Wochit Commercial Terms
Last Updated: November 2016
These terms (the “Terms”) govern your access and use of the Services and constitute an integral part of the Wochit Master Service Agreement.(the “Agreement”). Capitalized terms used herein and not defined shall have the meanings set forth in the Agreement. As used herein, “you” shall mean Publisher.
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 s 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 @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.
Certain types of content may be made available by you through the Services. “Publisher Content” as used in these Terms means, collectively, all content uploaded by you to the Video Creation Platform or otherwise present on your own systems and used in the Video Creation Platform, including but not limited to pictures and text posted by means of the Services or anywhere on the Services and excluding the Wochit Content. You are fully and solely responsible for any Publisher Content you submit or post by means of the Services and represent and warrant that such Publisher 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 asked you to desist from the submission of such Publisher Content. Publisher undertakes to comply with 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 Publisher Content. Moreover, Wochit reserves the rights to remove and permanently delete any Publisher Content, from the Video Creation Platform. Wochit may choose at its sole discretion to monitor the Publisher Content for inappropriate or illegal behavior, including through automatic means. Wochit has the right to delete or remove Publisher Content from the Services without notice for any reason at any time.
AUTHORIZED DIGITAL PROPERTIES
Publisher may display (or distribute for display) Videos on any pre-approved digital property including, but not limited to, websites, mobile applications, tablet applications, desktop applications, over-the-top applications (“Digital Properties”). Digital Properties that are owned, operated or licensed by or to Publisher, affiliated with Publisher or that allow Publisher to maintain a branded channel or a self-managed brand presence on such Digital Property (e.g., YouTube, Facebook, Twitter, etc.) shall be referred to in these Terms as “Publisher Accounts”). Digital Properties that are not Publisher Accounts shall be referred to as “Non-Publisher Accounts” (e.g., syndication accounts such as NDN, MSN, Yahoo, AOL, etc.).
You undertake to not: (a) use any device, software or technique to interfere with or attempt to interfere with the proper working of the Video Creation Platform; (b) post or transmit to the Video Creation Platform any unlawful, fraudulent, harassing, libelous, or obscene information of any kind; (c) post or send to any web site any information that contains a virus, bug, or other harmful item; (d) publish, perform, distribute, prepare derivative works, copy, reverse engineer, or use the Wochit Content (other than as permitted herein); (e) post or transmit into or on any web site any information in violation of another party’s copyright or intellectual property rights; (f) take any action which could damage, disable, overburden or impair the Video Creation Platform infrastructure or Wochit’s network system; (g) redeliver any of the Wochit Content using ‘framing’, hyperlinks, or other technology without Wochit’s permission; (h) attempt to gain unauthorized access to any software, other accounts, computer systems or networks connected to any Wochit server through hacking, password mining or any other means; (i) take any action which may interfere with any other party’s use and enjoyment of the Video Creation Platform or the Wochit Content; or (j) obtain or attempt to obtain any materials or information through any means not intentionally made available through the Video Creation Platform
You shall not, and shall not authorize any third party to, (a) display, publish, distribute or transfer the Wochit Content except as expressly set forth herein or as otherwise contemplated as a part of the Video Creation Platform, (b) separate/extract single assets from the Wochit Content in order to distribute such single assets on a standalone basis, (c) download, extract or separately access any single asset that is included as part of the Wochit Content, or reverse engineer, decompile or disassemble any Wochit Content in a manner that enables the download, extraction or separate access to any single asset included as part of the Wochit Content, (d) remove any trademarks or notices (including copyright and attribution notices) included in the Wochit Content, (e) circumvent of disable any security-related features of the Wochit Content, (f) generate clicks, directly or indirectly, on any Videos through any automated means, (g) encourage any third party to click on any Video through offering incentives or any other method; (h) ; include any advertising or sponsorship in connection with Wochit Content that (i) breaches any law or regulation where the Wochit Content may be viewed or (ii) falsely implies that the advertiser or sponsor is associated with the Wochit Content. This does not prohibit conventional advertising or sponsorships that do not create such impression. To the extent any of the restrictions set forth in this Section are not enforceable under applicable law, you shall inform Wochit in writing in each instance prior to engaging in any of these prohibited activities.
Wochit shall not be responsible for any changes made by you to the Videos with the editing and customization tools made available on the Video Creation Platform and you shall bear all responsibility for any edits made to the Videos while using those tools. You represent and warrant that no edits that you have made to any Videos either (a) infringe the intellectual property, moral or publicity rights of any third party or (b) contain any libelous, defamatory, illegal or obscene content.
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, (c) violate any applicable law or regulation (including without limitation sending electronic messages to users in violation of applicable law or regulations), or (d) 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 Video Creation 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”.
Wochit and its licensors own the Services including all worldwide intellectual property rights in the Services and the trademarks, service marks, and logos contained therein. Except as expressly permitted herein, you may not copy, further modify, duplicate, distribute, display, perform, sublicense, republish, retransmit, reproduce, create derivative works of, transfer, sell or otherwise use the Services including the Wochit Content incorporated in the Services. You will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in the Services. All trademarks are trademarks or registered trademarks of their respective owners. Nothing in these Terms grants you any right to use any trademark, service mark, logo, or trade name of Wochit or any third party.
Subject to the rights 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 (but excluding any Publisher Content and the Videos as a collective work to the extent prepared by Publisher) and all intellectual property rights in all of the foregoing.
RIGHT OF REMOVAL
In the event either party determines, in its reasonable discretion, that any Video may violate or infringe the rights of a third party or may subject Wochit or Publisher to liability, either party shall immediately notify Publisher or Wochit (as applicable) in writing. Each party agrees to remove the Video and further cease distribution and use thereof as soon as reasonably practicable, and in any event within two (2) business days.
“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. Confidential Information of Publisher shall include, without limitation, information about Publisher’s business acquired by Wochit in connection with the provision of the Services including, without limitation, video views, revenue and user engagement information. 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 these Terms; (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 Services 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. If Publisher provides Wochit with any feedback concerning the Videos, nothing in these Terms or in the course of dealing of the parties shall impose any confidentiality obligation on Wochit in respect of such feedback. Wochit’s pricing constitutes the confidential information of Wochit.
THE VIDEO CREATION PLATFORM AND ALL RELATED WOCHIT CONTENT, INCLUDING THE CONFIDENTIAL INFORMATION IS PROVIDED “AS IS” AND “AS AVAILABLE” AND WITH ALL DEFECTS AND ERRORS. WOCHIT MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, AS TO NONINFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE. any reliance on the quality or performance of the videos is at Publisher’s own risk WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WOCHIT ASSUMES NO LIABILITY FOR DAMAGES THAT MAY ARISE FROM THE SERVICES OR FOR LOSSES ARISING DUE TO THE ACTS OR OMISSIONS OF THIRD PARTIES IN CONNECTION WITH THE VIDEO CREATION PLATFORM AND ALL WOCHIT CONTENT. WOCHIT MAKES NO WARRANTIES THAT THE VIDEO CREATION PLATFORM OR ANY WOCHIT CONTENT WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT ANY DEFECTS WILL BE CORRECTED, OR THAT YOUR USE OF THE VIDEO CREATION PLATFORM OR WOCHIT CONTENT WILL PROVIDE SPECIFIC RESULTS.
LIMITATION OF LIABILITY
Except in connection with a party’s indemnification and confidentiality obligations hereunder, for which liabilities will not be so limited, 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 this Agreement or in respect of wochit content or services, whether or not either party has been advised of the possibility of such damages. Except in connection with (a) a party’s indemnification, confidentiality obligations and payment obligations hereunder and (b) liabilities arising out of any violation, misappropriation or infringement of a party’s intellectual property rights, for which, in the case of (a) or (b), liabilities will not be so limited, in no event shall either party’s liability under this Agreement to the other exceed amounts actually paid by Publisher to Wochit hereunder.
Each party (in such capacity, the “Indemnifying Party”) shall indemnify, defend and hold harmless the other party, its officers, directors, partners, employees, affiliates, subsidiaries, agents, successors and assigns (in such capacity, the “Indemnified Party”) from and against all third party losses, claims, damages (compensatory and punitive), liabilities, expenses (including reasonable costs of investigation and reasonable legal counsel fees), fines, penalties, judgments and settlement amounts (collectively, the “Claims”) arising out of or in connection with the breach of any express representation, warranty or agreement made by the Indemnifying Party in this Agreement. The indemnification obligations set forth herein are conditioned on the Indemnified Party: (i) giving the Indemnifying Party notice of the relevant Claim; provided, however, that failure to give such notification shall not affect the indemnification provided under this Agreement except to the extent the Indemnifying Party shall have been materially prejudiced as a result of such failure; (ii) cooperating with the Indemnifying Party, at the Indemnifying Party’s expense, in the defense of such Claim; and (iii) giving the Indemnifying Party the right to control the investigation, defense and settlement of any such Claim, except that the Indemnifying Party will not enter into any settlement that affects the Indemnified Party’s rights or interest without the Indemnified Party’s prior written approval. The Indemnified Party will have the right to participate in the defense at its own expense.
As used herein, “Reuters Content” means content that Wochit has licensed from Reuters and made available to you pursuant to the terms of the Agreement on the Video Creation Platform.
- Publisher undertakes to observe any conditions imposed by Reuters regarding the use, access, storage or display of the Reuters Content, including complying with any restrictions from Reuter’s content providers and/or any court or competent authority may impose (e.g., embargo or restriction as to the use, geographical locations, timing);
- Publisher may use the Reuters Content solely for the purpose of editorial reporting events via its digital publication including social media operated and branded by Wochit. Any additional use requires Reuters’ prior consent;
- Where required by the law, Publisher will obtain the rights and pay any fees required by the right holder to use the name, portrait or image of any person that appears in any Reuters Content;
- Except where Publisher is using Reuters Content for editorial purposes, Publisher is responsible for obtaining at its own cost any necessary rights clearances from third parties relating to the content of a photograph prior to publishing the photograph, including (by way of example only) clearances from people whose images appear in the photograph and/or clearances in respect of buildings, works of art, public monuments and/or other inanimate objects which appear in the photograph and which may be protected by copyright or privacy rights. Publisher acknowledges that Reuters does not obtain any such clearances and does not grant any rights in the Reuters Content that would require such clearances. It is Publisher’s sole responsibility to determine if its intended use would require such additional clearances;
- Publisher may not make any use of any Reuters Content which damage or are likely to damage the reputation of Reuters.
- Reuters Content is provided to Publisher without any warranties of any kind, either express or implied, including, but not limited to, warranties as to merchantability, satisfactory quality or fitness for a particular purpose except for any warranties which are incapable of exclusion, restriction or modification under the laws generally applicable
We may provide any required notices to the email address, fax number or by first class mail to other contact information you provided upon registration with Wochit. Notices sent by email will be deemed received when they are sent by us. Notices sent by fax will be deemed received upon the confirmation of receipt thereof. Notices sent by first class mail will be deemed received 10 days after sent by us. Wochit and you are and intend to remain independent parties. Nothing contained in these Terms 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. These Terms represent the entire agreement between the parties regarding the subject matter hereof and supersede any and all other agreements between the parties regarding the subject matter hereof. Wochit may modify these terms from time to time by providing you with reasonable advance notice of such modifications. A waiver of any defaults hereunder or of any of the terms and conditions of these Terms will not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition. Wochit may assign its rights or obligations pursuant to these Terms. You agree not to assign any rights under these Terms; any attempted assignment will be null and void. If any provision of these Terms 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 these Terms which will remain in full force and effect. These Terms will be governed by the laws of State of New York without reference to its conflict of law provisions, and the competent courts in the State of New York will have exclusive jurisdiction to hear any disputes arising hereunder.