TERMS OF SERVICE
THIS INTELIVIDEO TERMS OF SERVICE AGREEMENT (THE “AGREEMENT”) IS AN AGREEMENT BETWEEN INTELIVIDEO, INC. (“INTELIVIDEO”, “WE” OR “US”) AND YOU, A CLIENT OF THE INTELIVIDEO SERVICE (AS DEFINED BELOW) (“YOU”). PLEASE READ THIS AGREEMENT CAREFULLY. By creating an account with us, you agree to be bound by this Agreement. If you do not agree to any of the terms or conditions of this Agreement, you must not create an account with Intelivideo, you must click on the “Do Not Accept” button to discontinue the account creation process, and you must not use the Intelivideo Service.
Intelivideo provides a platform as a service offering through its Web-based platform (the “Platform”) that (1) stores video and other content on a cloud-based data storage service, (2) tracks promotions of content and the Platform, (3) allows consumers to order and pay for products related to the digitally distributed content, (4) enables the digital distribution of video and other content to various consumer devices, including via our standard mobile application (the “App”), (5) allows consumers to order and pay for products related to the digitally distributed content, and (6) provides analysis of video consumer behavior (such services, collectively, the “Intelivideo Service”).
1. Your Account
To get started, you will create an account with us. Upon creation of your account, you will be prompted to create your own unique username and password for your account. You must keep your account information secure. You are solely responsible for all activities that occur under your password or account. You shall notify Intelivideo immediately of any breach of security or unauthorized use of your account. There is no need to download or install any software or technology of Intelivideo in order to enable your access to our Platform or your use of the Intelivideo Service. You are responsible for procuring and maintaining the equipment, systems and telecommunication services necessary to access the Platform and the Intelivideo Service. By establishing an account with us, you authorize us to send you promotional emails regarding the Platform and the Intelivideo Service.
Use of the Intelivideo Service as a Content Owner
The following terms apply to your use of the Platform and the Intelivideo Service as a content owner:
2. Ownership; Engagement
You represent that you are the owner or authorized licensee of Content (as defined in Section 6 below) and that you have full power and authority to enter into this Agreement and grant Intelivideo the limited rights described below. You hereby agree to retain Intelivideo to provide the Intelivideo Service with respect to your Content pursuant to the terms and conditions of this Agreement.
3. Online Stores
3.1 Online Store Generally
3.1 Referrals to Online Stores
You may allow referrals from Intelivideo clients to your Online Store. Through the Intelivideo Service, you can manage the approval of and amount of the referral commission rates for your Online Store. The Intelivideo Service tracks the referrals and the associated purchase to your Online Store. The Intelivideo Services is responsible for the payment to the parties who made the referrals to your Online Store.
4.1 Standard App
As part of the Intelivideo Service, we shall make available a standard App that (a) displays certain of your Marketing Assets (within the parameters of our standard App), and (b) through which your Titles may be digitally distributed to your Customers.
4.2 Customized App
At your election, and subject to your payment of those fees for a customized App set forth in the Pricing Matrix (as such term is defined in Section 8 below), we shall make available to you a customized version of our standard App. The standard customizations to the App enable differentiated management of the App in the App Store and permit you to exclude the content of other Intelivideo clients from the App. If you elect to receive the standard customizations to the App, you agree to pay Intelivideo those fees for the customized App as set forth in the Pricing Matrix. Upon your request, and our mutual agreement on a special Statement of Work (which will not be binding on Intelivideo unless it is executed by an authorized representative of Intelivideo), we shall make further customizations to the App. Such additional customizations may include additional integration of your Marketing Assets into the App, the development of additional features or functions for the App, and/or any other changes to the App as set forth in such Statement of Work. In consideration for our customization of the App, you agree to pay Intelivideo those fees for customizations as set forth in the special Statement of Work.
4.3 Ownership of Customizations
Intelivideo exclusively owns the App and any customizations, changes or enhancements to the App (excluding any Marketing Assets) made pursuant to this Agreement (the “App Customizations”). You hereby grant and assign to Intelivideo, without reservation, all ownership rights, title and interest, including any intellectual property rights, you may have in and to the App Customizations. You agree that you have received consideration for such assignment based on the provision of the Intelivideo Service to you. You agree to execute any documents reasonably requested by Intelivideo to enable us to secure, register or enforce any intellectual property rights in or to the App or the App Customizations.
4.4 App Stores
As part of the Intelivideo Service, we may assist you in making the App available for free download to Customers via the iTunes Store, Google Play and any other generally accepted mobile application stores for mobile operating systems currently supported by Intelivideo (collectively, “App Stores”). You appoint us to act as your agent for purposes of offering, providing, distributing and maintaining the App on your behalf with the App Stores. The offering, provision and distribution of the App and use of the App Store shall be subject to the terms and conditions of the agreement(s) required by the provider of the App Store (the “App Store Terms”). You shall be solely responsible for familiarizing yourself with the App Store Terms, and you agree to comply with the App Store Terms. You agree that the provider of the App Store and/or Intelivideo may remove the App from any and all App Stores at any time and for any reason. You are solely responsible for the Customer Agreements that govern your Customers’ use of the App.
5. Titles and Products
You shall upload to the Platform those videos, audiovisual combinations, music, sounds, graphics, photos, and other materials that you want to make available to your customers through your Online Store (the “Titles”). For clarity, the Titles include those certain video titles listed by you in your account. It is your responsibility to update your Titles as necessary to keep them current and accurate, which you may do at any time by accessing your account through our Platform.
5.2 Products and Product Information
As part of the Intelivideo Service, you may elect to make products that are related to your Titles (such as books, posters, clothing and other merchandise) (the “Products”) available for sale through your Online Store. You hereby authorize us to make your Products available for sale through your Online Store. You agree to pay those fees set forth in Section 8 (Fees and Payment) below for any orders for your Products that are placed through your Online Store. You shall upload to the Platform the pricing information, photos, and other information that you want to make available through your Online Store about the Products (the “Product Information”). It is your responsibility to update the Product Information as necessary to keep it current and accurate, which you may do at any time by accessing your account through our Platform.
For so long as this Agreement remains in effect, you hereby grant us a non-exclusive, non-transferable (except to the extent permitted by Section 21 (Miscellaneous) below), revocable, worldwide license, with rights to sublicense to our contractors and agents to the extent necessary to perform the Intelivideo Service, to (a) modify the Titles by encoding and transcoding them to the extent necessary to enable digital distribution, and (b) use, reproduce, advertise, promote, market, publicly display, publish and distribute (solely through download or digital streaming) (i) the Titles solely for the purpose of digitally distributing the Titles to Customers through your Online Store and the App, and (ii) the Product Information solely for the purpose of marketing and selling the Products through your Online Store.
6. Marketing Assets
You may at your election upload to the Platform those trademarks, service marks, logos, trade names, insignia, decorative designs, and other symbols or source identifiers associated with the Titles (the “Marketing Assets”). We will inform you of the requirements you must fulfill to enable your Marketing Assets to display correctly on your Online Store and the App. If you elect to upload your Marketing Assets, then for so long as this Agreement remains in effect, you hereby grant us a non-exclusive, non-transferable (except to the extent permitted by Section 21 (Miscellaneous) below), revocable, worldwide license, with rights to sublicense to our contractors and agents solely to the extent necessary to perform the Intelivideo Service, to use, reproduce, publicly display, and publish your Marketing Assets on your Online Store and the App solely in the form as uploaded by you and solely for the purpose of advertising, promoting, marketing, publishing, selling and distributing the Titles and the Products as permitted by this Agreement. You acknowledge that you have sole control over the appearance and display of your Marketing Assets, and therefore you agree that Intelivideo is not obligated to comply with any guidelines regarding the display of your Marketing Assets. The Titles, the Product Information and the Marketing Assets shall be referred to collectively in this Agreement as the “Content.” We acknowledge that we are only receiving a limited right to use your Content, and that the Content (including all encoded versions of the Content and intellectual property rights therein) is and remains your sole and exclusive property.
7. The Intelivideo Service
7.1 Order Administration for Titles
Any orders (each, an “Order”) for Titles to be digitally distributed through the Intelivideo Service must be received by us directly from Customers through your Online Store. We will notify you of Orders placed through your Online Store. Orders placed directly through your Online Store will be processed immediately by Intelivideo and the Title shall be made available for access through your Online Store upon our completion of the processing of the Order. Your Customer must agree to your current Customer Agreements before we will fulfill the Order. We will notify the Customer when the Title is available for access. We will also inform the Customer regarding Intelivideo’s then-current device and system requirements for accessing any Titles.
7.2 Order Administration for Products
Upon receiving any Order for Products through your Online Store, we will notify you or your designee of the Order so that you may arrange for its fulfillment. You acknowledge that Intelivideo has no responsibility for the quality of any Product, the fulfillment of any Order for Product, or the processing of any returns of Products.
7.3 Reports and Analytics
We will make available to each client of the Intelivideo Service on a periodic basis certain standard reports and analytics about the usage of that client’s online store and data regarding viewing of such client’s video content. Our current standard reports and analytics offerings are available to you once you create your account. Please contact us if you are interested in engaging Intelivideo to provide customized reports or analytics.
7.4 Payment Processing Service
You agree that Intelivideo may process credit card payments from your Customers for Orders for Titles that will be digitally distributed through your Online Store, and for Orders for Products that are placed through your Online Store. When your Customer places an Order with Intelivideo and inputs his or her credit card information as payment for the Order, the credit card information is transmitted directly to our third party payment processor. The payment processor verifies the credit card. After the credit card is cleared by the processor, the processor will remit directly to you the amount due to you for the Order. Intelivideo receives the amount of the Customer’s payment that is specified in our Pricing Matrix (as defined in Section 8 below). Intelivideo does not store the Customer’s credit card image or number.
7.5 Additional Products, Services or Programs
Intelivideo may from time to time offer products, services or programs in addition to those described in this Agreement (the “Additional Services”). If the Additional Services are standard services offered by Intelivideo to its customers, the pricing and fees for such Additional Services will be set forth in the Pricing Matrix. By accessing and using any such standard services, you agree to pay the fees for such standard services in accordance with the Pricing Matrix. Other Additional Services that are not standard services may be procured by you by entering into a special Statement of Work that describes such nonstandard services and sets forth the pricing and fees and any other applicable terms and conditions for such nonstandard services. A Statement of Work will not be binding on Intelivideo unless it is executed by an authorized representative of Intelivideo. Any Additional Services shall be part of the Intelivideo Service as such term is used throughout this Agreement.
8. Fees and Payment
We maintain our current pricing and fees for the Intelivideo Service for Content owners here: www.intelivideo.com/pricing/ (the “Pricing Matrix”). The Pricing Matrix applies with respect to your Products and Titles which are accessible to Customers at a monthly subscription rate of at least $9.99, and specifies how often each fee is payable by you. The Pricing Matrix may change from time to time, so please review the Pricing Matrix periodically for the most current fees and payment terms. Your continued access and use of the Intelivideo Service after we have notified you of any such modifications to the Pricing Matrix shall constitute your acceptance of such modifications to the Pricing Matrix. You agree to pay all of those fees specified in the most current Pricing Matrix for the services, packages and features used by you in accordance with the payment terms set forth in the Pricing Matrix. You agree that if you fail to timely pay any fees or other amounts when due to Intelivideo pursuant to the Pricing Matrix or this Agreement, we have the right to terminate your access to the Intelivideo Service and/or customized App. With respect to your Products and Titles which are accessible to Customers at a monthly subscription rate of $9.98 or less, the pricing for the Intelivideo Service is a flat fee of $2.00 per subscriber per month. Such flat fee may be modified from time to time by us, and your continued access and use of the Intelivideo Service after we have notified you of any such modification shall constitute your acceptance of such modification. All fees are nonrefundable. All amounts payable to Intelivideo are exclusive (i.e. net) of all sales, use, value-added, withholding and other taxes and duties, other than taxes on Intelivideo’s income.
You are solely responsible for all Content that you upload, post, transmit or otherwise make available via the Platform, your Online Store, the App and/or the Intelivideo Service. You agree not to use the Platform, your Online Store, the App and/or the Intelivideo Service to upload, post, transmit or otherwise make available any Content that: (1) is unlawful, harmful, fraudulent, misleading, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable; (2) you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (3) infringes any patent, licensing, trademark, trade secret, copyright or other intellectual property or proprietary rights of any party; (4) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (5) interferes with or disrupts the Intelivideo Service or servers or networks connected to the Intelivideo Service; or (6) intentionally or unintentionally violates any applicable local, state, national or international law. You understand that your Content may be transferred unencrypted, and that transmissions may occur over various networks. (Customer credit card information is encrypted when transmitted.) Under no circumstances will Intelivideo be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, transmitted or otherwise made available via the Platform, your Online Store, the App and/or the Intelivideo Service. You acknowledge, consent and agree that Intelivideo may preserve and disclose your account information and Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce the terms and conditions of this Agreement; or (iii) respond to claims that any Content violates the rights of third parties. We reserve the right to remove in our sole discretion any Content from the Platform, your Online Store, the App and/or the Intelivideo Service at any time.
10. Content Disclaimers
When a Customer purchases or rents a Title, the Customer is responsible for completing the digital download of the Title, and for all risk of loss of the Title after download. You acknowledge that, when your Content is digitally distributed, the resolution and quality of the Content received will depend on a number of factors, including without limitation the type of device on which the Content is streamed and the bandwidth, which may go up and down over the course of viewing. If we detect that Content we are digitally distributing on your Online Store or the App may be interrupted or may otherwise not play properly due to bandwidth constraints or other factors, we may decrease the resolution and file size of the Content in an effort to provide an uninterrupted viewing experience. While we strive to provide a high quality viewing experience, we make no guarantee as to the resolution or quality of the Content received.
11. Representation and Warranties
You represent, warrant and agree: (1) you have the right to license the Content to Intelivideo and make the Content and the Products available via the Platform, your Online Store, the App and the Intelivideo Service, (2) that none of the Content or the Products infringe, violate or misappropriate any patent, license, trademark, trade secret, copyright or other intellectual property or proprietary rights of any party, and you have no knowledge of any basis therefore including without limitation due to our use of the Content in the manner contemplated by this Agreement, (3) your Content and/or Products do not involve downloading software on the computing or mobile device of the Customer purchasing the Content or Product (unless a purchase is completed and you provide the Customer with a clear and conspicuous disclosure describing all of the software being downloaded, its functionality and you obtain express consent prior to any such downloads), (4) that you are responsible for the acts or omissions of any third parties who are involved in the provision or delivery of the Content or the Products, (5) that you have full power and authority to enter into this Agreement and grant the rights granted herein; and (6) that performance of this Agreement will not conflict with the terms of any other agreement under which you are bound.
12. Customer Agreements
You are responsible for ensuring that all of your Customer Agreements include terms and conditions that (a) notify Customers and any prospective customers of our rights in the information and data collected by us; (b) accurately inform such parties of our use of the information and data; (c) fully release Intelivideo from any claim or other liability arising from your Service or Products; (d) provide a means for users to report infringing activity and promptly comply with takedown requests in accordance with the Digital Millennium Copyright Act; and (e) obtain such parties’ consent to our use of the information and data that may relate to them, in compliance with all applicable laws and regulations (including, without limitation, the Video Privacy Protection Act of 1988 (18 U.S.C. § 2710), as amended). You shall indemnify, defend, release, and hold harmless Intelivideo from any claims, penalties, enforcement actions, or other losses resulting from your failure to obtain a valid consent and any other breach of this Section 12. For your convenience only, sample Customer Agreements addressing the foregoing are available here: www.intelivideo.com/sample-agreements/. You should consult your own legal counsel with respect to whether the sample Customer Agreements are appropriate for you. The sample Customer Agreements are not provided as legal advice. YOU RELEASE INTELIVIDEO FROM ANY LIABILITY WHATSOEVER REGARDING ANY USE OF THE SAMPLE AGREEMENTS.
The following terms apply to all clients and all users of the Intelivideo Service:
We reserve the right to modify this Agreement at any time, including without limitation in order to cover changes or additions to the Intelivideo Service. We will notify you of any such modifications by posting a notice of the modifications as you log into your account. Your continued access and use of the Intelivideo Service after we have notified you of any such modifications to this Agreement shall constitute your acceptance of such modifications to the Agreement and agreement to be bound by such modifications. If you do not agree to the modifications, then we will terminate your account and your access to the Intelivideo Service within fifteen (15) days. We reserve the right to discontinue any aspect of the Intelivideo Service at any time.
14. General Use Restrictions
Except to the extent expressly permitted by us pursuant to Section 5 (Titles and Products) and 6 (Marketing Assets) above, you agree not to alter or modify any part of the Platform or the Intelivideo Service. You further agree not to promote or use the Platform or the Intelivideo Service for any of the following commercial uses unless you obtain our prior written approval: (1) the sale of access to the Platform or the Intelivideo Service; or (2) the sale of advertising, sponsorships, or promotions placed on or within your Online Store, the Platform, or the Intelivideo Service. (For clarity, prohibited commercial uses do not include uploading Titles or Product Information to the Platform or your Online Store, or maintaining your Online Store to promote your business or artistic enterprise, or any use that we expressly authorize in writing.) You agree not to use or launch any automated system, including without limitation, “robots,” “spiders,” or “offline readers,” that accesses the Platform, your Online Store, the App or the Intelivideo Service in a manner that sends more request messages to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser. You agree to comply with all applicable laws and regulations in your promotion and use of the Platform, Content, your Online Store, the App and the Intelivideo Service.
15. General Disclaimers
EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH HEREIN, INTELIVIDEO HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE PLATFORM, YOUR ONLINE STORE, THE APP, THE INTELIVIDEO SERVICE OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF INFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
You agree to defend, indemnify and hold harmless Intelivideo and its officers, directors, employees and agents from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to (a) any breach by you of any of the terms or conditions of this Agreement and any App Store Terms, (b) any actual infringement, violation or misappropriation of third party intellectual property, privacy or other rights by the Content or the Products, (c) any violation by you of any applicable law or regulation, or (d) any claim made by a third party, whether for personal injury, death or damage to property, with respect to any Product.
17. Limitation of Liability
INTELIVIDEO WILL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, OR FOR ANY LOST PROFITS, LOSS OF DATA OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE OR STRICT LIABILITY), ARISING OUT OF THIS AGREEMENT OR YOUR USE OR INABILITY TO USE THE INTELIVIDEO SERVICES, EVEN IF INTELIVIDEO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL INTELIVIDEO’S LIABILITY ARISING OUT OF THIS AGREEMENT OR THE INTELIVIDEO SERVICE, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAYABLE BY YOU TO INTELIVIDEO UNDER THIS AGREEMENT. YOU AGREE THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
18. Proprietary Rights
You acknowledge that you are only receiving a limited right to use the Platform, the App and the Intelivideo Service. The Platform, the App, the Intelivideo Service, and the trademarks, service marks, logos, trade names, insignia, decorative designs, and other symbols or source identifiers associated with Intelivideo, the Platform, the App and/or the Intelivideo Service (including all intellectual property rights in or to any of the foregoing) are and remain the sole and exclusive property of Intelivideo, and we reserve all rights in and to all of the foregoing. We also own any information and data collected by us from you or your Customers or any prospective customers, including without limitation any data regarding viewing of Titles by your Customers via your Online Store, the App and/or the Intelivideo Service. We may use such information and data to operate the Online Stores, the App and the Intelivideo Service, as well as for benchmarking and service enhancements; provided, however, we agree that we will not use such information and data to market or promote products or services to your Customers without your prior written approval.
19. Term and Termination
This Agreement shall take effect on the date you create your account for the Intelivideo Service, and shall continue until terminated in accordance with this Agreement. If you no longer wish to access or use the Intelivideo Service, you can terminate this Agreement immediately at any time at no additional charge by notifying us. Your rights to access and use the Intelivideo Service are conditioned on your strict compliance with this Agreement. If you violate any of the terms or conditions of this Agreement, we may in our sole discretion (1) terminate your account for the Intelivideo Service and this Agreement immediately upon notice to you, (2) revoke your access to the Intelivideo Service without notice to you and without refund of any fees, and (3) refuse to fulfill any Orders for your Customers. Further, we reserve the right to discontinue or terminate, in whole or in part, upon notice to you, the Intelivideo Service or any related offering, promotion, discount or program. If we discontinue or terminate only a part of the Intelivideo Service or any related offering, promotion, discount or program, then this Agreement shall continue in full force and effect with respect to any parts of the Intelivideo Service or any related offering, promotion, discount or program that is not so discontinued or terminated. If we discontinue or terminate the Intelivideo Service in its entirety, then this Agreement shall terminate simultaneously with such discontinuance or termination. Immediately upon termination of this Agreement for any reason, you must cease all promotion of, access to and use of the Intelivideo Service. Sections 9 (Content), 10 (Content Disclaimers), 11 (Representations and Warranties), 12 (Customer Agreements), 14 (General Use Restrictions), 15 (General Disclaimers), 16 (Indemnification), 17 (Limitation of Liability), 18 (Proprietary Rights), 19 (Term and Termination), 20 (Governing Law; Jurisdiction), and 21 (Miscellaneous), together with any accrued payment obligations, shall survive termination of this Agreement for any reason.
20. Governing Law; Jurisdiction
This Agreement is governed by the laws of the State of Colorado, without regard to its conflicts of law provisions. Any claim or controversy arising out of or related to this Agreement shall be instituted in any state court in Boulder County, Colorado or federal court in Denver County, Colorado. Each party agrees to submit to the jurisdiction of, and agrees that the venue is proper in such courts in any such legal action or proceeding.
This Agreement constitutes the entire agreement between the parties and supersedes all oral or written agreements and understandings made and entered into by the parties prior to the date hereof. You may not assign this Agreement in whole or in part without the prior written consent of Intelivideo, and any purported assignment in violation of this provision shall be null and void. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their respective heirs, Intelivideo may assign or otherwise transfer this Agreement and all rights granted hereunder in connection with any corporate reorganization, merger, or sale of all or substantially all of the assets and business to which this Agreement relates. Any notice that we are required to send you under this Agreement or by law shall be deemed effective when sent to the primary email address in your account information. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. This Agreement shall not be construed or deemed to create any partnership, joint venture, agency, franchise, or other form of agreement or relationship than as expressly set forth herein.
These Terms of Service are effective as of February 9, 2018.