Effective date: June 13, 2016
Welcome to the ProductionNext, Inc. (“Company”, “our”, “us”, “we”) websites at www.productionnext.com and beta.productionnext.com, which provide our film and video production management software-as-a-service (the “Sites”). These Terms and Conditions (this “Agreement”) apply to those who visit and use the Site (“you”). We reserve the right, at our discretion, to change, modify, add, or remove portions of this Agreement at any time.
If the individual accepting the terms of this Agreement is doing so on behalf of a corporation or other legal entity, such individual represents and warrants that he/she has the authority to bind that legal entity to the terms of this Agreement, and, in such event, “you” and “your” will refer to that legal entity.
BEFORE VIEWING, BROWSING OR OTHERWISE USING THE SITE, PLEASE READ THIS AGREEMENT CAREFULLY. BY VIEWING, BROWSING OR OTHERWISE USING THE SITE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN PLEASE DO NOT VIEW, BROWSE OR OTHERWISE USE THE SITE.
YOU ACKNOWLEDGE THAT THE SERVICE IS IN BETA, PRE-RELEASE FORM, AND AS SUCH WILL CONTAIN BUGS, MAY NOT OPERATE CONSISTENTLY OR PERFORM ALL INTENDED FUNCTIONS, AND MAY CAUSE ERRORS, DATA LOSS OR OTHER PROBLEMS. YOU HEREBY ASSUME ALL RISKS ASSOCIATED WITH THE USE OF THE SERVICE AND RELIANCE ON ANY DATA, INFORMATION OR RECOMMENDATIONS PROVIDED OR RECEIVED THROUGH THE SERVICE. THE SERVICE IS MADE AVAILABLE IN BETA, PRE-RELEASE FORM FOR SUCH TIME PERIOD AS THE COMPANY MAY ELECT IN ITS SOLE DISCRETION, AND SUCH AVAILABILITY MAY END AT ANY TIME AND WITHOUT NOTICE.
NOTE TO KIDS UNDER 13 YEARS OF AGE: THE SITE IS NOT FOR PERSONS UNDER THE AGE OF 13. If you are under 13 years of age, then please do not use the Site. Talk to your parents about what websites are appropriate for you.
- Other Agreements. The following additional agreements, as may be updated by the Company from time to time in accordance with its terms, are hereby incorporated into this Agreement, and you hereby agree to the terms set forth therein.
- The Company’s DMCA Policy, at https://beta.productionnext.com/dmca (the “DMCA Policy”) sets forth processes and procedures for good faith notifications of alleged copyright infringement by content available on the Sites, including Your Content.
- Right to Access. The Company hereby grants to you, subject to all terms and conditions of this Agreement, a limited, nonexclusive, nontransferable right to access and use the Service solely for your internal business use relating to your own film or video productions and in accordance with all applicable Documentation (as defined below) and other instructions provided by the Company.
- Responsibilities. You are solely responsible for purchasing and configuring all hardware, software and services that may be necessary or desirable for your use of the Service. You agree to use the Service in compliance with all applicable laws, rules and regulations. You acknowledge and agree that you shall be responsible for all activities occurring under your Service user account(s).
- Documentation. The Company hereby grants you, a limited, nonexclusive, nontransferable license to internally use any documentation provided by the Company regarding the Service (“Documentation”) as reasonably necessary for your authorized use of the Service. You may make a reasonable number of copies of the Documentation in connection with exercising the foregoing license. Without limiting any other terms and conditions of this Agreement, you may not transfer or provide the Documentation to any third party.
- No Other Rights. You have no rights with respect to the Service or Documentation except as expressly provided in this Agreement. Without limiting the generality of the foregoing, you may not: (a) provide your Service account log-in information to any third party; (b) copy, distribute, rent, lease, lend, sublicense or transfer the Service or Documentation or use the Service or Documentation on a service bureau basis; (c) decompile, reverse engineer, or disassemble the Service or otherwise attempt to discover the source code of the Service; (d) create derivative works based on the Service or Documentation; or (e) modify, remove, or obscure any copyright, trademark, patent or other notices or legends that may appear on the Service or Documentation or during the use and operation thereof.
- Feedback. You agree to communicate with The Company from time to time at The Company’s reasonable request regarding your experience using the Service. To the extent you provide any ideas, feedback or suggestions regarding the Service (collectively, “Feedback”) to the Company, you agree to assign and hereby do assign all right, title and interest in and to such Feedback to the Company and acknowledge that the Company may freely use, reproduce, modify, distribute, make, have made, sell, offer for sale, import and otherwise exploit in any manner such Feedback without payment of any royalties or other consideration to you.
- Ownership. The Service and Documentation are the property of the Company and its third-party licensors. As between you and the Company, the Company shall retain all right, title and ownership interest (including all worldwide patent, copyright, trade secret, trademark and other intellectual property rights and other proprietary rights) in and to the Service and Documentation and any copies, derivative works, upgrades, updates, improvements and modifications thereof, in, regardless of the form or media in which, or on which, the original and any other copies, derivative works, upgrades, updates, improvements or modifications may exist.
- Availability; Support. As the Service is in beta form and access thereto is provided at no charge: (i) the Company makes no representation or warranty of any kind regarding the availability of the Service, and you acknowledge that the Service may be unavailable from time to time and/or may be terminated entirely by the Company, in each case without notice; and (ii) the Company has no obligation to provide you with any technical support or to fix any errors with respect to the Service.
- Your Content. As between you and the Company, you retain ownership of all your film or video production-related content and information that you may upload to the Service as part of your use thereof (“Your Content”). However, you hereby grant the Company a worldwide, non-exclusive, fully paid-up, royalty-free, irrevocable and transferable license to use, reproduce and modify Your Content for purposes of providing and operating the Service, for purposes of analyzing usage of the Service and for purposes of informing the development and improvement of the Service and the Company’s other products and services. In addition, you agree that the Company may disclose aggregated information (such as statistics) relating to some or all User data on the Service (including Your Content), provided that you are not identified. You hereby represent and warrant that you own Your Content or otherwise have all licenses, rights, consents, and permissions necessary for the use of Your Content by the Company as contemplated hereunder and as may be otherwise authorized by you. You acknowledge that you are solely responsible for all of Your Content and the completeness, accuracy and reliability thereof, and hereby represent and warrant that: (i) Your Content will not infringe or misappropriate any third party intellectual property right, privacy right, right of publicity or other third party; and (ii) Your Content will not violate applicable law. You agree and acknowledge that you shall properly identify Your Content using the provided interface selections, including, without limitation, selections indicating graphic content, violent content or content otherwise inappropriate for certain ages and audiences. You understand that Company does not actively monitor Your Content and has no obligation to do so, and that proper identification of Your Content is your sole responsibility. Subject to the Company’s publicity rights in the following sentence, the Company shall not intentionally make Your Content available to any third party except where required by law or legal process. However, you consent to Company’s right to publicize aggregated and anonymized data connecting such anonymized Projects with third party distribution channels, networks, production companies, media companies and similar publicly visible media channels. You expressly agree that Company’s use of such data in such manner does not constitute a breach of any confidentiality obligations under this Agreement or any other Agreement to which you are bound.. However, you acknowledge that no security measures are 100% effective and that Your Content may be subject to unauthorized access. The Service is not a backup or archiving service, and you are responsible for maintaining your own backups of Your Content. The Company shall not be liable to you for any unauthorized access to, deletion of, or damage or corruption to, your Content residing on servers controlled by the Company. Your storage of and access to Your Content shall be subject to such storage and bandwidth limitations as the Company may institute or enforce from time to time.
- Confidentiality. “Confidential Information” means all technical, financial or business information owned, possessed or used by the Company, whether in written, oral or electronic or other form, that is learned of by you in connection with this Agreement, whether or not labeled “Confidential”, including but not limited to the Service, its user interface and the actual and prospective features and functionality of the Service. Except as otherwise expressly provided in this Agreement, you will not, directly or indirectly, publish, disseminate or otherwise disclose, or deliver or make available to any third party, and Confidential Information. In addition, you agree not to use any Confidential Information other than as expressly authorized under this Agreement or as otherwise expressly authorized by the Company in writing. You will exercise all precautions to protect the integrity and confidentiality of the Confidential Information that you use to protect your own highly valuable confidential information, but in no event less than reasonable care. You may disseminate or permit access to Confidential Information only to your employees who have a need to know such Confidential Information in the course of your use of the Service and who are bound in writing to obligations of confidentiality and non-use of the Confidential Information that are at least as restrictive as those set forth in this Agreement. You will have no obligations of confidentiality and non-use with respect to any portion of the Confidential Information which: (i) is or later becomes generally available to the public by use, publication or the like, through no fault of yours; (ii) is obtained from a third party who had the legal right to disclose such Confidential Information to you without obligation of confidentiality; or (iii) is in your prior possession without obligation of confidentiality, as can be reasonably demonstrated. In the event that you are required by order of a court or other government entity having jurisdiction to disclose any Confidential Information, you will give the Company prompt notice thereof so that the Company may seek to contest and/or limit such requirement, such as by seeking an appropriate protective order. You will reasonably cooperate with the Company in any such efforts.
- No Competitor Use. You hereby represent and warrant that you have not developed or made available, and are not in the process of developing or making available, any software, service or technology competitive to the Service. If you do at any time engage in any such activity, you agree to promptly notify the Company in writing and this Agreement shall (regardless of whether you comply with such notice obligation) be deemed terminated.
- Breach; Termination. If you breach any provision of this Agreement, this Agreement (including all of your rights and licenses with respect to the Service and Documentation) shall immediately terminate without further notice from or action by the Company. In addition, either you or the Company may terminate this Agreement at any time upon written notice, for any reason or for no reason. Upon termination or expiration of this Agreement, you agree to cease all use of the Service and Documentation and to delete all copies of the Documentation in your possession or control. The provisions of Sections 2, 4 through 9, and 11 through 21 shall survive any termination or expiration of this Agreement. Termination of this Agreement shall not derogate from any accrued rights and remedies.
- No Warranties. THE SERVICE AND DOCUMENTATION ARE FURNISHED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. THE COMPANY MAKES NO WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE AND THE DOCUMENTATION, INCLUDING WITH RESPECT TO THEIR QUALITY, PERFORMANCE, MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICE AND DOCUMENTATION IS WITH YOU.
- Limitation of Liability. IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, YOUR USE OF (OR INABILITY TO USE) THE SERVICE OR RELIANCE ON ANY DATA, INFORMATION OR RECOMMENDATIONS PROVIDED OR RECEIVED THROUGH THE SERVICE, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE AND REGARDLESS OF THE THEORY OF LIABILITY. IN NO EVENT SHALL THE COMPANY’S AGGREGATE LIABILITY TO YOU ARISING OUT OF OR RELATING TO THIS AGREEMENT, YOUR USE OF (OR INABILITY TO USE) THE SERVICE, OR RELIANCE ON ANY DATA, INFORMATION OR RECOMMENDATIONS PROVIDED OR RECEIVED THROUGH THE SERVICE EXCEED FIFTY US DOLLARS, REGARDLESS OF THE THEORY OF LIABILITY. YOU STIPULATE THAT THE FOREGOING EXCLUSIONS AND LIMITATIONS ON DAMAGES ARE REASONABLE UNDER THE CIRCUMSTANCES AND ACKNOWLEDGE THAT WITHOUT SUCH EXCLUSIONS AND LIMITATIONS THE COMPANY WOULD NOT MAKE AVAILABLE THE SERVICE WITHOUT CHARGE. THE FOREGOING LIMITATIONS OF LIABILITY AND EXCLUSIONS OF CERTAIN DAMAGES SHALL APPLY REGARDLESS OF THE EXISTENCE OF MULTIPLE CLAIMS OR THE THEORY OF LIABILITY, AND REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES.
- Indemnity. You agree to indemnify, defend, and hold the Company and its affiliates, and their directors, officers and employees, harmless from and against any claims, demands, actions, proceedings, losses, liabilities, judgments, settlements, damages, expenses (including reasonable attorneys’ fees) or costs (collectively, “Claims”) arising out of or relating to your breach of this Agreement, Your Content or your use of the Service, including without limitation as may arise out of any allegation that Your Content constitutes an infringement or misappropriation of any third party intellectual property rights, privacy rights, rights of publicity or other third party rights or that Your Content violates applicable law, provided that your obligation under the foregoing shall be excused to the extent the Claim arises directly out of the gross negligence or willful misconduct of the Company. In its sole discretion, the Company may at any time elect to control the defense and/or settlement of any Claim for which you are obligated under the foregoing, at your expense.
- Government Restricted Rights. To the extent that you are an agency or instrumentality of the U.S. government, the parties agree that the Service and Documentation are commercial computer software and commercial computer software documentation, respectively, and that your rights therein are as specified in this License, per FAR 12.212 and DEARS 227.7202-3, as applicable, or in the case of NASA, subject to NFS 1852.227-86.
- Assignment. You may not assign your rights under this Agreement without the express prior consent of the Company. If you are a legal entity, then any merger involving you, acquisition of all or substantially all of your assets or any change of control of you shall be deemed an assignment of this Agreement for which prior written consent is required. The Company may freely assign this Agreement.
- Export; Restricted Persons. The Service is subject to export laws and regulations. You agree to comply with any United States and international export laws and regulations that may apply. You hereby represent and warrant that you are not a Restricted Person. For purposes of this Agreement, a “Restricted Person” is any person or entity, or any officer, director, or controlling shareholder of an entity, that is (1) a national of or an entity existing under the laws of Cuba, Iran, Sudan, North Korea, Syria, or any other country with which U.S. persons are prohibited from engaging in transactions, as may be determined from time to time by the U.S. Treasury Department; (2) designated as a Specially Designated National or institution of primary money laundering concern by the U.S. Treasury Department; (3) listed on the Denied Persons List or Entity List by the U.S. Commerce Department; (4) engaged in nuclear, missile, chemical or biological weapons activities to which U.S. persons may not contribute without a U.S. Government license; or (5) owned, controlled, or acting on behalf of any person or entity described under the foregoing (1) through (4).
- Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law. You agree that any action arising out of or relating to this Agreement shall be filed only in the state or federal courts in Santa Clara County, California, and you hereby consent and submit to the exclusive jurisdiction of such courts for the purposes of litigating any such action.
- Equitable Relief. Notwithstanding anything to the contrary, the Company may apply to any court of competent jurisdiction for injunctive or other equitable relief relating to the protection or enforcement of the Company’s intellectual property rights.
- Notices. Any notices to the Company must be sent to ProductionNext, Inc., to the attention of “Legal Department” at 617 Stardust Lane, Los Altos, California 94024. Such notices and must be sent by first class registered mail or internationally recognized overnight courier and will be deemed given when received. Notwithstanding the foregoing, if the Company’s website at http://www.productionnext.com indicates a newer mailing address for the Company’s corporate headquarters, notices must be sent to such newer address as described in the foregoing sentence. The Company may send notices to you to the e-mail address provided to the Company in connection with your receipt of the Service, and are deemed given when sent.
- Miscellaneous. This Agreement is the complete and final agreement of the parties with respect to the Service and Documentation. If any part of this Agreement is found to be void, unenforceable or invalid, that part will be deemed stricken and will not affect the validity of the other provisions. A waiver of any provision of this Agreement will only be valid if provided in writing and will only be applicable to the specific incident and occurrence so waived. Failure by the Company to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. This Agreement may be modified only by an amendment signed by authorized representatives of both parties or by your electronic acceptance of an amendment or replacement agreement presented to you by the Company. The parties are independent contractors with respect to each other. This Agreement does not constitute and shall not be construed as constituting a partnership or joint venture among the parties hereto, or an employee-employer relationship. No party shall have any right to obligate or bind any other party in any manner whatsoever, and (other than with respect to indemnified persons and entities under Section 14) nothing herein contained shall give, or is intended to give, any rights of any kind to any third parties.
- California Residents. Company is located at 617 Stardust Lane, Los Altos, California 94024. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.