Customer acknowledges that the Free Version is provided at no charge, and therefore, the terms that govern use of the Free Version are different, in part, from the terms that govern use of the Paid Version. The specific provisions that relate only to the Paid Version are set forth in Sections 6 (Paid Version Payments), 8.2 (Paid Version Limited Warranty), and 10.1 (Paid Version Limitation of Liability), and the specific provision that relates only to the Free Version are set forth in Sections 2.12 (Free Version) and 10.2 (Free Version Limitation of Liability). All other non-specified terms shall apply to both the Paid Version and Free Version. If Customer upgrades from the Free Version to a Paid Version, Customer acknowledges and agrees that the terms that govern the use of the Paid Version shall automatically apply to Customer upon such upgrade.
CUSTOMER’S RIGHT TO USE THE SERVICES IS EXPRESSLY CONDITIONED ON ACCEPTANCE OF THESE TERMS. BY CLICKING ON THE “ACCEPT” BUTTON AND/OR USING THE SERVICES, YOU ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCESSING THE SERVICES ON BEHALF OF YOUR EMPLOYER OR ANOTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO AGREE TO THESE TERMS ON ITS BEHALF. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
- “Confidential Information” means materials, information, data or know-how, whether provided in written, oral, visual or other form, provided by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) in connection with this Agreement, in each case, that is marked or otherwise identified as confidential or proprietary or that is disclosed in such a manner or is of such a nature that a reasonable person would understand such information to be confidential or proprietary. “Confidential Information” does not include any information the Receiving Party can demonstrate is (a) already rightfully known by it without restriction, (b) rightfully furnished to it by a third party without restriction and without breach of any obligation to the Disclosing Party, (c) generally available to the public without breach of this Agreement or (d) independently developed by it without reliance on the Confidential Information of the Disclosing Party. Notwithstanding the foregoing, all pricing information is deemed Wistia’s Confidential Information and all Content and Customer Data is deemed Customer Confidential Information.
- “Content” means all text, software, scripts, graphics, photos, sounds, music, videos, podcasts, audiovisual combinations, interactive features and other materials that may be viewed on, accessed through, or contributed to the Subscription Services by Users.
- “Customer Data” means all Customer registration information and other transaction data collected, processed and retained by Wistia in connection with providing the Subscription Services, including without limitation, Content submitted by Users.
- “Documentation” means the manuals, specifications, and similar documentation accompanying the Subscription Services.
- “Manager” means an individual who has managerial user rights on behalf of the Customer with respect to the Subscription Services.
- “Order Form” the document describing the Services and pricing purchased by Customer and which incorporates these Terms of Service.
- “Owner” means an individual who has administrative user rights on behalf of Customer with respect to the Subscription Services.
- “Plan” means the version of Wistia’s Subscription Services that Customer is purchasing or subscribing for under this Agreement, as set forth in the Order. Such Plan may be (a) a free-to-the-user version of the Subscription Services as described in the respective Plan (the “Free Version”) or (b) a paid version of the Subscription Services having as described in the respective Plan, for which Customer pays a Subscription Services Fee (the “Paid Version”).
- “Subscription Services” means all of our applications, tools and platforms that you have subscribed to under an Order form or that Wistia otherwise makes available under this Agreement.
- “Subscription Services Fees” means the fees that Customer is required to pay Wistia for the Subscription Services for the Paid Version, as further described in Section 6.1 (Fees).
- “Systems” means modems, servers, software, network and communications equipment and ancillary services that are owned, controlled or procured by Customer.
- “Updates” means any patch, revision or update to the Subscription Services delivered by Wistia.
- “User” means your employees, representatives, consultants, contractors or agents who are authorized to use the Subscription Services for your benefit and have unique user identifications and passwords for the Subscription Services.
Subject to all terms and conditions of this Agreement, Wistia will provide the Subscription Services to Customer and grants to Customer the right to access and use the Subscription Services as provided herein. Wistia may provide the Subscription Services to Customer directly, or indirectly using contractors or other third party vendors or service providers.
Customer’s Plan has an associated monthly bandwidth limit as specified on the Plan page or Order Form. Monthly limits are calculated based on calendar months and are based on the date of account activation. Free accounts that exceed the monthly bandwidth limit of the free plan will experience a stoppage in video play until the subscription term (month) resets. Once a paid account reaches its monthly bandwidth limit, Customer will be notified and given the option, depending on their plan, of (a) upgrading to a plan with a higher bandwidth limit, or (b) paying for extra bandwidth at the rate specified in the Order. In rare circumstances, where customers are continually exceeding their monthly bandwidth limit and not upgrading their plan or paying for overages, Wistia reserves the right to temporarily freeze customer’s account until a solution is reached.
The Plan sets forth the number of Manager and User seats that Customer has been allotted. Each Manager may appoint the number of Users specified in the Plan and determine what feature permissions to grant to such Users, provided that the aggregate use of the Subscription Services by all Managers and all Customer appointed Users may not exceed the maximum limits as specified in the Plan. Customer shall be responsible for any breaches of this Agreement by its Managers and Users.
Customer and its Managers and Users may access the Subscription Services as Wistia instructs through a combination of one or more usernames and passwords. Customer shall take full responsibility and liability for the security of each of its user names and passwords (including, without limitation, those assigned to its Managers and Users), and shall be solely responsible for all use of the Subscription Services through such user names or passwords. Customer agrees to notify Wistia without undue delay in the event of any unauthorized use of the Subscription Services or any other breach of security known to Customer which may affect the Subscription Services.
(a) As a condition of use of the Subscription Services, Customer shall not use the Subscription Services for any purpose that is prohibited by this Agreement. Customer shall not (and shall not permit any Manager or User to) upload, download, post, submit or otherwise distribute or facilitate distribution of any Content on or through the Subscription Services:
- for any illegal or fraudulent activity;
- to violate the rights of others;
- to threaten, incite, promote, or actively encourage violence, terrorism, or other serious harm;
- for any content or activity that promotes child sexual exploitation or abuse;
- to violate the security, integrity, or availability of any user, network, computer or communications system, software application, or network or computing device;
- to distribute, publish, send, or facilitate the sending of unsolicited mass email or other messages, promotions, advertising, or solicitations (or “spam”).
(b) Customer shall not (directly or indirectly) or permit any third party to: (i) interfere or attempt to interfere with the proper working of the Subscription Services or any activities conducted on the Subscription Services; (ii) use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or in any way gather information, content or other materials from Subscription Services or reproduce or circumvent the navigational structure or presentation of Subscription Services; (iii) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Subscription Services, except to the limited extent applicable laws specifically prohibit such restriction, (iv) use any of Wistia’s Confidential Information to create any software, documentation or service that is similar to the Subscription Services or any Documentation provided in connection therewith; (v) modify, translate, or otherwise create derivative works of any part of the Subscription Services, or (vi) copy, license, sublicense, sell, resell, encumber, rent, lease, time-share, distribute, transfer or otherwise use or exploit or make available the Subscription Services in any service bureau arrangement or otherwise for the benefit of any third party without the prior written consent of Wistia. Customer shall abide by all applicable local, state, national and international laws and regulations, including, without limitation, any export control laws or regulations of the United States of America or any other relevant jurisdiction. Access to the Subscription Services by “bots” or other automated methods in any way that could degrade the system is not permitted.
(c) Customer shall not (and shall not permit any Manager or User to) upload, download, post, submit or otherwise distribute or facilitate distribution of any Content on or through the Subscription Services, that:
- infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity;
- is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, vulgar, pornographic, profane, contains or depicts nudity, contains or depicts sexual activity, or is otherwise inappropriate, as determined by Wistia in its sole discretion; or
- contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of Wistia or any third party.
Wistia reserves the right to modify or discontinue any Services or Plan (in whole or in part, including pricing) at any time.
We reserve the right to change the Terms at any time, but if we do, we will bring it to your attention by placing a notice on the Wistia website, by sending you an email, or by some other means. If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes. Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.
Wistia will not be responsible or liable for any failure in the Subscription Services resulting from or attributable to (a) Customer’s Systems, (b) network, telecommunications or other infrastructure failures outside of Wistia’s facilities, (c) Customer’s or third party’s products, services, negligence, acts or omissions, (d) any Force Majeure Event (as such term is defined herein), (e) scheduled maintenance or (f) unauthorized access, breach of firewalls or other hacking by third parties.
Customer shall obtain and operate all Systems needed to connect to, access or otherwise use the Subscription Services, and provide all corresponding backup, recovery and maintenance services which are applicable to such Systems. Customer shall ensure that all Systems are compatible with the Subscription Services. Customer shall maintain the integrity and security of its Systems (physical, electronic and otherwise).
Promptly following Customer’s written request, at any time, Wistia shall remove and erase all of Customer’s videos that it has access to.
If Customer has subscribed to the Free Version of the Subscription Services, Customer acknowledges that the Free Version is provided at no charge, and therefore, the terms that govern use of the Free Version are different, in part, from the terms that govern use of the Paid Version. In particular, as regards the Free Version, the following Sections of this Agreement are inapplicable: Sections 6, 8.2, 9.1 and 11.2. With respect to the Free Version, this Agreement shall continue in effect until either Party terminates this Agreement upon at least five (5) business days’ written notice to the other Party. Except as otherwise provided herein, all other terms and conditions of this Agreement shall apply to the Free Version. If Customer upgrades from the Free Version to a Paid Version, Customer acknowledges and agrees that the terms and conditions that govern the use of the Paid Version shall automatically apply to Customer upon such upgrade. Each Customer may have only one Free Version account.
If Customer experiences any issues with the Subscription Services, Customer can send an email to Wistia at firstname.lastname@example.org. Further details about Wistia’s support and maintenance services for the Subscription Services are set forth in the Order. Customer acknowledges that Wistia support is limited to the Subscription Services.
The Subscription Services may be temporarily unavailable, for example, when deemed reasonably necessary or prudent by Wistia to repair, maintain or upgrade the Subscription Services or for causes beyond Wistia’s reasonable control. Wistia will notify Customer at least 48 hours in advance of any known planned Subscription Services-related outages.
Wistia shall have no obligation to provide Updates, except that Wistia will provide Customer with any Update that it makes generally available without charge to its similar customers.
Wistia (and its licensors) own all right, title and interest in and to the Subscription Services and all modifications, enhancements and Updates to the Subscription Services (including all intellectual property and proprietary rights embodied therein). Wistia reserves all rights not expressly granted hereunder. Customer shall not alter, obscure or remove any printed or on-screen trademark, patent legend or other proprietary or legal notice associated with the Subscription Services.
As between the parties, Customer shall own all Customer Data. Wistia shall not disclose to third parties or use any Customer Data except as reasonably necessary to provide the Subscription Services or to comply with any legal, regulatory or similar requirement or investigation. Notwithstanding the foregoing, during and after the term of this Agreement, Wistia may use anonymized Customer Data, such as number of media plays, number of videos, how your videos and audiences are interacting with the player, as combined with other Wistia customers’ data, to improve and/or market the Subscription Services. Customer hereby grants Wistia a nonexclusive, non-sublicensable and royalty-free right and license to use the Customer Data solely for the purposes and in the manner described herein. For clarity, Wistia does not share personally identifiable information such as user name, email, etc. Customer agrees to create archival copies or backup copies of all Customer Data.
Except for the specific rights granted by this Agreement, the Receiving Party shall use the Confidential Information solely for the purpose of complying with its obligations under this Agreement and shall not use or disclose any of the Disclosing Party’s Confidential Information without its prior written consent, and shall use no less than a reasonable standard of care to protect the Disclosing Party’s Confidential Information, including ensuring that its employees and contractors with access (a) have a need to know for the purposes of this Agreement and (b) are bound by written agreements containing obligations of confidentiality at least as protective as those provided herein. The Receiving Party shall be responsible for any breach of confidentiality by its employees and contractors. Neither Party may disclose the specific terms of this Agreement without the prior consent of the other Party. Notwithstanding the foregoing, either Party may disclose the existence of this Agreement and/or any of its terms in connection with any financing transaction or due diligence inquiry, provided that the party to whom such information is disclosed is bound by confidentiality obligations at least as protective as those herein and the Party disclosing such information is responsible for any breaches of confidentiality by the party to whom such information is disclosed.
Nothing herein shall prevent a Receiving Party from disclosing any Confidential Information as necessary pursuant to any court order, lawful requirement of a governmental agency or when disclosure is required by operation of law (including disclosures pursuant to any applicable securities laws and regulations); provided, that prior to any such disclosure, to the extent permissible, the Receiving Party shall use reasonable efforts to (a) promptly notify the Disclosing Party in writing of such requirement to disclose and (b) cooperate with the Disclosing Party, at the Disclosing Party’s request and expense, in protecting against or minimizing any such disclosure or obtaining a protective order.
In consideration for Wistia’s provision of the Paid Version of the Subscription Services, Customer agrees to pay Wistia the Subscription Service Fees in the amounts and at the times specified in the Order Form using the payment method specified in the Order Form.
In order to set up an account with Wistia, Customer must provide Wistia with accurate and complete billing information including legal name, address, telephone number, and a valid credit card or other manner of payment. If Customer uses a credit card, it will never be charged without Customer’s authorization. By submitting such credit card information, Customer gives Wistia permission to charge all fees incurred through its account to the designated credit card. Payments are due in full within 30 days of the invoice date. Wistia reserves the right to terminate this Agreement in accordance with Section 9.2 hereto if Customer does not provide a valid credit card or other payment method for the payment of fees hereunder.
The Subscription Services are billed at the frequency set forth in the Plan or Order Form. If you choose to pay by a means other than credit card, full payment must be received within 30 days of invoice date. Except as otherwise provided herein, Wistia will not provide refunds or credits in the case of cancellations, downgrades, or when there are unused portions of the Subscription Services on an open account. For clarity, if a Customer cancels the Subscription Services prior to the end of the current term, except as otherwise provided in this Agreement, the Customer will be required to pay the Subscription Services Fees for the remainder of that term. For any Subscription Services upgrade, Customer’s renewal billing date will remain the same. The associated increase in Subscription Services Fees will be prorated for the remainder of the subscription term of the Subscription Services Order and billed immediately.
Except as set forth in the Order Form, all payments are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and Wistia will charge Customer such taxes as applicable and Customer agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon Wistia’s net income. All amounts due hereunder shall be grossed up for any withholding taxes imposed by any foreign government.
If Customer’s account is thirty (30) days or more overdue, in addition to any of its other rights or remedies, Wistia reserves the right upon ten (10) days prior written notice to Customer, to suspend the Subscription Services without liability to the Customer, until Customer pays all overdue amounts in full. Suspension shall not relieve Customer of its obligation to pay the entirety of the fees due.
7.1 Wistia shall use commercially reasonable technical, physical, and administrative safeguards designed to protect the security of personally identifiable information and other proprietary information provided by Customer to Wistia.
Each Party hereby represents and warrants to the other that (i) such Party has the corporate power and authority to enter into this Agreement and to fully perform all of its obligations hereunder, and (ii) the execution and performance of this Agreement does not violate any agreement existing between such Party and any third party.
Wistia represents and warrants that it will provide the Subscription Services in a professional manner. Any warranty claim under the foregoing sentence must be made in writing within ten (10) days after performance of the nonconforming Subscription Services. Wistia’s sole obligation and Customer’s exclusive remedy in respect thereof is for Wistia to re-perform the nonconforming Subscription Services or, at Wistia’s sole discretion, to terminate this Agreement in respect of the nonconforming Subscription Services and refund to Customer the pro-rata portion of the previously paid Subscription Services Fees for the unused portion of the subscription term for the nonconforming Subscription Services.
EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. WISTIA DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED BY LAW, WISTIA HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SUBSCRIPTION SERVICES, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
Wistia shall at its own expense defend (and pay all costs and expenses of such defense, including attorneys fees and court costs) Customer from any third party claims that Customer’s permitted use of the Subscription Services in accordance with this Agreement infringes on the patent rights, trademark rights, or copyrights of a third party, or misappropriates the trade secrets of a third party (an “IP Claim”). Wistia will further indemnify and hold Customer harmless from and against any finally adjudicated or settled costs, damages or liabilities arising from an IP Claim. The foregoing obligations are conditioned on Customer (i) promptly notifying Wistia in writing of the action, and (ii) allowing Wistia sole control of such action and/or its settlement and giving Wistia reasonable assistance in the defense of the action, at Wistia’s request and expense. Wistia shall not enter into any settlement that would constitute an admission of guilt or liability on the part of Customer, without Customer’s express prior written consent. Notwithstanding the foregoing, Wistia shall have no liability for any claim to the extent based upon (a) the combination, operation or use of the Subscription Services with products not furnished by Wistia, (b) modifications to the Subscription Services not authorized by Wistia, (c) intellectual property rights owned or controlled by Customer or its affiliates, or (d) Customer’s use of the Subscription Services in a manner that breaches this Agreement.
In the event that the Subscription Services are held in a suit or legal proceeding to infringe any patent rights, copyrights, or trademarks of a third party, or misappropriate the trade secrets of a third party, and the use of the Subscription Services is enjoined, or Wistia reasonably believes that it is likely to be found to infringe, or likely to be enjoined, then Wistia may, at its sole cost and expense, and at its option, either (1) procure for Customer the right to continue using the Subscription Services, or (2) modify the Subscription Services so that they become non-infringing, without affecting the basic functionality of the Subscription Services; provided, however, that if (1) and (2) are not practicable, Wistia shall have the right, in its sole discretion, to terminate this Agreement and/or Order upon written notice and reimburse Customer the pro-rata portion of the previously paid Subscription Services Fees for the unused portion of the subscription term for any terminated Order. This Section 9.1 sets forth Wistia’s exclusive liability and sole obligation and Customer’s exclusive remedy in the event of any claim of intellectual property infringement or misappropriation.
Customer shall at its own expense defend, indemnify and hold Wistia harmless from and against any costs, damages, liabilities and attorney’s fees incurred by Wistia, directly and to the extent arising out of third party claims that (i) result from any permitted use or disclosure of Customer Data in connection with the provision of Subscription Services or to comply with any legal, regulatory or similar requirement or investigation, or (ii) result from Customer’s breach of Section 2.5(a) hereof. Customer shall further at its own expense defend (and pay all costs and expenses of such defense, including attorneys fees and court costs) Wistia from any third party claims that Wistia’s permitted use of the Customer’s Content in accordance with this Agreement infringes on the intellectual property rights of a third party (a “Customer IP Claim”). Customer will indemnify and hold Wistia harmless from and against any finally adjudicated or settled costs, damages or liabilities arising from a Customer IP Claim. The foregoing obligations are conditioned on Wistia (a) promptly notifying Customer in writing of the action, and (b) allowing Customer sole control of such action and/or its settlement and giving Customer reasonable assistance in the defense of the action, at Customer’s request and expense. Customer shall not enter into any settlement that would constitute an admission of guilt or liability on the part of Wistia, without Wistia’s express prior written consent.
The following limitation of liability clause applies if you have a Paid Version of the Subscription Services:
EXCEPT FOR DEATH, BODILY INJURY OR FRAUD, ANY BREACHES OF SECTION 2.5 (PROHIBITED USES) OR SECTION 5 (CONFIDENTIALITY), OR LIABILITY ARISING PURSUANT TO THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 9 HEREIN, OR ANY EXCLUSION OR LIMITATION OF LIABILITY THAT IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY (OR WISTIA’S LICENSORS) BE LIABLE TO THE OTHER PARTY, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, OR (C) DIRECT DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO WISTIA HEREUNDER WITH RESPECT TO THE SUBSCRIPTION SERVICES THAT GAVE RISE TO THE CLAIM DURING THE TWELVE-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN. THE TERMS OF THIS SECTION SHALL APPLY TO ANY DATA PROCESSING ADDENDUM EXECUTED BY THE PARTIES.
The following limitation of liability clause applies if you have a Free Version of the Subscription Services:
EXCEPT FOR DEATH, BODILY INJURY OR FRAUD, OR TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF ITS LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW, IN NO EVENT SHALL WISTIA BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL (INCLUDING ANY ERROR OR DAMAGE ATTRIBUTABLE TO ANY NETWORK OR SYSTEM), (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, OR (D) DIRECT DAMAGES IN EXCESS OF $100.00 IN THE AGGREGATE, EVEN IF WISTIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN. THE TERMS OF THIS SECTION SHALL APPLY TO ANY DATA PROCESSING ADDENDUM EXECUTED BY THE PARTIES.
This Agreement shall commence on the Effective Date and shall continue in effect for one hundred twenty (120) days after the termination of an Order for the Subscription Services unless terminated earlier as permitted in Section 11.2.
This Agreement may be earlier terminated by either Party, in whole or in part, (a) if the other Party materially breaches a provision of this Agreement and fails to cure such breach within fifteen (15) days after receiving written notice of such breach from the non-breaching Party, provided that the non-breaching Party may terminate this Agreement immediately and without a cure period if the breach is not reasonably capable of cure, or (b) immediately upon written notice, if the other Party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other Party’s property, or the other Party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other Party and is not dismissed within ninety (90) days, or the other Party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.
Upon any expiration or termination of this Agreement, all rights, obligations and licenses of the Parties shall cease, except that (a) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) and remedies for breach of this Agreement shall survive, (b) if Customer terminates pursuant to Section 11.2(a) hereof, then Wistia shall refund any pre-paid fees for a Paid Version for the remainder of the unused Order Subscription Term, (c) Wistia shall delete archived Content in accordance with its usual and customary processes, and (d) the provisions of Sections 4 (Proprietary Rights), 5 (Confidentiality), 6 (Payments) (only with respect to amounts incurred prior to the effective date of termination), 8.3 (Disclaimers), 9 (Indemnification), 10 (Limitation of Liability), 13 (General Provisions) and this Section 11.3 (Effects of Termination) shall survive.
Wistia has adopted a policy toward copyright infringement (the “Copyright Dispute Policy”) in accordance with the Digital Millennium Copyright Act (http://lcweb.loc.gov/copyright/legislation/dmca.pdf). The “Copyright Dispute Policy” is set forth in Section 10 of Wistia’s general Terms of Service, which can be found at www.wistia.com/terms. Customer acknowledges that Wistia has the right, but not the obligation, to follow the Copyright Dispute Policy in the event Wistia receives a notice of alleged copyright infringement in connection with Customer’s Content or any other Content made available through the Subscription Services. The Parties agree that the general Terms of Service are not incorporated into this Agreement except to the extent expressly stated in this section.
- All Schedules other than Orders
- Copyright Dispute Policy
Customer’s purchase order (if any) is only effective as its unqualified commitment to access and pay for the Subscription Services upon the terms (and only the terms) set forth herein. No waiver, consent or modification of this Agreement shall bind either Party unless in writing and signed by the Party against which enforcement is sought. The failure of either Party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, USA, without regard to its conflicts of law provisions. Neither the United Nations Convention on Contracts for the International Sale of Goods nor any enactment of the Uniform Computer Information Transactions Act shall apply to this Agreement. Any dispute arising under this Agreement will be resolved in the state and federal courts of Middlesex County, Massachusetts, and each Party hereto waives any objection to venue and hereby submits to the personal jurisdiction of such courts. In any action or proceeding to enforce or interpret this Agreement, the prevailing Party will be entitled to recover from the other Party its costs and expenses (including reasonable attorneys’ fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.
Except as specifically provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each Party agrees that, in the event of any breach or threatened breach of Section 5, the non-breaching Party may suffer irreparable damage for which it may have no adequate remedy at law. Accordingly, the non-breaching Party may be entitled to seek injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond in any court of competent jurisdiction.
Except as otherwise provided in Section 12.1, any notice or communication hereunder shall be in writing and either personally delivered or sent by recognized express delivery courier or certified or registered mail, prepaid and return receipt requested, addressed to the other Party at its address specified in the Order, or at such other address designated in a subsequent notice. All notices shall be in English, effective (i) on the second day after such notice is sent by a nationally recognized overnight or two (2) day air courier service, full delivery cost paid; or (ii) on the fifth day after such notice was mailed, .
This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either Party without the other Party’s written consent (which shall not be unreasonably withheld). However, without consent but with written notice, either Party may assign this Agreement to any affiliate or to any successor to all or substantially all of its business which concerns this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise). Any attempted transfer in violation hereof will be void and of no effect. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.
The Parties shall be independent contractors under this Agreement, and nothing herein will constitute either Party as the employer, employee, agent or representative of the other Party, or both parties as joint venturers or partners for any purpose.
Customer agrees that Wistia has the right to publicly disclose Customer’s status as a customer of Wistia. Except with respect to the foregoing, neither Party will make public announcements or issue press releases relating to this Agreement or the terms hereof without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed.
Except for the obligation to make payments, neither Party shall be liable for delays or breaches in its performance under this Agreement due to causes beyond its reasonable control, such as acts of vendors, acts of god, acts or omissions of civil or military authority, government priorities, fire, earthquakes, strikes or other labor problems, floods, epidemics, quarantine restrictions, riots, war, acts of terror, computer or telecommunications failures, network intrusions or denial of service attacks and delays of transportation (“Force Majeure Event”).