These Terms of Service (“ToS”) are by and between SUPER VIEW, whose place of business is 2912 Colorado Ave., Suite 203, Santa Monica, CA 90404 (“SUPER VIEW”) and the entity or individual (“Customer”) identified in the trial account (“Trial Account”), monthly subscription (“Monthly Subscription”), or order executed by SUPER VIEW and Customer (an “Order”), and governs Customer’s use, and SUPER VIEW’s provision, of the Services (as defined below). Each Trial Account, Monthly Subscription, and Order, and any exhibit or schedule to an Order, is subject to this ToS and is incorporated herein by reference. If you are an individual and are entering into this ToS on behalf of an entity, you represent and warrant that you have the authority to bind such entity to all of the terms and conditions of this ToS. Use of the Service by Users (as defined below) is governed by this ToS, unless explicitly stated otherwise, and any new Services, including any new SUPER VIEW properties, shall be subject to these ToS. When a User uses the Services or any other service or product offered by SUPER VIEW that does not have a separate legal ToS, these ToS will apply.
SUPER VIEW RESERVES THE RIGHT, AT ITS SOLE DISCRETION, TO ALTER OR UPDATE THESE TOS AND/OR THE SERVICES AT ANY TIME WITH OR WITHOUT NOTICE INCLUDING, WITHOUT LIMITATION, FEATURES, SPECIFICATIONS, CAPABILITIES, FUNCTIONS, LICENSING TERMS, RELEASE DATES, GENERAL AVAILABILITY OR OTHER CHARACTERISTICS. BY CONTINUING TO USE THE SERVICES AFTER ANY SUCH CHANGES, YOU AGREE TO BE BOUND BY SUBSEQUENT CHANGES AND ACKNOWLEDGE THAT SUPER VIEW SHALL HAVE NO LIABILITY TO YOU AS A RESULT OF ANY SUCH CHANGES.
1.1 “Account” means a single point of entry via the user interface through which Customer, a Customer’s representatives or employees or licensed third parties (collectively “Users”) access and use the Services.
1.2 “Administrator(s)” means any Authorized User that is designated by Customer to manage other Authorized Users’ access to the Services.
1.3 “Authorized Users” means any individual who is authorized by Customer to access and use the Services on behalf of Customer.
1.4 “Content” means all content, data, video, templates, graphics, or information in any form that is uploaded to or made available in Customer’s Account(s) by Customer or on Customer’s behalf. The Services do not include Customer’s Content or the Content of any other SUPER VIEW customer. By using the online user interfaces or APIs (collectively, the “U/I”) provided as part of the Services, Customer may make choices about its Content, including, depending on the particular Services being used by Customer, the presentation, management, and distribution of Content. Customer may change its selections as permitted by the Services. In all cases, however, Customer’s most recent selections in the U/I, as reflected in SUPER VIEW’s database, shall be conclusive in the event of any dispute concerning Customer’s selections.
1.5 “Demo Account” means a temporary account provided to Customer by SUPER VIEW or its resellers that permits the Customer, or its Users, as a potential customer to use the Services on a temporary trial basis for a limited time period.
1.5 “Fees” means all fees relating to the Services including, without limitation, all fees set forth in a Trial Account, Monthly Subscription, or Order.
1.6 “Malicious Code” means code, files, scripts, agents, or programs intended to do harm, including but not limited to viruses, worms, time bombs and Trojan horses.
1.7 “Player” means SUPER VIEW’s cross-platform video player.
1.8 “Services” means those online services that Customer has licensed from SUPER VIEW and/or such other services as SUPER VIEW makes available to Customer from time to time. The various services comprising the Services enable Customer to upload, transcode, manage, and distribute Customer’s Content and all other products and/or services provided by or through SUPER VIEW and/or its Suppliers pursuant to a Trial Account, Monthly Subscription, or an Order including (but not limited to) technical support, engineering work, and/or any other professional services.
1.9 “Suppliers” means, individually and collectively, SUPER VIEW’s licensors, suppliers, vendors, resellers, and partners.
1.10 “Usage Data” means all information, data and other content, not including any Content, accessed by SUPER VIEW via Customer’s access and use of the Services, including without limitation Customer and User’s IP address, web request headers, including without limitation browser type, user agent, and referral page, web pages visited on the Services, cookie information from Users’ usage of the Services, and other information relating to Customer and Users’ usage of the Services.
2. Access to the Services; Trial Accounts; Monthly Subscriptions; Beta Services
2.1 Access to the Services
Access to Customer’s Services Account(s) for Users shall be enabled by use of username(s) and password(s) (“Credentials”) selected by Customer. Except where SUPER VIEW has actual notice of loss, theft, or unauthorized use of Customer’s Credentials:
(i) Customer is solely responsible for designating all Authorized Users and Administrators and for providing accurate contact information to SUPER VIEW for such Authorized Users and Administrators. Customer is responsible for (a) ensuring that all Authorized Users comply with the terms of this ToS, and (b) any breach of this ToS by any Authorized User.
(ii) Each Authorized User may access and use the Services only after completing the applicable registration process via the Service. Each Authorized User will maintain the confidentiality of his or her Credentials and will not disclose such Credentials to any other party or share their Account with any other individual. Any activities undertaken through the use of the Credentials will be deemed to have been performed by an Authorized User. Customer is responsible for all activity occurring in Customer’s Account(s), and Customer shall bear full responsibility and liability (and SUPER VIEW shall have no responsibility or liability) for failure to secure passwords or enforce proper utilization of credentials.
(iii) SUPER VIEW shall have the right, without further inquiry, to rely on the provision of Customer’s Credentials as sufficient to authenticate Customer’s use of the Services
(iv) An additional level of access security for the Customer’s Account(s) may be provided by SUPER VIEW using multi-factor authentication (“MFA”) in which case Customer Administrators are responsible for the set-up, configuration, and management of MFA for all users and Customer Account(s). While SUPER VIEW recommends the utilization of MFA by all of its clients if available, including Customer, Customer acknowledges that no security or authentication system is impenetrable or unable to be hacked.
(v) Customer will immediately notify SUPER VIEW of any unauthorized access or use of Credentials that is known to, or reasonably suspected by, Customer. SUPER VIEW reserves the right, at any time, to require that any Authorized User change his or her Credentials.
2.2 Trial Accounts
SUPER VIEW may from time to time offer trial accounts. A trial account (“Trial Account”) provides you with one (1) free month (“Trial Period”) of the “Starter Plan” from the date you activate the Trial Account. In conjunction with the Trial Account, you will be required to submit your payment details. In addition, you (i) consent to us using your payment details in accordance with our Terms of Service, and (ii) acknowledge and agree to the Trial Account terms of service in this Section 2.2. If you fail to cancel your account prior to the conclusion of your Trial Period, you will be automatically charged for a monthly subscription of the “Starter Plan.” The monthly subscription will continue until you cancel. To cancel your Trial Account or monthly subscription, you will need visit the workspace settings page and click on the “Update” button. You will only be permitted one (1) Trial Account and any attempts to procure multiple Trial Accounts will be rejected. We reserve the right to conclude the Trial Account program at any time, without prior notice and with no liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS TOS, THE TRIAL ACCOUNT SERVICES ARE PROVIDED “AS IS” AND WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND.
2.3 Monthly Subscription
SUPER VIEW offers multiple monthly subscription offerings (collectively, the “Monthly Subscriptions”). In conjunction with the Monthly Subscriptions, you will be required to submit your payment details. In addition, you (i) consent to us using your payment details in accordance with our Terms of Service, and (ii) acknowledge and agree to the Monthly Subscription terms of service in this Section 2.3. If you fail to cancel your account prior to the conclusion of your monthly renewal, you will be automatically charged for an additional monthly subscription of the then current subscription plan. The monthly subscription will continue until you cancel. To cancel your Monthly Subscription, you will need to visit the workspace settings page and click on the “Update” button. We reserve the right to conclude the Monthly Subscription program at any time, without prior notice and with no liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS TOS, THE MONTHLY SUBCRIPTION SERVICES ARE PROVIDED “AS IS” AND WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND.
2.4 Beta Services
SUPER VIEW may from time to time offer products or services that are not generally available to all SUPER VIEW customers (“Beta Services”). Unless otherwise indicated, all Beta Services will be offered at no cost and will be identified as “beta” or in a manner that indicates that the Beta Service is in limited release or pre-release. Such Beta Services will still be in development and SUPER VIEW may change aspects of the Beta Services at any time, including prior to general release. Customer will not be obligated or required to use any Beta Services. SUPER VIEW may cease offering any Beta Services, or cease offering such services at no cost, at any time and without notice, in its sole discretion. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS TOS, BETA SERVICES ARE PROVIDED “AS IS” AND WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND.
2.5 Automatic Updates/Communication Features
The Services automatically communicate with SUPER VIEW’s servers to check for automatic general release updates such as bug fixes, patches, enhanced functions, and/or security related patches for the particular Services purchased under the Order(s). At no charge to Customer, SUPER VIEW may require the installation of software updates deemed reasonably necessary to address errors, bugs, or other performance issues in the Account (collectively, “Updates”). All Updates shall be deemed part of the Services and subject to the same terms and conditions of these ToS. SUPER VIEW may (but is not required to) post notices from time to time on the SUPER VIEW website explaining Updates and provide instructions associated with such Updates.
Customer is solely responsible for providing and maintaining at its own expense all equipment, software, services, and other items necessary to access and use the Services (including, without limitation, computer hardware and software, modems, telephone service and Internet access). SUPER VIEW shall have no responsibility or liability) for failure for the suitability, quality, reliability, or performance of Customer equipment.
SUPER VIEW reserves the right to modify or discontinue, temporarily or permanently, the Services or any features or portions thereof without prior notice.
2.8 Third Party Services
The Services may provide Customer with the ability to access technology and services made available by third parties (“Third Party Services”) as a convenience only. Customer’s use of any Third-Party Services is solely at its own risk and is subject to any applicable terms and conditions of the third-party provider of such services. Customer acknowledges and agrees that Third Party Services are not under the control of SUPER VIEW. SUPER VIEW makes no representation or warranty with regard to and will not be responsible or liable to Customer for, any Third-Party Services. SUPER VIEW does not, unless otherwise expressly set forth in writing in a separate ToS executed by SUPER VIEW, provide maintenance or support for any Third-Party Services.
Where SUPER VIEW provides training or support to the Customer, the fees for such services will be defined in the Trial Account, Monthly Subscription or Order. Customer shall be responsible for its own expenses in attending training and for SUPER VIEW’s travel and subsistence expenses if the parties agree that the training be conducted at Customer premises.
3. Customer’s Obligations
3.1 Restrictions on Use
a) Customer covenants that it will not:
(i) use the Services in any illegal or unlawful manner or for any illegal or unlawful purpose;
(ii) perform any act which is intended to harm SUPER VIEW or the Services;
(iii) use any Service in any manner not expressly permitted by this ToS;
(iv) sell, lease, or rent access to or use of the Services, or otherwise transfer any rights to use the Services under this ToS (including without limitation, on a timeshare or service bureau basis);
(v) host, on a subscription basis or otherwise, the Services (including any related application);
(vi) permit or assist others to enable access to the Services by any unauthorized third party other than in connection with any third party’s access to Content made publicly available via the Services by Customer;
(vii) permit direct or indirect access to or use of any Services in a way that circumvents a contractual usage limit;
(viii) defraud, defame, abuse, harass, stalk, threaten, or infringe the rights of privacy or other intellectual property rights (including copyright) of others;
(ix) use the Services to store or transmit Malicious Code;
(x) attempt to gain unauthorized access to any Services or Content or its related systems or networks;
b) No Modifications: Except as expressly permitted in writing by SUPER VIEW, Customer will not copy, distribute, modify, create derivative works based on, port, adapt, or translate any SUPER VIEW software or Services. Customer will not reverse engineer the Services or any SUPER VIEW software and will not decompile, disassemble, or otherwise attempt to discover the source code of any software provided or otherwise made available by SUPER VIEW only in machine-readable (i.e., object code) format.
c) Content: Customer is solely responsible for all matters arising out of or in connection with the Content including, without limitation, ensuring that the Content does not include prohibited content and does not violate any third-party rights, as further described therein and elsewhere in these ToS.
d) SUPER VIEW, its Suppliers and the Services are passive conduits of the Content and SUPER VIEW and its Suppliers have no obligation to undertake to pre-screen, edit, review, monitor or oversee Content submitted, uploaded, distributed, retrieved, or viewed in connection with use of the Services, and assumes no responsibility or liability relating thereto.
f) Customer is responsible for Content provided by third parties that may contain errors or omissions, false or defamatory material, and/or material that is offensive, indecent, objectionable, and/or infringing. Under no circumstances will SUPER VIEW or its Suppliers be liable in any way for Content, including, but not limited to, for any defamation, infringement, falsehoods, errors, or omissions in any such Content, or for any loss or damage of any kind incurred as a result of the use or publication of any such content posted, delivered, emailed, or otherwise transmitted via the Services.
g) Customer acknowledges that SUPER VIEW and its Suppliers are not responsible for preventing or identifying infringement of intellectual property rights or other violations associations with the Content, and SUPER VIEW and its Suppliers assume no responsibility for screening or monitoring for possible:
(i) infringement or enforcing rights of the Customer or any third-party rights with respect to Content;
(ii) unlawful, inappropriate, or unpermitted use;
(iii) libel, falsehoods, errors, or omissions contained in Content; and/or
(iv) noncompliance with applicable laws, rules, or regulations, or court or regulatory agency orders.
Customer acknowledges and agrees that by using the Services, Users may be exposed to Content that they deem offensive, indecent, or objectionable and that SUPER VIEW does not guarantee that any Content will be to the satisfaction of Users. SUPER VIEW will not review or screen Content on a regular basis for compliance with this ToS or applicable law, and SUPER VIEW shall have no obligation to do so, provided, however, that in addition to any other rights SUPER VIEW may have, SUPER VIEW reserves the right to suspend Customer’s access to and/or use of the Services, or any particular Content, to the extent that SUPER VIEW reasonably determines, in good faith, that such suspension is necessary to comply with applicable law (including without limitation a take-down notice under the Digital Millennium Copyright Act) or to prevent significant harm to any end user or the Services; provided further, however, that in such event, SUPER VIEW shall use commercially reasonable efforts to suspend only that portion of the Services, or the particular Content, as is reasonably necessary to prevent the occurrence or continuation of such violation and/or harm.
3.2 Obligation to Pay
Exclusive of Customer shall pay SUPER VIEW the fees set forth in each Monthly Subscription or Order in accordance with the payment terms set forth in this ToS and the Monthly Subscription or Order. Customer shall be responsible for and shall pay any applicable sales, use or other taxes or duties, tariffs or the like applicable to Customer’s Monthly Subscription or Orders (except for taxes on SUPER VIEW’s income). All payments shall be made without deduction for withholding taxes or set-off. Late payments may be subject to fees at the rate of 1.0% per month or, if lower, the maximum rate allowed by law. In addition, if the payment for applicable fees is more than 15 days overdue then Customer shall be liable for a 10% late payment fee. If Customer fails to pay applicable fees when payment is due, then in addition to any other rights SUPER VIEW may have, SUPER VIEW shall have the right to suspend delivery of all or a portion of the Services to Customer, provided that SUPER VIEW has supplied Customer prior notice and five (5) days’ opportunity to cure. If SUPER VIEW pursues collection efforts against Customer due to Customer’s failure to pay fees due under this ToS, Customer shall pay SUPER VIEW’s reasonable costs of collection, including any attorneys’ fees related thereto.
4. SUPER VIEW’s Obligations
SUPER VIEW agrees to:
(a) make the Services available to Customer in accordance with any active Trial Account, Monthly Subscription or Order and this ToS; and
(b) perform any other obligations expressly identified in any current Trial Account, Monthly Subscription or Order.
5.1 Term of this ToS
This ToS commences on the Effective Date and shall remain in effect until all of Customer’s Trial Accounts, Monthly Subscription and Orders have expired or have been terminated in accordance with the terms of this ToS (the “Term”). The “Effective Date” of this ToS shall be the date specified in Customer’s Trial Accounts, Monthly Subscriptions, or initial Order, or the start date of a trial or, if any of the foregoing was submitted online, the date Customer submits. If Customer is using the Services pursuant to a Trial Account and does not submit an Order prior to the conclusion of the Trial Period, this ToS will terminate at the end of the Trial Period or, if later, the date SUPER VIEW closes such Trial Account.
5.2 Term of Trial Accounts, Monthly Subscriptions and Orders
Each Trial Account shall be limited to the Trial Period. Monthly Subscriptions shall continue on a monthly basis until such time as terminated by the subscriber as outlined herein. An Order shall commence on the date specified in the Order or, if such Order was submitted online, the date Customer submits the online Order (the “Order Effective Date”) and will conclude upon the completion of the work related to the Order.
Unless otherwise prohibited by law, either party may terminate this ToS, including any outstanding Trial Accounts, Monthly Subscriptions, or Orders, if:
(a) the other party is adjudicated bankrupt or otherwise seeks to avoid its performance obligations under applicable bankruptcy or insolvency laws;
(b) upon the occurrence of a material breach of this ToS by the other party if such breach is not cured within 30 days after written notice identifying the matter constituting the material breach.
In the event of the termination or expiration of this ToS, all licenses granted under this ToS shall terminate automatically. Upon an early termination of this ToS for any reason, all current Trial Accounts, Monthly Subscriptions and Orders shall terminate and, unless such termination resulted from a material, uncured breach of this ToS by SUPER VIEW, all fees and expenses payable under any such Monthly Subscriptions or Orders shall become immediately due and payable. The parties agree that, in such a termination, SUPER VIEW’s damages may be difficult to ascertain, therefore the parties agree that Customer shall pay to SUPER VIEW seventy-five percent (75%) of the remaining amounts payable under any terminated Orders as liquidated damages, and not as a penalty.
5.4 Removal and Suspension
SUPER VIEW reserves the right, without notice or liability to Customer, to remove any Content from the Services and/or suspend Customer’s access to or use of the Services in its sole discretion if it believes that (a) Customer has violated its obligations under this ToS, (b) that such removal is required by applicable law, (c) that Customer use of the Services represents a direct or indirect threat to the network function or integrity of the Services, (d) such suspension is necessary to prevent unauthorized access to or harm to Content or data of other SUPER VIEW customers; (e) such suspension is necessary to comply with SUPER VIEW’s legal obligations, or (f) Customer’s account has become inactive. SUPER VIEW further reserves the right to remove any Content from the Services and/or render Content inaccessible to the public upon request from a third-party asserting ownership of rights in such content. Customer is solely responsible for creating backup copies of any Content.
As between the parties, SUPER VIEW owns all right, title and interest in and to the Services. This ToS does not convey to Customer any ownership interest in or to the Services, but only a limited license to use the Services that is revocable as set forth in this ToS. As between the parties, Customer owns all right, title and interest in and to the Content. This ToS does not convey to SUPER VIEW any ownership interest in or to the Content, but only a limited license to the Content that is revocable as set forth in Section 7.2 of this ToS.
7.1 License to Use the Services
SUPER VIEW hereby grants Customer a limited, revocable (for breach of the licensing terms or violation of applicable law), non-sublicensable, non-transferable (except as provided in Section 15.2), non-exclusive, worldwide license during the Term to use the applicable Services for which Customer has submitted an Order or registered online for a Trial Account or Monthly Subscription. All rights not expressly granted to Customer are reserved by SUPER VIEW. Except as expressly permitted by SUPER VIEW in writing, Customer shall not:
(i) sublicense, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party the Services or any part thereof in any way; and/or
(ii) modify or make derivative works based upon the Services or reverse engineer, decompile, or disassemble the Services.
7.2 License to Content
Customer hereby grants SUPER VIEW a limited, revocable (as set forth in this ToS), non-transferable (except as provided in Section 15.2), non-exclusive, royalty-free, fully paid-up, worldwide license to perform all such acts with respect to the Content as are necessary for SUPER VIEW to provide, maintain, or troubleshoot the Services in accordance with this ToS and Customer’s selections made through the U/I. All rights not expressly granted to SUPER VIEW are reserved by Customer.
7.3 License to Feedback, Suggestions or Recommendations
Customer hereby grants to SUPER VIEW an unlimited, irrevocable, perpetual, sublicensable, transferable, non-exclusive, royalty-free, fully paid-up, worldwide license to use and/or incorporate into SUPER VIEW’s services any feedback, suggestions and/or recommendations provided to SUPER VIEW by Customer regarding the Services.
8. Disclaimers, Representations and Warranties
EXCEPT AS EXPRESSLY PROVIDED IN THIS TOS, SUPER VIEW MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND TO CUSTOMER, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, WORKMANLIKE QUALITY, NON-INFRINGEMENT, TITLE, SUITABILITY, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS ONLY. NO ADVICE OR INFORMATION OBTAINED BY CUSTOMER FROM SUPER VIEW SHALL CREATE ANY REPRESENTATION OR WARRANTY NOT EXPRESSLY STATED IN THIS TOS.
8.2 Representations and Warranties
Customer represents and warrants that:
(a) it either owns fully and outright or otherwise possesses and has obtained all rights, approvals, licenses, consents, and permissions as are necessary to perform its obligations hereunder, exercise its rights hereunder and to grant the licenses granted by it under this ToS;
(b) the Content, and its use through the Services, as enabled by Customer, directly or indirectly, does not, and shall not, infringe, violate, or misappropriate any third party’s rights. Customer shall:
(i) obtain all necessary consents, permissions, licenses and waivers from copyright owners, artist(s), actors, directors, performers, writers, producers, or any other individuals who appear in the Content or the results and proceeds of whose services are utilized in the Content;
(ii) obtain any required synchronization and master use licenses from the owners of the musical compositions and sound recordings embodied in the Content (or their designated representatives);
(iii) make any payments to any labor unions and guilds, to the extent required under applicable collective bargaining agreements or otherwise (e.g., residuals, re-use, rerun and other similar fees);
(iv) obtain public performance licenses from public performance rights collection organizations;
(v) take any other actions necessary in order to obtain the appropriate license to the Content.
(c) Customer shall comply with all applicable laws, rules, regulations, and court or regulatory agency orders or actions;
(d) Customer shall be solely responsible and liable for any Prohibited Content (as defined in the AUP); and
(e) Customer shall abide by these ToS.
Each party agrees to indemnify, subject to Section 10, the other party and such other party’s officers, employees, directors, agents, affiliates, subsidiaries, successors and assigns from and against any and all damages, liabilities, loss, government fines, costs and expenses (including reasonable attorney’s fees and litigation expenses) arising out of a claim, action or demand brought by a third party for or alleging infringement or misappropriation of such third party’s intellectual property rights (each a “Claim”).
The indemnification obligations in this section are conditioned upon:
(a) written notice by the indemnified party to the indemnifying party promptly of the indemnified party’s receipt of any Claim for which indemnification is sought;
(b) indemnifying party shall select counsel and control any litigation and settlement; and
(c) such reasonable cooperation by the indemnified party in the defense as the indemnifying party may request.
Notwithstanding anything to the contrary contained herein, the indemnifying party shall not, without the prior written consent of the indemnified party, settle, compromise or consent to the entry of any judgment with respect to any pending or threatened Claim (i) if such action requires or contains an admission of guilt or liability of indemnified party and (ii) unless the settlement, compromise or consent provides for and includes an express, unconditional release of such Claim against the indemnified party.
10. EXCLUSIONS/LIMITATIONS OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND EXCEPT IN THE CASE OF CUSTOMER MISAPPROPRIATION OF SUPER VIEW INTELLECTUAL PROPERTY OR USE OF CONTENT, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER UNDER ANY THEORY OF LIABILITY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM THE PERFORMANCE OR FAILURE OF PERFORMANCE OF ANY PROVISION OF THIS TOS (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES), SUCH AS, WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS, EVEN IF A PARTY IS MADE AWARE THAT SUCH DAMAGES ARE LIKELY. EXCEPT IN THE CASE OF CUSTOMER (i) MISAPPROPRIATION OF SUPER VIEW INTELLECTUAL PROPERTY OR (ii) USE OF CONTENT, UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE, IN AGGREGATE, TO THE OTHER FOR DAMAGES (OR AMOUNTS) IN EXCESS OF THE GREATER OF (A) $10,000.00, OR (B) THE TOTAL FEES PAID AND/OR PAYABLE FOR THE APPLICABLE ORDER FOR THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE ACTION OR OMISSION GIVING RISE TO THE CLAIM HEREUNDER AROSE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE PRECEDING SENTENCE, IF CUSTOMER IS USING THE SERVICES VIA A FREE ACCOUNT, CUSTOMER’S MAXIMUM LIABILITY TO SUPER VIEW IN CONNECTION WITH SUCH FREE ACCOUNT SHALL NOT EXCEED AN AMOUNT EQUAL TO THE DAMAGES INCURRED BY SUPER VIEW. THIS SECTION WILL BE GIVEN FULL EFFECT EVEN IN THE EVENT OF A FAILURE OF ESSENTIAL PURPOSE. THE PARTIES ACKNOWLEDGE THAT THESE LIMITATIONS OF LIABILITY REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS TOS AND THAT THE PARTIES WOULD NOT ENTER INTO THIS TOS WITHOUT THESE LIMITATIONS.
11. Third-Party Services
SUPER VIEW may, from time to time, inform its customers of third-party services that can be used in connection with the Services. Customer’s use of any third-party service in connection with the Services, and any terms, conditions, representations and/or warranties associated with such use, are solely between Customer and such third-party service provider. SUPER VIEW makes no representation or warranty with regard to any such third-party service, and SUPER VIEW shall not be responsible to Customer in any manner for any such third-party service. SUPER VIEW does not, unless otherwise expressly set forth in writing, provide maintenance or support for third-party services.
Each party agrees not to disclose the other party’s Confidential Information without the other party’s prior written consent. “Confidential Information” includes, without limitation:
(a) all intellectual property;
(b) financial and business information (including pricing); and
(c) any other information designated in writing as “Confidential.”
Confidential Information does not include (i) Content; (ii) information that has become publicly known through no breach by Customer or SUPER VIEW of these confidentiality obligations; (iii) information that is independently and lawfully developed or obtained without access to Confidential Information, as evidenced in writing; and (iv) information required to be disclosed by law; or (v) the fact that Customer is a customer of SUPER VIEW.
13. Identification Rights
SUPER VIEW shall have the right to identify Customer as a customer, and to use Customer’s logo in SUPER VIEW’s general marketing materials, and Customer shall have the right to identify SUPER VIEW as the provider of the Services, and to use SUPER VIEW’s logo in connection with Customer’s use of the Services.
All notices under this ToS must be in writing and delivered either by hand, e-mail, certified mail (return receipt requested, postage pre-paid) or nationally recognized overnight delivery service (all delivery charges pre-paid) and addressed, if to Customer, to the contact identified in Customer’s Trial Account, Monthly Subscription or most recent Order and, if to SUPER VIEW, to SUPER VIEW Studios, 2912 Colorado Ave., Suite 203, Santa Monica, CA 90404, Attn: accounts@SUPERVIEW.com.
15.1 Independent Contractors
SUPER VIEW and Customer are independent contractors under this ToS, and nothing herein shall be construed to create a partnership, joint venture, or agency relationship.
Neither party may assign performance of this ToS or any of its rights or delegate any of its duties under this ToS without the prior written consent of the other, except that each party may assign this ToS without the other party’s prior written consent in the case of a merger, acquisition, or other change of control, and in such event this ToS shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
15.3 Governing Law
This ToS and all Orders shall be governed by the laws of California.
15.4 Forum Selection
Any and all disputes arising out of or related to this ToS or performance hereof shall be brought exclusively in the Los Angeles, CA and the parties hereby waive any objection thereto.
15.5 Jury Trial Waiver
CUSTOMER AND SUPER VIEW EACH WAIVE ANY RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY AND ALL DISPUTES ARISING OUT OF OR RELATED TO THIS TOS.
15.6 Limitation on Claims
Notwithstanding any law providing a longer statute of limitations, any claim or cause of action arising out of or related to this ToS and/or Customer’s use of the Services must be filed within one (1) year after such claim or cause of action arose, or such claim or cause of action shall be forever barred.
15.7 Export Compliance
Each party shall comply with all applicable export control laws and regulations. Customer specifically represents that:
(i) it is not located in any country or jurisdiction that is subject to United States economic sanctions, nor is it acting on behalf of the government of or providing the Services to citizen that is a national of, any such country.
15.8 Effect of Waivers
The waiver by either party of a breach or a default of any provision shall not be construed as a waiver of any succeeding breach of the same or any other provision.
All terms of this ToS which by their nature extend beyond the termination of this ToS remain in effect until fulfilled and apply to respective successors and assigns.
15.10 Integration; Amendment
This ToS, including any Trial Accounts, Monthly Subscription or Orders entered into hereunder, constitutes the entire understanding of the parties hereto with respect to the matters contemplated hereby, supersedes all previous ToS between the parties concerning the subject matter hereof and cannot be amended except by a writing signed by authorized representatives of both parties.
15.11 No Reliance
No party hereto has relied on any statement, representation or promise of any party or representative thereof except as expressly set forth in this ToS.
If any term, provision, covenant, or condition of this ToS is held invalid or unenforceable for any reason, the remainder of the provisions will continue in full force and effect as if this ToS had been executed with the invalid portion eliminated. The parties further agree to substitute for the invalid provision a valid provision that most closely approximates the intent and economic effect of the invalid provision.
15.13 Government Entities
Services licensed to the U.S. government or any entity acting on its behalf shall be as a Commercial Item, as that term is defined at 48 C.F.R. §2.101 and licensed only with those rights as are granted to all other entities or individuals entering into an ToS to use the Services.
15.14 Purchase Orders/Instruments
Any instruments, including purchase orders, work orders, acknowledgments and vendor registration forms not signed by both parties (“Instruments”) shall not add to, supersede, or modify, the terms of this ToS and in the event any term of an Instrument purports to add to, supersede or modify any term of this ToS, such term of the Instrument shall be void and without effect.
15.15 Force Majeure
Neither party will be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, acts of terrorism, governmental action, labor conditions, earthquakes, material shortages or any other cause which is beyond the reasonable control of such party.
16 Data Protection
This Clause applies only to the personal data of individuals in the EU.
16.1 In this Clause, the following terms shall have the following meanings:
“controller”, “processor”, “data subject”, “personal data”, “processing” (and “process”) and “special categories of personal data” shall have the meanings given in Applicable Data Protection Law
“Applicable Data Protection Law” shall mean: (i) prior to 25 May 2018, the EU Data Protection Directive (Directive 95/46/EC); and (ii) on and after 25 May 2018, the EU General Data Protection Regulation (Regulation 2016/679).
16.2 Customer (the controller) appoints SUPER VIEW as a processor to process the personal data of individuals in the EU described in these Terms and Conditions (the “Data”) for the purposes described, and the terms set out, in these Terms and Conditions, including, for the avoidance of doubt, to provide Customer with, and update and improve, our Services (or as otherwise agreed in writing by the parties) (the “Permitted Purpose”). Each party shall comply with the obligations that apply to it under Applicable Data Protection Law;
16.3 Unless explicitly requested by SUPER VIEW to do so, Customer shall not disclose (and shall not permit any data subject to disclose) any special categories of personal data to SUPER VIEW for processing;
16.4 SUPER VIEW shall not transfer the Data outside of the European Economic Area (“EEA”) unless it has taken such measures as are necessary to ensure the transfer is in compliance with Applicable Data Protection Law. Such measures may include (without limitation) transferring the Data to a recipient in a country that the European Commission has decided provides adequate protection for personal data, to a recipient in the United States that has certified its compliance with the EU-US Privacy Shield, or to a recipient that has executed standard contractual clauses adopted or approved by the European Commission;
16.5 SUPER VIEW shall ensure that any person it authorizes to process the Data (an “Authorized Person”) shall protect the Data in accordance with SUPER VIEW’s confidentiality obligations under this ToS;
16.6 SUPER VIEW shall implement technical and organizational measures to protect the Data (i) from accidental or unlawful destruction, and (ii) loss, alteration, unauthorized disclosure of, or access to the Data (a “Security Incident”);
16.7 Customer consents to SUPER VIEW engaging third party sub processors to process the Data for the Permitted Purpose provided that: (i) SUPER VIEW maintains an up-to-date list of its sub processors, which it shall update with details of any change in sub processors at least 30 days prior to the change; (ii) SUPER VIEW imposes data protection terms on any sub processor it appoints that require it to protect the Data to the standard required by Applicable Data Protection Law; and (iii) SUPER VIEW remains liable for any breach of this Clause that is caused by an act, error or omission of its sub processor. The Customer may object to SUPER VIEW’s appointment or replacement of a sub processor prior to its appointment or replacement, provided such objection is based on reasonable grounds relating to data protection. In such event, SUPER VIEW will either not appoint or replace the sub processor or, if this is not reasonably possible in SUPER VIEW’s sole discretion, the Customer may suspend or terminate the ToS;
16.8 SUPER VIEW shall provide reasonable and timely assistance to Customer (at Customer’s expense) to enable Customer to respond to: (i) any request from a data subject to exercise any of its rights under Applicable Data Protection Law; and (ii) any other correspondence, enquiry or complaint received from a data subject, regulator or other third party in connection with the processing of the Data. In the event that any such request, correspondence, enquiry, or complaint is made directly to SUPER VIEW, SUPER VIEW shall promptly inform the Customer providing full details of the same;
16.9 If SUPER VIEW believes or becomes aware that its processing of the Data is likely to result in a high risk to the data protection rights and freedoms of data subjects, it shall inform Customer and provide reasonable cooperation to the Customer in connection with any data protection impact assessment that may be required under Applicable Data Protection Law;
16.10 If it becomes aware of a confirmed Security Incident, SUPER VIEW shall inform Customer without undue delay and shall provide reasonable information and cooperation to Customer so that Customer can fulfil any data breach reporting obligations it may have under (and in accordance with the timescales required by) Applicable Data Protection Law. SUPER VIEW shall further take reasonably necessary measures and actions to remedy or mitigate the effects of the Security Incident and keep Customer informed of all material developments in connection with the Security Incident.
16.11 Deletion or return of Data: Upon termination or expiry of this ToS, SUPER VIEW will, on Customer’s explicit request, delete or return the Data in its possession or control (in a manner and form decided by SUPER VIEW, acting reasonably). This requirement shall not apply to the extent that SUPER VIEW is required by applicable law to retain some or all of the Data, or to Data it has archived on back-up systems, which Data SUPER VIEW shall securely isolate and protect from any further processing.
16.12 SUPER VIEW shall on reasonable prior notice and at the Customer’s expense and subject to the confidentiality obligations set out in the ToS, either (at SUPER VIEW’s determination) provide an independent third-party audit report to recognized standards or submit to audits and inspections and provide information reasonably required in order to assess and verify compliance with the provisions of this Clause and the requirements of the Applicable Data Protection Law.
Last updated: September 1, 2022