Published and effective as of May 4, 2023.
TERMS AND CONDITIONS
1.1. “Affiliate” means, for a Party, any other entity that controls, is controlled by, or under common control with, the Party. For the purposes of this definition, the term “control” means the direct or indirect power to direct the affairs of the other entity through at least 50% of the shares, voting rights, participation, or economic interest in this entity.
1.2 “Agreement” means these General Terms and the Sales Order, together with any exhibits included with the applicable Sales Order.
1.3 “Claim” means a claim, action, complaint, or legal regulatory body, administrative or judicial proceeding filed against a Party.
1.4 “Confidential Information” means non-public or proprietary information about a disclosing Party’s business related to technical, commercial, financial, employee, or planning information that is disclosed by the disclosing Party to the other Party in connection with this Agreement, and (A) is identified in writing as confidential at the time of disclosure, whether in printed, textual, graphic, or electronic form; or (B) is not identified as confidential at the time of disclosure, but is by its nature confidential or the receiving Party knows, or ought reasonably to know, is confidential (which may include Customer Content). Any Frame.io Technology and the terms and conditions of this Agreement will be deemed Confidential Information of Frame.io without any marking or further designation. Any Customer Data will be deemed Confidential Information of Customer without any marking or further designation. “Confidential Information” does not include information that: (1) has become public knowledge through no fault of the receiving Party; (2) was known to the receiving Party, free of any confidentiality obligations, before its disclosure by the disclosing Party; (3) becomes known to the receiving Party, free of any confidentiality obligations, from a source other than the disclosing Party; (4) is independently developed by the receiving Party without use of Confidential Information; or (5) information that comprises Unlawful Content subject to legally required reporting obligation (e.g. child exploitation material) and any information provided in connection with such a report that is required or authorized by law (e.g. User name, email address, upload timestamp, and IP address).
1.5 “Content Files” means assets provided by Frame.io as part of the On-Demand Services.
1.6 “Customer” means the entity identified herein and within the Sales Order as “Customer”, “Client”, or otherwise identified in the Sales Order as the end user customer.
1.7 “Customer Content” means any material, such as audio, video, text, or images, that is imported into the On-Demand Services by or on behalf of Customer in connection with Customer’s use of the On-Demand Services, including for collaboration, content delivery, digital publishing, targeted advertising, or indexing.
1.8“Customer Data” means any information that is imported by or on behalf of Customer into the On-Demand Services from Customer’s internal data stores or other third-party data providers in connection with Customer’s use of the On-Demand Services.
1.11 “Data Protection Terms” means the applicable Data Protection Terms or E.U. Data Processing Agreement foundor as otherwise agreed by the Parties.
1.12 “Documentation” means the applicable technical specification and usage documentation for the On-Demand Services as such materials are made generally available on https://www.frame.io. “Documentation” does not include any third-party content posted to https://www.frame.io or https://www.adobe.com, content published in user forums hosted or moderated by Frame.io, content related to any future functionality, or communications exchanged between Frame.io and Customer, unless such communications are specifically incorporated by reference within the applicable Sales Order.
1.13 “End Use” means Customer’s use into which the Content Files are embedded.
1.14 “Frame.io” means Frame.io Inc., an Adobe, Inc. company.
1.15 “Frame.io Technology” means technology owned by Frame.io or licensed to Frame.io by a third-party (including the On-Demand Services, reports, software tools, algorithms, software (in source and object forms), user interface designs, architecture, toolkits, plug-ins, objects and Documentation, network designs, processes, know-how, methodologies, trade secrets, and any related intellectual property rights throughout the world), and feedback made to Frame.io that are incorporated into any of the foregoing (which are hereby irrevocably assigned to Frame.io), as well as any of the modifications, or extensions of the above, whenever or wherever developed.
1.16 “Indemnified Party” means (i) Customer when Frame.io is the Indemnifying Party and (ii) Frame.io when Customer is the Indemnifying Party.
1.17 “Indemnified Technology” means On-Demand Services paid for by Customer.
1.19 “License Term” means the earlier of the duration of the license for On-Demand Services as stated in the Sales Order, or any shorter term arising from a termination or expiration of this Agreement.
1.20 “On-Demand Services” means the technology services hosted by or on behalf of Frame.io and provided to Customer, as set out in the Sales Order.
1.21 “Party” means Frame.io or Customer, as applicable.
1.22 “Sales Order” means the sales order form (Exhibit A attached hereto) or other written document for the On-Demand Services that is executed between Frame.io and Customer.
1.23 “Sample Files” means the Frame.io-provided audio, visual, video, or other content files for use in tutorials, demonstrations, and for other trial purposes, which may be identified as sample files.
1.24 “Sensitive Personal Data” means an individual’s financial information, sexual preferences, medical or health information protected under any health data protection laws, biometric data (for purposes of uniquely identifying an individual), personal information of children protected under any child protection laws (such as the personal information defined under the US Children’s Online Privacy Protection Act (“COPPA”)) and any additional types of information included within this term or any similar term (such as “sensitive personal information” or “special categories of personal information”) as used in applicable data protection or privacy laws.
1.25 “User” means an individual (either an employee or temporary worker of Customer) who may use or access the On-Demand Services on behalf of Customer.
2. PAYMENT OF FEES
2.1 Payment. Customer must pay the fees according to the payment terms in the Sales Order. All invoices will only be delivered electronically to Customer. Frame.io may charge interest at a monthly rate equal to the lesser of 1% per month or the maximum rate permitted by applicable law on any overdue fees, from the due date until the date the overdue amount (plus applicable interest) is paid in full. Any fees that are unpaid as of the date of termination or expiration will be immediately due and payable. Customer agrees to provide clear indication within its form of payment, or emailing to, as to which invoices payment should be applied no later than the date of payment. If Customer is not a publicly-traded corporation, upon Frame.io's request, Customer will provide the necessary financial documents to allow Frame.io to ascertain the credit-worthiness of Customer.
2.2 Failure to Pay. If Customer fails to pay any amount due under this Agreement according to the payment terms in the Sales Order (and not disputed as described in section 2.3), Frame.io will send Customer a reminder notice. If Customer fails to pay within 15 days of the date of the reminder notice, Frame.io may, in its sole discretion, terminate the applicable Sales Order or suspend or restrict the provision of any and all On-Demand Services.
2.3 Disputes. If Customer believes in good faith that Frame.io has incorrectly billed Customer, Customer must contact Frame.io in writing within 30 days of the invoice date, specifying the error. Unless Customer has correctly notified Frame.io of the dispute, Customer must reimburse Frame.io’s reasonable collection costs. Customer must pay the undisputed portions of Frame.io’s invoice as required by this Agreement.
2.4 Taxes. Prices do not include applicable taxes. Frame.io will invoice Customer for any applicable taxes, and Customer must pay these taxes. Where applicable, Customer must provide a tax-exemption claim to Frame.io before placing an order. If Customer is required to withhold income taxes from its payment to Frame.io, Customer agrees to send Frame.io an official tax receipt within 60 days of payment to Frame.io.
3. LICENSE AND RESTRICTIONS
3.1 License Grant for On-Demand Services. Subject to the terms and conditions of this Agreement, Frame.io grants Customer for its direct beneficial business purposes, during the License Term, a non-transferable, non-exclusive license, to:
A. permit Users to access the On-Demand Services through the applicable interfaces;
B. develop and test Customer customizations to evaluate potential configurations of the On-Demand Services; and
C. use the On-Demand Services in accordance with the Documentation.
3.2 License Conditions. Except to the extent expressly permitted under this Agreement, Customer agrees as a condition of the licenses that it must not:
A. use the On-Demand Services in (1) violation of any applicable law or regulation (including, where applicable, COPPA and FISMA), or in connection with unlawful material (such as material that violates any obscenity, defamation, harassment, privacy, publicity or intellectual property laws); or (2) a manner that would cause a material risk to the security or operations of Frame.io or any of its customers, or to the continued normal operation of other Frame.io customers;
B. copy, use, distribute, republish, download, display, transmit, sell, rent, lease, host, or sub-license the On-Demand Services;
C. place advertisement of any products or services through the On-Demand Services;
D. use any data mining or similar data gathering and extraction methods, including data scraping for machine learning or other purposes;
E. circumvent any access or use restrictions;
F. impersonate any person or entity, or falsely state or otherwise misrepresent Customer’s affiliation with a person or entity;
G. offer, use, or permit the use of the On-Demand Services in a computer service business, third-party outsourcing service, on a membership or subscription basis, on a service bureau basis, on a time-sharing basis, as part of a hosted service, or on behalf of any third-party;
H. attempt to interact with the operating system underlying the On-Demand Services, or modify, create derivative works of, adapt, translate, reverse engineer (including monitoring or accessing the inputs and output flowing through a system or an application), decompile, or otherwise attempt to discover within any Frame.io Technology, the source code, data representations, or underlying algorithms, processes and methods. (This restriction will not apply to the extent it limits any non-waivable right Customer may enjoy under applicable law);
I. remove, obscure, or alter any proprietary notices associated with the On-Demand Services;
J. allow third parties to, use the On-Demand Services (or any content, data, output, or other information received or derived from the On-Demand Services) to directly or indirectly create, train, test, or otherwise improve any machine learning algorithms or artificial intelligence systems, including any architectures, models, or weights;
K. use any software components, modules, or other services that may be delivered with the On-Demand Services, but which are not licensed to Customer and identified in the Sales Order; or
L. share its login IDs and passwords, or allow use of the same login ID simultaneously by two or more Users, and Customer is responsible for unauthorized access to its login IDs and passwords.
Frame.io reserves all other rights not expressly granted in this Agreement.
3.3 Sample Files. Customer may use Sample Files only for the purpose for which they were provided. Customer may not distribute Sample Files in any way that allows a third party to use, download, extract, or access the Sample Files as a stand-alone file, and the Customer may not claim any rights in the Sample Files.
3.4 Content Files.
A. Content Files License. Unless Documentation or specific licenses state otherwise, Frame.io hereby grants Customer a non-exclusive, non-sublicensable, and non-transferable license to use the Content Files to create files for End Use. Customer may modify the Content Files prior to embedding them in the End Use. Customer may reproduce and distribute Content Files only in connection with Customer’s End Use; however, under no circumstances may Customer distribute the Content Files on a stand-alone basis outside of the End Use.
B. Reservations and Claims. Frame.io does not guarantee the accuracy of Content Files, including any related titles, descriptions, keywords, or other metadata. If Customer has actual knowledge, or if Customer or Frame.io reasonably believe, that a Content File may be subject to a third-party Claim, then Frame.io may instruct Customer to cease all use of that Content File, and Customer must promptly comply with Frame.io’s instructions. Customer will hold Frame.io harmless, defend at Frame.io’s request, and pay, at Customer’s expense, any third-party Claim against Frame.io arising out of or relating to Customer’s End Use in violation of the terms of this Agreement.
3.5 Third-Party Providers. Customer is responsible for complying with any applicable terms and conditions of any third-party data, products, services, and platforms used by Customer in conjunction with the On-Demand Services.
3.6 Regional Service Limitations. Unless use in a Restricted Country is specifically authorized in the Sales Order, Customer is not permitted to use or allow its Users to use the On-Demand Services in any Restricted Country. “Restricted Country” means mainland China, Russia and any other country where access or usage is restricted by local laws.
3.7 Administrators. Customer authorizes its administrator(s) to act on its behalf, including to manage access to the On-Demand Services for the Users, to assign other Users an administrator role, and to have control over its Users’ content and information. Customer is responsible for the administrator’s actions and omissions in connection with the account(s).
3.8 User License Transfers. Customer may deploy On-Demand Services licensed on a per-User basis only to Users through a unique login ID and password. Customer may not allow the use of the same login ID by two or more Users, nor may Customer deploy the On-Demand Services in any shared license model or similar license deployment (including, but not limited to, floating, generic user, leased, or shift license deployment). Customer may transfer a license from one User to another User without being deemed an additional deployment, subject to any reporting requirements that may be contained in a Sales Order, and the new User then uses a new ID and password. Customer is responsible for all activity that occurs via a User’s account(s).
3.9 Third-Party Notices. The creators or third-party licensors of certain public standards and publicly available code (“Third-Party Materials”) require that certain notices be passed through to the end users of the On-Demand Services. These third-party notices are located at(or a successor website thereto). The inclusion of these third-party notices does not limit Frame.io’s obligations to the Customer for Third-Party Materials integrated into the On-Demand Services.
3.10 Modification. Frame.io reserves the right to add, modify, update, or discontinue features or capabilities of On-Demand Services. Frame.io will make reasonable efforts to notify Customer of any (a) discontinuation, or (b) modification or update that, in Frame.io’s reasonable discretion, is detrimental or results in a diminishment of value to Customer. Frame.io may provide Customer with a pro-rata refund of prepaid fees or with a service similar to any discontinued On-Demand Service.
3.11 User-Generated Content. The On-Demand Services may contain user-generated content that is: (A) inappropriate for minors; (B) illegal in some countries; or (C) inappropriate in certain circumstances. If Customer wants to prevent viewing of or access to user-generated content, it should either (1) disable On-Demand Services access, where that functionality is made available; or (2) block access to the On-Demand Services via its network firewall. Frame.io disclaims liability for all user-generated content available via the On-Demand Services.
4. THIRD-PARTY ACCESS
4.1. Use by Affiliates. Where specified in a Sales Order, Customer may allow its Affiliates to use and access the On-Demand Services.
4.2. Outsourcing and Third-Party Access. Customer may allow a third-party contractor to operate, use or access the On-Demand Services solely on Customer’s behalf, provided such use or access is only for Customer’s direct beneficial business purposes. Customer is solely responsible for implementing the settings, including commenting, editing, access, publication, and ownership settings, for all content, including Customer Content. Customer. If Customer does not want the third party to modify, comment on, or engage with Customer Content, Customer should not Share Customer Content with such third party, or should ensure that the permission settings are properly tailored to the rights Customer authorizes for such third party. Customer is responsible for ensuring that any third-party or Affiliate operating, using or accessing the On-Demand Services on Customer’s behalf complies with the terms of this Agreement. Customer is responsible for and liable for the acts or omissions of such Affiliate or third-party as if they were Customer’s acts or omissions.
5. CUSTOMER CONTENT AND CUSTOMER DATA
5.1. Ownership. As between Frame.io and Customer, Customer owns (or where applicable, must ensure it has a valid license to) the Customer Data and Customer Content, subject to Frame.io’s underlying intellectual property in the Frame.io Technology.
5.2. Permitted Use.
A. Customer grants Frame.io and its Affiliates a non-exclusive, worldwide, royalty-free license to use, copy, transmit, sub-license, index, store, and display Customer Data and Customer Content : (1) to the extent necessary to perform its obligations (including, but not limited to, developing, modifying, improving, supporting, customizing, and operating the On-Demand Services) or enforce its rights under this Agreement; or (2) where required or authorized by law.
B. Frame.io may use, copy, transmit, index and model Customer Data and Customer Content for the purpose of (1) developing, improving or customizing the On-Demand Services, and (2) publishing, displaying and distributing any anonymous information (i.e., information where neither Customer nor its site visitors are capable of being identified which may be aggregated with other customers’ anonymous information) derived from Customer Data and Customer Content (such as, but not limited to, web browser, screen resolution, mobile device-type information, image resolution and number of pages in a document).
C. Sensitive Personal Data. Customer may provide Sensitive Personal Data to the Frame.io On-Demand Services within Customer Content it uploads to the On-Demand Services (as distinct from information provided for purposes of account creation); provided, however, that: (1) Customer has obtained all necessary consents to do so; (2) the provision of such Sensitive Personal Data does not itself subject Frame.io or any Frame.io Affiliate to the requirements of the Gramm-Leach-Bliley Act of 1999 or the Health Insurance and Portability Act of 1996 (“HIPAA”), and (3) Customer shall in no event provide Sensitive Personal Data that constitutes Protected Health Information under HIPAA. Except for the purchase of the On-Demand Services, Customer shall not include credit card numbers or authentication data in any Customer Content.
5.4 Consumer Generated Content. If content generated by consumers of Customer is uploaded to Frame.io’s On-Demand Services, the following terms apply:
A. Frame.io does not review all content uploaded to Frame.io On-Demand Services, but Frame.io may use available technologies or processes to screen for certain types of illegal content (for example, child pornography) or other abusive content or behavior (for example, patterns of activity that indicate spam or phishing); and
B. Frame.io may access or disclose information about Customer, its consumers, or Customer’s use of the On-Demand Services when it is required by law or regulation (such as when Frame.io receives a valid subpoena or search warrant).
5.5 Data Storage and Retention. Frame.io will store Customer Content during the License Term up to any storage limit specified in the admin console. Frame.io may create reasonable storage limits, such as limits on file size, storage space, and other technical limits. If Customer exceeds those limits, Frame.io will make reasonable efforts to notify Customer to permit transition of Customer Content prior to deletion. With respect to On-Demand Services, Customer Data may be permanently deleted from Frame.io’s servers in conformance with Frame.io’s then current data retention policies and procedures.
5.6 Usage Analytics. Frame.io may develop, modify, improve, support, customize and operate its products and services based on Customer’s use, as applicable, of any On-Demand Services.
6. COLLABORATION SERVICES
6. Collaboration Services. If Customer is invited by another individual or organization that is using Frame.io products and services under a separate agreement with Frame.io (“Third-Party Account Holder”) to Share or edit Customer Content in a document, space, library, canvas or other collaboration environment controlled by the Third-Party Account Holder (each a “Collaboration Space”), Customer acknowledges and agrees that the Third-Party Account Holder is solely responsible for implementing the settings, including commenting, editing, access, publication and ownership settings, for all content, including Customer Content, in the Collaboration Space. The Third-Party Account Holder will be able to restrict or terminate Customer’s access to the Collaboration Space at any time. If Customer does not want the Third-Party Account Holder to control Customer Content, Customer should not Share or edit Customer Content in a Collaboration Space and should maintain back-up copies of Customer Content. Frame.io has no responsibility or liability for any loss, use or misuse of Customer Content in a Collaboration Space. Customer acknowledges and agrees that (a) Frame.io will not be a party to any disputes between Customer and any Third-Party Account Holder; (b) Customer will not seek to make Frame.io a party to any such dispute, and (c) Frame.io will have no liability or obligation to either Customer or a Third-Party Account Holder for any content, including Customer Content, subject to such a dispute. “Share” means to email, post, transmit, stream, upload, or otherwise make Customer Content available to a Third-Party Account Holder or other third party through Customer’s use of the On-Demand Services.
7. COMPLIANCE CERTIFICATIONS
7. Compliance Certifications. On-Demand Services’ compliance certifications can be found ator its successor website. If Customer Content is required to be processed or stored in accordance with the requirements of specific compliance certifications, standards, or regulations (“Compliance Measures”), Customer may use the On-Demand Services to process or store Customer Content only if the relevant Compliance Measures are listed at the website above. For the listed Compliance Measures, the On-Demand Services may be used to assist Customer to meet Customer’s legal obligations, including without limitation, use of service providers. Customer is solely responsible for (a) verifying that the On-Demand Services meet all requirements applicable to Customer Content, and (b) complying with any legal obligations applicable to Customer Content.
8.1 Confidentiality. The receiving party will treat Confidential Information with reasonable care and disclose only on a need to know basis or as permitted under this Agreement. The receiving party will only use Confidential Information for the purposes of performing its obligations or as permitted under this Agreement. However, a receiving party may disclose Confidential Information: (a) if approved by the other party in writing; (b) if required by law or regulation; (c) in the event of dispute between the parties, as necessary to establish the rights of either party; or (d) as necessary to provide the On-Demand Services licensed by Customer. In the case of (b) and (c), the disclosing party will provide reasonable advance notice to the other party and provide reasonable assistance to limit the scope of the disclosure unless prohibited by law or regulation.
8.2 For the purpose of this section 8 (Confidentiality) and the definition of “Confidential Information”, a reference to a “party” means a Party and its Affiliates. The receiving party is responsible for ensuring that its representatives and Affiliates fully comply with the obligations of the receiving party under this section.
9. Prerelease, Beta, or Free Version(s)
9.1 Frame.io may provide access to On-Demand Services, or a feature of the On-Demand Services, as a no-cost prerelease, early access, or beta version (“Beta Version”). A Beta Version does not represent the final product and may contain bugs. Frame.io may choose not to release a commercial version of the Beta Version.
9.2 Frame.io provides the Beta Version on an “AS-IS” basis. Frame.io, its Affiliates, and third-party providers disclaim and make no representation or warranty of any kind, express, implied or statutory, including representations, guarantees or warranties of merchantability, fitness for a particular purpose, title, non-infringement, or accuracy. Any warranties specified in the Agreement do not apply to the Beta Version. Frame.io further disclaims any warranty that (a) the Beta Version will meet Customer’s expectations, requirements, or will be constantly available, uninterrupted, timely, secure, or error-free; (b) the results obtained from the use of the Beta Version will be effective, accurate, or reliable; or (c) any errors or defects in the Beta Version will be corrected. Frame.io disclaims all liability of any kind for Customer’s use of the Beta Version. Customer must promptly cease using the Beta Version and destroy all copies of the Beta Version if Frame.io requests the Customer to do so. Frame.io may develop, modify, improve, support, customize, and operate its products and services based on Customer’s use, as applicable, of any Beta Versions.
9.3 Free Version. Frame.io may provide, at no additional cost, access to Frame.io software or technology services hosted by or on behalf of Frame.io and provided to Customer as a shared instance (“Free Version”). At its option, Customer may use the Free Version, subject to the terms of this Agreement and any additional clickthrough terms. Notwithstanding the foregoing, the Free Version will be provided to Customer on an “AS-IS” basis without warranty and is not Indemnified Technology.
10.1 Data Privacy Claims.
A. Cooperation and Mutual Assistance. Both Parties will co-operate in good faith to avoid and mitigate Data Privacy Claims keeping in consideration the rights of affected data subjects and the reputation and brand of each Party. Each Party agrees to mitigate its losses in relation to any such Data Privacy Claims. In the event of a Data Privacy Claim, both Parties agree to provide each other reasonable assistance in investigating, mitigating, and resolving such Data Privacy Claim. Any information and materials exchanged or discovered in the course of investigations, mitigation and resolution will be considered Confidential Information of the disclosing Party as set forth in section 1.4(B) and may not be disclosed by the receiving Party except as permitted in section 8, Confidentiality.
B. Data Privacy Claims. Indemnifying Party will at its expense indemnify the Indemnified Party against those losses of the Indemnified Party set out below in this section 10.1(B) to the extent directly attributable to a third-party Data Privacy Claim against the Indemnified Party:
i. settlement amounts negotiated by Indemnifying Party (to the extent Indemnifying Party is permitted to settle);
ii. damages finally awarded by a court;
iii. administrative fines or penalties imposed by a regulatory authority;
iv. reasonable attorneys’ fees,
v. reasonable out-of-pocket expenses associated with satisfying applicable statutory requirements related to forensic analysis, credit monitoring, and notifying affected individuals of the incident giving rise to the Data Privacy Claim, as applicable.
C. Exception. Indemnifying Party will have no liability for any Data Privacy Claim to the extent such Claim arises from any act or omission of Indemnified Party that impedes or prevents Indemnifying Party’s ability to comply with applicable data security and privacy laws.
10.2 Intellectual Property Claims
A. Frame.io’s Obligations. Frame.io will defend, at its expense, any third-party Claim against Customer made during the License Term to the extent the Claim alleges that (1) the Indemnified Technology directly infringes the third-party’s patent, copyright, or trademark; or that (2) Frame.io has misappropriated the third-party’s trade secret (“Infringement Claim”). Frame.io will pay any damages finally awarded by a court of competent jurisdiction (or settlement amounts agreed to in writing by Frame.io).
B. Frame.io’s Response. In the defense or settlement of any Infringement Claim, Frame.io may, at its sole option and expense:
i. procure for Customer a license to continue using the On-Demand Services under the terms of this
iii. replace or modify the allegedly infringing On-Demand Services to avoid the infringement; or
iv. where (i) or (ii) are not reasonably or commercially feasible, terminate Customer’s license and access to the On-Demand Services (or its infringing part) and refund any prepaid unused fees as of the date of termination, but only if Customer destroys all copies of the alleged infringing On-Demand Services from all computer systems on which it was stored.
C. Exceptions. Frame.io will have no liability for any Infringement Claim that arises from any:
i. use of the On-Demand Services in violation of this Agreement;
ii. modification of the On-Demand Services by Customer (or any third-party acting on Customer’s behalf);
iii. failure by Customer to install the latest updated version of the On-Demand Services as requested by Frame.io to avoid infringement; or
iv. third-party products, services, hardware, software, or other materials, or combination of these with the On-Demand Services, if the On-Demand Services would not be infringing without this combination.
10.3 Conditions. Indemnifying Party, as applicable, will have no liability for any Claim under section 10.1 or 10.2 that arises from any failure of Indemnified Party to:
A. notify Indemnifying Party in writing of the Claim promptly upon the earlier of learning of or receiving a notice of it, to the extent that Indemnifying Party is prejudiced by this failure;
B. provide Indemnifying Party with reasonable assistance requested by Indemnifying Party for the defense or settlement (as applicable) of the Claim;
C. provide Indemnifying Party with the exclusive right to control and the authority to settle the Claim; or
D. refrain from making admissions or statements about the Claim without Indemnifying Party’s prior written consent.
10.4 Sole and Exclusive Remedy. The remedies in this section 10 (Indemnities) are, in addition to any termination or suspension remedies expressly set forth in this Agreement, Indemnified Party’s sole and exclusive remedies and Indemnifying Party’s sole liability regarding the subject matter giving rise to any Claim, including any claims regarding confidentiality obligations involving Customer Data and Customer Content that may arise from an incident resulting in a Data Privacy Claim (notwithstanding anything to the contrary in section 11.3(B)).
11. LIMITATION OF LIABILITY
11.1 Subject to section 11.3, neither Party will be liable to the other Party for any special, indirect, moral, consequential, incidental, punitive, or exemplary damages; loss of profits; loss of reputation, use, or revenue; or interruption of business. This section 11.1 does not apply to those amounts expressly recoverable by the Indemnified Party under section 10 regardless of how such amounts are classified for damages purposes.
11.2 Subject to section 11.3, the maximum aggregate liability of each Party for all Claims under this Agreement is limited to an amount equal to the aggregate of the fees payable by Customer under the applicable Sales Order during the 12 months before the initial Claim, provided however, each Party’s maximum aggregate liability for all Claims under section 10 is limited to the greater of $1,000,000.00 or two times the aggregate of the fees payable by Customer under the applicable Sales Order.
11.3 Sections 11.1 and 11.2 (Limitation of Liability):
A. apply regardless of the form or source of Claim or loss, including negligence, whether the Claim or loss was foreseeable, and whether a Party has been advised of the possibility of the Claim or loss;
B. do not apply to any breach of section 8 (Confidentiality), Customer’s liability for Claims arising out of use of Frame.io Technology beyond the scope of any license granted under this Agreement, or Customer’s failure to pay any amounts owing to Frame.io under this Agreement.
12.1 Limited Warranty and Remedy for On-Demand Services. Frame.io warrants that the On-Demand Services, as delivered to Customer, will substantially conform to the applicable Documentation during the License Term, to the extent that the On-Demand Services constitute Indemnified Technology. Customer must notify Frame.io of a claim under this warranty within 45 days of the date on which the condition giving rise to the claim first appeared. To the extent permitted by law, Customer’s sole and exclusive remedy and Frame.io’s sole liability under or in connection with this warranty will be a replacement of the (as applicable), or if replacement is not commercially reasonable, a termination of the applicable On-Demand Service or Managed Service and a refund of any pre-paid fees for the unused portion of the license (calculated at the date of termination) for the applicable On-Demand Service or Managed Service.
12.2 Implied Warranties. To the maximum extent permitted by law and except for the express warranties in this Agreement, Frame.io provides the On-Demand Services on an "as-is" basis. Frame.io, its Affiliates, and third-party providers disclaim and make no other representation or warranty of any kind, express, implied or statutory, including representations, guarantees or warranties of merchantability, fitness for a particular purpose, title, non-infringement, or accuracy. Customer acknowledges that (A) neither Frame.io, its Affiliates nor its third-party providers controls Customer equipment or the transfer of data over communications facilities (including the Internet); (B) the On-Demand Services may be subject to limitations, interruptions, delays, cancellations, and other problems inherent in the use of the communications facilities (including search engines and social media channels); and (C) it is fully responsible to install appropriate security updates and patches. Frame.io, its Affiliates, and its third-party providers are not responsible for any interruptions, delays, cancellations, delivery failures, data loss, content corruption, packet loss, or other damage resulting from these problems.
13. LICENSE COMPLIANCE
13.1 Frame.io may, at its expense and no more than once every 12 months, appoint its own personnel or an independent third-party (or both) to verify that Customer’s use, installation, or deployment of the On-Demand Services (or other Frame.io Technology used in conjunction with the On-Demand Services) comply with the terms of this Agreement.
13.2 Any verification may include an onsite audit conducted at Customer’s relevant places of business upon 7 days’ prior notice, during regular business hours, and will not unreasonably interfere with Customer’s business activities.
13.3 If the verification shows that Customer, its Affiliates or third-party contractors of Customer or its Affiliates are deploying, installing or using the On-Demand Services (or other Frame.io Technology used in conjunction with the On-Demand Services): (A) beyond the quantity that was legitimately licensed; or (B) in any way not permitted under this Agreement, so that additional fees apply, without limiting Frame.io’s rights at law or in equity, Customer must pay the additional license fees and any applicable related maintenance and support fees within 30 days of invoice date. If use, deployment, or installation exceeds 5% of that which is permitted under this Agreement, Customer must pay Frame.io’s reasonable costs of conducting the verification, in addition to paying the additional fees.
14. TERM AND TERMINATION
14.1 Term. This Agreement applies to each of the On-Demand Services from the effective date of the Sales Order until the expiration of the applicable License Term, unless terminated earlier under this Agreement.
14.2 Termination for Cause
A. Material Breach by Either Party. If either Party commits a material breach of this Agreement, the non-breaching Party may give written notice describing the nature and basis of the breach to the breaching Party. If the breach is not cured within 30 days of the notice date, the non-breaching Party may immediately terminate this Agreement, in whole or in part.
B. Other Breaches. Frame.io may terminate this Agreement, in whole or in part, immediately upon written notice to Customer, if required by law; or Customer breaches section 3.2(H) of these General Terms.
14.3 Effect of Termination or Expiration.
A. Upon termination or expiration of this Agreement or any License Term for the On-Demand Services:
i. the licenses and associated rights to the On-Demand Services will immediately terminate;
ii. Customer must, at its expense, remove all references and links to the On-Demand Services from the Customer Sites. Some or all of the On-Demand Services may cease to operate without prior notice upon expiration or termination of the License Term; and
iii. Customer Data and Customer Content stored within the On-Demand Services will be available to Customer for 30 days after the termination or expiration in the same format then available within the reporting interface(s).
B. Customer will be liable for any fees for any On-Demand Services that are still in use or which remain active after termination or expiration of this Agreement. These fees will be invoiced to Customer at the rate set out in the Sales Order.
C. If Frame.io reasonably determines that Customer’s deployment of the On-Demand Services is causing a material risk to the security or operations of Frame.io or any of its customers or to the continued normal operation of other Frame.io customers (each a “Deployment Risk”), then Frame.io may, at any time, upon written notice to Customer:
i. immediately suspend Customer’s access, in whole or in part, to the On-Demand Services causing the Deployment Risk, until such Deployment Risk is resolved; or
ii. as a final option, where Frame.io has first used all commercially reasonable efforts to mitigate the Deployment Risk, Frame.io may terminate the affected On-Demand Services.
14.4 Renewal. Except as otherwise specified in the Sales Order, Customer’s license to On-Demand Services will automatically renew for successive periods of 12 months unless either Party provides written notice to the other Party of its intent not to renew at least 30 days before expiration of any then-current License Term. Upon renewal, Customer’s license to On-Demand Services will be for version(s) of On-Demand Services available at the time of renewal.
14.5 Survival. The termination or expiration of this Agreement will not affect any provisions of this Agreement which by their nature survive termination or expiration, including the provisions that deal with the following subject matters: definitions, payment obligations, confidentiality, term and termination, effect of termination, intellectual property ownership, permitted use, license compliance, limitation of liability, privacy, usage analytics and the “General Provisions” section in these General Terms.
15. GENERAL PROVISIONS
A. Customer may assign this Agreement in its entirety to a surviving person or entity under a merger or acquisition of Customer, upon written notice to Frame.io if the assignment does not expand the scope of the license granted in the On-Demand Services and if the assignee agrees in writing, for the benefit of Frame.io, to assume all of Customer’s obligations under this Agreement.
B. Frame.io may assign this Agreement or delegate its obligations, in whole or in part, to its Affiliates or in connection with a merger, change of control, or acquisition of Frame.io or the assets of the business to which this Agreement relates, upon written notice to Customer.
C. Except as provided in this section 15.1 (Assignment), Customer may not assign, voluntarily, by operation of law or otherwise, any rights or obligations under this Agreement without the prior, written consent of Frame.io.
D. Any (attempted) assignment in derogation of this section will be null and void.
15.2 Governing Law, Venue. This Agreement is governed by and construed under the laws of the state of California, without regard to any conflict of law rules or principles, and excluding the application of the United Nations Convention on Contracts for the International Sale of Goods. The Parties irrevocably submit to the exclusive jurisdiction of the courts of competent jurisdiction in the County of Santa Clara, State of California, provided however, Frame.io will have the right to pursue Claims against Customer in any other jurisdiction worldwide to enforce its rights under this Agreement or to enforce its intellectual property rights.
15.3 Force Majeure. Neither Party is liable for failure to perform its obligations under this Agreement (except for any payment obligations) to the extent that performance is delayed, prevented, restricted or interfered with as a result of any causes beyond its reasonable control, including acts of God, terrorism, labor action, fire, flood, earthquake, denial of service attacks and other malicious conduct, utility failures, power outages, or governmental acts, orders, or restrictions.
15.4 Injunctive Relief. Actual or threatened breach of certain sections of this Agreement (such as, without limitation, provisions on intellectual property (including ownership), license, privacy, data protection and confidentiality) may cause immediate, irreparable harm that is difficult to calculate and cannot be remedied by the payment of damages alone. Either Party will be entitled to seek preliminary and permanent injunctive relief and other equitable relief for any such breach.
15.5 Notices. Any notice given under this Agreement must be in writing by email to the following addresses (or addresses notified in writing by either Party): (A) to Frame.io at ContractNotifications@adobe.com and (B) to Customer at Customer’s email address stated on the Sales Order.
15.6 No Agency. Nothing in this Agreement is intended to constitute a fiduciary relationship, agency, joint venture, partnership, or trust between the Parties. No Party has authority to bind the other Party.
15.7 Customer’s Purchase Order. Any terms or conditions in Customer’s purchase order or any other related documentation submitted by or on behalf of Customer to Frame.io (or any other party) do not form part of this Agreement and are void, unless otherwise expressly agreed in writing and signed by both Customer and Frame.io.
15.8 Waiver, Modification. Neither Party’s waiver of the breach of any provision constitutes a waiver of that provision in any other instance. This Agreement may not be modified nor any rights under it waived, in whole or in part, except in writing signed by the Parties.
15.9 Order of Precedence. The Sales Order will prevail over the General Terms (to the extent of any inconsistency).
15.10 Entire Agreement. This Agreement contains the entire understanding of the Parties relating to the subject matter and supersedes all earlier agreements, understandings, proposals, discussions, negotiations, representations and warranties, both written and oral, regarding the subject matter.
15.11 Counterpart. This Agreement (or a component) may be executed in one or more counterparts, each of which constitutes an original and all of which taken together constitutes the same agreement. Each Party may sign this Agreement using an electronic or handwritten signature, which are of equal effect, whether on original or electronic copies.
15.12 Severability. If any term of this Agreement is held invalid or unenforceable for any reason, the remainder of the term and this Agreement will continue in full force and effect.
15.13 Trade Rules. Customer acknowledges that the On-Demand Services may be subject to trade control laws and regulations, and Customer will comply with them.
15.14 U.S. Government Licensing. For US Government end users: Customer acknowledges that On-Demand Services are “Commercial Item(s),” as that term is defined at 48 C.F.R. section 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as the terms are used in 48 C.F.R. section 12.212 or 48 C.F.R. section 227.7202, as applicable. Customer agrees, consistent with 48 C.F.R. section 12.212 or 48 C.F.R. sections 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (A) only as Commercial Items; and (B) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished rights are reserved under the copyright laws of the United States.
The prior version of the Terms and Conditions, effective up until May 4, 2023, is available .
The prior version of the Terms and Conditions, effective up until March 22, 2022 is available.