Effective date: August 23, 2018
Welcome to the ProductionNext, Inc. (“Company”, “our”, “us”, “we”) websites at https://www.productionnext.com and https://beta.productionnext.com, which provide our film and video production management software-as-a-service (collectively, including the General Beta Functionality (as defined below in Section 2.a and the Beta Project Subscription Service (as defined below in Section 2.b), the “Service”). These Terms and Conditions (this “Agreement”) apply to those who visit and use the Service (“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 SERVICE, PLEASE READ THIS AGREEMENT CAREFULLY. By VIEWING, BROWSING OR OTHERWISE USING THE SERVICE, 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 SERVICE. PLEASE READ THIS AGREEMENT CAREFULLY, AS IT (AMONG OTHER THINGS) PROVIDES IN SECTION 22(B) THAT YOU AND COMPANY WILL ARBITRATE CERTAIN CLAIMS INSTEAD OF GOING TO COURT AND THAT YOU WILL NOT BRING CLASS ACTION CLAIMS AGAINST THE COMPANY.
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 SERVICE IS NOT FOR PERSONS UNDER THE AGE OF 13. If you are under 13 years of age, then please do not use the Service. Talk to your parents about what websites are appropriate for you. If you are between the age of 13 and 18, you can only use the Beta Project Subscription Service if your parent or legal guardian agrees to this Agreement on your behalf, and by accepting these terms, such parent or legal guardian represents that (a) they are your parent or legal guardian; and (b) they accept this Agreement on your behalf.
- 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 Service, including Your Content.
- The Service. The Service consists of the following functionality and such other functionality as the Company may make available in connection therewith or via its websites or other hosted applications from time to time:
- General Beta Functionality. By registering as part of our publicly available beta program, you gain access to certain Service functionality, including our community facilities and the ability to create an unlimited number of collaborative film and video production projects (each, a "Project”) using all associated functionality which the Company makes available for users of the General Beta Functionality. You also have the ability to join as many other users’ Projects as you wish. The General Beta Functionality expressly excludes the Beta Project Subscription Service.
- Beta Project Subscription Service. The Beta Project Subscription Service will allow you to use all associated functionality which the Company makes available in connection therewith, and which may exceed the abilities that are available as part of the General Beta Functionality. At any time during which the Service continues to be publicly available in beta form, as a user of the General Beta Functionality, you may sign up for a free 7-day trial of the Beta Project Subscription Service. Additionally, as a current member of the Service prior to the launch of our publicly available beta program, you may be offered a free trial of the Beta Project Subscription Service to extend for longer than 7 days, and we may offer different length free trials of the Beta Project Subscription Service in connection with other programs and promotions, such as our affiliate program (any such free trial period, the “Beta Trial Period”). Any applicable Beta Trial Period will begin when you submit an application to join the Beta Project Subscription Service, at which time you must provide a valid credit card that will be used as payment for your subscription of the Beta Project Subscription Service at the fees and intervals provided from time to time on the Service and subject to the applicable terms of this Agreement. Your credit card will be automatically charged for the full price of the Beta Project Subscription Service at the end of the Beta Trial Period in the case of annual subscriptions, or at regular intervals as provided from time to time on the Service in the case of non-annual subscriptions. You may cancel your participation in the Beta Project Subscription Service at any time prior to the expiration of the Beta Trial Period, in which case there will be no further charges to your credit card for the Service, you will lose access to the capabilities of the Beta Project Subscription Service, and will only be able to interact with your Projects under the terms of the General Beta Functionality. You can subscribe at a later date and may be able to “re-activate” and use your existing Projects with the functionality provided as part of the Beta Project Subscription Service.
- Post-Beta Service. At the conclusion of any one-year subscription of the Beta Project Subscription Service, or at the conclusion of the beta program in the case of non-annual subscriptions, Projects will be paid for according to terms and fees which the Company will provide to existing users and post on the Service closer to such time. You will lose access to the functionality provided as part of the Beta Project Subscription Service until and unless you sign up for the Post-Beta Service and pay the then-current fees for such Projects, and you may no longer be able to access (including by export or download) your Project data.
- 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 such portions of the Service which are made available to other users of your same subscription status 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 right 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.
- Fees and Payments.
- You acknowledge that by entering into this Agreement, you are also entering into the separate agreements referenced in Section 6(a) directly with our Payment Processor, that Company is not a party to such separate agreements and that Company is not an affiliate of our Payment Processor. You acknowledge and agree that Company does not control our Payment Processor or its performance of payment processing services, and that Company shall have no liability of any kind for any act or omission (including negligence) of our Payment Processor or any claim, demand, suit, damage, judgment, liability, loss, expense or cost incurred by you in relation to the performance or non-performance of payment processing services by our Payment Processor, other than to the extent to which any of the foregoing may arise from the gross negligence or willful misconduct of Company.
- 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 any 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.
- 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 4 and 6 through 24 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; Email. 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/or in connection with this Agreement, and are deemed given when sent. Additionally, the Company may from time to time send you marketing and promotional emails regarding current and future Company products and services. If you do not wish to receive these emails, you can opt-out using the link provided in those emails.
- Agreement to Arbitrate. This Section 22 is referred to herein as the “Arbitration Agreement.” The parties that any and all controversies, claims, or disputes between you and Company arising out of, relating to, or resulting from this Agreement, shall be subject to binding arbitration pursuant to the terms and conditions of this Arbitration Agreement, and not any court action (other than a small claims court action to the extent the claim qualifies and other than claims for injunctive or other equitable relief). The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
- Class Action Waiver. THE PARTIES AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH PARTIES AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S).
- Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association's ("AAA") rules and procedures (the "AAA Rules"), as modified by this Arbitration Agreement. If there is any inconsistency between the AAA Rules and this Arbitration Agreement, the terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of this Agreement as a court would, including without limitation, the limitation of liability provisions in Section 14. You may visit http://www.adr.org for information on the AAA and http://www.adr.org/fileacase for information on how to file a claim against the Company.
- Venue. The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or Company may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on each party, but subject to the arbitrator's discretion to require an in-person hearing if the circumstances warrant. Attendance at any in-person hearing may be made by telephone by either or both parties unless the arbitrator requires otherwise.
- Governing Law. The arbitrator will decide the substance of all claims in accordance with the laws of the state of California, without regard to its conflicts of laws rules, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Service users, but is bound by rulings in prior arbitrations involving you to the extent required by applicable law.
- Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the "Arbitration Fees") will be governed by the AAA's Rules. Each party will be responsible for all other fees it incurs in connection with the arbitration, including without limitation, all attorney fees.
- Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties.
- Severability. If a court decides that any term or provision of this Arbitration Agreement other than Section 22(b) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court decides that any of the provisions of Section 22(b) is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of this Agreement will continue to apply.
- 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. We may make modifications, deletions and/or additions to this Agreement (“Changes”) at any time. Changes will be effective: (i) thirty (30) days after we provide notice of the Changes, whether such notice is provided through the Service user interface, is sent to the e-mail address associated with your account or otherwise; or (ii) when you opt-in or otherwise expressly agree to the Changes or a version of this Agreement incorporating the Changes, whichever comes first. 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 15) 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.