The below terms and conditions, together with an Order Form, represent a binding services agreement (the “Agreement”) between the customer named on the Order Form (“Customer” or “You”) and Frame by Frame, a trade namedivision of Neko Productions, a California corporation, located at 2000 W Magnolia Blvd #205, Burbank, CA 91506 (“FBF”). Customer’s signature on the Order Form constitutes Customer’s acceptance of the Agreement as of the effective date of the Order Form (the “Effective Date”); provided however, that for click-through online purchases, the date of purchase shall constitute the Effective Date. Any individual purchasing Services on behalf of an organization represents that such individual has the authority to bind the organization to this Agreement. The Services may not be used by people under the age of 13.
- Definitions and Interpretation.
“Account” means an account or created by or on behalf of Customer within the Services.
“Content” means files, materials, data, text, audio, video, graphics, images or other content.
“Documentation” means the written materials describing the functionality, operation, and use of the Services that FBF provides or makes generally available to customers of the Services.
“Order Form” means FBF’s then-current standard form (including an online form for purchases) setting forth the Services, pricing, fees, and payment terms.
“Services” refers to the online on-demand and live animation course(s) offered by FBF and ordered by Customer under an Order Form(s).
Section headings are for general reference only and are not probative in interpreting the meaning of any provisions hereunder.
- Availability and Use of the Services.
- General: FBF will make the Services available to Customer during the Term of set forth in the Order Form. For clarity, the Services are not for resale and are solely for usage by the Customer having signed on an Order.
- Services Accessibility: Customer shall be responsible for securing all equipment and ancillary services (i.e. power, Internet bandwidth, etc.) necessary in order to access the Services. Customer is solely responsible for ensuring that these Terms of Service are in compliance with all laws, rules and regulations applicable to Customer and the right to access the Services is revoked where these Terms of Service or use of the Services is prohibited or to the extent the offering, sale or provision of the Services conflicts with any applicable law, rule or regulation.
- Customer’s Responsibilities relating to Use of the Services.
- Content. Customer (i) is responsible for the accuracy and quality of the Content; (ii) will ensure that the Content and the usage thereof by Users complies with this Agreement and applicable laws; (iii) will promptly handle and resolve any notices and claims from a third party claiming that any Content violates such party’s rights, including take-down notices pursuant to the U.S. federal Digital Millennium Copyright Act; and (iv) will ensure that any and all necessary permissions are secured to enable FBF to access, copy and/or use Content as necessary to perform the Services including, but not limited to, consent of Users to process Content in general and any personal data in particular (and Customer’s signature on this Agreement confirms that Users’ consent has been secured), along with consent of Users for any communications integral to the Services. Absent a binding legal order, FBF does not access a Customer’s Account for the purpose of monitoring Content transmitted through the FBF Connect Service.
- Passwords and Accounts. Certain of the Services may require You to register for an Account. You must provide accurate and complete information and keep your Account information updated. You shall not: (i) use the name of another person with the intent to impersonate that person or (ii) use the name of a person other than you without appropriate authorization. You may never use another person’s user account or registration information for the Services without permission. You must notify us immediately of any change in your eligibility to use the Services (including any changes to or revocation of any licenses from state authorities), breach of security or unauthorized use of your Account. You should never publish, distribute or post login information for your Account. You shall have the ability to delete your Account, either directly or through a request made to one of our employees or affiliates. You have no ownership right in your Account. If you are registering an Account on behalf of an organization either directly through the online registration form or under an agreement between us and another organization, that organization may have administrator rights to access your Account and any information provided under your Account. Without derogating from FBF’s confidentiality and security obligations hereunder, Customer is responsible for all activities conducted under its user logins and for safeguarding the confidentiality of the user names and passwords within its possession. FBF will have no liability to Customer or any third party as a result of any unauthorized disclosure or access to Customer’s Account or Content as a result of Customer misuse or loss, or the theft from Customer of, any login credentials. Customer will provide FBF with prompt written notice regarding any unauthorized use of an Account, Content, or the Services of which Customer becomes aware, and Customer will take all steps necessary to terminate such unauthorized use. In addition, Customer will provide FBF with any cooperation and assistance reasonably requested by FBF related to such unauthorized use.
- Use Restrictions. Customer will not: (i) use or allow use of the Services in any manner or for any purpose other than as expressly permitted by this Agreement; (ii) allow multiple individuals to utilize the same user login credentials; (iii) resell, sublicense, lease, or otherwise make the Services available to any third party; (iv) modify, copy, or create derivative works based on the Services; (v) reverse engineer, disassemble, or decompile the Services, or attempt to derive source code from the Services; (vi) remove, obscure, or alter any proprietary right notice related to the Services; (vii) interfere with or disrupt use of the Services by other FBF customers or to other servers or networks connected to the Services, or violate the regulations, policies, or procedures of such other networks; (viii) access or attempt to access, through password mining or any other means, FBF’s other accounts, computer systems or networks not covered by this Agreement; (xii) access, use, or allow use of the Services in a way intended to avoid incurring fees or exceeding usage limits or quotas; or (xiii) use or allow use of the Services for purposes of product evaluation, benchmarking, or other comparative analysis intended for publication without FBF’s prior written consent.
- Notices. Customer acknowledges that FBF may send it communications or data regarding the Services using electronic means. These may include, but are not limited to: (i) notices about usage of the Services, including notices concerning violations of use, (ii) updates to the Services, (iii) materials regarding FBF’s products and services, and (iv) information the law requires FBF to provide. FBF provides Customer the opportunity to opt-out of receiving certain of these communications by following the opt-out instructions provided in the message. However, FBF may continue to provide necessary and/or required information by email or via access to a website that FBF identifies. Notices via email will be deemed given and received when the email is sent. Notices to FBF should be sent via email to [email protected], with a duplicate copy sent via registered mail, return receipt requested, to the following address: YYYYYYYYYYYYYYY. Any such notice, in either case, must specifically reference that it is a notice given under this Agreement.
- Fees and Payment.
- Fees and Fees for Services Expansion. Customer will pay fees to FBF as set forth in the applicable Order Form. Except as otherwise stated in this Agreement, all fees are non-refundable. If Customer expands consumption of Services (a “Services Upgrade”), Customer agrees to pay for the Services Upgrade for the remainder of the Term at the pricing specified for ordering additional Services in the applicable Order Form (and if not specified, at FBF’s then-current list pricing). Fees for Services Upgrades will be paid in accordance with the payment terms then in effect.
- Price Increases. FBF reserves the right to increase pricing, provided that any increase in pricing for Services ordered under the applicable Order Form will take effect only for subsequent orders.
- Payment Terms. Unless otherwise specified on the applicable Order Form, all fees will be due and payable in advance via credit card upon execution of an Order Form. Customer agrees to keep all information in Customer’s billing account current. Payment methods and billing account information may be changed by using the means provided by FBF, including via FBF’s website; however, such changes do not affect charges submitted to Customer’s billing account prior to the date on which the changes are processed and take effect. In the event Customer disputes any charged fees, Customer will provide written notice of the disputed amount within the payment period and timely pay any undisputed portion of such charge. The parties agree to cooperate in good faith to resolve any disputed charge (or portion thereof). All amounts payable by Customer under this Agreement will be made without setoff or counterclaim and without any deduction or withholding. At FBF’s discretion, past due amounts may accrue a late fee equal to 1.5% per month or the maximum amount allowed by applicable law, whichever is less. Customer will pay for all reasonable costs incurred by FBF in collecting past due amounts, any chargeback fees and reasonable attorneys’ fees and other legal fees and costs. In addition to its other rights and remedies, FBF may suspend Customer’s access to or cancel the Services if Customer’s account remains past due ten days after FBF provides Customer written notice of a past due amount.
- Taxes. Fees are exclusive of Taxes, and Customer shall pay or reimburse FBF for all Taxes arising out of this Agreement. For purposes of this Agreement, “Taxes” means any sales, use, withholding, and other taxes (other than taxes on FBF’s income), export and import fees, customs duties, and similar charges applicable to the transactions contemplated by this Agreement that are imposed by any government or other authority. Customer will promptly provide FBF with legally sufficient tax exemption certificates for each taxing jurisdiction in which it claims exemption. In the event any government or authority imposes withholding taxes on FBF’s fees, Customer shall increase the amount of fees payable to FBF in a manner such that FBF receives the full amount of committed fees pursuant to the applicable Order Form.
- Content and Ownership.
- Ownership by Customer. As between FBF and Customer, Customer or its licensors own all right, title, and interest in and to any Content uploaded into the Services by Customer.
- Ownership by FBF. As between FBF and Customer, FBF or its licensors own all right, title, and interest in and to the Services, Content provided by FBF, and all hardware, software, and other items used to provide the Services. No title to or ownership of any proprietary rights related to the Services is transferred to Customer pursuant to this Agreement or any transaction contemplated by this Agreement. FBF reserves all rights not explicitly granted to Customer under this Agreement. FBF is free to use any comments, suggestions, recommendations, improvements, and other feedback provided by Customer with respect to the Services for any purpose, without obligation.
- Warranties, Representations and Disclaimers.
- Mutual Warranties. Each party represents and warrants to the other that (i) it has the legal power to enter into and perform under this Agreement; and (ii) the execution, delivery, and performance of this Agreement does not violate the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
- FBF Warranties and Representations. FBF warrants that the Services will perform in all material respects in accordance with the Documentation. FBF may modify the Documentation in its sole discretion, provided the quality of the Services is not materially decreased during the then-current Term. In the event the Services are nonconforming with the Documentation, FBF will address the nonconformance in a manner such that Customer receives in a timely manner the Services it has paid for.
- Disclaimer of Warranties. Except as set forth in this Section 6, FBF and its suppliers and licensors make no other representations or warranties of any kind, whether express, implied, statutory or otherwise. FBF expressly disclaims any implied warranty of merchantability or fitness for a particular purpose, and any warranty arising out of any course of dealing, or usage of trade. FBF does not warrant that the Services will be uninterrupted or error-free, or that the services are accessible or meet with the approval of local, state or federal laws and regulations within the territory of customer’s residence.
- Confidential Information Defined. “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party“) disclosed to the other party (“Receiving Party“), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in an Order Form), the Content, the Services, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information of a Disclosing Party includes any information the Disclosing Party has received from others which the Disclosing Party is obligated to treat as confidential or proprietary. Confidential Information will not include any information that, in each case without breach of any obligation owed to Disclosing Party: (i) is or becomes generally known to the public; (ii) was known to Receiving Party prior to its disclosure by Disclosing Party; (iii) was independently developed by Receiving Party; or (iv) is received from a third party who is not subject to an obligation of confidentiality vis-à-vis Disclosing Party.
- Obligations regarding Confidential Information. Receiving Party will not use or disclose any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement, except with Disclosing Party’s prior written consent. Receiving Party will protect the confidentiality of Disclosing Party’s Confidential Information in substantially the same manner that it protects the confidentiality of its own confidential information of like kind (and in no event using less than reasonable care). Receiving Party will promptly notify Disclosing Party if it becomes aware of any actual or reasonably suspected breach of confidentiality of Disclosing Party’s Confidential Information.
For purpose of clarification, the non-disclosure/non-use provisions contained herein shall not constrain FBF in responding in the normal course to Customer’s inputs of Content into the Services (to the extent such inputs are allowable by the Services).
- Compelled Disclosures. If Receiving Party is compelled by law to disclose Confidential Information of Disclosing Party, Receiving Party will provide Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if Disclosing Party wishes to contest the disclosure. Receiving Party will (i) take reasonable steps to limit any such provision of Confidential Information to the specific Confidential Information required by such court or agency, and (ii) continue to otherwise protect all Confidential Information disclosed in response to such order, subpoena, regulation, or process of law. Except for such required disclosure, the Confidential Information will remain subject to the terms of this Agreement and may only be disclosed as set forth in this Section 7.
- Injunctive Relief. If Receiving Party discloses (or threatens to disclose) any Confidential Information of Disclosing Party in breach of confidentiality protections hereunder, Disclosing Party will have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts (without the need for the posting of a bond or other guarantee), it being acknowledged by the parties that any other available remedies are inadequate.
- Return of Confidential Information. Upon any termination of this Agreement, Receiving Party will continue to maintain the confidentiality of Disclosing Party’s Confidential Information and, upon request, return to Disclosing Party or destroy (at Disclosing Party’s election) all materials containing such Confidential Information.
- Indemnification. Customer will defend FBF against any third party claims, suits or actions made or brought against FBF resulting from Customer’s alleged breach of this Agreement, and will indemnify FBF against any final judgment awarded (including reasonable attorneys’ fees and costs) or final settlement made which imposes a financial obligation on FBF.
- Limitation of Liability.
- Limitation of Liability. Except for liability for indemnification Claims, property damage, personal injury, or fraud, neither party’s aggregate liability arising out of or related to this Agreement (whether in contract or tort or under any other theory of liability) shall exceed the cumulative fees paid or payable by Customer under this Agreement during the twelve months preceding the incident. The foregoing shall not limit Customer’s payment obligations under Section 4 (“Fees and Payment”).
- Exclusion of Consequential and Related Damages. Except in the event of i. indemnification Claims, ii. property damage or personal injury, or iii. fraud, in no event shall either party have any liability to the other party for any lost profits or revenues (excluding Customer’s duty to pay fees hereunder) or for any indirect, special, incidental, consequential, cover, or punitive damages however caused, whether in contract, tort or under any other theory of liability, and whether or not the party has been advised of the possibility of such damages. The foregoing disclaimer shall not apply to the extent prohibited by applicable law.
- Term and Termination.
- Initial Term. This Agreement will commence on the Agreement Effective Date and will continue for the period designated in the Order Form (“Term”). Upon expiration of the initial Term of an Order Form, the Agreement may be renewed by the parties via the execution of a new Order Form. If Customer attempts to terminate the Agreement during a Term other than for cause, FBF will not provide Customer with a refund for any pre-paid fees; this, without derogating from FBF’s rights to bring a claim for all fees that Customer is committed to paying under the Agreement, with all such fees accelerating and becoming due on the date of termination.
- Termination for Cause. A party may terminate this Agreement for cause immediately upon written notice: (i) for a material breach of this Agreement by the other party if the breach remains uncured 14 days after receipt of the initial written notice setting forth the breach in reasonable detail or (ii) if the other party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding (except to the extent that a party is prohibited by law from terminating under such conditions). Upon any termination for cause by Customer, FBF will refund Customer any prepaid subscription fees for the post-termination period on a pro rata basis.
Post-Termination Obligations. Within thirty days of any termination of this Agreement, each party will destroy all copies of Content received from the other party.
- Survival. Terms that by their nature are intended to extend beyond termination will survive any termination of this Agreement for as long as necessary to give proper effect to such terms.
- General Provisions.
- Governing Law. This Agreement will be construed and enforced in all respects in accordance with the laws of the State of California, without reference to its choice of law rules. You agree that any dispute arising from or relating to the subject matter of the Agreement shall be governed by the exclusive jurisdiction and venue of the state and federal courts of Los Angeles County, California.
- Government Users. If Customer is a U.S. government entity, Customer acknowledges that elements of the Services constitute software and documentation and are provided as “Commercial Items” as defined at 48 C.F.R. 2.101, and are being licensed to U.S. government end users as commercial computer software subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212.
- Waiver. No failure or delay in exercising any right hereunder will constitute a waiver of such right. Except as otherwise provided, remedies provided in this Agreement are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions will remain in effect.
- Assignment. Customer may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of FBF. FBF may assign this Agreement to an affiliated party, provided it takes measures to ensure continuing Services are provided to Customer under any related Order Form. This Agreement will bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
- Force Majeure. Neither party will be liable to the other for any delay or failure to perform its obligations under this Agreement (excluding payment obligations) if the delay or failure arises from any cause or causes beyond that party’s reasonable control, including, but not limited to, natural disasters, war or acts of terrorism, pandemic, industry-wide labor disruptions, Internet outages, and governmental decrees.
- General Compliance. Without derogating from any other U.S. restrictions on dealings with foreign countries or persons, the countries listed on the following website are excluded from the scope of this Agreement for the entire Term: https://www.treasury.gov/resource-center/sanctions/Programs/Pages/Programs.aspx. Customer interactions with countries and/or persons that are banned under any applicable export control laws and regulations shall be at Customer’s sole risk and liability.
- Entire Agreement. This Agreement constitutes the entire agreement, and supersedes any and all prior agreements between the parties with regard to the subject matter hereof. This Agreement may not be amended or modified except by a writing signed by both parties.