PLEASE READ THIS CONTRACT CAREFULLY. BY USING THIS PACKAGE OR ANY RELATED MATERIALS PROVIDED BY MODIO YOU ACCEPT AND AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE JUST LIKE ANY WRITTEN AGREEMENT THAT YOU SIGNED. IF YOU DO NOT AGREE, DO NOT CONTINUE TO DOWNLOAD OR USE THIS SOFTWARE. IF YOU AGREE TO THE TERMS OF THIS AGREEMENT, PLEASE CLICK “I ACCEPT THE TERMS ABOVE” AT THE BOTTOM OF THIS AGREEMENT.
1. DEFINITIONS. In this Agreement, "Package" includes all materials being provided by Modio. Each component of the Package offered for sale by us also may be referred to as a “Product.” “Modio,” we,” “us” or “our” refers to Modio LLC, 2331 S Seventh St, Unit 2, San Jose, CA 94112 and any affiliates of Modio LLC. “You" and "Your" refer to you, the user of the Package, and any person or entity accessing or using this Package. “Software” refers to the proprietary software of Modio that is included in the Package and that enables You to create, render and modify images into Works (as defined in Section 2), and shall also encompass any help documentation. “Content” refers to the proprietary videos, images, presets, scripts, plug-ins and other digital files owned by Modio and its licensors that are included in certain Products to facilitate Your creation of animations.
2. LICENSE. Modio grants You a nonexclusive, nontransferable, royalty-free right and license to use the Product(s) in this Package, which contain our proprietary Content for the purposes of internally developing Your own derivative works such as videos (“Works”) for Your own use, and even for sale, subject to the restrictions set forth in this Agreement, especially Section 3. Your Works are subject to this Agreement to the extent that they incorporate any Content from the Package or any Product. You may not sell, sublicense, rent, loan or lease the Package or any Product to any third party. Any employees who use any Product shall be subject to this Agreement; all employees who are users of the Package or Product require individual licenses. This is a single user license for You; You may install the Product on up to two (2) devices that You use, such as a computer at work and a laptop, so that You are able to use the Package at Your reasonable convenience.
3. ADDITIONAL LICENSE RESTRICTIONS.
(a) Template/Pre-Render and Stock Media Restrictions. The Package and other Products enable You to render and create Your own Works. You must pre-render or flatten images created with the Product or Content to offer for sale to third parties. The goal is to prevent any ability by You or others to appropriate our Content to compete with our own Package: You have no right to resell our Content, in any manner that we regard as being in competition with our Content, or to create a business of offering works or templates (whether offered free or for payment) that are modifications of our Content and may in fact compete with the Package or the Products in our sole discretion. In this regard, no Package Content that You have created can serve as editable media files, or otherwise be offered to the public or compete with the Package or any Product, whether offered for free or payment. The exception to the foregoing is the case where you sell a finished, locked Work that you have rendered (provided that it is NOT your own offering of our Content that could compete with our Products, whether or not rendered, which is strictly prohibited) to a single end user; that is permitted because it will not be further modified or rendered (e.g., the trailer of a film, a film or a commercial). You are also granted the right to transfer a finished, locked Work to a finishing studio for the purpose of broadcast or film-out, provided the studio does not reuse any of your Work for any other production.
(b) Content Extraction. You may not extract any Content from any Product that cannot be extracted and used as stand-alone Content without the use of reverse engineering tools or techniques.
(c) Prohibited Uses. The Content that you adapt and modify for use in your own Works shall not be used in a Work that infringes the copyright or other intellectual property right of any third party, that is defamatory, libelous or obscene, or that is in any way unlawful. In addition, you will not attempt to violate any security mechanisms in the Content or Software, or to misrepresent who you are, or to engage in any other unlawful or undesirable conduct. In order to ensure your compliance, Modio reserves the right to monitor your use of the Content, and to audit your installation and use of the Content at any time upon no more than one week’s notice during customary business hours, either by itself or using an audit or accounting firm for this purpose.
4. SUPPORT. Modio is not under any obligation to provide any support under this Agreement, including upgrades or future versions of the Products. Nonetheless, you should bring any concerns or problems you have to our attention at INFO@modio.tv. We want to make sure our users have a very positive experience with the Package, and we will use commercially reasonable efforts to address concerns that we believe, in our discretion, will improve the user experience.
5. CONFIDENTIAL INFORMATION. With respect to all Software provided as part of the Package and any other non-public information made accessible to You (collectively, “Confidential Information”), You agree to treat all Confidential Information with a high standard of care, and not share such information with any third party for the term of this Agreement, and ten (10) years after such term. Your obligations under this Section shall terminate when You can prove that (a) an item of Confidential Information is in the public domain through no fault of Yours, (b) an item of Confidential Information was developed by You or Your employees or agents independently of and without reference to any Confidential Information; or (c) Your disclosure of any item of Confidential Information was in response to a valid order by a court or other governmental body, was otherwise required by law, or was necessary to establish the rights of either party under this Agreement (provided that we were given prior notice before any such disclosure and an opportunity to oppose the disclosure).
6. PROPRIETARY RIGHTS. You agree to respect and protect Modio’s copyright and other ownership interests in all Products in this Package that are accessible to You. You agree that all copies of items in this Package reproduced for any reason by You will contain the same copyright, trademark, and other proprietary notices as appropriate. We and our licensors retain title and ownership of the items in this Package, the media on which it is recorded, and all subsequent copies, regardless of the form or media in or on which the original and other copies may exist. Except as stated herein, this Agreement does not grant You any rights to patents, copyrights, trade secrets, trademarks, or any other rights in respect to the items in this Package.
7. TERM. This Agreement is in effect until terminated by either party. We have the right to terminate this Agreement immediately if You fail to comply with any of its terms or conditions. Upon any such termination, You must return all full and partial copies of the items in this Package immediately to us at the address set forth above. The following provisions survive any termination of this Agreement: Sections 3, and 5-13.
8. WARRANTY; DISCLAIMER. To the maximum extent permitted by applicable law, Modio licenses the Products and Package, including without limitation the Software and Content, "AS IS" without any express warranties of any kind. With respect to the Software, we make no representation as to their adequacy for any particular purpose or to produce any particular result. We shall not be liable for loss or damage arising out of this Agreement or use of the Products, except as expressly indicated in this Agreement. MODIO AND ITS LICENSORS DO NOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE PACKAGE. EXCEPT FOR ANY REPRESENTATION, WARRANTY OR CONDITION THAT CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW THAT IS APPLICABLE TO YOU IN YOUR JURISDICTION, MODIO AND ITS LICENSORS MAKE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE, AS TO ANY OTHER MATTERS, INCLUDING BUT NOT LIMITED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS. Some states or territories do not allow the exclusion of implied warranties so the above limitations may not apply to You. You may have rights which vary from jurisdiction to jurisdiction.
9. LIMITATION OF LIABILITY. IN NO EVENT WILL MODIO OR ITS LICENSORS BE LIABLE TO YOU FOR ANY DAMAGES, CLAIMS OR COSTS WHATSOEVER OR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL OR SPECIAL DAMAGES, OR ANY LOST PROFITS OR LOST DATA, EVEN IF WE OR ANY AGENT OF OURS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS. THESE LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW. MODIO’S AGGREGATE LIABILITY AND THAT OF ITS LICENSORS IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID BY YOU FOR THE PACKAGE OR ANY PRODUCT. NOTWITHSTANDING THE FOREGOING, MODIO EXPRESSLY DISCLAIMS ALL LIABILITY FOR ANY HARM TO A COMPUTER OR SYSTEM OR DEVICE ALLEGED TO HAVE BEEN CAUSED, OR CAUSED, BY ANY PRODUCT, SOFTWARE OR CONTENT. Nothing contained in this Agreement limits our liability to You if our gross negligence or willful misconduct or fraud has directly caused Your death or personal injury. Some states and territories do not allow the exclusion or limitation of incidental, consequential, or special damages, so the above limitation or exclusion may not apply to You.
(a) Indemnification by You. You agree to indemnify, defend (at Modio’s request) and hold Modio and its officers, directors, employees and agents (“Indemnified Parties”) harmless from and against any and all claims, liability, losses or legal proceedings, including attorneys' fees (collectively, “Claims”), that arise or result from Your use or distribution of the Package or any Product in violation of this Agreement, or your violation of the intellectual property rights of any third party. In the event that Modio determines in its sole discretion that it is better positioned to defend itself against liability or equitable measures (such as an injunction) that You are, upon notice it will assume the defense directly but You shall be responsible for the cost of such defense.
(b) Indemnification by Modio. Modio will indemnify you against any damages finally awarded against you that arise from a third party Claim against you alleging that the Content (as received from Modio in its unmodified form) infringes the U.S. intellectual property rights of such third party.
11. EXPORT REGULATIONS. You agree that none of the Products may be shipped, transferred, or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively the "Export Laws"). In addition, if any part of the Package is identified as export controlled items under the Export Laws, You represent and warrant that You are not a citizen, or otherwise located within, an embargoed nation (including without limitation Iran, Syria, Sudan, Libya, Cuba and North Korea) and that You are not otherwise prohibited under the Export Laws from receiving the Product.
12. GOVERNING LAW AND ARBITRATION. This Agreement shall be governed by and construed in accordance with the laws applicable in the State of California, excluding any conflict of law rules that might direct the selection of jurisdiction or venue other than in California. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by final and binding arbitration in Los Angeles County, California before a single arbitrator(s) with expertise in the technology industry. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures, and the arbitrator shall apply the laws applicable in the State of California. Judgment on the arbitral award may be entered in any court having jurisdiction thereof. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitrator shall, in the arbitral award, allocate all or part of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys’ fees (and accountant’s fees) of the prevailing party, for payment by the non-prevailing party, and shall determine the prevailing party for this purpose.
13. GENERAL PROVISIONS. You may not assign Your rights or obligations under this Agreement without the prior written consent of Modio. None of the provisions of this Agreement shall be deemed to have been waived by any act or failure to act by Modio, its agents, or employees, except by an agreement in writing signed by an authorized signatory of Modio. It is expressly agreed that a breach of Sections 2, 3 or 5 of this Agreement may cause irreparable harm to Modio and that a remedy at law may be inadequate. Therefore, in addition to any other available remedies, Modio will be entitled to seek an injunction or other equitable remedies in the event of any threatened or actual violation of such provisions. This Agreement governs in the event of any conflict between this Agreement and any other document or agreement that may affect Your rights in the Package. You acknowledge that You have read this Agreement, understand it, agree to be bound by it, and agree that it reflects a complete statement of Your agreement with Modio which supersedes any prior agreement, oral or written, between Modio and You with respect to the licensing to You of this Package or any Product. No modification of the terms of this Agreement will be enforceable against Modio unless Modio gives its express written consent. Modio reserves the right to modify this Agreement at any time. You will be subject to any new or modified terms of which Modio provides notice to You going forward, not retroactively. Should You reject the new or modified Terms, You may terminate this Agreement.
You must now affirmatively indicate Your acceptance of this Agreement if you wish to use the Package or any Product by clicking below.