ANYCLIP MASTER TERMS AND CONDITIONS
Last Updated: March 20, 2022
1. DEFINITIONS. The following capitalized terms have the meanings set forth below:
“Affiliate” means, with respect to either Party, any person, organization or entity controlling or controlled by such Party. For purposes of this definition only, “control” of another person, organization or entity will mean the possession, directly or indirectly, of the power to direct or cause the direction of the activities, management or policies of such person, organization or entity, whether through the ownership of voting securities, by contract or otherwise. Without limiting the foregoing, “control” will be deemed to exist when a person, organization or entity (i) owns more than fifty percent (50%) of the outstanding voting stock or other ownership interest of the other organization or entity, or (ii) possesses directly the power to elect or appoint more than fifty percent (50%) of the members of the governing body of the other organization or entity.
“AnyClip Content” means Content that is designated by AnyClip as being for use by Customer in Videos, including all tags, metadata, query logs and other data relating to the operation, support, and/or regarding Customer’s use, of the Services.
“Content” means text, scripts, data, files, templates, images, graphics, sounds, music, videos, code, audio clips, links, and/or other similar materials.
“Customer Data” means any Content inputted or uploaded to the Services by or on behalf of Customer, or otherwise integrated with the Services via an API.
“Derivatives” means any derivatives, analyses, or other intelligence of or about (including without limitation metadata or aggregated data extracted from) Videos, Design References, and/or Customer Data.
“Feature” means any module, tool, functionality, or feature of the Services, including without limitation, the hosting, tagging and streaming features.
“Intellectual Property Rights” means any and all rights, titles, and interests (under any jurisdiction or treaty, whether protectable or not, and whether registered or unregistered) in and to any technology, invention, work of authorship, software, database, data, know-how, software, design, and/or other intellectual property, and includes but is not limited to patents, copyrights and similar authorship rights, moral (and similar personal) rights, mask work rights, data and database rights, trade secret rights and similar rights in confidential information and other non-public information, design rights, industrial property rights, trademark, service mark, trade name, trade dress and similar branding rights, as well as: (i) all applications, registrations, renewals, reexaminations, extensions, continuations, continuations-in-part, provisionals, substitutions, divisions or reissues of or for the foregoing; and (ii) all goodwill associated with the foregoing.
“Professional Services” means installation, deployment, configuration, customization, integration, training, or other professional services.
“Services” means AnyClip’s Video hosting, tagging and streaming software-as-a-service (as well as its related software platform and other intellectual property), as more specifically listed in Exhibit A.
“Subscription Scope” means any Services usage and/or consumption limitations (for example, as to volume of Users, volume of videos, location, Features, duration) set forth in Exhibit A.
“Subscription Term” means the Services subscription period specified in Exhibit A.
“Users” means an employee of Customer authorized to access and use the Services.
“Video” means a recording of moving visual images made digitally or on videotape uploaded by Customer or otherwise used in connection with the Services.
1.1. General. Subject to the terms and conditions of this Agreement and the Subscription Scope, AnyClip grants Customer a limited, worldwide, non-exclusive, non-assignable (except as provided in Section 13.2 (Assignment), non-sublicensable right and license, during the Subscription Term, to access and use the Services and AnyClip Content, solely for Customer’s internal business purposes (collectively, the “Subscription“).
1.2. Account Setup. Commencing promptly following the Effective Date, AnyClip shall perform the initial Services setup activities, (the “Initial Setup“). Customer shall fully cooperate with AnyClip in such efforts, and shall provide AnyClip with all information, access and other resources necessary to achieve the Initial Setup. Following Initial Setup, in order to access the Services, Customer is required to set up an administrative account with AnyClip, by submitting the information requested in the applicable Services interface (“Account“), and each User may need to set up a user account (each, a “User Account“, and references herein to the “Account” shall be deemed to include all such User Accounts if applicable). Customer warrants that all information submitted during the registration process is, and will thereafter remain, complete and accurate. Customer shall be responsible and liable for all activities that occur under or in the Account. Customer will require that all Users keep user ID and password information strictly confidential and not share such information with any unauthorized person.
1.3. Customer Affiliates Usage. Subject to the Subscription Scope, Customer may permit its Affiliates to participate in the Subscription, provided that: (i) Customer first informs AnyClip in writing of the identity of such Affiliates; and (ii) such Affiliates acknowledge in writing the terms and conditions of this Agreement and agree to comply with the Subscription Scope and the restrictions in Section 2.6 (Restrictions) below. Customer shall remain primarily liable for the acts and omissions of its Affiliates, as fully as if they were the acts and omissions of Customer hereunder.
1.4. Hosting. The Services are hosted by a third party hosting services provider selected by AnyClip (“Hosting Provider“), and accordingly the availability of the Services shall be in accordance with the Hosting Provider’s then-current uptime commitments.
1.5. Restrictions. As a condition to the Subscription, and except as expressly permitted otherwise under this Agreement, Customer shall not do (or permit or encourage to be done) any of the following license restrictions (in whole or in part): (a) copy, “frame” or “mirror” the Services; (b) sell, assign, transfer, lease, rent, sublicense, or otherwise distribute or make available the Services to any third party (such as offering it as part of a time-sharing, outsourcing or service bureau environment); (c) modify, alter, adapt, arrange, or translate the Services; (d) decompile, disassemble, decrypt, reverse engineer, extract, or otherwise attempt to discover the source code or non-literal aspects (such as the underlying structure, sequence, organization, file formats, non-public APIs, ideas, or algorithms) of, the Services; (e) remove, alter, or conceal any copyright, trademark, or other proprietary rights notices displayed on or in the Services; (f) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Services; (h) make a derivative work of the Services, or use it to develop any service or product that is the same as (or substantially similar to) it; (i) store or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Services; (j) employ any hardware, software, device, or technique to pool connections or reduce the number of Videos, simulations, projects, or Users that directly access or use the Services (sometimes referred to as ‘virtualisation’, ‘multiplexing’ or ‘pooling’) in order to circumvent the Subscription Scope; (k) forge or manipulate identifiers in order to disguise the origin of any data or content inputted or uploaded to, or transmitted through, the Services by Customer; or (l) take any action that imposes or may impose (as determined in AnyClip’s reasonable discretion) an unreasonable or disproportionately large load on the servers, network, bandwidth, or other cloud infrastructure which operate or support the Services, or otherwise systematically abuse or disrupt the integrity of such servers, network, bandwidth, or infrastructure.
1.6. Reservation of Rights. For the avoidance of doubt, the Services (including any software made available hereunder) are only licensed, and no title in or to the Services (or such software) passes to Customer. Any rights not expressly granted herein are hereby reserved by AnyClip and its licensors, and, except for the Subscription, Customer is granted no other right or license to the Services, whether by implied license, estoppel, exhaustion, operation of law, or otherwise.
3. PROFESSIONAL SERVICES.
In the event Customer wishes to receive Professional Services, Customer shall request same from AnyClip in writing, and, subject to AnyClip’s agreement in its sole discretion to provide the Professional Services, such Professional Services shall be set out in sequential Professional Services Statements of Work (that reference a corresponding price quotation to which it relates) to this Agreement negotiated and executed by both Parties (each, a “Professional Services SOW“). Professional Services shall be charged in accordance with the applicable Professional Services SOW. Each Professional Services SOW shall be deemed incorporated into this Agreement by reference. To the extent of any conflict between the main body of this Agreement and a Professional Services SOW, the former shall prevail, unless and to the extent that the Professional Services SOW expressly states otherwise. AnyClip and/or its Affiliates will perform the Professional Services. AnyClip may subcontract Professional Services (in whole or in part) to a third party contractor, and AnyClip shall remain primarily responsible for such contractor’s performance of the Professional Services.
Subscription Fees. Customer shall pay AnyClip the Subscription fees specified in the Order Form (the “Subscription Fees“) and whatever other fees or charges are specified in the Order Form (“Other Fees“, and together with the Subscription Fees, the “Fees“). Unless expressly stated otherwise in the Order Form: (a) all Fees are stated, and are to be paid, in US Dollars; (b) all payments under this Agreement are non-refundable, and are without any right of set-off or cancellation; (c) all Fees are payable, and shall be invoiced, and shall be paid within thirty (30) days of receipt of invoice; and (d) any amount not paid when due will accrue interest on a daily basis until paid in full, at the lesser of the rate of one and a half percent (1.5%) per month and the highest amount permitted by applicable law.
2.1. Suspension. AnyClip reserves right to temporarily suspend provision of the Services: (a) if Customer is seven (7) days or more overdue on a payment; (b) if AnyClip deems such suspension necessary as a result of Customer’s breach under Section 2.5 (Restrictions); (c) if AnyClip reasonably determines suspension is necessary to avoid material harm to AnyClip or its other customers, including if the Service’s cloud infrastructure is experiencing denial of service attacks or other attacks or disruptions outside of AnyClip’s control, or (d) as required by law or at the request of governmental entities.
2.2. Taxes. Amounts payable under this Agreement are exclusive of all applicable sales, use, consumption, VAT, GST, sales and other taxes, duties or governmental charges, except for taxes based upon AnyClip’s net income. In the event that Customer is required by any law applicable to it to withhold or deduct taxes for any payment under this Agreement, then the amounts due to AnyClip shall be increased by the amount necessary so that AnyClip receives and retains, free from liability for any deduction or withholding, an amount equal to the amount it would have received had Customer not made any such withholding or deduction. If a purchase order (or purchase order number) is required by Customer in order for an invoice to be paid, then Customer shall promptly provide such purchase order (or number) to AnyClip.
AnyClip Materials. AnyClip (and/or its licensors, as applicable) is, and shall be, the sole and exclusive owner of all right, title and interest (including without limitation all Intellectual Property Rights) in and to: (a) the Services and all related software and intellectual property (such as AnyClip Content); (b) its Confidential Information; (c) Derivatives; and (d) any and all improvements, derivative works, and/or modifications of/to any of the foregoing, regardless of inventorship or authorship. Customer shall make, and hereby irrevocably makes, all assignments necessary or reasonably requested by AnyClip to ensure and/or provide AnyClip (and/or its designee(s)) the ownership rights set forth in this paragraph. AnyClip shall be entitled, from time to time, to modify and replace the Features (but not material functionalities, unless it improves the material functionality) and user interface of the Services.
Customer Materials. Customer (and/or its licensors, as applicable) is, and shall be, the sole and exclusive owner of all right, title and interest (including without limitation all Intellectual Property Rights) in and to: (a) the Customer Data; (b) the Videos and (c) its Confidential Information
Data License to AnyClip. Customer hereby grants to each of AnyClip and its Affiliates an irrevocable, free-of-charge, worldwide, sublicensable (through multiple tiers), non-exclusive, assignable right and license during the Term, to access, use, copy, and otherwise process all Customer Data and Videos for the purpose of providing the Services and Support Services, and otherwise performing under this Agreement (“Customer Data License“).
Customer hereby represents and warrants that: (i) no Customer Data or Videos shall be defamatory, pornographic, violent, harassing, hateful, or racially/ethnically offensive; (ii) Customer has the right to upload onto AnyClip’s platform all Customer Data and Videos, to direct AnyClip to download from social media Customer Data and Videos identified by Customer for the purpose of uploading such material onto AnyClip’s platform in order to enable AnyClip to undertake the Services with respect thereto, and to grant the Customer Data License (on behalf of itself and any third parties), and the exercise of such license shall not infringe, misappropriate, or violate any third party’s Intellectual Property Rights or personal rights (such as privacy rights), and will not violate any applicable law or regulation, including the Relevant Privacy Regulations (as such term is defined in Section 11.8 below); and (iii) no Customer Data shall include, link to, or expose AnyClip to, any Sensitive Data. “Sensitive Data” means any (i) categories of data enumerated in Article 9(1) of the European Union’s General Data Protection Regulation (Regulation 2016/679, aka the GDPR) or any successor law; (ii) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS“); or (iii) any data similar to the foregoing that is protected under domestic or foreign laws.
Each Party (the “Recipient“) may have access to certain non-public or proprietary information and materials of the other Party (the “Discloser“), whether in tangible or intangible form (“Confidential Information“). Confidential Information shall not include information and material which: (a) at the time of disclosure by Discloser to Recipient hereunder, is in the public domain; (b) after disclosure by Discloser to Recipient hereunder, becomes part of the public domain through no fault of the Recipient; (c) was rightfully in the Recipient’s possession at the time of disclosure by the Discloser hereunder, and which is not subject to prior continuing obligations of confidentiality; (d) is rightfully disclosed to the Recipient by a third party having the lawful right to do so; or (e) independently developed by the Recipient without use of, or reliance upon, Confidential Information received from the Discloser. The Recipient shall not disclose or make available the Discloser’s Confidential Information to any third party (including without limitation by way of publishing), except to its employees, advisers, agents and investors, subject to substantially similar written confidentiality undertakings). Recipient shall take commercially reasonable measures, at a level at least as protective as those taken to protect its own Confidential Information of like nature (but in no event less than a reasonable level), to protect the Discloser’s Confidential Information within its possession or control, from disclosure to a third party. The Recipient shall use the Discloser’s Confidential Information solely for the purposes expressly permitted under this Agreement. In the event that Recipient is required to disclose Confidential Information of the Discloser pursuant to any Law, regulation, or governmental or judicial order, the Recipient will (a) promptly notify Discloser in writing of such Law, regulation or order, (b) reasonably cooperate with Discloser in opposing such disclosure, (c) only disclose to the extent required by such law, regulation or order (as the case may be). Upon termination of this Agreement, or otherwise upon written request by the Discloser, the Recipient shall promptly return to Discloser its Confidential Information (or if embodied electronically, permanently erase it), and certify compliance writing.
Notwithstanding anything in this Agreement to the contrary, the pricing and payment terms under the Order Form are confidential to AnyClip, and Customer shall not disclose such Confidential Information to any third party (except its accountants and lawyers), without AnyClip’s prior express written consent.
Notwithstanding termination of this Agreement in accordance with Section 10, the provisions of this Section 7 shall continue to be in effect for a period of three (3) years thereafter.
THE SERVICES, ANYCLIP CONTENT, AS WELL AS ANY OTHER GOODS AND SERVICES PROVIDED OR MADE AVAILABLE BY OR ON BEHALF OF ANYCLIP HEREUNDER (COLLECTIVELY, THE “ANYCLIP MATERIALS”) ARE PROVIDED AND MADE AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL DEFECTS, AND ALL EXPRESS, IMPLIED AND STATUTORY CONDITIONS AND WARRANTIES (INCLUDING WITHOUT LIMITATION ANY IMPLIED CONDITIONS OR WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET POSSESSION, NON-INFRINGEMENT, OR QUALITY OF SERVICES, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR USAGE OF TRADE) ARE HEREBY DISCLAIMED BY ANYCLIP AND ITS LICENSORS.
ANYCLIP DOES NOT MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION: (A) REGARDING THE EFFECTIVENESS, USEFULNESS, RELIABILITY, TIMELINESS, COMPLETENESS, OR QUALITY OF ANYCLIP MATERIALS; (B) THAT CUSTOMER’S USE OF ANYCLIP MATERIALS WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE; OR (C) REGARDING THE OPERATION OF ANY CELLULAR NETWORKS, THE PASSING OR TRANSMISSION OF DATA VIA ANY NETWORKS OR THE CLOUD, OR ANY OTHER CELLULAR OR DATA CONNECTIVITY PROBLEMS. ANYCLIP WILL NOT BE LIABLE OR OBLIGATED IN RESPECT OF DELAYS, INTERRUPTIONS, SERVICES FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR FOR ISSUES RELATED TO HOSTING PROVIDERS OR PUBLIC NETWORKS.
8. LIMITATION OF LIABILITY
8.1. IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES, SUPPLIERS, OR LICENSORS BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT, FOR: (A) ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES; (B) ANY LOSS OF PROFITS, BUSINESS, OPPORTUNITY, REVENUE, CONTRACTS, ANTICIPATED SAVINGS, OR WASTED EXPENDITURE; (C) ANY LOSS OF, OR DAMAGE TO, DATA, INFORMATION SYSTEMS, REPUTATION, OR GOODWILL; AND/OR (D) THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.
8.2. EXCEPT FOR BREACHES OF CONFIDENTIALITY UNDER SECTIONS 6 [CONFIDENTIALITY] AND 9 [INDEMNIFICATION], THE COMBINED AGGREGATE LIABILITY OF EACH PARTY UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT, INCLUDING THE RELATED DATA PROCESSING AGREEMENT (“DPA”), SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE GIVING RISE TO LIABILITY.
8.3. THE FOREGOING EXCLUSIONS AND LIMITATION SHALL APPLY: (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; (B) EVEN IF A PARTY HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (C) EVEN IF ANY REMEDY IN THIS AGREEMENT OR THE RELATED DPA (see Section 11.8) FAILS OF ITS ESSENTIAL PURPOSE; AND (D) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY, AND WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, RESTITUTION, OR OTHERWISE.
9.1. Indemnification by AnyClip. AnyClip shall defend at its expense, indemnify and hold Customer harmless from and against any and all finally awarded damages, expenses and liabilities incurred by Customer arising from a third party’s claim alleging that the Services infringe any third party intellectual property right; provided that Customer’s use of the Services complies with this Agreement. If the Services become, or in AnyClip’s opinion is likely to become, the subject of an IP Infringement Claim, then AnyClip may, at its sole discretion: (a) procure for the Customer the right to continue using the Services; (b) replace or modify the Services to avoid the IP Infringement Claim; or (c) if options (a) and (b) cannot be accomplished despite AnyClip’s reasonable efforts, then AnyClip may terminate this Agreement and in such event and provide a refund for any amount pre-paid by Customer for such returned Services for the remaining unused period of the license subscription. This Indemnity shall not apply to claims arising as a result of: (i) the Content and/or AnyClip’s use thereof (as permitted herein); (ii) if such infringement has arisen from Customer’s willful misconduct (iii) modifications to the Services made by a party other than AnyClip or its designee; (iv) the Customer’s failure to implement software updates provided by AnyClip specifically to avoid infringement; (v) combination or use of the Services with equipment, devices or software not supplied or authorized by AnyClip or not in accordance with the Documentation. The foregoing constitutes Customer’s sole remedy and AnyClip’s sole liability for any infringement claims.
9.2. Indemnification by Customer. Customer shall defend at its expense, indemnify and hold AnyClip harmless from and against any and all finally awarded damages, expenses and liabilities incurred by AnyClip and/or any affiliate thereof in connection with any and all third party claims, demands, or actions arising out of Customer’s use of the Services and/or AnyClip’s permitted use of the Content (including third party infringement claim), and/or violation of applicable laws; provided that such claim did not result from AnyClip’s willful misconduct.
In the event Customer fails to comply with any data protection or privacy law (such as the GDPR) and/or any provision of the DPA, then: (A) to the maximum extent permitted by law, Customer shall be solely responsible and liable for any such breach, violation, infringement, and/or processing of personal data without a DPA by AnyClip and/or its Affiliates and Hosting Providers; and (B) in the event of any claim of any kind related to any such breach, violation, or infringement, and/or any claim related to processing of personal data without a DPA, Customer shall defend, hold harmless and indemnify AnyClip, its Affiliates, and Hosting Providers from and against any and all losses, penalties, fines, damages, liabilities, settlements, costs and expenses, including without limitation reasonable attorneys’ fees.
9.3. Procedure. As a condition to the indemnity set forth above, the indemnified party shall provide the indemnifying party prompt notice of any such claim made against it, and grant the indemnifying party sole control of the defense in such claim, and reasonably assist in defending the claim. The indemnified party will not be bound by any settlement that the indemnifying party enters into without the indemnified party’s prior written consent, such consent not to be unreasonably withheld.
10. TERM AND TERMINATION
10.1. Term. This Agreement commences on the Effective Date and, unless terminated in accordance herewith, shall continue in full force and effect until for the duration of the Subscription Term (the “Initial Subscription Term”). The Order Form shall automatically renew for successive Subscription Terms of equal length (each, a “Renewal Subscription Term”, and together with the Initial Subscription Term, the “Term”), unless either Party notifies the other Party in writing of its intent not to renew the Order Form, not less than sixty (60) days prior to the expiration of the then-current Subscription. On the anniversary of the expiration of the Initial Subscription Term and any Renewal Subscription Term, the Subscription Fees shall be subject to an increase of up to five percent (5%).
10.2. Termination for Breach. Each Party may terminate this Agreement immediately upon written notice to the other Party if the other Party commits a material breach under this Agreement and, if curable, fails to cure that breach within thirty (30) days after receipt of written notice specifying the material breach (except that for payment defaults, such cure period will be seven (7) days).
10.3. Termination for Bankruptcy. Each Party may terminate this Agreement upon written notice to the other Party upon the occurrence of any of the following events in respect of such other Party: (a) a receiver is appointed for the other Party or its property, which appointment is not dismissed within thirty (30) days; (b) the other Party makes a general assignment for the benefit of its creditors; (c) the other Party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief Law, which proceedings are not dismissed within thirty (30) days; or (d) the other Party is liquidating, dissolving or ceasing normal business operations.
10.4. Effect of Termination; Survival. Upon termination of this Agreement for any reason: (a) the Subscription shall automatically terminate, (b) Customer shall cease all access and use of the Services thereunder, and (c) each Party shall (as directed) permanently erase and/or return all Confidential Information of the other Party in Customer’s possession or control. Following termination, all outstanding Fees and other charges that accrued as of termination, which become immediately due and payable, and if necessary AnyClip shall issue a final invoice therefor. Sections 5 (Ownership) through 11 (Miscellaneous) shall survive termination of this Agreement and any Order Form, as shall any right, obligation or provision that is expressly stated to so survive or that ought by its nature to survive. Termination shall not affect any rights and obligations accrued as of the effective date of termination.
11.1. Entire Agreement and Amendments. This Agreement (and its annexes) represents the entire agreement of the Parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous oral or written understandings and statements by the Parties with respect to such subject matter. In entering into this Agreement, neither Party is relying on any representation or statement not expressly specified in this Agreement. Without limiting the generality of the foregoing, this Agreement supersedes the following, each of which shall be deemed rejected, void and of no effect: (i) any shrink-wrap, click-wrap, or similar terms and conditions that accompany, or are included within, the Services, even if use of the Services requires an affirmative “acceptance” thereof; and (ii) any terms or conditions (whether printed, hyperlinked, or otherwise) in any purchase order or other standardized business forms, which purport to supersede, modify or supplement this Agreement. This Agreement may only be amended by a written instrument duly signed by each Party. The section and subsection headings used in this Agreement are for convenience only. This Agreement may be executed in counterparts each of which will be considered an original, but all of which together will constitute one and the same instrument.
11.2. Assignment. This Agreement may not be assigned, in whole or in part, by either Party without the prior express written consent of the other Party; except, however, that either Party may, upon written notice, assign this Agreement in whole to: (A) an Affiliate; or (B) a successor in connection with a merger, consolidation, or acquisition of all or substantially all of the assigning Party’s assets or business relating to this Agreement. Any prohibited assignment will be null and void. Subject to the provisions of this Section (Assignment), this Agreement will bind and benefit each Party and its respective successors and assigns. Furthermore, any AnyClip obligation hereunder may be performed (in whole or in part), and any AnyClip right (including invoice and payment rights) or remedy may be exercised (in whole or in part), by an Affiliate of AnyClip.
11.3. Governing Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to any conflicts of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement and is hereby disclaimed. Any claim, dispute or controversy between the Parties will be subject to the exclusive jurisdiction and venue of the courts located in the City of New York, New York, and each Party hereby irrevocably submits to the personal jurisdiction of such courts and waives any jurisdictional, venue, or inconvenient forum objections to such courts. Notwithstanding the foregoing, each Party may seek equitable relief in any court of competent jurisdiction. EXCEPT TO SEEK EQUITABLE RELIEF, PAYMENT OF FEES, OR TO OTHERWISE PROTECT OR ENFORCE A PARTY’S INTELLECTUAL PROPERTY RIGHTS OR CONFIDENTIALITY OBLIGATIONS, NO ACTION, REGARDLESS OF FORM, UNDER THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER THE DATE ON WHICH THE CORRESPONDING LIABILITY AROSE. Any claims or damages that Customer may have against AnyClip shall only be enforceable against AnyClip, and not any other entity or AnyClip’s officers, directors, representatives, employees, or agents.
11.4. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) the Parties agree that the court making such determination shall have the power to limit the provision, to delete specific words or phrases, or to replace the provision with a provision that is legal, valid and enforceable and that most closely approximates the original legal intent and economic impact of such provision, and this Agreement shall be enforceable as so modified in respect of such jurisdiction. In the event such court does not exercise the power granted to it as aforesaid, then such provision will be ineffective solely as to such jurisdiction, and will be substituted (in respect of such jurisdiction) with a valid, legal and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.
11.5. Publicity. AnyClip may use Customer’s name, logo, trade names and trademarks and to reference it as an AnyClip customer, including but not limited to, on the AnyClip public website, on slides in AnyClip presentations, marketing materials, customers list and in RFPs.
11.6. Waiver and Remedies. No failure or delay on the part of either Party in exercising any right or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of any such right or remedy preclude any other or further exercise thereof, or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing, duly signed by the waiving Party, and will be valid only in the specific instance in which given. Except as may be expressly provided otherwise in this Agreement, no right or remedy conferred upon or reserved by either Party under this Agreement is intended to be, or will be deemed, exclusive of any other right or remedy under this Agreement, at law, or in equity, but will be cumulative of such other rights and remedies.
11.7. Relationship. The relationship of the Parties is solely that of independent contractors, neither Party nor its employees are the servants, agents, or employees of the other, and no exclusivities arise out of this Agreement. Nothing in this Agreement shall be construed to create a relationship of employer and employee, principal and agent, joint venture, franchise, fiduciary, partnership, association, or otherwise between the Parties. Except to the extent required by AnyClip in connection with the provision of the Services and/or the performance of AnyClip’s obligations hereunder, neither Party has any authority to enter into agreements of any kind on behalf of the other Party and neither Party will create or attempt to create any obligation, express or implied, on behalf of the other Party.
Customer hereby represents and warrants that it will: (a) provide all appropriate notices, (b) obtain all required informed consents and/or have any and all ongoing legal bases for allowing AnyClip to use and otherwise process Customer Data and Videos identified by Customer in accordance with this Agreement, including without limitation for the provision of the Services and the performance of this Agreement, and (c) comply at all times with any and all applicable privacy and data protection laws (including, without limitation, the EU General Data Protection Regulation (“GDPR”)). To the extent that any Customer Data include personal data, and the processing of such personal data pursuant to this Agreement requires a data processing agreement under the GDPR (where AnyClip is acting as data processor rather than data controller), AnyClip’s Data Processing Agreement available here: (“DPA”) and this shall form part of these Terms and Conditions.
11.9. Force Majeure. Neither Party shall have any liability for any performance (excluding payment obligations) under this Agreement that is prevented, hindered, or delayed by reason of an event of Force Majeure (defined below). The Party so affected shall be excused from such performance to the extent that, and for so long as, performance is prevented, interrupted, or delayed by the Force Majeure. If and when performance is resumed, all dates specified under this Agreement shall be automatically adjusted to reflect the period of such prevention, interruption, or delay by reason of such Force Majeure. For purposes of this Agreement, an event of “Force Majeure” shall be defined as: (a) fire, flood, earthquake, explosion, pandemic or epidemic (or similar regional health crisis), or act of God; (b) strikes, lockouts, picketing, concerted labor action, work stoppages, other labor or industrial disturbances, or shortages of materials or equipment, not the fault of either party; (c) invasion, war (declared or undeclared), terrorism, riot, or civil commotion; (d) an act of governmental or quasi-governmental authorities (including without limitation lockdowns); (e) failure of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, shortage of adequate power or transportation facilities; and/or (f) any matter beyond the reasonable control of the affected Party. For the avoidance of doubt, any problems relating to hosting of the Services by a third party is beyond the reasonable control of AnyClip.
11.10. Customer Resources. Except for the Services, Customer shall be solely responsible: (a) for providing all hardware, software, systems, assets, facilities, and ancillary goods and services needed for Customer to access and use the Services; (b) for ensuring their compatibility with the Services; and (c) for obtaining (and maintaining) all consents and licenses necessary to exercise Customer’s rights under the Subscription. In the event AnyClip is legally or contractually required to modify or replace features or functionalities of the Services in order to ensure that the Services comply with the terms of service or privacy policies of various platforms, networks and/or websites, Customer shall be responsible for making all necessary changes to Customer’s hardware, software, systems, assets, and facilities in order to continue using the Services.
11.11. Notices. All notices required or permitted under this Agreement shall be made in writing and shall be sent by any of (i) email; (ii) personal delivery, reputable overnight courier service (e.g., FedEx, UPS, DHL, etc.); (iii) registered; or (iv) certified mail, return receipt requested, addressed to the other party at the address set forth in the Order. The date of such notice shall be deemed to be the day it is delivered, if delivered via email, personally or by courier, or five (5) days after date of dispatch, if mailed.
12. SYSTEM STABILITY
AnyClip is committed to the highest standards of service and uptime. You can find our current status here.