Terms of Service
THIS TERMS OF SERVICE (AGREEMENT) GOVERNS YOUR 15-DAY FREE TRIAL OF THE SERVICES. IF YOU PURCHASE OCULU SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF OCULU’S SERVICES.BY CLICKING ON THE “ACCEPT” BUTTON, YOU OR THE ENTITY OR COMPANY THAT YOU REPRESENT (CUSTOMER) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS SERVICES AGREEMENT. CUSTOMER’S CONTINUED USE OF ANY SERVICES OF OCULU, INC. (OCULU) SHALL ALSO CONSTITUTE ASSENT TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE OCULU SERVICES.
Confidential Information means all trade secrets, know-how, inventions, developments, software and other financial, business or technical information disclosed by or for a party in relation to this Agreement, but not including any information the receiving party can demonstrate is (a) already known by it without restriction, (b) rightfully furnished to it by a third party without restriction and without breach of any obligation to the disclosing party, (c) generally available to the public without breach of this Agreement or (d) independently developed by it without reliance on such information. All pricing information is OCULU’s Confidential Information.
Content means media including videos, images, graphics, animations, sounds, text and music and any related submissions (e.g. viewer comments) hosted, streamed, or Played through the Products.
Customer Data means all Customer registration information and other transaction data collected, processed and retained by OCULU in connection with providing the Services, including without limitation content submitted by Customer Managers and Contacts.
Operating System means Apple iOS and/or Google Android.
Paid / Unpaid means any Products for which Fees are not required.
Plan means (a) OCULU’s Basic, Professional, Premium or Custom plan, as applicable and as further described on OCULU’s website available at: www.OCULU.com/pricing and (b) the applicable plan consisting of video plays, storage and bandwidth purchased by Customer.
SDK means the Oculu Software Development Kits for Android and iOS, including all components thereof (Documentation, code, tools, libraries, data, files and materials) and all updates thereto.
Services means the service and platform hosted by OCULU and provided to Customer under this agreement.
Systems means modems, servers, software, network and communications equipment and ancillary services that are owned, controlled or procured by Customer.
Updates means any patch, revision or update to the Services delivered by OCULU.
2. BASIC PACKAGE/FREE
We will make one or more Services available to Customer as a basic package free of charge until the earlier of (a) video plays, storage or badwith usage exceeds monthly limits or (b) the start date of any Purchased Services ordered by Customer. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. A credit card is not required for the basic package.
WE RESERVE THE RIGHT TO CANCEL ANY ACCOUNTS IN THE BASIC/FREE PLAN. ANY DATA CUSTOMER ENTERS INTO THE SERVICES DURING BASIC/FREE USAGE WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED IN OTHER PLANS, PURCHASE UPGRADED SERVICES, OR EXPORT SUCH DATA. CUSTOMER CANNOT TRANSFER DATA ENTERED DURING THE FREE PLAN TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE BASIC PLAN; THEREFORE, IF CUSTOMER PURCHASES A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE BASIC PLAN, CUSTOMER MUST EXPORT CUSTOMER’S DATA BEFORE THE END OF THE PERIOD OR CUSTOMER’S DATA WILL BE PERMANENTLY LOST.
NOTWITHSTANDING SECTION 8 (WARRANTIES AND DISCLAIMERS), COVERED THE BASIC PLAN THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY. ADDITIONALY ANY FREE ACCOUNT THAT DOES NOT HAVE ANY ACTIVITY (DEFINED AS VIDEO PLAYS) OVER A 30 DAY PERIOD WILL BE DELETED PERMENATELY.
3. PURCHASED SERVICES
Subject to all terms and conditions of this Agreement, OCULU will use commercially reasonable efforts to provide the Services. OCULU may provide the Services to Customer directly, or indirectly using contractors or other third party vendors or service providers. Use of the Services by Customer shall not unreasonably interfere with use of the Services by other OCULU customers. These Terms of Service apply to the Oculu Video Platform. Customer’s rights and licenses to Use Products are limited to the Editions for which it has enrolled, is eligible and has paid all Fees (for paid service plans) in accordance with these Terms of Service. Any Use of the Products other than as permitted by these Terms of Service is strictly prohibited. The Company reserves all rights and licenses not expressly granted hereunder.
The License packages or plans vary by use of the product and the licenses granted hereunder are limited accordingly. Unless otherwise provided, licenses are personal to customer for its own Use. If you would like more information about upgrading to our different pricing packages please access published pricing at this live page: http://www.oculu.com/pricing-plan/
Oculu may from time to time change the published pricing of our services
Subject to the terms and conditions of these Terms of Service and customers observance thereof, Company hereby grants to company and company hereby accepts a non-exclusive, non-transferable, non-sublicensable, limited right and license to (a) Use, access and install the Products, solely for the Purpose, (b) Use, access, integrate and install the SDK for use in connection with the Purpose, (c) make and distribute Documentation internally for use in connection with the Purpose, (d) publicly Distribute SDK Applications for the Operating Systems, and (e) operate and allow end users of SDK Applications to operate The Oculu Player incorporated into such SDK Applications.
Use of the Basic / Free package in connection with advertising of any kind is prohibited.
Companies using the Basic / Free package are limited to one (1) account.
3.3 Security Measures.
Customer, Customer Managers and Customer appointed Contacts may access the Services as OCULU instructs through a combination of user names and passwords.
Customer shall take full responsibility and liability for the security of each of its Managers’ and Contacts’ user names and passwords, and shall be solely responsible for all use of the Services through such user names or passwords. Customer agrees to immediately notify OCULU of any unauthorized use of the Services or any other breach of security known to Customer.
OCULU reserves the right to modify or discontinue any Services or Plan (in whole or in part) at any time by giving at least 60 days notice to Customer.
OCULU will not be responsible or liable for any failure in the Services resulting from or attributable to (a) Customer’s Systems, (b) network, telecommunications or other service or equipment failures outside of OCULU’s facilities, (c) Customer’s or third party’s products, services, negligence, acts or omissions, (d) any force majeure or cause beyond OCULU’s reasonable control, (e) scheduled maintenance or (f) unauthorized access, breach of firewalls or other hacking by third parties.
Customer shall obtain and operate all Systems needed to connect to, access or otherwise use the Services, and provide all corresponding backup, recovery and maintenance services. Customer shall ensure that all Systems are compatible with the Services. Customer shall maintain the integrity and security of its Systems (physical, electronic and otherwise).
4. SUPPORT AND MAINTENANCE
OCULU will use commercially reasonable efforts to provide Customer with support and maintenance services for the Services in accordance with its standard practices (as amended from time to time). Customer agrees that OCULU will have the right to charge in accordance with its then current policies for any support services resulting from problems, errors or inquiries relating to Systems or any other network, equipment, service or software not owned, controlled or procured by OCULU.
OCULU shall have no obligation to provide Updates, except that OCULU will provide Customer with any Update that it makes generally available without charge to its similar customers.
5. PROPRIETARY RIGHTS
5.1 Customer Data.
As between the parties, Customer shall own all Customer Data. OCULU shall not disclose to third parties or use any Customer Data except as reasonably necessary to provide the Services or to comply with any legal, regulatory or similar requirement or investigation. Customer hereby grants OCULU a nonexclusive and royalty-free right and license to use the Customer Data solely for the purpose of providing the Services. Customer agrees to indemnify and hold OCULU harmless from all claims, damages, liabilities, losses, costs and expenses (including attorneys’ fees) arising out of any use or disclosure of Customer Data permitted hereunder. Customer agrees to create archival copies or backup copies of all Customer Data.
5.2 No Implied License.
Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and OCULU (and its licensors) shall retain all right, title and interest in and to the Services (including all intellectual property and proprietary rights embodied therein). Customer shall not take any action inconsistent with such rights.
Except as specifically permitted in this Agreement, Customer shall not directly or indirectly (a) use any of OCULU’s Confidential Information to create any software, documentation or service that is similar to the Services or any documentation provided in connection therewith, (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code of the Services, or the underlying ideas, algorithms or trade secrets therein (except and only to the extent that these restrictions are expressly prohibited by applicable statutory law), (c) encumber, sublicense, transfer, rent, lease, time-share or use the Services in any service bureau arrangement or otherwise for the benefit of any third party, (d) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control laws or regulations of the United States or any other relevant jurisdiction or (e) permit any third party to engage in any of the foregoing proscribed acts.
Customer shall not alter, obscure or remove any printed or on-screen trademark, patent legend or other proprietary or legal notice.
Except for the specific rights granted by this Agreement, the receiving party shall not use or disclose any of the other’s Confidential Information without its written consent, and shall use reasonable care to protect the other’s Confidential Information, including ensuring that its employees and contractors with access (a) have a need to know for the purposes of this Agreement and (b) are bound by obligations of confidentiality at least as protective as those provided herein. Each party shall be responsible for any breach of confidentiality by its employees and contractors. Promptly after any termination of this Agreement (or at the disclosing party’s request at any other time), the receiving party shall return all of the other’s tangible Confidential Information, permanently erase all Confidential Information from any storage media and destroy all information, records and materials developed therefrom. Each party may disclose only the general nature, but not the specific terms, of this Agreement without the prior consent of the other party; provided, either party may provide a copy of this Agreement or otherwise disclose its terms in connection with any financing transaction or due diligence inquiry.
6.2 Compelled Disclosure.
Nothing herein shall prevent a receiving party from disclosing any Confidential Information as necessary pursuant to any court order, lawful requirement of a governmental agency or when disclosure is required by operation of law (including disclosures pursuant to any applicable securities laws and regulations); provided, that prior to any such disclosure, the receiving party shall use reasonable efforts to (a) promptly notify the disclosing party in writing of such requirement to disclose and (b) cooperate with the disclosing party in protecting against or minimizing any such disclosure or obtaining a protective order.
Customer agrees to pay OCULU the fees, in the amounts and at the times specified in the selected Plan. Company agrees to timely pay all Fees due during the Term. Oculu reserves the right to suspend companies access to the platfrom if Fees are not timely paid. Such suspension shall not stop companies duty to pay all Fees due under any Order Form or Addendum or constitute termination of these Terms of Service absent Company’s notice of termination pursuant to the Termination section hereof. Past-due fees shall incur interest at a rate of one-and-one-half percent (1.5%) per month or the maximum rate allowed by law, whichever is lesser. Company shall be liable to, and fully reimburse, Oculu for all costs (including attorney’s fees) incurred in connection with Oculu’s collection of past-due Fees or other enforcement of this Agreement. All Fees are non-refundable except as otherwise provided in these Terms of Service. Company shall be responsible to pay all taxes due in connection with the Fees and Company’s use of the Products.
7.2 Credit Card Information.
In order to set up a paid account with OCULU, Customer must provide OCULU with accurate and complete billing information including legal name, address, telephone number, and a valid credit card. By submitting such credit card information, Customer gives OCULU permission to charge all fees incurred through its account to the designated credit card. OCULU reserves the right to terminate this Agreement in accordance with Section 10 hereto if Customer does not provide a valid credit card for the payment of fees hereunder.
7.3 Payment Terms.
PLATFORM FEE – A platform usage fee (pricing plan) is billed in advance on an annual basis and such annual fees are non-refundable after a 15 day usage period. After this period expires there will be no refunds or credits for partial years of service, upgrade/downgrade refunds, or refunds for months unused with an open account. For any upgrades or downgrade in plan level, Customer’s credit card will be charged with the new annual rate and the usage dates will be extended. Platform fees / pricing plans are published on this page http://www.oculu.com/pricing-plan/ . Annual platform fees will be charged automatically at the end of each term unless a cancelation notification is sent by customer 30 days in advance of renewal.
PACKAGES – Each platform fee is organized into a pricing plan where certain limits are set on a monthly for said usage. Usage is defined as use via video bandwidth, storage, ads and video plays. All three elements are factored into the pricing of the product. On a monthly basis if a customer goes over their published or contractual use of the service platform an overage fee will be charged.
OVERAGE FEES – When a customer goes over their monthly allotment of either bandwidth, storage, ads or video plays and overage charge will be assessed on all four elements at the following rates:
- Storage $50 cents per GB
- Video Plays $.25 cpm
- Ads $.25 cpm
- Bandwidth $.10 per GB
The above fees will be charged within the first five days of the month after the month overages fees occur via customers credit card on file. For example and for illustrative purposes only if a customer goes over their plan allotment in the month of January the overage fees will be charged Between February 1st and February 5th( the following month ).
CUSTOM PLANS – From time to time Oculu will present custom plans to customers. When a custom plan is put into place the overage fees above do not apply. All custom plans are contracted on a separate insertion order attached to these terms and conditions.
MONTHLY TABULATION – Oculu provides in the customers account on the home tab a monthly tabulation of used ads, bandwidth, ads and storage to assist customers with managing their account
All payments are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and Customer agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon OCULU’s net income. All amounts due hereunder shall be grossed-up for any withholding taxes imposed by any foreign government.
8. LIMITED WARRANTY AND DISCLAIMERS
OCULU warrants that it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof. Notwithstanding the foregoing, Services may be temporarily unavailable, when deemed reasonably necessary or prudent by OCULU to repair, maintain or upgrade the Services or for causes beyond OCULU’s reasonable control. OCULU will notify Customer at least 48 hours in advance of any known Service-related outages.
EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. OCULU DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED BY LAW, OCULU HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
9. LIMITATION OF LIABILITY
EXCEPT FOR DEATH, BODILY INJURY OR FRAUD, AMOUNTS OWED TO THIRD PARTIES PURSUANT TO THE INDEMNIFICATION OBLIGATIONS HEREIN AND BREACHES OF SECTION 5.3, OR TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF ITS LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY (OR ITS SUPPLIERS) BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL (INCLUDING ANY ERROR OR DAMAGE ATTRIBUTABLE TO ANY NETWORK OR SYSTEM), (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS or SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, OR (D) ANY DIRECT DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID TO OCULU HEREUNDER WITH RESPECT TO THE SERVICES THAT GAVE RISE TO THE CLAIM DURING THE TWELVE-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
By uploading Content, Company agrees to and hereby does grant, and does represent and warrant that it has the right to grant, the Company a royalty-free, fully paid up, worldwide license to use the Content solely in connection with the operation and provision of Services that entail the Company’s hosting, streaming or storage of such Content.
Company is solely responsible for any Content or other material that Company posts, uploads, submits or Distributes. Oculu may review and delete any Content that violates the terms of this Section. Prohibited Content includes any Content that (i) infringes any copyright, trademark, patent, trade secret, right of publicity or other right of any person or entity, (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive, tortious, obscene, offensive, vulgar, pornographic, profane or is otherwise inappropriate as determined by the Company in its sole discretion, (iii) contains any virus, malicious code, Trojan horse or other program designed, intended or likely to disrupt, damage, limit or interfere with the proper function of any software, hardware or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of the Company or any person or entity, (iv) encourages illegal activity or (v) falsely suggests or implies sponsorship or endorsement by the Company.
Company is responsible for taking its own steps to backup its Content and Oculu recommends routinely archiving your Content. Oculu disclaims any responsibility for deleted, lost, corrupted or inaccessible Content, regardless whether Company hosts such Content.
10. TERM AND TERMINATION
This Agreement shall commence on the date that this Agreement is accepted and shall continue in effect for the initial term specified in the Plan (or if no such term is specified, then for 1 month). Unless terminated earlier as permitted herein, the Agreement will be extended automatically for additional terms of 1 month at the end of the initial term and each renewal term. Either party may elect not to renew this Agreement by giving written notice thereof to the other party at least 30 days prior to the end of the then current initial or renewal term.
10.2 Non-Renewal Notice.
Customer is solely responsible for properly notifying OCULU of its desire for this Agreement to not automatically renew by following the non-renewal directions available on the OCULU website, at: www.OCULU.com.
This Agreement may be earlier terminated by either party, in whole or in part, (a) if the other party materially breaches a provision of this Agreement and fails to cure such breach within 10 days (5 days in the case of non-payment) after receiving written notice of such breach from the non-breaching party, or (b) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within 90 days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.
10.4 Effects of Termination.
Upon any expiration or termination of this Agreement, all rights, obligations and licenses of the parties shall cease, except that (a) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) shall survive, (b) OCULU may, but shall not be obligated to, delete archived Customer Data (provided, that upon Customer’s written request received within 30 days after the effective date of termination, OCULU shall provide Customer with a copy of archived Customer Data in the currently existing archived format) and (c) the provisions of Sections 5 (Proprietary Rights), 6 (Confidentiality), 7 (Payments), 8.2 (Disclaimers), 9 (Limitation of Liability), 11 (General Provisions) and this Section 10 shall survive.
11. GENERAL PROVISIONS
11.1 Entire Agreement.
This Agreement (together with the applicable Plan(s)) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties about the subject matter of this Agreement. In the event of any conflict or inconsistency between the Services Agreement and the Plan, the terms and conditions in the Plan will prevail and be controlling, and the terms and conditions in the Services Agreement will prevail and be controlling over terms set forth in Customer’s purchase order (or other similar document). Customer’s purchase order is only effective as its unqualified commitment to access and pay for the Services upon the terms (and only the terms) set forth herein. No waiver, consent or, except as expressly provided herein, modification of this Agreement shall bind either party unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. If this Agreement is required to be registered with any governmental authority, Customer shall cause such registration to be made and shall bear any expense or tax payable in respect thereof.
11.2 Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of the state of California, USA, without regard to its conflicts of law provisions. Neither the United Nations Convention on Contracts for the International Sale of Goods nor any enactment of the Uniform Computer Information Transactions Act shall apply to this Agreement. The sole jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in California having jurisdiction over OCULU’s offices, and both parties consent to the jurisdiction of such courts with respect to any such action. In any action or proceeding to enforce or interpret this Agreement, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys’ fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.
Except as specifically provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 4 or 5, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly,the non-breaching party shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.
Except as otherwise provided in Section 10.2, any notice or communication hereunder shall be in writing and either personally delivered or sent via confirmed facsimile, recognized express delivery courier or certified or registered mail, prepaid and return receipt requested, addressed to the other party at its address specified in the Plan, or at such other address designated in a subsequent notice. All notices shall be in English, effective upon receipt.
This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party’s written consent (which shall not be unreasonably withheld). However, without consent, either party may assign this Agreement to any successor to all or substantially all of its business which concerns this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise). This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.
11.6 Independent Contractors.
The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
Neither party will make public announcements or issue press releases relating to this Agreement or the terms hereof without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed.