Terms and Conditions
49 Stevenson Street, Suite 800
San Francisco, CA 94105
415 644 4600 office
415 227 9602 fax
REALITY DIGITAL SERVICE TERMS AND CONDITIONS
These Reality Digital Service Terms and Conditions, together with any order form, exhibit or attachment hereto, comprise the entire agreement (the "Agreement") by and between Reality Digital and the Company identified in the Agreement concerning Company's use, and Reality Digital 's provision, of the Reality Digital Spotlight Service.
1. The Reality Digital Spotlight Service. The "Reality Digital Spotlight Service" is an on-demand, hosted service described at http://spotlight.realitydigital.com that enables Company to upload, manage and distribute Company's Content. "Content" means all content, data or information in any form that is uploaded to the Reality Digital Spotlight Service by Company or on Company's behalf. By using the Reality Digital Spotlight Service, Company may make choices about the presentation, management and distribution of the Content. Company may change Company's selections as permitted by the Reality Digital Spotlight Service. In all cases, however, Company's last selections and changes, as reflected in Reality Digital 's database, shall be conclusive in the event of any dispute concerning Company's selections.
2. Access to the Spotlight Service. Access to Company's Account/s shall be limited by use of username/s and password/s ("Credentials") selected by Company. Company is responsible for all activity occurring in Company's Account/s. Except where Reality Digital has actual notice of loss, theft or unauthorized use of Company's Credentials, Reality Digital shall have the right, without further inquiry, to rely on provision of Company's Credentials as sufficient to authenticate Company's use of the Reality Digital Service.
3. Company's Obligations.
(a) Restrictions on Use. Company covenants and agrees that it will not (i) use the Reality Digital Spotlight Service in any illegal or unlawful manner or for any illegal or unlawful purpose or (ii) perform any act which interferes with or disrupts the Reality Digital Spotlight Service. Reality Digital will not review or screen Content on a regular basis for compliance with this Agreement or applicable law, and Reality Digital shall have no obligation to do so, provided, however, that in addition to any other right Reality Digital may have, Reality Digital reserves the right to suspend Company's access to and/or use of the Reality Digital Spotlight Service to the extent that Reality Digital determines, in good faith, that such suspension is necessary to comply with applicable law or to prevent significant harm to any end user or the Reality Digital Service; provided further, however, that in such event, Reality Digital shall only suspend that portion of the Reality Digital Spotlight Service causing such violation and/or harm.
(b) Obligation to Pay. Company shall pay Reality Digital the fees set forth on any order form, exhibit, attachment or amendment to the Agreement in accordance with the payment terms set forth therein. Company shall be responsible for and shall pay any applicable sales, use or other taxes or duties, tariffs or the like applicable to the provision of the Reality Digital Service (except for taxes on Reality Digital 's income). All payments shall be made without deduction for withholding taxes. Late payments may be subject to fees at the rate of 1.5% per month or, if lower, the maximum rate allowed by law. If Company fails to pay fees invoiced by Reality Digital within 15 days following the payment due date, then in addition to any other rights Reality Digital may have, Reality Digital shall have the right to suspend delivery of all or a portion of the Reality Digital Spotlight Service to Company, provided that Reality Digital has supplied Company prior notice and 5 days opportunity to cure.
4. Reality Digital 's Obligations. Reality Digital agrees to (a) operate and make available to Company the Reality Digital Spotlight Service in accordance with this Agreement; and (b) perform any other obligations expressly identified in this Agreement.
5. Term. The term ("Term") of this Agreement shall commence on the Effective Date and, unless earlier terminated in accordance with this Agreement, shall remain in effect for 1 year from the Effective Date (unless a different term is set forth in the order form), following which it shall automatically renew on each anniversary of the Effective Date unless either party hereto has provided notice to the other of non-renewal at least 60 days in advance of the end of the then-current Term.
5a. Effective Date. The Effective Date is the date of acceptance of these Terms and Conditions.
6. Termination. Either party may terminate this Agreement: (a) if the other party is adjudicated bankrupt or otherwise seeks to avoid its performance obligations under applicable bankruptcy or insolvency laws, or (b) upon the occurrence of a material breach of this Agreement 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 a termination or expiration of this Agreement, all licenses granted under this Agreement shall terminate automatically. Upon an early termination of this Agreement for any reason (other than a termination resulting from a material, uncured breach of this Agreement by Reality Digital), all fees and expenses payable under this Agreement shall become immediately due and payable.
7. Title. As between the parties, Reality Digital owns all right, title and interest in and to the Reality Digital Spotlight Service. This Agreement does not convey any ownership interest in or to the Reality Digital Spotlight Service to Company, but only a limited license that is revocable as set forth in this Agreement. As between the parties, Company owns all right, title and interest in and to the Content.
(a) License to Use the Reality Digital Spotlight Service. Subject to the terms and conditions of this Agreement, Reality Digital hereby grants Company a limited, revocable (as set forth herein), non-transferable, non-exclusive, worldwide license to use the Reality Digital Spotlight Service. All rights not expressly granted to Company are reserved by Reality Digital and its licensors. Except as expressly permitted by Reality Digital or to the extent expressly authorized by the Reality Digital Spotlight Service, Company shall not: (a) sublicense, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Reality Digital Spotlight Service or any part thereof in any way; or (b) modify or make derivative works based upon the Reality Digital Spotlight Service or reverse engineer, decompile or disassemble the Reality Digital Spotlight Service.
(b) License to Content. Subject to the terms and conditions of this Agreement, Company hereby grants Reality Digital a limited, revocable (as set forth herein), non-transferable (except as provided herein), non-exclusive, royalty-free, worldwide license to perform all such acts with respect to the Content as are necessary for Reality Digital to provide the Reality Digital Spotlight Service in accordance with this Agreement and Company's selections made through the Administrative User Interface of the Reality Digital Spotlight Service. For avoidance of doubt, although Reality Digital shall have the right hereunder to host, store, encode, reproduce and/or distribute the Content (among other things) in order to provide the Reality Digital Spotlight Service in accordance with this Agreement, the parties expressly agree that Reality Digital does not hereby take legal title to any Content supplied by Company.
(c) License to Marks. Subject to the terms and conditions of this Agreement, Reality Digital grants Company, and Company grants Reality Digital, the limited, revocable, non-transferable (except as provided herein), non-exclusive, royalty-free, worldwide right to reproduce and display the other's logos, trademarks, trade names and other similar identifying material (the "Marks"). Any and all use of a party's Marks hereunder shall inure exclusively to the benefit of the owner of the Marks. This Agreement does not convey any ownership interest in or to the other party's Marks, but only a limited license that is revocable as set forth in this Agreement. Reality Digital shall only reproduce and display Company Marks that Company uploads into the Reality Digital Spotlight Service and in accordance with Company's selections made through the Administrative User Interface of the Reality Digital Spotlight Service.
9. Representations and Warranties.
(a) The Reality Digital Spotlight Service. Reality Digital represents and warrants that 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 Agreement.
(b) The Content. Company represents and warrants that (i) 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 Agreement; (ii) the Content and its use through the Reality Digital Spotlight Service, as enabled by Company, directly or indirectly, does not, and shall not, infringe, violate or misappropriate any third party's rights; and (iii) it has paid, and it shall be solely responsible for paying, any fees attributable to any and all of the foregoing.
10. Indemnification. Company agrees to indemnify, defend and hold harmless Reality Digital and Reality Digital 's officers, employees, directors, agents, affiliates, subsidiaries, successors and assigns from and against any and all third party claims, damages, liabilities, costs and expenses (including reasonable attorney's fees and litigation expenses) (each a "Claim"), arising out of or related to any alleged or actual breach of any representation, warranty or covenant made by Company in this Agreement. Reality Digital agrees to indemnify, defend and hold harmless Company and Company's officers, employees, directors, agents, affiliates, subsidiaries, successors and assigns from and against any and all third party Claims arising out of or related to any alleged or actual breach of any representation, warranty or covenant made by Reality Digital in this Agreement.
11. DISCLAIMERS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, REALITY DIGITAL MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND TO COMPANY, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, TITLE, SUITABILITY, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE REALITY DIGITAL SPOTLIGHT SERVICE IS PROVIDED ON AN "AS IS" BASIS ONLY. NO ADVICE OR INFORMATION OBTAINED BY COMPANY FROM REALITY DIGITAL SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
12. LIMITATIONS/EXCLUSIONS OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL 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 AGREEMENT (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES), SUCH AS, WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER FOR DAMAGES IN EXCESS OF (A) $10,000 OR (B) THE TOTAL VALUE OF PAYMENTS EXPRESSLY IDENTIFIED IN THE AGREEMENT, WHICHEVER OF (A) AND (B) IS GREATER. NOTWITHSTANDING ANY OF THE FOREGOING IN THIS ENTIRE SECTION, THE LIMITATIONS SET FORTH IN THIS SECTION SHALL NOT APPLY IN THE CASE OF (I) BREACHES OF SECTION 3(A) OF THIS AGREEMENT, (II) DAMAGES RESULTING FROM INTENTIONAL TORTS, (III) AMOUNTS PAYABLE PURSUANT TO SECTION 10 ("INDEMNIFICATION") OR (IV) BREACHES OF SECTION 13 ("CONFIDENTIALITY").
13. Confidentiality. Each party agrees not to disclose the other party's Confidential Information without their prior written consent. "Confidential Information" includes, without limitation: (a) all intellectual property; (b) financial information (including pricing) and business information; and (c) any other information designated in writing as "Confidential". Confidential Information does not include (x) information that has become publicly known through no breach by Company or Reality Digital of these confidentiality obligations; (y) information that is independently and lawfully developed or obtained without access to Confidential Information, as evidenced in writing; or (z) information required to be disclosed by law.
14. Identification Rights. Reality Digital shall have the right to identify Company as a customer and Company shall have the right to identify Reality Digital as the provider of the Reality Digital Service.
15. Notices. All notice required to be given under this Agreement must be given 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 Company, to the contact identified in the order form completed by Company and, if to Reality Digital, to Reality Digital Inc., 49 Stevenson Street, Suite 800, San Francisco, CA, 94105, attn: General Counsel.
16. General. (a) Independent Contractors: Reality Digital and Company are independent contractors under this Agreement and nothing herein shall be construed to create a partnership, joint venture or agency relationship; (b) Assignment: Neither party may assign performance of this Agreement or any of its rights or delegate any of its duties under this Agreement without the prior written consent of the other; (c) Merger or Acquisition: Notwithstanding the provisions of subsection (b) above, each party may assign this Agreement 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 Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; (d) Governing Law: This Agreement shall be governed by the laws of the State of California applicable to contracts entered into and wholly to be performed therein; (e) Forum Selection: Any and all disputes arising out of or related to this Agreement or performance hereof, shall be brought in the Federal or state courts in Northern California and the parties hereby agree to the jurisdiction thereof for such purposes and waive any objection thereto; (f) 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; (g) Survival: All terms of this Agreement which by their nature extend beyond their termination, remain in effect until fulfilled and apply to respective successors and assigns; (h) No Modification Unless in Writing: Except as specifically and expressly addressed in a writing executed by both parties, the terms and conditions of this Agreement in effect between the parties shall govern; (i) Counterparts; Delivery: This Agreement may be executed in counterparts, all of which are considered one and the same agreement, and becomes effective when one or more counterparts have been signed by each of the parties and delivered to the other party. Delivery by facsimile or e-mail is as effective as physical delivery of an originally executed copy hereof; (j) Integration; Amendment: This Agreement constitutes the entire understanding of the parties hereto with respect to the matters contemplated hereby, supersedes all previous agreements between the parties concerning the subject matter hereof and cannot be amended except by a writing signed by authorized representatives of both parties; (k) 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 Agreement.
© Reality Digital, Inc. 2009