. If a change to this Agreement materially modifies Customer’s rights or obligations, Supplier may require that Customer accept the modified Agreement in order to continue to use the Services. Customer must accept the modifications to continue accessing or using the Services. If Customer objects to the modifications, its exclusive remedy is to cease any and all access and use of the Services. If the effective date of the modifications is during the term of a Subscription and Customer objects to the modifications, then (as its exclusive remedy) Customer may terminate its affected Subscription upon notice to Supplier, and Supplier will refund to Customer any fees it has pre-paid for use of the Services for the terminated portion of the term of the applicable Subscription. To exercise this right, Customer must provide Supplier with notice of its objection and termination within 30 days after Supplier provides notice of the modifications. Material modifications are effective upon Customer’s acceptance of the modified version of the Agreement. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 14, this Agreement may be amended only by a written agreement signed by authorized representatives of the parties to this Agreement. Disputes arising under this Agreement will be resolved in accordance with the version of this Agreement that was in effect at the time the dispute arose.
Article 15- Entire Agreement
It is hereby declared that this Agreement, including any applicable Data Processing Addendum and Order, constitutes the entire Agreement and contains the entire understanding between the parties hereto and with respect to the matters referenced to herein. No terms other than those expressly set out herein are deemed to be implied herein. No terms, provisions or conditions of any purchase order, acknowledgement, or other business form that either party may use in connection with the transactions contemplated by this Agreement will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of a receiving party to object to such terms, provisions or conditions. No amendment or modification of this Agreement shall be valid and binding unless made and confirmed in writing or otherwise signed by the parties hereto.
Article 16 – Severability
In the event of any one or more provisions of this Agreement becoming invalid or unenforceable it shall not affect any of the other provisions hereof becoming invalid and unenforceable, and such other provisions shall be deemed to remain in full force and effect.
Article 17 – Waiver
No waiver by either party of any default shall be deemed as a waiver of any prior or subsequent default of the same or other provisions of this agreement.
Article 18 – Authentic text
The English language text of this Agreement shall be the only authentic text.
Article 19- Force Majeure
Neither party is liable for any failure or delay in performance due to any cause beyond its control and has no obligation arising out of the abnormal use of any items, site conditions nonconforming to specifications, or any cause external to any item, including but not limited to accident, acts of God, fire or water damage, criminal conduct, neglect, acts of war, riots, strikes, lightening, electrical disturbances or other similar causes. Such events, occurrences or causes do not include inability to meet financial obligations. The time of performance hereunder is extended by a period of time lost because of such delay.
Article 20 – Marketing
During the Term: (a) Customer agrees to participate in case studies and other similar marketing efforts reasonably requested by Supplier; (b) Supplier may disclose that Customer is a customer of Supplier to third parties; and (c) Supplier may include on and in Supplier’ website, case studies, marketing materials, and conference presentations and other speaking opportunities, Customer’s testimonials and other feedback regarding the Services, name, website URL, use case, and logo and other marks. Upon request from Customer, Supplier will promptly stop making the disclosure and use described in the foregoing sentence except to the extent already included in any then-existing materials.
Article 21 – Assignment
Customer may assign or transfer this Agreement in whole or part only with the prior written consent of Supplier, which consent shall not be unreasonably withheld or delayed. Upon written notification, Supplier may assign or transfer this Agreement in whole or part and all or part of the payments to the extent that Supplier’s obligations to Customer are not affected.
Article 22 – Governing law, Jurisdiction
Any dispute arising hereunder shall be exclusively construed in accordance with the laws of the State of Delaware without regard to principles of conflict of laws. For the purpose of this agreement, Customer consents to the personal jurisdiction and venue of the competent courts located in the State of Delaware, without prejudice to the provisions of the DPA, including Article 9 of the DPA.