Team Leader Account means the account that will have the authority to create and manage Projects, invite Team Members to access and work on any Projects associated with the Team Leader Account, and invite outside collaborators to view a designated Project.
Client Content means, without limitation, all information, videos, audio files, data, text, photographs, written posts and comments, software, scripts, graphics, and interactive features added, created, uploaded, submitted, distributed, or posted to the Services by Client or any of Client’s Team Members, including in connection with any Project.
Documentation means any user guide, help information and other documentation and information regarding the Services that is delivered by Frame.io to Client in electronic or other form, if any, including any updates provided by Frame.io from time to time.
Platform means the platform provided by Frame.io to Client as part of the Services which enables Client and its Team Members to upload, view, modify and collaborate on Client Content, including all software, interfaces, tools, utilities, templates, forms, and other technologies (and any related intellectual property) relating thereto, excluding Client Content.
Professional Services means custom development, consulting, training or other professional services as may be mutually agreed to by the parties in an Order Form.
Project means any project submitted to Team Members of the Platform via a Team Leader Account.
Services means the Platform, the Documentation and any other services, including the Professional Services, provided by Frame.io hereunder.
2.1 Order Forms. This Agreement will be implemented through one or more written work orders that reference this Agreement (Order Forms). Any change to the terms of this Agreement within an Order Form will apply only to the Services described therein. The number of Team Members shall be set out in the applicable Order Form. If Client wishes to increase the number of Team Members (defined below), Client shall submit a written request to Frame.io specifying the number of additional Team Members.
2.2 Access and Account Setup. As part of the implementation process, Client will identify an administrative user name and password that will be used to set up Client’s Team Leader Account. Client may use the Team Leader Account to create sub-accounts for its employee users (each with unique login IDs and password) (each, a Team Member). Client shall be responsible for the acts or omissions of any person who accesses the Services using passwords or access procedures provided to or created by Client. Frame.io reserves the right to refuse registration of, or to cancel, login IDs that violate the terms and conditions set forth in this Agreement. Client agrees to notify Frame.io immediately upon learning of any unauthorized use of Client’s account or any other breach of security. From time to time, Frame.io’s personnel may log in to the Services under Client’s Team Leader Account in order to maintain or improve the Services, including to provide Client assistance with technical or billing issues. Client hereby acknowledges and consents to such access.
2.3 Platform. Subject to the terms and conditions of this Agreement, Frame.io will use commercially reasonable efforts to provide the Services and implement and operate the Platform for Client, in accordance with the Service Level Agreement incorporated in these terms. Subject to the terms and conditions of this Agreement, Frame.io grants Client a non-exclusive license to use and access the Services solely for Client’s internal business purposes by no more than the number of Team Members set forth in an Order Form. Client may use the Documentation solely in connection with the Services.
2.4 Modifications. Frame.io reserves the right to modify or discontinue the Services (in whole or in part) at any time by giving ninety (90) days’ prior written notice to Client, provided that in the event such modification or discontinuance materially reduces the functionality of the Services used by Client in accordance with this Agreement, Client may terminate this Agreement upon at least fifteen (15) days’ prior written notice to Frame.io.
2.5 Client Content. Client hereby grants Frame.io a worldwide, non-exclusive, royalty-free license to use, copy, access, process, reproduce, perform, display, modify, distribute and transmit the Client Content on the Platform and in connection with providing the Services to Client. Client Content that is added, created, uploaded, submitted, distributed or posted by a Team Member shall be accessible by any and all of Frame.io’s other Team Members associated with or invited to an applicable Project.
2.6 Professional Services. From time to time, Client may request and Frame.io may agree to provide certain Professional Services. The terms and conditions of any such arrangement for Professional Services shall be set forth in an Order Form, which shall be governed by the terms of this Agreement. If no pricing terms are specified, Professional Services shall be billed at Frame.io’s then-current rates. Unless otherwise agreed to by the parties and set forth in the applicable Order Form, all intellectual property, and all rights embodied therein, that are created by Frame.io during the performance of Professional Services shall be owned solely and exclusively by Frame.io.
3.1 Restrictions. Except as expressly permitted in this Agreement, Client shall not directly or indirectly (a) use any of Frame.io’s Confidential Information (defined below) or the Documentation to create any service, software, documentation or data that is similar to any aspect of the Services or Platform, (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code of the Platform of Services, or the underlying ideas, algorithms or trade secrets therein, (c) encumber, sublicense, transfer, rent, lease, time-share or use the Services or Platform in any service bureau arrangement or otherwise for the benefit of any third party, (d) copy, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify any aspect of the Platform or Services, (e) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction or (f) permit any third party to engage in any of the foregoing proscribed acts. Client may not access or use (or permit a third party to access or use) the Services for purposes of monitoring the availability, performance or functionality of the Services or form any other benchmarking or competitive purposes.
4.1 Client. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and Client (and its licensors) shall retain all rights, title and interest (including all intellectual property and proprietary rights) in and to Client Content.
4.2 Frame.io. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and Frame.io (and its licensors) shall retain all rights, title and interest (including all intellectual property and proprietary rights) in and to the Services and Platform, all copies, modifications and derivative works thereof, and all Frame.io trademarks, names, logos, all rights to patent, copyright, trade secret and other proprietary or intellectual property rights.
4.3 Feedback. Frame.io shall own any and all suggestions for correction, change or modification to the Platform or Service, and other feedback, information and reports provided to Frame.io hereunder (collectively, Feedback), and Client, to the extent required, Client shall and hereby does assign any rights in such Feedback to Frame.io. Client agrees to assist Frame.io, at Frame.io’s expense, in obtaining intellectual property protection for such Feedback, as Frame.io may reasonably request.
4.4 Aggregate Data. Client agrees that Frame.io is free to disclose aggregate measures of usage and performance the Services, and to reuse all general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) acquired during provision of the Services (General Knowledge), including that it could have acquired performing the same or similar services for another client. Client further agrees that Frame.io shall have the right (a) to create anonymized compilations and analyses of any data submitted to the Platform (Aggregate Data), and (b) to create reports, evaluations, benchmarking tests, studies, analyses and other work product from Aggregate Data (Analyses). Frame.io shall have exclusive ownership rights to, and the exclusive right to use and distribute, such Aggregate Data and Analyses for any purpose, including, but not limited to advertising, marketing, and promotion of networking opportunities to other clients and prospective clients of the Services; provided, however, that Frame.io shall not distribute Aggregate Data and Analyses in a manner that is identifiable as originating from Client without Client’s written consent.
5.1. Definition. Each party agrees that the business, technical and financial information, including without limitation, the Platform, the Services and Client Content and all software, source code, inventions, algorithms, know-how and ideas and the terms and conditions of this Agreement, that is designated in writing as confidential, or is disclosed in a manner that a reasonable person would understand the confidentiality of the information disclosed, shall be the confidential property of the disclosing party and its licensors (Confidential Information). Confidential Information does not include information that (a) is previously rightfully known to the receiving party without restriction on disclosure, (b) is or becomes known to the general public, through no act or omission on the part of the receiving party, (c) is disclosed to the receiving party by a third party without breach of any separate nondisclosure obligation, or (d) is independently developed by the receiving party.
5.2 Confidentiality. Except for the specific rights granted by this Agreement, the receiving party shall not access, use or disclose any of the disclosing party’s Confidential Information without its written consent, and shall use at least the standard of care used to protect its own Confidential Information, but not less than reasonable care to protect the disclosing party’s Confidential Information, including ensuring that its employees and contractors with access to such Confidential Information (a) have a need to know for the purposes of this Agreement and (b) have been apprised of and agree to restrictions at least as protective of the disclosing party’s Confidential Information as this Agreement. Each party shall be responsible for any breach of confidentiality by its employees and contractors. Each party may disclose only the general nature, but not the specific terms, of this Agreement without the prior consent of the other party; provided that either party may provide a copy of this Agreement or otherwise disclose its terms in connection with any legal or regulatory requirement, financing transaction or due diligence inquiry.
5.3. Return of Confidential Information. Except as expressly allowed herein, promptly after any termination of this Agreement (or at the disclosing party’s request at any other time), the receiving party shall return all of the other’s tangible Confidential Information, permanently erase all Confidential Information from any storage media and destroy all information, records and materials developed therefrom.
5.4. Required Disclosure. Nothing herein shall prevent a receiving party from disclosing any Confidential Information as necessary pursuant to any court order, lawful requirement of a governmental agency or when disclosure is required by operation of law (including disclosures pursuant to any applicable securities laws and regulations); provided that prior to any such disclosure, the receiving party shall use reasonable efforts to (a) promptly notify the disclosing party in writing of such requirement to disclose and (b) cooperate with the disclosing party in protecting against or minimizing any such disclosure or obtaining a protective order.
6.1 Fees. Client agrees to pay Frame.io all fees and expenses in the amounts and at the times specified in the applicable Order Form or as otherwise provided in this Agreement. The number of Team Members cannot be decreased during the term set forth on an Order Form.
6.2 Payment Terms. Payments shall be made in US dollars at Frame.io’s address (or to an account specified by Frame.io), in full without set-off, counterclaim or deduction within thirty (30) days of the date of the invoice. Past due amounts which are not subject to a good faith dispute shall bear a late payment charge, until paid, at the rate of one and one half percent (1.5%) per month or the maximum amount permitted by law, whichever is less. In addition to its other rights and remedies, Frame.io may, at its option, suspend Client’s access to the Services or terminate this Agreement in the event that Client is not current in the payment of fees owed to Frame.io.
6.3 Payment Methods. Acceptable payment methods include Credit Card, E-pay via bill.com, and bank transfer (ACH).
6.4 Taxes and Expenses. All payments required by this Agreement are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and Client agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon Frame.io’s net income.
7.1 General. Each party represents and warrants that: (a) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (b) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (c) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
7.2 Client. Client represents and warrants to Frame.io that Client owns all rights, title and interest in and to the Client Content, or that Client has otherwise secured all necessary rights in the Client Content as may be necessary to permit the access, use and distribution thereof as contemplated by this Agreement. Client further represents and warrants to Frame.io that Client will not, or allow a third party to, either (a) take any action, or (b) upload, download, post, submit or otherwise distribute or facilitate distribution of any content on or through the Services that infringes any patent, trademark, trade secret, copyright, right of publicity or any other proprietary right of any other person or entity, or, that violates any law or contract.
7.3 Frame.io. Frame.io represents and warrants to Client that the Services will be provided in a professional and workmanlike manner. Any warranty claim under this Section 7.3 must be made in writing within thirty (30) days after performance of the nonconforming Service. Frame.io’s sole obligation and Client’s exclusive remedy in respect thereof is to re-perform the nonconforming Frame.io Service.
7.4 Disclaimers. EXCEPT AS OTHERWISE PROVIDED HEREIN, TO THE FULLEST EXTENT PERMITTED BY LAW, FRAME.IO HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICE, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, RELIABILITY, THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
8.1 Client. Client agrees to defend Frame.io against any claim by a third party that is related to (a) Frame.io’s authorized use of any Client Content, (b) Client’s breach of any representation, warranty, covenant or other agreement made herein or (c) claims excluded under Section 8.2(b), and to indemnify Frame.io for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded and arising out of such claims.
Except as provided below, Frame.io agrees to (i) defend Client against any claim by a third party that the Services infringes a valid U.S. patent (issued as of the Effective Date), or any copyright or trade secret, of such third party and (ii) indemnify Client for settlement amounts or third party damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded and arising out of such claim. If any part of the Services becomes or, in Frame.io’s opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, Frame.io may, at its option (1) obtain for Client the right to continue using the Services or (2) replace or modify the Services so that such services become non-infringing without substantially compromising their principal functions. If (1) and (2) are not reasonably available to Frame.io, then Frame.io may (3) terminate this Agreement upon written notice to Client. Fees that were pre-paid for the current term are non-refundable.
Frame.io shall have no liability or obligation hereunder with respect to any claim to the extent based upon (i) any use of the Services or Platform not strictly in accordance with this Agreement or in an application or environment or on a platform or with devices for which it was not designed or contemplated, (ii) modifications, alterations, combinations or enhancements of the Services or Platform not created by or for Frame.io, (iii) any Client Content, (iv) any portion of the Services that implements Client’s requirements, (v) Client’s continuing allegedly infringing activity after being notified thereof or (vi) Client’s continuing use of any version of the Services or Platform after being provided modifications that would have avoided the alleged infringement.
c. Entire Liability.
The foregoing states the entire liability of Frame.io, and Client’s exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the Services or Platform, any part thereof or its use or operation.
8.3 Procedures. Any claim for indemnification hereunder requires that (a) the indemnified party provides prompt written notice of the claim and reasonable cooperation, information, and assistance in connection therewith, and (b) the indemnifying party shall have sole control and authority to defend, settle or compromise such claim. The indemnifying party shall not make any settlement that requires a materially adverse act or admission by the indemnified party without the indemnified party's written consent (such consent not to be unreasonably delayed, conditioned or withheld). The indemnifying party shall not be liable for any settlement made without its prior written consent.
EXCEPT FOR ANY BREACH OF SECTION 5 (CONFIDENTIALITY) OR LIABILITIES TO THIRD PARTIES PURSUANT TO SECTION 8 (INDEMNIFICATION), In no event shall EITHER PARTY BE LIABLE CONCERNING THE SUBJECT MATTER OF this agreement, regardless of the form of any claim or action (whether in CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERwise), for any (A) interruption OF USE, LOSS OR INACCURACY of data OR CLIENT CONTENT, loss oF, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS or SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL OR (C) damages, IN THE AGGREGATE, in excess of THE amountS PAID TO IT (IN THE CASE OF FRAME.IO) OR PAID AND PAYABLE BY IT (IN THE CASE OF CLIENT) HEREUNDER DURING THE PREVIOUS TWELVE (12) MONTHS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
10.1 Term. This Agreement shall commence on the Effective Date and, unless earlier terminated as provided herein, shall continue for the period set forth in the Order Form (the Initial Term), which term shall automatically renew for successive terms of one (1) year each (each, a Renewal Term), unless Client notifies Frame.io of its intent not to renew this Agreement at least ninety (90) days prior to the end of the applicable term. The Initial Term and all Renewal Terms shall collectively be referred to as the Term.
10.2 Termination. This Agreement may be earlier terminated by either party (a) if the other party materially breaches a provision of this Agreement and fails to cure such breach within fifteen (15) days after receiving written notice of such breach from the non-breaching party, or (b) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within 90 days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.
10.3 Effect of Termination. Upon any expiration or termination of this Agreement, all corresponding rights, obligations and licenses of the parties shall cease, except that (a) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) shall survive and (b) the provisions of Sections 1, (Definitions), 3 (Restrictions), 4 (Proprietary Rights), 5 (Confidentiality), 6 (Payments), 7 (Limited Warranty and Disclaimers), 8 (Indemnification), 9 (Limitation of Liability), 11 (General Provisions) and this Section 10.3 shall survive.
11.1 Entire Agreement. This Agreement constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties regarding the subject matter of this Agreement (and all past dealing or industry custom). Any inconsistent or additional terms on any related purchase order, confirmation or similar form, even if signed by the parties hereafter, shall have no effect under this Agreement.
11.2 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be an original, but taken together constituting one and the same instrument. Execution of a facsimile (e.g., .pdf or electronic signature) copy shall have the same force and effect as execution of an original, and a facsimile signature shall be deemed an original and valid signature.
11.3 Modification and Waiver. No change, consent or waiver under this Agreement will be binding on Frame.io unless made in writing and physically signed by an authorized representative of Frame.io. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy.
11.4 Severability. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
11.5 Governing Law. This Agreement shall be governed by and construed under the laws of the State of New York and the United States without regard to conflicts of laws provisions thereof. Exclusive jurisdiction and venue for actions related to this Agreement will be the state and federal courts located in New York County, New York, and both parties consent to the jurisdiction of such courts with respect to any such actions.
11.6 Remedies. Except as specifically provided otherwise herein, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 4 or 5, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.
11.7 Notices. Except as otherwise provided herein, all notices under this Agreement will be in writing, in English and delivered to the parties at their respective addresses stated herein or at such other address designated by written notice. Notices will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile; the day after being sent, if sent for next day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested.
11.8 Force Majeure. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (except payment obligations) due to any cause beyond its reasonable control, the affected party shall give written notice thereof to the other party and its performance shall be extended for the period of delay or inability to perform due to such occurrence.
11.9 Assignment. This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party's written consent, not to be unreasonably withheld. However, without consent, Frame.io may assign this Agreement to any successor to all or substantially all of its business which concerns this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise). This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.
11.10 Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.