Effective Date: April 5, 2019.
In some instances, both these Terms and separate terms elsewhere on the Service will apply to your use of the Service (“Additional Terms”). To the extent there is a conflict between these Terms and any applicable Additional Terms, the Additional Terms will control unless they expressly state otherwise.
2. Service Use.
A. Limited License.
Subject to your strict compliance with these Terms and any applicable Additional Terms, StudioNow grants you a limited, non-exclusive, revocable, non-assignable, and non-transferable license to display, view, use, and access the Service on a personal computer, browser, laptop, tablet, mobile phone, or other internet-enabled device (each, a “Device”). The foregoing limited license (i) does not give you any ownership of, or any other intellectual property interest in, the Service, and (ii) may be suspended or terminated for any reason, in StudioNow’s sole discretion, and without advance notice or liability. Your unauthorized use of the Service may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability.
You may not use the Service unless you are at least eighteen (18) years old or access the Platform unless you are an Authorized User (defined below).
You may not: (i) engage in any activity in connection with the Service that is unlawful, harmful, offensive, sexually explicit, obscene, violent, threatening, harassing, abusive, falsely representative of your persona, invasive of someone else’s privacy, or otherwise objectionable to StudioNow; (ii) harvest any information from the Service; (iii) reverse engineer or modify the Service; (iv) interfere with the proper operation of or any security measure used by the Service; (v) infringe any intellectual property or other right of any third party; (vi) use the Service in a manner that suggests an unauthorized association or is beyond the scope of the limited license granted to you; or (viii) otherwise violate these Terms or any applicable Additional Terms.
You agree to comply with all local, state, federal, national, foreign, supranational, and international laws, statutes, ordinances, regulations, treaties, directives, and agreements that apply to your use of the Service.
StudioNow may suspend or terminate the availability of the Service, in whole or in part, to any individual user or all users, for any reason, in StudioNow’s sole discretion, and without advance notice or liability. Upon suspension or termination of your access to the Service, or upon notice from StudioNow, all rights granted to you under these Terms or any applicable Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Service.
D. Reservation of Rights.
All rights not expressly granted to you are reserved by StudioNow and its licensors and other third parties. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. Any unauthorized use of the Service for any purpose is prohibited.
3. Platform Use.
A. Subscribers and Subscriber Partners.
If your organization purchases a subscription to our Platform subject to a Master Services Agreement, your organization is a “Subscriber.” To the extent there is a conflict between these Terms and the terms of your Master Services Agreement, these terms will control unless the Master Services Agreement expressly states otherwise. As a Subscriber, you are permitted to create a workspace on the Platform and invite your Subscriber Partners (defined below) to that workspace. Your Authorized Users and Subscriber Partners may access and use the workspace subject to your and their strict compliance with these Terms and solely for purposes of procurement, bidding, and project management of video production and other marketing and advertising services for or on your behalf.
If your organization is invited to join a workspace on the Platform by a Subscriber and accepts that invite, your organization is a “Subscriber Partner.” As a Subscriber Partner, your Authorized Users may access and use the workspace subject to your and their strict compliance with these Terms and solely for purposes of procurement, bidding, and project management of video production and other marketing and advertising services for or on the Subscriber’s behalf.
Subscribers, and not us, are responsible for ensuring that their Subscriber Partners comply with these Terms and all applicable laws. We are not responsible for the acts or omissions of any Subscribers or Subscriber Partners, or their employees, agents, or affiliates.
B. Authorized Users.
If you are a Subscriber or Subscriber Partner, you must ensure that your employees authorized to access and use the Platform (“Authorized Users”) comply with these Terms. By accessing and using the Platform, you and your Authorized Users agree to: (i) provide true, accurate, current, and complete information; (ii) maintain and update this information to keep it true, accurate, current, and complete; (iii) protect and prevent unauthorized access to your account; (iv) not transfer or share your account with any third party; and (v) immediately notify us of any suspected or actual unauthorized use of your account or breach of security. Please note that you are solely responsible for all activities that occur under your account, whether or not you authorized the activity, and we are not liable for any loss or damage to you or any third party arising from your failure to comply with any of the foregoing obligations.
A. Our Content.
The Service contains: (i) materials and other items relating to StudioNow and its products and services, and similar items from our licensors and other third parties, including all layout, information, databases, articles, posts, text, data, files, images, scripts, designs, graphics, instructions, illustrations, photographs, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Service, and the compilation, assembly, and arrangement of the materials of the Service and any and all copyrightable material; (ii) trademarks, logos, trade names, trade dress, service marks, and trade identities of StudioNow and various parties; and (iii) other forms of intellectual property of StudioNow and various parties (all of the foregoing, collectively “Content”). All right, title, and interest in and to the Service and the Content is the property of StudioNow or our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent and/or other intellectual property and unfair competition rights and laws to the fullest extent possible.
B. Your Content.
As between StudioNow and you, you retain all ownership and intellectual property rights in any content, materials, or information provided by or on behalf of you to us through the Service, except for your Feedback (defined below) (“Your Content”). For avoidance of doubt, Your Content includes, but is not limited to, your Confidential Information (defined below). You hereby grant StudioNow a nonexclusive, limited, revocable, royalty-free license to use Your Content for the sole purpose of performing the Service. You represent and warrant that for the duration of these Terms, you have (and will have) all the rights necessary and a lawful basis for Your Content and that the collection, use, processing, and retention of Your Content will not violate any law or rights of others. StudioNow cannot be held responsible for Your Content.
You may from time to time provide suggestions, comments or other feedback (“Feedback”) to StudioNow concerning the Service, including the features, functionality and user experience associated with the Service. You agree that all such Feedback will be the sole and exclusive property of StudioNow and you hereby transfer to StudioNow any rights you may have in any Feedback.
D. Data Processing.
5. Confidential Information.
The parties agree that any Confidential Information provided under these Terms shall be held and maintained in strict confidence. Each party agrees to protect the confidentiality of such information in a manner consistent with the way a reasonable person would protect similar Confidential Information. “Confidential Information” means content, materials, or information provided through the Platform by StudioNow, a Subscriber, or a Subscriber Partner which is noticed or marked by the disclosing party as confidential and proprietary or which should reasonably be understood as confidential and proprietary given the nature of the content, materials, or information. Subscriber’s Confidential Information includes, without limitation, Subscriber’s business information, ideas, materials, work in process, marketing, sales, pricing, briefs, scripts, storyboards, bids, and names of any bidding parties provided by Subscriber through the Platform. Subscriber Partner’s Confidential Information includes, without limitation, Subscriber Partner’s business information, ideas, materials, work in process, marketing, sales, pricing, briefs, scripts, storyboards, bids, and names of any bidding parties provided by Subscriber Partner through the Platform. “Confidential Information” does not include information that (i) is already known to the receiving party at the time it is disclosed and has not been obtained wrongfully, (ii) becomes publicly known without fault of the receiving party, (iii) is independently developed by the receiving party, (iv) is approved for release in writing by the disclosing party, (v) is disclosed without restriction by the disclosing party to a third party, or (vi) is disclosed pursuant to legal obligations beyond the control of the disclosing and receiving parties. You understand that (i) if you are a Subscriber, we may share your Confidential Information with your Subscriber Partners; and (ii) if you a Subscriber Partner, we may share your Confidential Information with the applicable Subscriber. We may also share your Confidential Information as necessary to provide you with the Service, protect our or third party rights, in connection with a potential or actual merger or acquisition, or as required by law. We may aggregate data derived from your Confidential Information for your benefit, but we will not sell or license such aggregate data to any third parties without your prior written consent.
6. Copyright Infringement.
A. DMCA Notification.
StudioNow responds to copyright notifications submitted under the Digital Millennium Copyright Act, 17 U.S.C. § 512 (“DMCA”). To submit a notice of claimed copyright infringement under U.S. law, provide our designated agent with the following written information:
Our designated agent is:
4017 Hillsboro Pike, Suite 418 Nashville, TN 37215
Phone: (866) 423-2510
You can obtain further information from the Copyright Office’s online directory at www.dmca.copyright.gov/osp.
We will respond to notifications of claimed copyright infringement in accordance with the DMCA.
B. Counter Notification.
If you believe that your material has been removed in error in response to a copyright notification, you may submit a counter notification to our designated agent with the following written information:
We will respond to counter notifications in accordance with the DMCA.
7. Customer Support.
If you have any questions or comments, please send an e-mail to us at firstname.lastname@example.org. You acknowledge that the provision of support is at StudioNow’s sole discretion and that we have no obligation to provide you with customer support of any kind. All legal notices to us must be mailed to: StudioNow, Inc., Attn: Legal, 4017 Hillsboro Pike, Suite 418, Nashville, TN 37215. When you communicate with us electronically, you consent to receive communications from us electronically. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
8. Third Party Services.
Our Service contains content from and hyperlinks to websites, locations, platforms, and services operated and owned by third parties (“Third Party Services”). We may also integrate third party technologies
You can opt-out of receiving certain promotional e-mails from us at any time by following the instructions as provided in e-mails to click on the unsubscribe link, or contacting us at email@example.com with the word UNSUBSCRIBE in the subject field of the e-mail. Your opt-out will not affect non-promotional e- mails, such as those about your account, transactions, servicing, or StudioNow’s ongoing business relations.
Please note that any opt-out by you is limited to the e-mail address, device, or phone number used and will not affect subsequent subscriptions.
10. Agreement to Arbitrate Disputes and Choice of Law.
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
A. We Both Agree to Arbitrate.
You and StudioNow agree to resolve any claims relating to these Terms through final and binding arbitration, except to the extent you have in any manner violated or threatened to violate StudioNow’s intellectual property rights (for example, trademark, trade secret, copyright, or patent rights). Under such circumstances StudioNow may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Service, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described herein.
B. What is Arbitration.
Arbitration is more informal than a lawsuit in court and seeks to resolve disputes more quickly. Instead of a judge or a jury, the case will be decided by a neutral arbitrator who has the power to award the same damages and relief that a court can. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced.
C. Arbitration Procedures.
The Federal Arbitration Act governs the interpretation and enforcement of this dispute resolution provision. Arbitration shall be initiated through JAMS. Any dispute, controversy, or claim arising out of or relating to these Terms shall be referred to and finally determined by arbitration in accordance with the JAMS Streamlined Arbitration Rules and Procedures in front of one arbitrator. If there is a conflict between JAMS Rules and the rules set forth in these Terms, the rules set forth in this Terms will govern. The JAMS Rules and instructions for how to initiate an arbitration are available from JAMS at http://www.jamsadr.com or 1-800-352-5267. To initiate arbitration, you or StudioNow must do the following things:
Payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules. If travelling to New York is a burden, you may participate in the arbitration by phone or via document submission to the fullest extent allowable by the arbitrator. Each party will bear their own costs of arbitration unless the arbitrator directs that bearing such costs would be an undue burden and in that case, we will pay for your portion of the arbitration administrative costs (but not your attorneys’ fees). Arbitration under this agreement shall be held in the United States in New York, NY under New York law without regard to its conflict of laws provisions. The arbitration may award on an individual basis the same damages and relief as a court (including injunctive relief). Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
D. Authority of Arbitrator.
The arbitrator will decide the rights and liabilities, if any, of you and StudioNow, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the Arbitration Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and StudioNow.
E. Waiver of Class Actions.
You waive any right to pursue an action on a class-wide basis against us and may only resolve disputes with us on an individual basis, and may not bring a claim against us as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed.
F. Waiver of Jury Trial.
THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and StudioNow in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND STUDIONOW WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING TO ACCEPT THIS AGREEMENT TO ARBITRATE.
G. Choice of Law/Forum Selection.
In any circumstances where the Agreement to Arbitrate Disputes permits the parties to litigate in court, these Terms shall be governed by and construed in accordance with the laws of the State of New York, excluding its conflict of law rules. You further expressly consent and agree to submit to the exclusive jurisdiction and venue of a court of competent jurisdiction located in New York, NY.
11. Disclaimer of Representations and Warranties.
THE SERVICE IS PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS” BASIS. NEITHER STUDIONOW NOR ANY OF ITS OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES OR AGENTS (COLLECTIVELY, THE ” STUDIONOW PARTIES”) MAKE ANY REPRESENTATIONS, WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER AS TO THE CONTENT OR OTHER SERVICES, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, INCLUDING THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND FREEDOM FROM COMPUTER VIRUS. BY ACCESSING OR USING THE SERVICE YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SERVICE.
12. Limitations of Our Liability.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE STUDIONOW PARTIES BE LIABLE TO YOU FOR ANY LOSS, DAMAGE OR INJURY OF ANY KIND INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSSES OR DAMAGES, OR DAMAGES FOR SYSTEM FAILURE OR MALFUNCTION OR LOSS OF PROFITS, DATA, YOUR CONTENT, USE, BUSINESS OR GOOD-WILL, ARISING OUT OF OR IN CONNECTION WITH (A) THE SERVICE, (B) THESE TERMS, (C) YOUR CONTENT, OR (D) YOUR MISUSE OF THE SERVICE OR ANY CONTENT AVAILABLE ON OR THROUGH THE SERVICE. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER THE ASSERTED LIABILITY OR DAMAGES ARE BASED ON CONTRACT, INDEMNIFICATION, TORT, STRICT LIABILITY, STATUTE OR ANY OTHER LEGAL OR EQUITABLE THEORY.
You agree to defend, indemnify and hold harmless the StudioNow Parties from and against any and all claims, liabilities, damages, losses, costs and expenses (including, reasonable attorneys’ fees and costs) arising out of or in connection with any of the following: (i) your breach or alleged breach of these Terms; (ii) Your Content; (iii) your misuse of the Service; (iv) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental or quasi-governmental authorities; (v) your violation of the rights of any third party, including any intellectual property right, publicity, confidentiality, property or privacy right; (vi) your use of a Third Party Service; (vii) any misrepresentation made by you; or (viii) if you are a Subscriber, the acts or omissions or your Subscriber Partners. StudioNow reserves the right to assume, at your expense, the exclusive defense and control of any matter subject to indemnification by you. You agree to cooperate with StudioNow’s defense of any claim. You will not in any event settle any claim without the prior written consent of StudioNow.
14. Waiver of Injunctive or other Equitable Relief.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU AGREE THAT YOU WILL NOT BE PERMITTED TO OBTAIN AN INJUNCTION OR OTHER EQUITABLE RELIEF OF ANY KIND, SUCH AS ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, SUBMISSIONS, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY STUDIONOW OR A LICENSOR OF STUDIONOW.
15. Updates to Terms.
We reserve the right, at any time in our sole discretion, to modify or replace any part of these Terms and any applicable Additional Terms, without prior notice. You agree that we may notify you of any updated Terms and any applicable Additional Terms by posting them on the Service so that they are accessible via a link from the home page, and/or to send you an e-mail to the last e-mail address you provided to us. All such changes are effective immediately when we post them, or such later date as may be specified in the notice of updated Terms and any applicable Additional Terms. If you object to any such changes, your sole recourse is to cease using the Service.
16. General Provisions.
A. Consent or Approval.
No StudioNow consent or approval may be deemed to have been granted by StudioNow without being in writing and signed by an officer of StudioNow.
The provisions of these Terms and any applicable Additional Terms, which by their nature should survive termination of your use of the Service, including sections on Service Use (except for the limited license), Platform Use, Ownership, Confidential Information, Copyright Infringement, Customer Support, Third Party Services, Communications, Agreement to Arbitrate Disputes and Choice of Law, Disclaimer of Representations and Warranties, Limitations of Our Liability, Indemnification, Waiver of Injunctive or Other Equitable Relief, Updates to Terms, and General Provisions, will survive.
C. Severability; Interpretation; Assignment.
If any provision of these Terms, or any applicable Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable, then that provision will be deemed severable from these Terms or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the Additional Terms. You hereby waive any applicable statutory and common law that may permit a contract to be construed against its drafter. The summaries of provisions and section headings are provided for convenience only and shall not limit the full Terms. StudioNow may assign its rights and obligations under these Terms and any applicable Additional Terms, in whole or in part, to any party at any time without any notice. These Terms and any applicable Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of StudioNow.
D. Complete Agreement; No Waiver.
These Terms, and any applicable Additional Terms, reflect our complete agreement regarding the Service and supersede any prior agreements, representations, warranties, assurances or discussion related to the Service. Except as expressly set forth in these Terms or any applicable Additional Terms, (i) no failure or delay by you or StudioNow in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms or any applicable Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.
E. International Issues.
StudioNow controls and operates the Service from the U.S., and StudioNow makes no representation that the Service is appropriate or available for use beyond the U.S. You agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms or to any sale of goods carried out as a result of your use of the Service. Software related to or made available by the Service may be subject to export controls of the U.S., and, except as authorized by law, you agree and warrant not to export or re-export the software to any county, or to any person, entity, or end-user subject to U.S. export controls or sanctions.
F. Investigations; Cooperation with Law Enforcement.
StudioNow reserves the right to investigate and prosecute any suspected breaches of these Terms or the Service. StudioNow may disclose any information as necessary to satisfy any law, regulation, legal process or governmental request.
G. California Consumer Rights and Notices.
Residents of California are entitled to the following specific consumer rights information: you may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs by mail at: 1625 North Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (916) 445-1254. Their website is located at: http://www.dca.ca.gov.