Wochit Commercial Terms
Last Updated: March 24, 2020
These Commercial Terms (these “Commercial Terms”) govern your access and use of the Services and constitute an integral part of the Wochit Master Service Agreement (the “MSA”). In these Commercial Terms and the MSA, “Wochit Content” means content (including third party content licensed by Wochit) made available by Wochit for incorporation into Videos through use of the Platform, and “Video” means any video work prepared by Customer through use of the Platform, and “Platform” means the Wochit online video creation platform, and “Services” means the provision by Wochit of the Platform and associated services, and “Agreement” means the MSA together with these Commercial Terms and all documents referenced herein.
Access to the Services requires registration. When you register or when an account is created for you on your behalf, you represent that all information provided is truthful and correct and that you shall maintain such information up-to-date. You shall not include any content that is defamatory, libelous, pornographic or otherwise offensive as part of your registered profile. It is your responsibility to inform Wochit of any changes to that information or to update such information by signing in to your account. Each registration is for a single individual only. Wochit does not allow you (i) to let anyone other than you to use the sections requiring registration by using your name or password; or (ii) to access the Services through a single name being made available to multiple users on a network or otherwise. You are responsible for preventing such unauthorized use. You agree to immediately notify Wochit of any unauthorized use of your account. You are fully and solely responsible for the security of your computer system and all activity on your account, even if such activities were not committed by you. Wochit will not be liable for any losses or damage arising from unauthorized use of your account, and you agree to indemnify and hold Wochit harmless for any improper or illegal use of your account, including any communications sent and any charges and taxes incurred, unless you have notified us via e-mail to contact [at] wochit.com that your account has been compromised, and have requested us to block access to it. We do not police for, and cannot guarantee that we will learn of or prevent, any inappropriate use of the Services.
Wochit and its licensors own the Platform including all the trademarks, service marks, and logos thereof, all modifications and enhancement to the foregoing, and all intellectual property rights in all of the foregoing (collectively, “Wochit Property”). If Customer provides Wochit with any feedback concerning the Platform or other services provided by Wochit, Wochit may freely use such feedback. All trademarks are trademarks or registered trademarks of their respective owners. Nothing in the Agreement grants Customer any right to use any trademark, service mark, logo, or trade name of Wochit or any third party. Subject to the express licenses granted hereunder, as between the parties, Wochit and its licensors shall have all right, title and interest in and to the Wochit Content and all derivatives thereof
The parties agree to the terms and conditions of the Wochit data processing agreement, available at https://www.wochit.com/data-processing-agreement/ (the “DPA“). Wochit may modify the DPA from time to time in order to account for changes to applicable law or regulations or Wochit’s data protection practices. Wochit shall provide Customer with 30 days advance notice of any material change to the DPA.
Customer shall not, and shall not permit any third party to, (a) display, publish, distribute or transfer the Wochit Content except as expressly permitted by the Agreement or as otherwise contemplated as a part of the Platform, (b) separate or extract any elements from any Wochit Content, or reverse engineer, decompile or disassemble any Wochit Content in a manner that enables the extraction, separation or download of any element of Wochit Content on a standalone basis, (c) enable any “right-click” function with respect to Wochit Content, (d) remove or obscure any trademarks or notices (including copyright and attribution notices) or metadata included in the Wochit Content, (e) circumvent or disable any security-related features of the Wochit Content, (f) include any advertising or sponsorship in connection with Wochit Content that either violates any law or regulation, or falsely implies that Customer or any third party is associated with the provider of the Wochit Content or any entity appearing in the Wochit Content, or (g) use any Wochit Content for pornographic, defamatory or other unlawful purposes. To the extent any of the restrictions set forth in this Section are not enforceable under applicable law, Customer shall inform Wochit in writing in each instance prior to engaging in any of these prohibited activities. If Wochit Content that includes an individual is used in connection with a sensitive, unflattering or controversial subject, Customer must include a statement that the image is used for illustrative purposes only and the individual is a model. Additional restrictions in respect of any element of Wochit Content may be set forth in metadata accompanying such element. Customer shall ensure that it is aware of any restrictions in the metadata of Wochit Content and shall comply with all such restrictions. “Customer Content” means all content uploaded by Customer to the Platform, or made available by Customer in the Platform. Customer is fully and solely responsible for any Customer Content which Customer uploads to the Platform and Customer represents and warrants that such Customer Content: (i) complies with all applicable law and regulations (including but not limited to unfair competition or false advertising, (ii) does not infringe third party rights, including third party intellectual property rights, (iii) does not contain any defamatory, libelous, vulgar, obscene or otherwise offensive content, (iv) does not contain, transmit or distribute any viruses, worms or other malicious software or functionality, (v) does not collect, use or store data other than in accordance with applicable law, and (vi) no third party has notified Customer to desist from the use or distribution of such Customer Content. Customer shall comply any applicable laws which may protect the privacy and the publicity rights of individuals with respect to the use of their name, portrait or image. Wochit has no obligation to accept, display, review or maintain any Customer Content, and may remove from the Platform any Customer Content.
In the event either Wochit or Customer determines, in its reasonable discretion, that any Video or Wochit Content may violate or infringe the rights of a third party or may subject a party or its licensors to liability, such party shall immediately notify the other party in writing. Such other party agrees to remove such Video or Wochit Content from all digital platforms expeditiously and without delay, and in any event within 48 hours of receipt of such notice, and cease all further use and distribution of such Video or Wochit Content
In consideration for access to the Platform and receipt of the Services, Customer shall make payment as set forth in the MSA or as otherwise agreed in writing between the parties. Failure to make payment of required amounts is a material breach of this Agreement.
Wochit Representations and Warranties
Wochit represents and warrants that any Wochit Content provided by Wochit for use in the Services, in the form provided by Wochit does not, to Wochit’s knowledge, (a) contain any defamatory, libelous, pornographic, obscene, racist or otherwise offensive content, (b) contain, transmit or distribute any viruses, worms or other malicious software or functionality, or (c) infringe the intellectual property, privacy or publicity rights of any third party. Wochit’s knowledge may rely on representations and other statements made by its licensors, without independent investigation by Wochit. Notwithstanding the foregoing, Wochit makes no representation and warranties regarding, and accepts no liability in respect of, certain Wochit Content made available on the Platform for non-commercial fair use only (the “Fair Use Wochit Content”) and signaled on the Services by the following disclaimer: “You acknowledge that this content accessed by you is at your own risk and you will be solely responsible for obtaining any necessary right and that you will be responsible for any damage or loss to you or any other party resulting from your use therefrom”. Subject to the express warranties set forth herein, the Platform, Services and Wochit Content is provided “As-Is” and “As-Available”. Subject to the express warranties set forth herein, Wochit disclaims all implied and statutory warranties, including any implied or statutory warranties of merchantability, fitness for a particular purpose or non-infringement. Wochit makes no warranties that the Platform or any Wochit Content will be error-free or uninterrupted, or that any defects will be corrected, or that Customer’s use of the Platform or Wochit Content will provide specific results,
“Confidential Information” means any business and technical information disclosed by one party (in such capacity, the “Disclosing Party”) to the other party (in such capacity, the “Receiving Party”), which information is identified as confidential or proprietary, or which should reasonably be understood to be confidential or proprietary given its content and circumstances of disclosure. The Receiving Party will not use the Confidential Information of the Disclosing Party for any purpose other than providing services hereunder. Confidential Information does not include information which (i) is or becomes a part of the public domain without any breach of the Agreement; (ii) is in the possession of the Receiving Party prior to the disclosure by the Disclosing Party; or (iii) is subsequently disclosed to Receiving Party by a third party having a lawful right to make the disclosure. In the event Confidential Information is required to be disclosed by law or a court order, to the extent legally permissible, Receiving Party shall provide prompt written notice of the required disclosure to the Disclosing Party and cooperate with the Disclosing Party as reasonably necessary to limit or eliminate such requirement. Receiving Party will use at least the same degree of care in keeping the Confidential Information confidential as it uses for its own confidential information of a similar nature, but in any event no less than reasonable care given the valuable nature of the Confidential Information. Receiving Party shall not disclose or distribute the Confidential Information to any third party, save for only those employees of Receiving Party who must examine or otherwise possess the Confidential Information to provide the Platform hereunder, and who have been advised of the confidential nature of the Confidential Information. Receiving Party shall be responsible for any unauthorized disclosure or use of the Confidential Information by any of its employees. Wochit’s pricing constitutes the confidential information of Wochit.
- Wochit Indemnification. Wochit shall indemnify, defend and hold harmless Customer and its employees, successors and assigns (the “Customer Indemnified Parties”) from and against any and all liabilities, losses, damages, obligations, demands, costs and expenses (including reasonable attorneys’ fees) (collectively, “Losses”), as incurred, arising out of any actual third-party claim that the Platform or the Wochit Content infringes the intellectual property rights of a third party. Notwithstanding the foregoing, Wochit shall not have any liability in respect of any claim to the extent arising out of (a) any content or materials that is not Wochit Content, or (b) any modifications to Wochit Content or any Video not made by Wochit or (c) the use of any Wochit Content not in compliance with this Agreement or applicable law or (d) the combination of the Platform with any hardware, software or services not supplied by Wochit.
- Customer Indemnification. Customer shall indemnify, defend and hold harmless Wochit and its employees, successors and assigns (the “Wochit Indemnified Parties”) from and against any and all Losses to the extent arising out of any actual third-party claim that any Customer Content infringes the intellectual property rights of a third party or that Customer has used any Wochit Content or Videos not in compliance with applicable law.
- Procedure. The Party seeking indemnification (the “Indemnified Party”) shall give the other Party (the “Indemnitor”) prompt written notice of any claim for which it seeks indemnification, shall tender sole control of the management and settlement of the applicable claim to the Indemnitor, and shall reasonably cooperate with the Indemnitor in the defense of the applicable claim. The Indemnitor shall, at its own expense, defend the Indemnified Party (including any of its other indemnitees under this Section 12) against all Losses and the Indemnified Party, at its option and expense, may participate in such defense with its own legal counsel.
- Limitation of Liability.
NEITHER PARTY SHALL HAVE LIABILITY FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, LOST BUSINESS OPPORTUNITIES OR LOST DATA) UNDER THE AGREEMENT, OR IN RESPECT OF WOCHIT CONTENT, PLATFORM OR SERVICES, WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY’S LIABILITY UNDER THE AGREEMENT EXCEED AMOUNTS ACTUALLY PAID BY CUSTOMER TO WOCHIT.
- Term and Termination.
The term of the Services shall be set forth in the MSA. Wochit may terminate the Agreement and all rights granted hereunder without notice if it shall have a reasonable belief that Customer is using the Platform in violation of the Agreement or any applicable law, rule or regulation. Upon termination or expiration of the, Customer shall cease all use the Platform. Sections 2 – 14 shall survive the termination or expiration of the Agreement for any reason.
Wochit and Customer are and intend to remain independent parties. Nothing contained in the Agreement will be deemed or construed to create the relationship of principal and agent or of partnership or joint venture, and except as otherwise specifically agreed upon in writing by the parties, neither party will hold itself out as an agent, partner or employee of the other. Neither party will have any right to bind the other party. The Agreement and all agreed statements of work represent the entire agreement between the parties regarding the subject matter hereof and supersedes any and all other agreements between the parties regarding the subject matter hereof. A waiver of any defaults hereunder or of any of the terms and conditions of the Agreement or any Statement of Work will not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition. In the event of any conflict or inconsistency between the terms of these Commercial Terms, the MSA or any Statement of Work, the terms of the documents shall govern in the following order of precedence, except to the extent expressly agreed otherwise in writing between the parties: (1) these Commercial Terms, (2) the MSA, (3) a Statement of Work. Wochit may provide any notices required to be provided under this Agreement or under law to the contact information provided in Customer’s account. Wochit may assign its rights or obligations pursuant to the Agreement to third parties. Customer agrees not to assign any rights under this Agreement; any attempted assignment will be null and void. If any provision of the Agreement will be deemed invalid or unenforceable by a court of competent jurisdiction, such provision will be interpreted to give maximum effect to its terms as permitted under law, and such invalidity or unenforceability will not affect the validity or enforceability of any other part or provision of the Agreement which will remain in full force and effect.