GENERAL TERMS OF USE AND END USER LICENSE AGREEMENT
Last Updated: March 29, 2024
THE MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER IN SECTION 13 BELOW GOVERN THE RESOLUTION OF DISPUTES. PLEASE READ THEM CAREFULLY. IF YOU DO NOT AGREE WITH THE MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER IN THE TERMS, PLEASE DO NOT USE THE SERVICES OR SOFTWARE.
These General Terms of Use and End User License Agreement (“General Terms”), along with any addenda agreed to by you, our Privacy Policy (see Section 2.1 below) and any subscription order document (collectively, the “Terms”) are a legal agreement between you (“you” or “your”) and Evil Eye Pictures LLC (“EEP,” “we,” “us,” or “our”) and govern your use of and access to the Future Stage website, customer support, or other services (collectively, the “Services”) and software that we include as part of the Services, as well as any plugins, applications, including mobile applications, Sample Files (defined below), scripts, instruction sets, and related documentation (collectively, the “Software). By (1) registering for an account, or (2) downloading or using the Software, or (3) otherwise accessing or using the Services, you represent and warrant that you are at least 16 years old and you have all necessary consents and authority to enter into these Terms, and you acknowledge and agree that you have read the Terms and you accept and agree to be bound and abide by the Terms. If you do not agree with the Terms, you must immediately cease all use of the Services and un-install any Software from your hardware.
1. General.
1.1. Business Users. If you received an “Entitlement” (which is defined as the right to use, access, and consume the Software and Services) from an organization or group, including but not limited to a business or any other commercial entity, government entity, non-profit organization, or educational institution (each, a “Business”), then (A) you are a “Business User” of such Business; (B) your Future Stage profile associated with such Entitlement is a “Business Profile”; and (C) all references to “you” in these Terms will mean such Business. If you are a Business User, you agree that, due to your receipt of Entitlements from such Business, (1) we may provide such Business with the ability to access, use, remove, retain, and control your Business Profile and all Content therein whether uploaded or imported before or after the date these Terms were last updated; (2) your use of the Services and Software is governed by such Business’s agreement with us; and (3) we may provide your personal information to such Business. If you are a Business User with Entitlements from multiple Businesses, you may have separate Business Profiles associated with each Business. As a Business User, you may have different agreements with or obligations to a Business, which may affect your Business Profile or your Content. We are not responsible for any violation by you of such agreements or obligations. If you did not receive Entitlements from a Business, then (a) you are a “Personal User”; (b) your Future Stage profile is a personal profile; (c) you maintain sole access and control over all Content in your personal account or personal profile (except as otherwise indicated in the Privacy Policy); and (d) all references to “you” in these General Terms will mean you as an individual. If you received Entitlements through a personal plan and from a Business, then you are both a Personal User and a Business User. You are a Personal User when you utilize the Entitlements you obtained through your personal plan, and you are a Business User when you utilize your Entitlements provided by a Business.
1.2. Business Email Domains. As a Personal User or a Business User, you may create a Future Stage account using an email address provided or assigned to you by a Business (such as your work email address). If the Business establishes a direct relationship with us, they may want to add your account to such relationship. If this happens, the Business may roll your account into the Business’s account. This means the Business may (A) access the account; (B) take control over the account and any Content therein whether stored, uploaded, or imported before or after the date these Terms were last updated; and (C) recommend any non-Business Content associated with such account to be moved to a new account that utilizes an email address not associated with such Business. You, as an individual or a Business User, also acknowledge that we may provide your personal information to such Business, such as your name or email address. If you do not want a Business to access, use, remove, retain, or control an account or profile, then do not use a Business email address with that account.
1.3. Updates to Terms. We may make changes to the Terms from time to time, and if we do, we will notify you by revising the date at the top of the Terms and, in some cases, we may provide you with additional notice. You should look at the Terms regularly. Unless otherwise noted, the amended Terms will be effective immediately, and your continued use of our Services or Software will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop using our Services and Software.
- Privacy.
2.1. Privacy. For information about how we collect, use, share, or otherwise process information about you and your use of our apps and websites, please see our Privacy Policy. By using the Services or Software, you accept and agree to be bound and abide by the Privacy Policy.
2.2. Sensitive Personal Information. You agree not to collect, process, or store any Sensitive Personal Information using the Services or Software. You agree not to transmit, disclose, or make available Sensitive Personal Information to us or our third-party providers. “Sensitive Personal Information” is given the meaning under relevant privacy or data protection laws and includes terms like “sensitive personal data” used in such laws, including, without limitation, the Gramm-Leach-Bliley Act (“GLBA”), Health Insurance Portability and Accountability Act of 1996 ("HIPAA”) (including Protected Health Information), Children’s Online Privacy Protection Act (“COPPA”), and Family Educational Rights and Privacy Act (“FERPA”). Examples of Sensitive Personal Information include, but are not limited to, personal financial information (including personal financial account information), consumer health data, biometric data, sexual orientation, genetic data, race or ethnicity, national origin, personal information of children under thirteen, social security number, information protected under US state data breach notification law. If you collect, process or store any Sensitive Personal Information using the Services or Software, you, not EEP, shall be solely responsible and liable for such information.
- Use of Services and Software.
3.1. End User License. Subject to and conditioned upon your payment of the relevant Fees and strict compliance with the Terms and with applicable law, EEP hereby grants to you a non-exclusive, non-assignable, non-transferable, non-sublicensable (except as set forth herein), limited license to download, install, and/or use the Software and Service that we make available in object or binary code form for your own internal use. Your license(s) expire at the end of the term set forth in your subscription order document or described in any free trial, NFR Version or Beta Version offer terms unless otherwise terminated in accordance herewith. The version(s) of the Services and Software available at your renewal date may be different from the version(s) available when you first purchased your license(s) from EEP. You agree that your decision to use or purchase Software or Services is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by us regarding future functionality or features.
3.2. EEP Intellectual Property Rights. You acknowledge that the Services and Software are provided under license, and not sold, to you. Except for the limited rights and licenses expressly granted under the Terms, nothing herein grants, by implication, waiver, estoppel or otherwise, to Licensee or any third party any Intellectual Property Rights or other right, title, or interest in or to any of the Services or Software.
3.3. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, moral rights, trade dress, unfair competition, right of privacy, right of publicity database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
3.4. No Limitation on Licensor Use. Nothing contained in the Terms shall be construed to limit or restrict, in any way or manner, any right of Licensor to encumber, transfer, license, access, reference, use, or practice the Services or Software in any way for any purpose or use (subject only to the rights specifically granted Licensee hereunder), including without limitation the use, licensing, and/or registration of the Services or Software anywhere in the world for any purpose or use in connection with the development, manufacture, distribution, marketing, promotion, and sale of any products.
3.5. Storage. Do not rely upon the Services as permanent storage space for your Content. You should regularly preserve backup copies of any digital data, information or other materials that you have uploaded. We may create reasonable technical limits on file size, storage space, processing capacity, and other technical limits. We may suspend the Services until you are within the storage space limit associated with your account. At the end of your license term, we will use commercially reasonable efforts to allow you to transition your Content out of the Services. You should download any Content that you have stored in the Services before your license ends.
3.6. Sample Files. “Sample Files” means EEP-provided audio, visual, video, or other content files or assets for use in tutorials, demonstrations, and for other trial purposes. Subject to your compliance with the Terms, we grant you a personal, non-exclusive, non-sublicensable, and non-transferable license to use the Sample Files to create test files into which the Sample Files, or derivations thereof, are embedded (each a “Test File”); however Sample Files cannot be used for any other purpose than for which they were provided. You cannot distribute or monetize Test Files and under no circumstances can you distribute Sample Files in any way that allows a third party to use, download, extract, or access the Sample Files as a stand-alone file, and you cannot claim any rights in the Sample Files.
3.7. Free trials. We may offer free trials of the Services or Software in our sole discretion. If access to the Services or Software is provided to you for free or for trial purposes, such access is governed by these Terms. At any time prior to or during the free or trial period, we may, in our sole discretion, terminate the free or trial access without prior notice and without any liability to you, to the extent permitted under applicable law, for any reason, including to prevent abuse of the free or trial access. After the free or trial access period expires, you may only continue using the Services or Software by enrolling in a paid subscription, if available, or as otherwise permitted by us.
3.8. NFR Version. We may also designate the Services or Software as “trial, “evaluation,” “not for resale,” or other similar designation (“NFR Version”). You may install and use the NFR Version only for the period and purposes stated when we provide the NFR Version. You must not use any materials you produce with the NFR Version for any commercial purposes.
3.9. Prerelease or Beta Version. We may designate the Services or Software, or a feature of the Services or Software, as a prerelease or beta version (“Beta Version”). A Beta Version does not represent the final product and may contain bugs that may cause system or other failure and data loss. We may choose not to release a commercial version of the Beta Version. You must promptly cease using the Beta Version and destroy all copies of the Beta Version if we request you to do so. In exchange for your use of a Beta Version, you agree that we may collect data regarding your use of the Beta Version to improve our products and personalize your experience, regardless of whether or not you have opted-out of data collection for non-Beta Versions. If you do not wish to have your usage tracked, you must discontinue your use of the Beta Version by uninstalling such Beta Version or utilizing a non-Beta Version of the Services or Software. Your use of any Beta Version will be governed by and subject to a written agreement or addendum to the Terms and any such agreement or addendum will supersede these provisions to the extent of a conflict.
3.10. Third-Party Services and Software. The Services and Software may include open source components, third party services and software, links to other sites on the internet, or be accessed from other sites on the internet, that are owned and operated by online merchants and other third parties, and which may contain references to information, software, materials, products, and/or services provided by the third party or that are provided to you on license terms that are in addition to and/or different from those contained in the Terms (“Third Party Licenses”). Your use of third party sites is undertaken at your own risk and you are responsible for complying with any and all Third Party Licenses and other terms that apply. Some Third Party Licenses that may be applicable to your use of the Services and Software are available here. Any breach by you of any Third-Party License is also a breach of the Terms.
3.11. Internet Connectivity; Disclaimer. EEP makes the Services and Software available for access via the internet. You will need to provide, at your own expense, all necessary hardware, applications and internet connectivity necessary to access and/or use the Services or Software. You acknowledge that the internet is known to be unpredictable in performance and may, from time to time, impede use of or access to the Services or Software. You agree that EEP is not in any way responsible for any interference with your use of or access to the Services or Software arising from or attributable to the internet and you waive any and all Claims against EEP in connection therewith.
3.12. No Modifications, Reverse Engineering. Except as expressly permitted in the Terms, you may not (A) modify, port, adapt, or translate any portion of the Services or Software; or (B) reverse engineer (including but not limited to monitoring or tracking the inputs and outputs flowing through a system or an application in order to recreate that system), decompile, disassemble, or otherwise attempt to discover, within any Service or Software, the source code, data representations or underlying algorithms, processes, methods, and any other portion of such Service or Software. If the laws of your jurisdiction give you the right to decompile the Services or Software to obtain information necessary to render the licensed portions of the Services or Software interoperable with other software, you must first request such information from us. We may, in our discretion, either provide such information to you or impose reasonable conditions, including a reasonable fee, on your decompilation of the Services or Software to ensure that our and our suppliers’ proprietary rights in the Services and Software are protected.
4. Your Content.
4.1. Content. “Content” means any text, information, or material, such as audio files, video files, electronic documents, or images, that you upload and import into, or create with, the Services or Software in connection with or through your use of the Services. You must not upload any Content that is prohibited by any applicable law. We reserve the right to remove Content or restrict access to Content, Services, and Software if any of your Content is found to be in violation of these Terms. We do not review all Content uploaded to the Services or Software, but we may use available technologies, vendors, or processes to screen for certain types of illegal content or other abusive content or behavior.
4.2. Ownership. As between you and EEP, you own and will retain ownership of all Intellectual Property Rights in and to your Content. Except for the license granted pursuant to Section 4.3, we do not claim any ownership rights to your Content.
4.3. Limited Licenses to Your Content. Where permitted by law, we will only access, view, or listen to your Content in order to provide, operate, or improve the Services or Software, including without limitation, (A) to respond to Feedback or support requests; (B) to detect, prevent, or otherwise address fraud, security, legal, or technical issues; (C) to enforce the Terms; or (D) as otherwise required by applicable law. Our automated systems may analyze your Content in order to improve our Services and Software and the user experience. When you upload Content to the Services or Software, you grant us a nonexclusive, worldwide, royalty-free, sublicensable, and transferrable license to access, view, use, reproduce, display, distribute, modify, perform, and translate the Content solely for the purposes set forth in this Section 4.3. For the avoidance of doubt, the foregoing license does not grant EEP the right to access, view, use, reproduce, display, distribute, modify, perform, or translate your Content for advertising or promotional purposes and EEP will never use or sell your Content for such purposes without your express written consent.
4.3.1.Termination of License. You may revoke this license to your Content and terminate our rights at any time by removing your Content from the Services provided that EEP may retain archival copies: (a) for a limited period of time in case you wish to restore it; (b) when the Content is the subject of a takedown notice or other legal Claim; or (c) when we, in good faith, believe that we are legally obligated to do so.
4.4. User Collaboration.
4.4.1.Sharing. Some Services and Software may provide features that allow you to Share your Content or to collaborate with other users. “Share” or “Sharing” means to email, post, transmit, stream, upload, display, publish, distribute, broadcast or otherwise make available on or submit through your use of the Services and Software. You understand and agree that you shall be solely responsible for the Content you Share and the consequences of Sharing it in any way. Other users may use, copy, modify, or re-Share your Content in many ways and EEP is not responsible or liable for any unauthorized use, reproduction, modification, or distribution by third parties of Content you Share.
4.4.2.User-Generated Content. If you elect to collaborate with other users through our Software or Services, you may come across user-generated content from such other users that you find offensive or upsetting. We neither endorse nor are we responsible for any user-generate content. Your sole remedy is to stop viewing such content.
4.5. Feedback. You have no obligation to provide us with ideas, suggestions, modifications, improvement proposals, or any bug or crash reports you encounter during the use of the Services or Software (“Feedback”). If you submit Feedback to us however, then you grant us a non-exclusive, irrevocable, perpetual, worldwide, royalty-free, sublicensable, and transferable license to make, use, sell, have made, offer to sell, import, export, reproduce, publicly display, distribute, modify, and publicly perform the Feedback.
4.6. Scope of Licenses. For the avoidance of doubt, all licenses granted by you in this Section 4: (a) are non-exclusive, worldwide, and royalty-free; (b) include the right and license to copy, use, distribute, publicly perform, and display the licensed work for the purposes stated above; and (c) include all necessary rights and licenses to allow us to exercise our rights and perform our obligations. By granting these licenses, you waive any so-called “moral rights” that you may have. Nothing in the Terms shall be deemed a license “condition” applicable to EEP; rather, any breach of a term by EEP hereof shall give rise to, at most, a claim for breach of contract only.
5. Your Account.
5.1. Account Information. You are responsible for all activity that occurs via your account even if that activity is not by you or is without your knowledge or consent. Please notify Customer Support immediately if you become aware of any unauthorized use of your account. You may not (A) share your account information (except with an authorized account administrator), whether intentionally or unintentionally; or (B) use another person’s account. If you are a Business User, your account administrator may use your account information to manage your use and access to the Services and Software.
5.2. Free Account Inactivity. You are responsible for keeping your account active, which means you must sign in periodically to avoid any disruption or loss of access to the Services and Software, or termination of your account. If you don't sign into your account within a given thirty (30) day period, we reserve the right to assume your account is inactive, and you agree that we may close it for you. You understand that you will lose access to any Content stored in your account upon closure. Prior to closing your account for inactivity, we may attempt to provide notice to you. For the avoidance of doubt, this Section 5.2 does not apply to paid accounts in good standing.
5.3. Right to Suspend. EEP may in its discretion suspend your account or use of the Services or Software at any time if as necessary to prevent errors or harm to any system or network.
6. Acceptable Use Policy. You are required to ensure that your Content and your use of the Services or Software complies with the Acceptable Use Policy set forth in this Section 6 (the “Acceptable Use Policy”). EEP may (but is not obligated to) monitor your account, Content, and conduct, regardless of your privacy settings and we may remove or limit access or availability to any Content or account that we consider in good faith to violate this Acceptable Use Policy. You agree to obey all applicable rules and regulations in using the Services and Software, and agree that you will not:
6.1. use the Services or Software without, or in violation of, a written license or agreement with EEP;
6.2. copy, modify, host, stream, sublicense, or resell the Services or Software;
6.3. enable or allow others to use the Services or Software using your account information;
6.4. offer, use, or permit the use of the Services or Software in a computer services business, third-party outsourcing service, on a membership or subscription basis, on a service bureau basis, on a time-sharing basis, as a part of a hosted service, or on behalf of any third party;
6.5. use the Software to construct any kind of database or dataset (except as necessary (i) for the production or organization of your content products or (ii) to otherwise make use of the Software or Services in accordance with the Terms);
6.6. access or attempt to access the Services or Software by any means other than the interface we provide or authorize;
6.7. separate, scrape, reproduce, redistribute, frame, mirror, create derivative works from, decompile, reverse engineer, alter, archive, disassemble, rent, sell, assign, lease, loan, encumber any part of our Services or Software (or contract with a third party to do so);
6.8. attempt to circumvent any of our security, rate-limiting, filtering, or digital rights management measures;
6.9. use the Services or Software, including when Sharing Content, or otherwise engage in behavior that violates anyone’s Intellectual Property Rights;
6.10. Share any Content that is unlawful, harmful, threatening, obscene, violent, abusive, tortious, defamatory, libelous, vulgar, lewd, profane, invasive of another’s privacy, hateful, or otherwise objectionable;
6.11. Share any Content that sexualizes minors or that is intended to facilitate inappropriate interactions with minors, other Future Stage users, or the public
6.12. impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
6.13. attempt to disable, impair, or destroy the Services or Software;
6.14. upload, transmit, store, or make available any Content or code that contains any viruses, malicious program, script, code, malware, or any components designed to harm or limit the functionality of the Services or Software;
6.15. disrupt, interfere with, or inhibit any other user from using the Services or Software (such as stalking, intimidation, harassment, or incitement or promotion of violence or self-harm);
6.16. engage in chain letters, junk mails, pyramid schemes, phishing, spamming, fraudulent activities, or other unsolicited messages;
6.17. place an advertisement of any products or services in the Services except with our prior written approval;
6.18. use any data mining or similar data gathering and extraction methods in connection with the Services or Software;
6.19. artificially manipulate or disrupt the Services or Software (such as driving users to third-party sites);
6.20. create Future Stage accounts for the purpose of violating the Terms or for circumventing account termination or other types of actions taken by us;
6.21. submit an unreasonable number of requests to our servers;
6.22. remove or modify any logo, watermark, or notice of proprietary rights embedded on or in the Services or any output thereof without our permission;
6.23. manipulate or otherwise display the Services or Software by using framing or similar navigational technology; or
6.24. violate applicable law.
7. Term; Fees and Payment.
7.1. Account Fees. You must pay all fees (plus any taxes) associated with your account during your subscription period and any renewal periods (“Fees”). Our Fees may include a fixed monthly or annual fee plus variable fees for transactions or usage. All fees are quoted and payable in United States dollars unless otherwise noted. We may adjust Fees from time to time. We will attempt to notify you in advance of any such Fee changes prior to your next billing cycle. You agree that until your paid user account subscription is terminated or expires, you will continue to remain responsible for the subscription payments, even if you do not use our service.
7.1.1.We may provide you with the ability to pay the Fees through a third-party service. All subscriptions paid through these third parties are subject to the third party's terms of service, and we will not be responsible for anything contained therein.
7.1.2.If, for any reason, your payment is not received by us, your paid user account will revert to a free user account until payment is received by us.
7.1.3.Subscription payments are nonrefundable. Instituting a chargeback or dispute on an EEP payment in a wrongful or fraudulent manner will be considered a violation of the Terms.
7.2. Taxes and Third-Party Fees. You must pay any applicable taxes and third-party fees (including, for example, telephone toll charges, mobile carrier fees, ISP charges, data plan charges, credit card fees, foreign exchange fees, and foreign transaction fees). We are not responsible for these fees. Contact your financial institution with questions about their fees.
7.3. Collection Fees. We may take steps to collect the fees you owe us. You are responsible for all related collection costs and expenses.
7.4. Credit Card Information. You authorize us to store your payment method and use it in connection with your use of the Services and Software, including renewals of your subscription as described in your subscription order document. To avoid interruption of your service, we may participate in programs supported by your card provider to try to update your payment information. You authorize us to continue billing your account with the updated information that we obtain.
8. Your Warranty and Indemnification Obligations.
8.1. Warranty. By uploading your Content to, or otherwise using, the Services or Software, you represent and warrant that: (A) you have all necessary licenses and permissions to use and Share your Content; (B) you have the rights necessary to grant the licenses in the Terms; and (C) your Content will not infringe or violate any Intellectual Property Rights or any other right of any third party.
8.2. Indemnification. You will indemnify and hold Licensor, our Affiliates, and each of its and their respective members, officers, directors, employees, agents, subcontractors, partners, licensors successors and permitted assigns (each, a “Licensor Indemnitee”), harmless from and against any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers incurred by the Licensor Indemnitee resulting from any Action by a third Person (each, a “Claim”) arising out of or related to: (A) your Content, (B) your use of the Services or Software (as applicable), (C) your violation of laws, rules, regulations, (D) allegations of actions or omissions by you that (regardless if proven) would constitute a breach of the Terms or other terms of any applicable Third Party License or open source license, or (E) infringement by your Content, by you, or by someone using your account, of any Intellectual Property Rights or any other right of any person or entity. We have the right to control the defense of any Claim subject to indemnification by you with counsel of our own choosing. You will fully cooperate with us in the defense of any such Claim. An “Affiliate” of a party shall mean an entity directly or indirectly controlling, controlled by or under common control with that party where control means the ownership or control, directly or indirectly, of more than fifty percent (50%) of all of the voting power of the shares (or other securities or rights) entitled to vote for the election of directors or other governing authority, as of the date of the Terms or hereafter during the term of the Terms; provided that such entity shall be considered an Affiliate only for the time during which such control exists. “Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
9. Disclaimers of Warranties.
9.1. THE SERVICES AND SOFTWARE ARE PROVIDED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE MAKE NO COMMITMENTS ABOUT THE CONTENT WITHIN THE SERVICES. WE FURTHER DISCLAIM ANY WARRANTY THAT (A) THE SERVICES OR SOFTWARE WILL MEET YOUR OR OTHER PERSONS’ REQUIREMENTS OR WILL BE AVAILABLE, UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, ACCURATE, COMPLETE, PERMITTED IN YOUR JURISDICTION, OR SECURE, ACCESSIBLE FROM ALL DEVICES OR BROWSERS, OR COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEMS, OR OTHER SERVICES; (B) THE RESULTS OBTAINED FROM THE USE OF THE SERVICES OR SOFTWARE WILL BE EFFECTIVE, ACCURATE, OR RELIABLE; (C) THE QUALITY OF THE SERVICES OR SOFTWARE WILL MEET YOUR EXPECTATIONS; (D) ANY ERRORS OR DEFECTS IN THE SERVICES OR SOFTWARE WILL BE CORRECTED; (E) THE SERVER(S) THAT MAKE THE SERVICES OR SOFTWARE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES OR SOFTWARE MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. WE ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS. ALL OPEN SOURCE COMPONENTS AND OTHER THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY OF THEM IS STRICTLY BETWEEN LICENSEE AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH OPEN SOURCE COMPONENTS AND THIRD-PARTY MATERIALS.
9.2. We specifically disclaim all liability for any actions resulting from your use of any Services or Software. You may use and access the Services or Software at your own discretion and risk, and you are solely responsible for any damage to your computer system or loss of data that results from the use of and access to any Service or Software.
9.3. If you Share your Content through the Software or Services, we are not responsible for: (A) any loss, corruption, or damage to your Content; (B) the deletion of Content by anyone other than EEP; or (C) the inclusion of your Content by third parties on other websites or in other media.
10. Limitation of Liability.
10.1. EEP is not liable to you or anyone else for any special, incidental, indirect, consequential, moral, exemplary or punitive damages whatsoever, regardless of cause, including losses and damages (A) resulting from loss of use, data, reputation, revenue, or profits; (B) based on any theory of liability, including breach of contract or warranty, negligence, or other tortious action; or (C) arising out of or in connection with your use of or access to the Services or Software; even if EEP has been advised of the possibility of such damages. Nothing in the Terms limits or excludes our liability for gross negligence or intentional misconduct of EEP or its employees.
10.2. Our total liability in any matter arising out of or related to the Terms is limited to the greater of (A) US $100; or (B) the aggregate amount that you paid for access to the Services and Software during the six-month period preceding the event giving rise to the liability, prorated as applicable.
10.3. These limitations and exclusions in this Section 10 apply to the maximum extent permitted by law even if (A) a remedy does not fully compensate you for any losses or fails of its essential purpose; or (B) we knew or should have known about the possibility of damages.
10.4. This Section 10 set forth the entire liability of EEP and its Affiliates as well as your exclusive remedy with respect to your access and use of the Services or Software.
11. Termination.
11.1. Termination by You. You may stop using the Services and Software at any time. Termination of your account does not relieve you of any obligation to pay any outstanding fees.
11.2. Termination by Us. We may terminate your account or your use of the Services or Software at any time upon at least 30 days’ notice via the email address you provide to us with instructions on how to retrieve your Content. We may, at any time, immediately terminate or suspend your right to use and access the Services or Software if:
11.2.1. you breach any provision of the Terms (or act in a manner that clearly shows you do not intend to, or are unable to, comply with the Terms);
11.2.2. you fail to make the timely payment of applicable Fees for the Services or Software;
11.2.3. you physically, verbally, or through other means abuse, threaten, bully, or harass us or our personnel (in such circumstances, we may alternatively suspend or restrict your access to the Services or Software);
11.2.4. you have repeatedly made complaints in bad faith or without a reasonable basis, and continue to do so after we have asked you to stop (in such circumstances, we may alternatively suspend or restrict your access to the Services or Software);
11.2.5. you (i) are an entity and are dissolved or liquidated or takes any corporate action for such purpose; (ii) become insolvent or are generally unable to pay your debts as they become due; (iii) become the subject of any voluntary or involuntary bankruptcy proceeding under any domestic or foreign bankruptcy or insolvency Law; (iv) make or seek to make a general assignment for the benefit of your creditors; or (v) apply for, or consent to, the appointment of a trustee, receiver or custodian for a substantial part of your property.
11.2.6. we are required to do so by law;
11.2.7. we elect to discontinue the Services or Software, in whole or in part; or
11.2.8. there has been a period of inactivity for thirty (30) or more days in your free account.
11.3. Survival. Upon the expiration or termination of your account, some or all of the Services and Software may cease to operate without prior notice; however, the sections of the Terms which, by their nature, should survive the expiration or termination of your account (including without limitation, your payment and indemnification obligations, our warranty disclaimers and limitations of liabilities, and the dispute resolution provisions), shall survive the expiration or termination of your account.
11.4. Access to Content. Please note that upon termination of your account for any reason, you may lose access to your Content as described in Section 3.5.
12. Trade Sanctions and Export Control Compliance. The Services and Software, and your use of them, are subject to laws, restrictions, and regulations of the United States and other jurisdictions that (A) govern the import, export, and use of the Services and Software; and (B) may prohibit us from providing the Services and Software to you without notice. By using the Services and Software, you agree to comply with all such laws, restrictions, and regulations, and you warrant that you are not prohibited from receiving the Services and Software by the laws of any jurisdiction.
13. Dispute Resolution.
13.1. Process. If you have any concern or dispute, you agree to first try to resolve the dispute informally by contacting us. If a dispute is not resolved within 30 days of receipt by us, any resulting legal actions must be resolved through final and binding arbitration, including any question of whether arbitration is required, except that you may assert claims in small claims court if your claims qualify. Claims related to the Terms, Services, or Software are permanently barred if not brought within one year of the event resulting in the Claim.
13.2. BINDING ARBITRATION; Rules. Subject to Section 13.4 below, any dispute, claim or controversy arising out of or relating to the Terms or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of the Terms to arbitrate shall be exclusively resolved via binding arbitration. JAMS will administer the arbitration in San Francisco County, California pursuant to its Comprehensive Arbitration Rules and Procedures. There will be one arbitrator that you and EEP mutually select. The arbitration will be conducted in the English language, but any witness whose native language is not English may give testimony in the witness’ native language, with simultaneous translation into English (at the expense of the party presenting the witness). Judgment upon the award rendered may be entered and will be enforceable in any court of competent jurisdiction having jurisdiction over you or us, as applicable.
13.3. Waiver of Jury Trial; No Class Actions. Each party waives its right to go to court, to a trial by jury, or to bring a Claim as a plaintiff or participate as a class member in a class, consolidated, or representative action or arbitration.
13.4. Injunctive Relief. Notwithstanding the foregoing, in the event of your or others’ unauthorized access to or use of the Services or Software in violation of the Terms, you acknowledge that such activity above may result in material irreparable injury to the EEP for which there is no adequate remedy at law, that it will not be possible to measure precisely damages for such injuries and that, in the event of such a breach or threat thereof, we shall be entitled, without the requirement to post bond or other security, to obtain a temporary restraining order and/or injunction restraining you from engaging in activities prohibited by the Terms or such other relief as may be required to specifically enforce any of the covenants contained herein, and EEP may seek such relief in any court with competent jurisdiction.
13.5. Choice of Law. Unless preempted by U.S. federal law, the laws of the State of California, USA, will apply to all matters relating to the Terms and the Services without regard to the conflicts of laws principles nor the United Nations Convention on the International Sale of Goods.
14. Updates to Services and Software and Availability.
14.1. Updates to the Services and Software. We may from time to time in our sole discretion develop and provide updates to the Services or the Software, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”) without liability to you or anyone else. Updates may also modify or delete in their entirety certain features, functionality and performance specifications as EEP deems necessary or desirable. You agree that EEP has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. You further agree that all Updates will be deemed Software (or Services, as applicable), all subject to the Terms. You acknowledge that we may provide some or all Updates via download from a website designated by us and that your receipt thereof will require an internet connection, which connection is your sole responsibility. We have no obligation to provide Updates via any other media. For Updates to paid offerings, we will make reasonable efforts to notify you of the modification, update, or discontinuation. If we discontinue the Services or Software in its entirety, we will use reasonable commercial efforts to allow you to transition your Content, and we may provide you with a pro rata refund for any unused fees for that Service or Software that you prepaid.
14.2. Availability. The Services are operated out of the United States. We make no representation that the Services, or content or information available via the Services, is appropriate or available for use outside of the United States, and access to it from jurisdictions where the contact is illegal is prohibited. Those who choose to access the Services from outside the United States do so at their own initiative and are responsible for compliance with all applicable local laws. Webpages describing the Services are accessible worldwide, but this does not mean all Services or service features are available in your country or that user-generated content available via the Services is legal or available in your country. Access to certain Services (or certain service features or Sample Files) in certain countries may be blocked by us or foreign governments. It is your responsibility to make sure your use of the Services is legal or available where you use them. Services are not available in all languages.
15. Miscellaneous.
15.1. English Version. The English version of the Terms will be the version used when interpreting or construing the Terms.
15.2. Notice to EEP. You may send notices to us at the following address: EEP Pictures, LLC, 1700 Martin Luther King Jr. Way, Berkeley, CA 94709.
15.3. Notice to You. In the case of notices we send to you, you consent to receive notices and other communications by email, postal mail, postings within the Services, or other legally accepted means. It is your responsibility to keep your account information current to receive notifications. You agree that all agreements, notices, disclosures, and other communications that we provide to you in accordance with the first section satisfies any legal requirement that such communications be in writing.
15.4. Non-Assignment. You may not assign or otherwise transfer the Terms or your rights and obligations under the Terms, in whole or in part, without our written consent, and any such attempt will be void. We may transfer our rights and obligations under the Terms to any third party or Affiliate.
15.5. Audit Rights. EEP (or a third party hired by EEP for such purpose) shall have the right, at any time, to inspect and audit all accounts, records and other of your information to determine compliance with the Terms. The costs of such audit shall be borne by EEP unless the audit uncovers that you have materially breached the Terms, and then you shall be responsible for reimbursement of all reasonable costs and expenses of such audit.
15.6. Government Terms. If you are a U.S. government entity, or if the Terms become subject to the Federal Acquisition Regulations (FAR), then, the Services and Software, provided under the Terms are “Commercial Item(s),” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” and services related thereto, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through §227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Federal Government End Users (A) only as Commercial Items; and (B) with only those rights as are granted to all other end users pursuant to the terms and conditions of the Terms. Unpublished rights are reserved by EEP under the laws of the United States.
15.7. Headings. Headings used in the Terms are provided for convenience only and will not be used to construe meaning or intent.
15.8. Reservation of Rights, Severability: EEP reserves all rights not expressly granted herein. EEPs rights and remedies are cumulative. No failure or delay by EEP in exercising any right will waive any further exercise of that right. If any provision of the Terms contravenes any applicable law, statutes, regulations, rules, or common law requirements, then, to the extent of and only to the extent of such contravention, such provision shall be revised to the extent necessary to cure the invalidity or unenforceability and the remainder of the Terms shall continue in full force and effect.
15.9. Relationship. The relationship between the parties hereto is that of independent contractors. Nothing contained in the Terms will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner. The Terms bind the parties and their successors, personal representatives, and permitted assigns. Except as expressly stated herein, nothing in the Terms confers any right on any third party.
15.10. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation (other than your payment obligations to us) under the Terms if the delay or failure is due to unforeseen events, which occur after the effectiveness of the Terms and which are beyond the reasonable control of the parties, such as epidemic, strikes, blockade, war, terrorism, riots, natural disasters, refusal of license by the government or other governmental agencies, in so far as such an event prevents or delays the affected party from fulfilling its obligations and such party is not able to prevent or remove the force majeure at reasonable cost.
15.11. Further Assurances. Upon EEP’s reasonable request, you shall, at EEP’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to the Terms.
15.12. Interpretation. For purposes of the Terms: (a) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to the Terms as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in the Terms: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices to, the Terms; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend the Terms to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of the Terms to the same extent as if they were set forth verbatim herein.