Terms of Use
Updated July 27, 2010
PLEASE READ CAREFULLY - THIS IS A BINDING CONTRACT
This JayCut customer agreement (“Agreement”) is a binding agreement between Jaycut AB (“JayCut”) and You and, if applicable, the company or other legal entity You represent (collectively, “You”). This Agreement shall govern all use of the JayCut website www.jaycut.com (“JayCut Website”) concerning the Services (thus excluding all use of the JayCut video editing community for consumers which can be accessed here and is governed by the Community User Terms, not in any way affecting this Agreement), JayCut’s (and its agents as further described herein) technology, all Services which are provisioned, provided, and/or performed by JayCut and/or its licensors, suppliers, partners and/or resellers under any Order Form or otherwise, including but not limited to the JayCut Hosted Services and/or the JayCut Media Widget technologies.
This Agreement incorporates by reference (1) Privacy Policy ("Privacy Policy"); (2) the Terms of Use ("Terms of Use") and (3) the Acceptable Use Policy (“AUP”), all posted on the JayCut Website. Definitions introduced in these Terms of Use shall bear the same meaning in all of the aforementioned agreements (1), (2) and (3).
BY CLICKING THE "ACCEPT" BUTTON FOR THIS AGREEMENT, BY USING THE SERVICES OR ACCEPTING ANY MODIFICATION TO THIS AGREEMENT IN ACCORDANCE WITH SECTION 2 BELOW, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THE LEGAL ENTITY TO THIS AGREEMENT, IN WHICH CASE "YOU" SHALL MEAN SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST STOP USING THIS WEBSITE AND WHERE APPLICABLE NOT SELECT THE "ACCEPT" BUTTON WHEN REGISTERING FOR AN ACCOUNT AND YOU MAY NOT USE THE SERVICES.
1. The JayCut Services
The services covered by this Agreement include both free services that JayCut makes available for no fee (the "Free Services"), and services that JayCut makes available for a fee (the "Paid Services"). The Free Services and the Paid Services are referred to collectively in this Agreement as the "Services". Each Free Service and Paid Service is referred to individually as a "Service."
1.1. The Services
The Services are on-demand, by JayCut hosted services described at the JayCut Website that enable You to let You and/or Your End-Users to upload, manage, edit, export and distribute Content, plus related services including but not limited to management of End-Users in relation to the aforementioned Content. To provide You with the Services JayCut exposes functionality through one or more application programming interfaces (“API”) and/or software development kits (“SDK”) which You can make use of by using Credentials provided by JayCut. You get access to the APIs by signing up for a Plan and registering an Account.
The Free Services, meaning a Plan chosen in an Order Form to use the Services which is provided free of charge by JayCut, include Non-commercial Use of the JayCut Hosted Services and the JayCut Media Widgets.
The Paid Services, meaning all Plans and Addons chosen in an Order Form to use the Services provided by JayCut for a fee, include Commercial Use of and access to the JayCut Hosted Services and the JayCut Media Widgets.
1.2. Definitions
"Non-commercialUse”shall meanthat You are currently not, nor expect to be compensated in any form at the time of use, directly or indirectly, for how You use the Services and/or make the Services available to End-Users, separate or in relation to Your Application. JayCut may in its sole discretion decide if Your use fall under this definition or not, and may later change such decision.
"Commercial Use" shall mean any use where You receive or may receive compensation in any form, directly or indirectly, for how You use the Services and/or make the Services available to End-Users, separate or in relation to Your Application.
"JayCut Hosted Services" shall mean all services which run from JayCut's datacenters or from datacenters of a third party infrastructure provider of JayCut’s choice, including, without limitation, databases, files and data either used to operate the Services or incorporated therein, which are required for transcoding, storage, streaming, editing and in any other way processing or managing Content as required for the Services,to be accessed by the JayCut Media Widgets and exposed by JayCut APIs.
"The JayCut Media Widgets" are embeddable graphical user interfaces that enable You and/or Your End-Userto play, add and edit Content and interact with the JayCut Hosted Services. The JayCut Media Widgets include but are not limited to JayCut’s online video editors (a “Video Editor”), uploaders, exporters and players.
"Content"shall mean all content and data You may send to JayCut or use as part of Your use of any Services, including video, audio, images and other by JayCut supported media uploaded to the JayCut Services by You or on Your behalf by for example Your End-Users and any new media derived from the same previously mentioned media created, for example in a Video Editor.
"End-User"shall mean the individual interacting with the JayCut Media Widgets through Your Application. Such use shall not be deemed a transfer or sublicense in violation of the Agreement. If You charge for such use, directly or indirectly, it shall not be deemed as reselling, in violation of the Agreement.
“Account”shall mean the account You create on the JayCut Website or the website of a JayCut partner or reseller, for the purpose of gaining access to the Services.
“Order Form”shall mean the form You fill in when signing up for or Upgrading a Service, usually when registering for an Account on the JayCut Website or the website of a JayCut partner or reseller, where You choose which Plan and Addons You like. Current pricing for Plans and Addons are presented in or referenced to from an Order Form.
"Plans"shall mean the different subscriptions to the Services of which You choose one (a “Plan”) when filling in an Order Form. The Plans differ by including different quantities of Exported Movies, Storage and Streaming as well as available Addons, and in price.
“Exported Movies”shall mean every video file that is created or re-created as a result of editing any Content in a Video Editor where You or an End-User of Yours chooses to publish/export the result. For the avoidance of doubt an Exported Video is not created if You or an End-User of Yours just enters a Video Editor, or if an edited video is just previewed (but not exported/published). If You or an End-User of Yours exports/publishes the same video several times, the same number of Exported Movies are created.
“Storage”shall mean the total amount of stored data on and in relation to Your Account, including RAID, measured at the end of each calendar month.
“Streaming”shall mean the total data traffic to and from JayCut’s servers or the servers of a third party infrastructure provider of JayCut’s choice, which is supplied for or in relation to Your Account, measured over a calendar month.
“Upgrade”shall mean signing up for and paying the applicable fees for (a) a larger Plan and/or (b) any additional Addons, both in relation to Your then at the time active Plan.
"Addons"are the additional options that You can choose when choosing a Plan. Some Addons are only available for certain Plans.
1.3. Upgrades
For Upgrades You only pay the difference in fees between the Upgrade and the already-paid fees for what remains of the then-current Plan (including Addons). Plan Upgrades must be purchased for at least the full remaining Term, and in no case for a period less than three full calendar months. If the remaining time of the Term is less than three full calendar months the Upgrade must prolong the Term. Addon Upgrades are always purchased for the full Term, meaning fees for such are also paid for months passed.
For the avoidance of doubt, purchasing and Upgrade can never shorten the Term nor lower the fees already paid and/or committed to. The fees for any Upgrade are always the fees set forward on an Order Form or by a JayCut representative at the time of the Upgrade.
Example 1: You have a Plan with an Initial Term of three months and at the last day of the second month You desire to upgrade to a larger Plan, effective immediately. Since there is only one month left of the Term for the current Plan, the Upgrade is purchased for three months or more. A discount is then given on the purchase price. The price paid will be the full price for three months with the larger Plan (including Addons) minus the fees already paid for the remaining Term of the initial smaller Plan, in this example one month.
Example 2: You have a Plan with an Initial Term of Three months and at the last day of the second month You desire to purchase an Addon (without upgrading the Plan itself). The price paid is then for the full three months of the Initial Term, even if the Addon is only used the final third month.
1.4. Changes to the Services
If You have a Plan for the Paid Services, JayCut will not make changes that have a material negative impact on the interface to End-Usersof the JayCut Media Widgets supplied to You, and JayCut will always try to minimize any possible negative impact of changes to Your Paid Services. You do however agree that JayCut may, in its sole discretion and at any time modify, replace, remove and in any other way make changes to functionality, features, user interface and all other aspects of the Services, JayCut Hosted Services and JayCut Media Widgets, and that this may change Your or Your End-Users’experience of the Services. JayCut will try to provide information on such changes beforehand on the JayCut Website as well as the option to exclude some of such changes from Your setup of the JayCut Media Widgets, but shall be under no obligation to do so.
2. Changes to this Agreement
You agree that JayCut may modify this Agreement or any policy, definition or other terms referenced in this Agreement, including the Order Form (collectively, "Additional Policies") at any time by posting a revised version of the Agreement or such Additional Policy on the JayCut Website. For major changes customers of the Paid Services will be notified via email.
The revised terms shall be effective as follows:
2.1. if the revised terms are (a) for any Paid Services which we are adding at the time of the revision, (b) for the Privacy Policy, (c) for any other general terms and conditions applicable to our services, web sites or other properties, (d) for any Paid Service for which You do not at the time pay a fee for the right to be using or (e) for any Free Service, then the revised terms shall be effective upon posting (unless we expressly state otherwise at the time of posting); and
2.2. if the revised terms are otherwise for any then-existing Paid Services for which You are paying or have paid a fee for the right to use at the time, then the revised terms shall be effective upon termination or Renewal of Your current Plan or at the day You choose to Upgrade Your Plan.
By continuing to use the Services after the effective date of any revisions to this Agreement, You agree to be bound by the revised Agreement. This Agreement was last modified on the date set forth at the top of this Agreement.
3. Term, Termination and Suspension
The term of this Agreement ("Term") will commence, and You may begin using the Services, once You agree to the terms and conditions of this Agreement by checking the "I agree" checkbox in order to complete the registration process for Your Account.
3.1. Free Services
If Your Plan is for a Free Service You may terminate this Agreement for any reason or no reason at all, at Your convenience, by providing us written notice of termination in accordance with Section 15. JayCut may suspend Your right and license to use any or all Free Services and any associated JayCut Properties (as defined in Section 5) or terminate this Agreement in whole, at our discretion at any time, immediately upon notice to You in accordance with the notice provisions set forth in Section 15 below.
3.2. Paid Services
The term of all Paid Services shall be the initial term committed to in an Order Form or in writing to a JayCut representative (the “Initial Term”) and all renewals (collectively referred to herein as the “Term”).
3.2.1 Termination by Either Party and Renewal
After the Initial Term, either party may terminate the Agreement by providing the other party with a written notice of intent to terminate in accordance with: when the Initial Term or most recent Plan Upgrade committed to is (a) three months or less, at least thirty (30) days prior to the end of the Term; or (b) more than three months, at least ninety (90) days prior to the end of the Term. Upon the termination of the Agreement for any reason, You shall immediately discontinue all use of the Services and JayCut is not obligated to provide You with any Services. If the Agreement is not terminated in accordance with the above it will automatically be renewed in which case the Term will be prolonged by consecutive periods of the same number of months and termination periods as You committed to in Your Initial Term or, if applicable and longer, Your most recent Plan Upgrade, with the same Plan and Addons as on the day before renewal and subject to all thereto resulting fees (“Renewal”).
3.2.2 Termination by You
You may suspend or terminate the Agreement if JayCut materially breaches a provision of the Agreement and such breach has not been cured within forty-five (45) days of written notice by providing JayCut with written notice of such suspension or termination, provided however that all JayCut fees that were incurred prior to the date of termination shall be immediately due and payable upon termination.
3.2.3 Termination by JayCut
JayCut may in its sole discretion immediately terminate or suspend the Agreement and/or Your access to the Services: (a) should You breach any term or condition of this Agreement and/or the AUP; (b) based on any conduct that JayCut believes is or may be directly or indirectly harmful to other users, to JayCut or its suppliers (including their respective systems and/or the Services); (c) You are in default of Your payment obligations hereunder and such default is not cured within thirty (30) days; (d) You are in default of Your payment obligations hereunder and there is an unusual spike or increase in Your use of the Services; (e) based on any conduct that JayCut reasonably believes may be a violation of law and/or third party rights, or repeated breaches thereof; and/or (f) in the event of any legal restriction imposed on You, JayCut, and/or its suppliers or resellers with respect to provision of the Services; or (g) subject to applicable law, upon Your liquidation, commencement of dissolution proceedings, disposal of Your assets, failure to continue Your business, assignment for the benefit of creditors, or if You become the subject of a voluntary or involuntary bankruptcy or similar proceeding.
3.2.4 Suspension by JayCut
If you have exceeded the quotas of Exported Movies, Storage or Streaming included in Your Plan JayCut may suspend all or parts of Your access to and usage of the Services until an Upgrade or Addon sufficiently increasing the exceeded quotas is purchased.
3.3. Survival
JayCut’s and Your rights to suspend or terminate Services as set forth in this Section shall not absolve You of any payment or indemnification obligations described herein or diminish any other remedy available to JayCut or its partners/suppliers/resellers. All terms and conditions set forth herein that should by their nature survive termination (including without limitation all provisions relating to payment, non-disclosure, intellectual property, ownership, limitation of liability and indemnification) in order to be given full effect shall continue in full force and effect after any expiration or termination of the Agreement.
4. License to Use the Services
Subject to Your acceptance of and compliance with this Agreement and with the payment requirements for the Services that are set forth on the applicable Order Form on the JayCut Website (as such payment terms may be updated from time to time) or by a JayCut representative, JayCut hereby grant You a limited, revocable, non-exclusive, non-transferable, non-sublicenseable right and license, in and under our intellectual property rights, to access and use the Services, solely in accordance with the terms and conditions of this Agreement. Any exceptions to the above right and license to the Services must be expressly permitted by JayCut in writing, signed by a duly authorized officer.
4.1. Permitted Uses
You and your End-Users may use the JayCut Media Widgets in order to access and make use of the media editing, display and share capabilities of the Services as they are clearly made available by JayCut in the JayCut Media Widgets. You may write an application or website ("Application") that interfaces with the Services using JayCut’s APIs and/or SDKs. You may embed the JayCut Media Widgets on Your webpage. You acknowledge that we may change, deprecate or republish APIs and SDKs (as defined in Section 1.1) for any Service or feature of a Service from time to time, and that it is Your responsibility to ensure that calls You make to any Service are compatible with then-current APIs and/or SDKs for the Service. You may make network calls or requests to the Services at any time that the Services are available.
4.2. Restricted Uses
You may not interfere or attempt to interfere in any manner with the functionality or proper working of the Services. You may not remove, obscure, or alter any notice of any Mark, or other intellectual property or proprietary right appearing on or contained within the Services or on any JayCut Properties. JayCut may give you written permission to remove Marks or explicitly make it possible in a tool or through written description, which shall then be the only exceptions to the limitations put forward in this Section and elsewhere in the Agreement. JayCut may at its discretion revoke such previously granted rights.
4.3. Accounts and Keys
JayCut Accounts are associated with a site name, an API key and a shared secret (separate or together, “Credentials”), which are used to access the Services. When You complete the Account creation process, You will be issued the Credentials. The Credentials (a) identify Your Account and (b) allow You to make requests to JayCut using the API. Parts of the Credentials are immutable and will always uniquely identify Your JayCut Account. The Credentials are for Your personal use only, and You may not sell, transfer, sublicense or otherwise disclose Your Credentials to any other party. You may use Your site name and API key in the open in requests to JayCut; these are therefore not secret. However, You are responsible for maintaining the secrecy and security of Your shared secret. You are fully responsible for all activities that occur under Your Credentials, regardless of whether such activities are undertaken by You or a third party. Therefore, You should contact us immediately if You believe a third party may be using Your shared secret, or if Your shared secret is otherwise lost or stolen. You are responsible for maintaining up-to-date and accurate information (including contact information) for Your JayCut Account. We are not responsible for any unauthorized access to, alteration of, or the deletion, destruction, damage, loss or failure to store any of, Your Content (as defined in Section 1.2), Your Applications, or other data which You submit or use in connection with Your Account or the Services.
4.4. Monitoring Your Use of the JayCut Services
You agree to provide information and/or other materials related to Your Applications as reasonably requested by us to verify Your compliance with this Agreement. You further acknowledge and agree that (a) if an online application, we may monitor the external interfaces of Your Application for the purpose of verifying Your compliance with this Agreement; and (b) if a client-side application, You agree to furnish a copy of Your Application upon request for the purpose of verifying Your compliance with this Agreement. You further agree to upon request by JayCut permit an independent auditor, who is subject to a non-disclosure agreement, to audit such books and records as may reasonably be required to verify Your compliance with this Agreement.
5. License to Use the JayCut Properties
5.1. JayCut Properties
We may make available to You, for Your installation, copying and/or use in connection with the Services, from time to time, a variety of software including but not limited to SDKs, data and other content and printed and electronic documentation (all such materials except those specifically made available by us under separate license terms, the "JayCut Properties"). Subject to Your acceptance of this Agreement, ongoing compliance with its terms and conditions with respect to the subject Service, and payment if and as required for Your right to use the subject Service, we hereby grant to You a limited, revocable, non-exclusive, non-transferable, non-sublicenseable license during the Term, under our intellectual property or proprietary rights in the JayCut Properties, only to install, copy and use the JayCut Properties solely in connection with and as necessary for Your use of the Services and solely to the extent in compliance with all the terms and conditions of this Agreement. You may not in any way alter the JayCut Properties. Any exceptions to the above right and license to the JayCut Properties must be expressly permitted by JayCut in writing, signed by a duly authorized officer.
5.2. Examples and Provision of JayCut Properties
The JayCut Properties may include, without limitation (a)articles and documentation for use in connection with the use and implementation of our APIs and other materials related to the setup and continued use of the Services; (b) textual materials, such as textual product information; and (c) other forms of digital content, data, text, images, logos, user interface designs and other creative designs, audio and video. JayCut Properties may be provided via email or other means of communication and/or made available through the JayCut Website and the websites of JayCut’s licensors, suppliers, partners and/or resellers.
5.3. License to Marks
Subject to the terms and conditions of this Agreement, JayCut grants You, and You grant JayCut, the limited, revocable, non-transferable (except as provided herein), non-exclusive, royalty-free, worldwide right to reproduce and display the other's logos, trademarks, trade names and other similar identifying material (the "Marks") on printed material and Your/JayCut’s website or the website of a JayCut reseller. Any and all use of a party's Marks hereunder shall inure exclusively to the benefit of the owner of the Marks. This Agreement does not convey any ownership interest, right or title in or to the other party's Marks, but only a limited license that is revocable as set forth in this Agreement. Further, JayCut shall be permitted to list You as a customer and use Your standard logo for JayCut’s promotional and marketing use.
5.4. Non-exclusive Rights
The rights granted by JayCut in this Agreement with respect to the JayCut Properties, the Marks and the Services are non-exclusive, and JayCut reserves the right to: (i) itself act as a developer of products or services related to any of the products that You may develop in connection with the JayCut Properties or via Your use of the Services; and (ii) appoint third parties as developers or systems integrators who may offer products or services which compete with JayCut or Your Application.
6. License to Your Content
Subject to the terms and conditions of this Agreement, You hereby grant JayCut a limited, revocable (as set forth herein), non-transferable (except as provided herein), non-exclusive, royalty-free, worldwide license to perform all such acts with respect to the Content as are necessary for JayCut to provide the Services in accordance with this Agreement. For avoidance of doubt, although JayCut shall have the right hereunder to host, secure, store, distribute, encode, reproduce, cache, route, reformat and analyze Content (among other things), the parties expressly agree that JayCut does not hereby take legal title to any Content supplied by You. JayCut may also create algorithms and reports based on access to and use of the Content and/or utilize Content to test JayCut’s internal technologies and processes.
Where a party or any of its sub-contractors, as part of the fulfillment of its obligations under this Agreement, processes personal data as a data processor, such party will, and shall procure that its sub-contractors will:
(a) at all times take all appropriate technical and organizational measures against unauthorized or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data; and
(b) shall not transfer any personal data without appropriate consent and clearance; and
(c) shall preserve the rights of data subjects, including but not limited to subject access rights; and
(d) only process the personal data in accordance with the instructions given by the party responsible for the personal data.
7. Uptime, Downtime and Service Suspensions; Security
7.1. Uptime and Remedies
JayCut will make reasonable efforts to ensure that the Paid Services will be functional and accessible by End-Users (“Uptime”) in accordance with the Uptime guarantee You may choose as an Addon in the Order Form or as separately agreed in writing with a duly authorized JayCut representative, measured over a calendar month (“Availability Target”). If JayCut in any calendar months does not meet the agreed Availability Target, You are entitled to a refund of 5 % of the monthly fees for months in which the Availability Target is not met and for every additional 0,5 % Uptime below the Availability Target, cumulative up to a maximum of 50 % at 4,5 % (“Refund”). If JayCut does not meet the Availability Target for three consequent months, You may in addition to the Refund terminate the Agreement in accordance with Section 3. These Refund and termination rights constitutes Your sole remedies, being any other remedy (e.g. direct or indirect, consequential, incidental damages recovery) hereby explicitly excluded and waived by You. Refunds must be claimed within two weeks of the end of the calendar month during which the Availability Target was not met.
7.2. Downtime and Service Suspensions
In addition to JayCut’s rights to terminate or suspend the Services to You as described in Section 3, You acknowledge that the Services may be unavailable or suspended for the following reasons, and that these periods shall be disregarded for the purpose of calculating the Uptime: (a) downtime that is related to Internet connectivity problems caused by the ISPs or outside the ISPs used by JayCut; (b) planned downtime (three days in advance before planned downtime such information will be emailed to customers of the Paid Services and made available on the JayCut Webpage); (c) Force Majeure Events (as defined in Section 16.2); (d) downtime due to Your Application and/or Content, and how these interact with the Services; and (e) any other events or circumstances that may reasonably be considered to be outside the control or influence of JayCut. Without limitation to Section 11.5, we shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that You may incur as a result of any Service unavailability or suspension.
7.3. Measurements and Reporting
You and/or a third party hired by You can monitor availability of the Services by making requests to JayCut’s servers and/or the servers of a third party infrastructure provider of JayCut’s choice by mutually agreed measurement methods excluding the reasons for downtime to be disregarded in accordance with Section 7.2. When reason to believe that JayCut is in default of the Availability Target, reports on Yours and/or the third party’s measurements must be provided by You to JayCut, upon which JayCut will compare Your measurements to the internal measurements performed. If the difference is less than 0,5 % Uptime, Your measurements will be used. If the difference is more than 0,5 % Uptime, the average of Yours and JayCut’s measurements will be used provided that Your measurement is reasonable.
7.4. Security
JayCut strives to keep Your Content secure, but cannot guarantee that we will be successful at doing so, given the nature of the Internet. Accordingly, without limitation to Section 4.3 and Section 11.5, You acknowledge that You bear sole responsibility for adequate security, protection and backup of Your Content. We strongly encourage You, where available and appropriate, to use encryption technology to protect Your Content from unauthorized access and to routinely archive Your Content. We will have no liability to You for any unauthorized access or use, corruption, deletion, destruction or loss of any of Your Content.
8. Fees and Payment
In consideration of Your use of any of the Paid Services, You agree to timely pay applicable fees for Paid Services in the amounts set forth by a JayCut representative or on Your Order Form. You further agree that by filling out an Order Form and accepting this Agreement You agree to be bound by the fees set out in the Order Form. JayCut may specify the manner in which You will pay any fees. You are solely responsible for all applicable sales, use, import or export taxes, duties, fees, value-added taxes, surcharges, tariffs or other amounts attributable to the Services or Content. JayCut fees not paid when due shall be subject to a late fee equal to the lesser of four percent (4%) of the unpaid balance per month or the highest monthly rate permitted by applicable law.
9. Confidentiality
9.1. Confidentiality
The terms of this Agreement and information and data that one party (the “Receiving Party”) has received or will receive from the other party (the “Disclosing Party”) about the Services, the JayCut Properties, any proprietary technology, pricing, procedures and other matters are proprietary and confidential information (“Confidential Information”), including without limitation any information that is marked as “confidential” or should be reasonably understood to be confidential or proprietary to the Disclosing Party and any reference manuals compiled or provided hereunder. The Receiving Party agrees that for the Term and for three (3) years thereafter, the Receiving Party will not disclose the Confidential Information to any third party, nor use the Confidential Information for any purpose not permitted under this Agreement. The nondisclosure obligations set forth in this Section shall not apply to information that the Receiving Party can document is generally available to the public (other than through breach of this Agreement) or was already lawfully in the Receiving Party’s possession at the time of receipt of the information from the Disclosing Party or is required to be disclosed by order of a court of competent jurisdiction, or to a party’s professional advisers in which case such advisers shall be bound by confidentiality agreements at least as strict as this one.
9.2. Conflict with Separate Non-Disclosure Agreement
If You and JayCut are parties to a separate non-disclosure agreement (“NDA”) and there is a conflict between the terms of the NDA and the terms of this Section 9, the terms of the NDA shall control.
10. Intellectual Property
10.1. Our Services and the JayCut Properties
Other than the limited use and access rights and licenses expressly set forth in this Agreement, we reserve all right, title and interest (including all intellectual property and proprietary rights) in and to: (a) the Services; (b) the JayCut Properties; (c) the Marks; and (d) any other technology, software or other material that we provide or use to provide the Services and the JayCut Properties. You do not, by virtue of this Agreement or otherwise, acquire any ownership interest or rights in the Services, the JayCut Properties, the Marks, or such other technology and software, except for the limited use and access rights described in this Agreement.
10.2. Your Applications, Data and Content
Other than the rights and interests expressly set forth in this Agreement, and excluding JayCut Properties and works derived from JayCut Properties, You reserve all right, title and interest (including all intellectual property and proprietary rights) in and to: (a) Your Content and (b) Your Applications.
11. Representations and Warranties; Disclaimers; Limitations of Liability
11.1. Use of the Services
You represent and warrant that You will not use the Services, JayCut Properties and/or Your Application and Your Content: (a) in a manner that infringes, violates or misappropriates any rights of JayCut or any third party; (b) to engage in spamming or other impermissible advertising, marketing or other activities; (c) in any manner that constitutes or facilitates the illegal export of any controlled or otherwise restricted items, including, without limitation, software, algorithms or other data that is subject to export laws; and/or (d) in a way that is otherwise illegal or promotes illegal activities, including, without limitation, in a manner that might be libelous or defamatory or otherwise malicious or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age.
11.2. Application and Content
You represent and warrant: (a) that You are solely responsible for the development, operation, and maintenance of Your Application and for Your Content, including without limitation, the accuracy, appropriateness and completeness of Your Application and Content and all product-related materials and descriptions; (b) that You have the necessary rights and licenses, consents, permissions, waivers and releases to use and display Your Application and Your Content; (c) that neither Your Application nor Your Content (i) violates, misappropriates or infringes any rights of JayCut or any third party, (ii) constitutes defamation, invasion of privacy or publicity, or otherwise violates any rights of any third party, or (iii) is designed for use in any illegal activity or promotes illegal activities, including, without limitation, in a manner that might be libelous or defamatory or otherwise malicious, illegal or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age; (d) that neither Your Application nor Your Content contains any harmful components; and (e) to the extent to which You use any of the Marks, that You will conduct Your business in a professional manner and in a way that reflects favorably on the goodwill and reputation of JayCut.
11.3. Authorization and Account Information
You represent and warrant that: (a) the information You provide in connection with Your registration for an Account and continuously thereafter is accurate and complete; (b) if You are registering an Account for access to the Services as an individual, that You are at least 18 years of age and have the legal capacity to enter into this Agreement; and (c) if You are registering an Account for access to the Services as an entity or organization, (i) You are duly authorized to do business in the country or countries where You operate, (ii) the individual clicking "Accept" on this Agreement and completing the registration meets the requirements of subsection (b) above and is an authorized representative of Your entity, and (iii) Your employees, officers, representatives and other agents accessing the Services are duly authorized to access the Services and to legally bind You to this Agreement and all transactions conducted under Your Account.
11.4. Disclaimers
JAYCUT MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE OF THE SUITABILITY FOR YOUR PURPOSES OF THE SERVICES OR CONTENT YOU MAY RETRIEVE BY OR THROUGH THE SERVICES, THAT THE USE OF THE SERVICES SHALL BE SECURE, UNINTERRUPTED OR ERROR-FREE, OR THAT THE SERVICES SHALL FUNCTION PROPERLY IN COMBINATION WITH ANY THIRD PARTY TECHNOLOGY, HARDWARE, SOFTWARE, SYSTEMS OR DATA. THE SERVICES AND ANY CONTENT RETRIEVED BY OR THROUGH THE SERVICES ARE PROVIDED “AS IS" AND ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE SERVICES MAY BE SUBJECT TO INTERRUPTION, LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF INTERNET APPLICATIONS AND ELECTRONIC COMMUNICATIONS AND JAYCUT IS NOT RESPONSIBLE FOR ANY SUCH DELAYS, MISDELIVERY, UNTIMELY DELIVERY, DELIVERY FAILURES, OR ANY OTHER DAMAGE RESULTING FROM EVENTS BEYOND JAYCUT’S REASONABLE CONTROL. YOU UNDERSTAND AND AGREE THAT ANY CONTENT OR OTHER MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR APPLICATION, OR LOSS OF DATA THAT RESULTS IN THE DOWNLOAD OF SUCH CONTENT OR OTHER MATERIAL.
Some jurisdictions do not allow the disclaimer of implied warranties. In such jurisdictions, the foregoing disclaimers may not apply to You insofar as they relate to implied warranties.
11.5. Your Applications are Your Responsibility
In addition to the foregoing, we specifically disclaim all liability in relation to, and You shall be solely responsible for the development, operation, and maintenance of Your Application (including any bundled Application) and for all materials that appear on or within Your Application and You agree that You shall, without limitation, be solely responsible for:
11.5.1. the technical operation of Your Application and all related equipment;
11.5.2. the accuracy and appropriateness of any materials posted on or within Your Application (including, among other things, any product-related materials);
11.5.3. ensuring that any materials posted on Your site or within Your Application are not illegal and do not promote illegal activities, including without limitation any activities that might be libelous or defamatory or otherwise malicious, illegal or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age;
11.5.4. ensuring that Your Application accurately and adequately discloses, either through a privacy policy or otherwise, how You collect, use, store, and disclose data collected from visitors, including, where applicable, that third parties (including advertisers) may serve content and/or advertisements and collect information directly from visitors and may place or recognize cookies on visitors' browsers;
11.5.5. any of Your users' or customers' claims relating to Your Application or any Services utilized in connection with Your Application; and
11.5.6. Your election to utilize sample code and libraries that may be made available on the JayCut Website, many of which may be provided by third parties and many of which we have not tested or screened in any way.
11.6. Links
The JayCut Website and/or the Services may contain links to websites that are not under our control ("Third Party Sites"). We are not responsible for the contents or functionality of any Third Party Sites or any website that can be accessed via links on any Third Party Site. We provide these links to You as a convenience and the inclusion of any such links does not constitute or imply our endorsement or validation of any Third Party Site.
11.7. Limitations of Liability
UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM THE PERFORMANCE OR FAILURE OF PERFORMANCE OF ANY PROVISION OF THIS AGREEMENT (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES), SUCH AS, WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER FOR DAMAGES IN EXCESS OF THE TOTAL VALUE OF PAYMENTS EXPRESSLY IDENTIFIED IN THE AGREEMENT. NOTWITHSTANDING ANY OF THE FOREGOING IN THIS ENTIRE SECTION, THE LIMITATIONS SET FORTH IN THIS SECTION SHALL NOT APPLY IN THE CASE OF (a) BREACHES OF SECTION 4 OF THIS AGREEMENT, (b) DAMAGES RESULTING FROM INTENTIONAL TORTS, (c) AMOUNTS PAYABLE PURSUANT TO SECTION 12 ("INDEMNIFICATION") OR (d) BREACHES OF SECTION 9 ("CONFIDENTIALITY").
12. Indemnification
12.1. General
You agree to indemnify, defend and hold us, our affiliates and licensors, each of our and their business partners (including third party sellers on websites operated by or on behalf of us) and each of our and their respective employees, officers, directors and representatives, harmless from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including reasonable attorneys fees), arising out of or in connection with any claim arising out of (a) Your use of the Services and/or JayCut Properties in a manner not authorized by this Agreement, and/or in violation of the applicable restrictions, AUPs, and/or applicable law, (b) Your Application, Your Content, or the combination of either with other applications, content or processes, including but not limited to any claim involving infringement or misappropriation of third-party rights and/or the use, development, design, manufacture, production, advertising, promotion and/or marketing of Your Application and/or Your Content, (c) Your violation of any term or condition of this Agreement, including without limitation, Your representations and warranties, or (d) You or Your employees' or personnel's negligence or willful misconduct.
13. Governing Law
By using the Services, You agree that this Agreement shall be governed by and construed in accordance with the laws of Sweden. Each Party irrevocably agrees to submit to the exclusive jurisdiction of the courts of Sweden over any claim or matter arising under or in connection with this Agreement. Notwithstanding the above, JayCut will always be entitled to pursue any claims for non-payment or infringement of intellectual property in the courts and under the laws of the jurisdiction in which You or any of Your applicable End-Users is domiciled.
The parties expressly exclude application of the United Nations Convention for the International Sale of Goods to this Agreement.
14. Export Compliance and Restrictions
You shall, in connection with Your use of the Services or the JayCut Properties, comply with all applicable export and re-export control laws and regulations in any country.
15. Notices
All notice required to be given under this Agreement shall be in the English language and must be given in writing and delivered either by hand, e-mail, certified mail (return receipt requested, postage pre-paid) or nationally recognized overnight delivery service (all delivery charges pre-paid) and addressed, if to You, to the contact information on Your Account, if to JayCut, to Jaycut AB, Wallingatan 18 bv, SE-111 24 Stockholm, Sweden or notices@jaycut.com.
16. Miscellaneous
16.1. Third Parties
If You authorize, assist, encourage or facilitate another person or entity to take any action related to the subject matter of this Agreement, You shall be deemed to have taken the action Yourself.
16.2. Force Majeure Events
JayCut and its suppliers and resellers shall not be responsible for any failure to perform, or delay in performing any of its obligations to the extent that such a failure or delay results from force majeure causes beyond its control, such as acts of God, acts or omissions of any government or any rules, regulations or orders of any governmental authority or any officer, department, agency or instrument thereof; fire, storm, flood, earthquake, accident, acts of the public enemy, war, rebellion, Internet brownout, denial of service attacks, hacker attacks in general, computer viruses, insurrection, riot, invasion, strikes, or lockouts, or the like (“Force Majeure Events”).
16.3. Severability
If any portion of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect, and any invalid or unenforceable portions shall be construed in a manner that most closely reflects the effect and intent of the original language. If such construction is not possible, the provision will be severed from this Agreement, and the rest of the Agreement shall remain in full force and effect.
16.4. Waivers
The failure by JayCut to enforce any provision of this Agreement shall in no way be construed to be a present or future waiver of such provision nor in any way affect our right to enforce such provision thereafter. All waivers by us must be in writing to be effective.
16.5. Successors and Assigns
This Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
16.6. Entire Agreement
This Agreement incorporates by reference all policies and guidelines posted on the JayCut Website, including all Additional Policies, and constitutes the entire agreement between You and JayCut regarding the subject matter hereof and supersedes any and all prior or contemporaneous representation, understanding, agreement, or communication between You and JayCut, whether written or oral, regarding such subject matter.
16.7. No Endorsement
You understand and acknowledge that JayCut is not certifying nor endorsing, and have no obligation to certify or endorse, any of Your Applications or Your Content.
16.8. Relationship
Nothing in this Agreement is intended to or does create any type of joint venture, creditor-debtor, escrow, partnership or any employer/employee or fiduciary or franchise relationship between You and JayCut.
16.9 Assignment
This Agreement may not be assigned by either Party without the prior written consent of the other Party. Notwithstanding this, JayCut may without restriction assign this Agreement to any third party acquiring all or substantially all of JayCut’s assets.
Updated July 27, 2010
PLEASE READ CAREFULLY - THIS IS A BINDING CONTRACT
This JayCut customer agreement (“Agreement”) is a binding agreement between Jaycut AB (“JayCut”) and You and, if applicable, the company or other legal entity You represent (collectively, “You”). This Agreement shall govern all use of the JayCut website www.jaycut.com (“JayCut Website”) concerning the Services (thus excluding all use of the JayCut video editing community for consumers which can be accessed here and is governed by the Community User Terms, not in any way affecting this Agreement), JayCut’s (and its agents as further described herein) technology, all Services which are provisioned, provided, and/or performed by JayCut and/or its licensors, suppliers, partners and/or resellers under any Order Form or otherwise, including but not limited to the JayCut Hosted Services and/or the JayCut Media Widget technologies.
This Agreement incorporates by reference (1) Privacy Policy ("Privacy Policy"); (2) the Terms of Use ("Terms of Use") and (3) the Acceptable Use Policy (“AUP”), all posted on the JayCut Website. Definitions introduced in these Terms of Use shall bear the same meaning in all of the aforementioned agreements (1), (2) and (3).
BY CLICKING THE "ACCEPT" BUTTON FOR THIS AGREEMENT, BY USING THE SERVICES OR ACCEPTING ANY MODIFICATION TO THIS AGREEMENT IN ACCORDANCE WITH SECTION 2 BELOW, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THE LEGAL ENTITY TO THIS AGREEMENT, IN WHICH CASE "YOU" SHALL MEAN SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST STOP USING THIS WEBSITE AND WHERE APPLICABLE NOT SELECT THE "ACCEPT" BUTTON WHEN REGISTERING FOR AN ACCOUNT AND YOU MAY NOT USE THE SERVICES.
1. The JayCut Services
The services covered by this Agreement include both free services that JayCut makes available for no fee (the "Free Services"), and services that JayCut makes available for a fee (the "Paid Services"). The Free Services and the Paid Services are referred to collectively in this Agreement as the "Services". Each Free Service and Paid Service is referred to individually as a "Service."
1.1. The Services
The Services are on-demand, by JayCut hosted services described at the JayCut Website that enable You to let You and/or Your End-Users to upload, manage, edit, export and distribute Content, plus related services including but not limited to management of End-Users in relation to the aforementioned Content. To provide You with the Services JayCut exposes functionality through one or more application programming interfaces (“API”) and/or software development kits (“SDK”) which You can make use of by using Credentials provided by JayCut. You get access to the APIs by signing up for a Plan and registering an Account.
The Free Services, meaning a Plan chosen in an Order Form to use the Services which is provided free of charge by JayCut, include Non-commercial Use of the JayCut Hosted Services and the JayCut Media Widgets.
The Paid Services, meaning all Plans and Addons chosen in an Order Form to use the Services provided by JayCut for a fee, include Commercial Use of and access to the JayCut Hosted Services and the JayCut Media Widgets.
1.2. Definitions
"Non-commercialUse”shall meanthat You are currently not, nor expect to be compensated in any form at the time of use, directly or indirectly, for how You use the Services and/or make the Services available to End-Users, separate or in relation to Your Application. JayCut may in its sole discretion decide if Your use fall under this definition or not, and may later change such decision.
"Commercial Use" shall mean any use where You receive or may receive compensation in any form, directly or indirectly, for how You use the Services and/or make the Services available to End-Users, separate or in relation to Your Application.
"JayCut Hosted Services" shall mean all services which run from JayCut's datacenters or from datacenters of a third party infrastructure provider of JayCut’s choice, including, without limitation, databases, files and data either used to operate the Services or incorporated therein, which are required for transcoding, storage, streaming, editing and in any other way processing or managing Content as required for the Services,to be accessed by the JayCut Media Widgets and exposed by JayCut APIs.
"The JayCut Media Widgets" are embeddable graphical user interfaces that enable You and/or Your End-Userto play, add and edit Content and interact with the JayCut Hosted Services. The JayCut Media Widgets include but are not limited to JayCut’s online video editors (a “Video Editor”), uploaders, exporters and players.
"Content"shall mean all content and data You may send to JayCut or use as part of Your use of any Services, including video, audio, images and other by JayCut supported media uploaded to the JayCut Services by You or on Your behalf by for example Your End-Users and any new media derived from the same previously mentioned media created, for example in a Video Editor.
"End-User"shall mean the individual interacting with the JayCut Media Widgets through Your Application. Such use shall not be deemed a transfer or sublicense in violation of the Agreement. If You charge for such use, directly or indirectly, it shall not be deemed as reselling, in violation of the Agreement.
“Account”shall mean the account You create on the JayCut Website or the website of a JayCut partner or reseller, for the purpose of gaining access to the Services.
“Order Form”shall mean the form You fill in when signing up for or Upgrading a Service, usually when registering for an Account on the JayCut Website or the website of a JayCut partner or reseller, where You choose which Plan and Addons You like. Current pricing for Plans and Addons are presented in or referenced to from an Order Form.
"Plans"shall mean the different subscriptions to the Services of which You choose one (a “Plan”) when filling in an Order Form. The Plans differ by including different quantities of Exported Movies, Storage and Streaming as well as available Addons, and in price.
“Exported Movies”shall mean every video file that is created or re-created as a result of editing any Content in a Video Editor where You or an End-User of Yours chooses to publish/export the result. For the avoidance of doubt an Exported Video is not created if You or an End-User of Yours just enters a Video Editor, or if an edited video is just previewed (but not exported/published). If You or an End-User of Yours exports/publishes the same video several times, the same number of Exported Movies are created.
“Storage”shall mean the total amount of stored data on and in relation to Your Account, including RAID, measured at the end of each calendar month.
“Streaming”shall mean the total data traffic to and from JayCut’s servers or the servers of a third party infrastructure provider of JayCut’s choice, which is supplied for or in relation to Your Account, measured over a calendar month.
“Upgrade”shall mean signing up for and paying the applicable fees for (a) a larger Plan and/or (b) any additional Addons, both in relation to Your then at the time active Plan.
"Addons"are the additional options that You can choose when choosing a Plan. Some Addons are only available for certain Plans.
1.3. Upgrades
For Upgrades You only pay the difference in fees between the Upgrade and the already-paid fees for what remains of the then-current Plan (including Addons). Plan Upgrades must be purchased for at least the full remaining Term, and in no case for a period less than three full calendar months. If the remaining time of the Term is less than three full calendar months the Upgrade must prolong the Term. Addon Upgrades are always purchased for the full Term, meaning fees for such are also paid for months passed.
For the avoidance of doubt, purchasing and Upgrade can never shorten the Term nor lower the fees already paid and/or committed to. The fees for any Upgrade are always the fees set forward on an Order Form or by a JayCut representative at the time of the Upgrade.
Example 1: You have a Plan with an Initial Term of three months and at the last day of the second month You desire to upgrade to a larger Plan, effective immediately. Since there is only one month left of the Term for the current Plan, the Upgrade is purchased for three months or more. A discount is then given on the purchase price. The price paid will be the full price for three months with the larger Plan (including Addons) minus the fees already paid for the remaining Term of the initial smaller Plan, in this example one month.
Example 2: You have a Plan with an Initial Term of Three months and at the last day of the second month You desire to purchase an Addon (without upgrading the Plan itself). The price paid is then for the full three months of the Initial Term, even if the Addon is only used the final third month.
1.4. Changes to the Services
If You have a Plan for the Paid Services, JayCut will not make changes that have a material negative impact on the interface to End-Usersof the JayCut Media Widgets supplied to You, and JayCut will always try to minimize any possible negative impact of changes to Your Paid Services. You do however agree that JayCut may, in its sole discretion and at any time modify, replace, remove and in any other way make changes to functionality, features, user interface and all other aspects of the Services, JayCut Hosted Services and JayCut Media Widgets, and that this may change Your or Your End-Users’experience of the Services. JayCut will try to provide information on such changes beforehand on the JayCut Website as well as the option to exclude some of such changes from Your setup of the JayCut Media Widgets, but shall be under no obligation to do so.
2. Changes to this Agreement
You agree that JayCut may modify this Agreement or any policy, definition or other terms referenced in this Agreement, including the Order Form (collectively, "Additional Policies") at any time by posting a revised version of the Agreement or such Additional Policy on the JayCut Website. For major changes customers of the Paid Services will be notified via email.
The revised terms shall be effective as follows:
2.1. if the revised terms are (a) for any Paid Services which we are adding at the time of the revision, (b) for the Privacy Policy, (c) for any other general terms and conditions applicable to our services, web sites or other properties, (d) for any Paid Service for which You do not at the time pay a fee for the right to be using or (e) for any Free Service, then the revised terms shall be effective upon posting (unless we expressly state otherwise at the time of posting); and
2.2. if the revised terms are otherwise for any then-existing Paid Services for which You are paying or have paid a fee for the right to use at the time, then the revised terms shall be effective upon termination or Renewal of Your current Plan or at the day You choose to Upgrade Your Plan.
By continuing to use the Services after the effective date of any revisions to this Agreement, You agree to be bound by the revised Agreement. This Agreement was last modified on the date set forth at the top of this Agreement.
3. Term, Termination and Suspension
The term of this Agreement ("Term") will commence, and You may begin using the Services, once You agree to the terms and conditions of this Agreement by checking the "I agree" checkbox in order to complete the registration process for Your Account.
3.1. Free Services
If Your Plan is for a Free Service You may terminate this Agreement for any reason or no reason at all, at Your convenience, by providing us written notice of termination in accordance with Section 15. JayCut may suspend Your right and license to use any or all Free Services and any associated JayCut Properties (as defined in Section 5) or terminate this Agreement in whole, at our discretion at any time, immediately upon notice to You in accordance with the notice provisions set forth in Section 15 below.
3.2. Paid Services
The term of all Paid Services shall be the initial term committed to in an Order Form or in writing to a JayCut representative (the “Initial Term”) and all renewals (collectively referred to herein as the “Term”).
3.2.1 Termination by Either Party and Renewal
After the Initial Term, either party may terminate the Agreement by providing the other party with a written notice of intent to terminate in accordance with: when the Initial Term or most recent Plan Upgrade committed to is (a) three months or less, at least thirty (30) days prior to the end of the Term; or (b) more than three months, at least ninety (90) days prior to the end of the Term. Upon the termination of the Agreement for any reason, You shall immediately discontinue all use of the Services and JayCut is not obligated to provide You with any Services. If the Agreement is not terminated in accordance with the above it will automatically be renewed in which case the Term will be prolonged by consecutive periods of the same number of months and termination periods as You committed to in Your Initial Term or, if applicable and longer, Your most recent Plan Upgrade, with the same Plan and Addons as on the day before renewal and subject to all thereto resulting fees (“Renewal”).
3.2.2 Termination by You
You may suspend or terminate the Agreement if JayCut materially breaches a provision of the Agreement and such breach has not been cured within forty-five (45) days of written notice by providing JayCut with written notice of such suspension or termination, provided however that all JayCut fees that were incurred prior to the date of termination shall be immediately due and payable upon termination.
3.2.3 Termination by JayCut
JayCut may in its sole discretion immediately terminate or suspend the Agreement and/or Your access to the Services: (a) should You breach any term or condition of this Agreement and/or the AUP; (b) based on any conduct that JayCut believes is or may be directly or indirectly harmful to other users, to JayCut or its suppliers (including their respective systems and/or the Services); (c) You are in default of Your payment obligations hereunder and such default is not cured within thirty (30) days; (d) You are in default of Your payment obligations hereunder and there is an unusual spike or increase in Your use of the Services; (e) based on any conduct that JayCut reasonably believes may be a violation of law and/or third party rights, or repeated breaches thereof; and/or (f) in the event of any legal restriction imposed on You, JayCut, and/or its suppliers or resellers with respect to provision of the Services; or (g) subject to applicable law, upon Your liquidation, commencement of dissolution proceedings, disposal of Your assets, failure to continue Your business, assignment for the benefit of creditors, or if You become the subject of a voluntary or involuntary bankruptcy or similar proceeding.
3.2.4 Suspension by JayCut
If you have exceeded the quotas of Exported Movies, Storage or Streaming included in Your Plan JayCut may suspend all or parts of Your access to and usage of the Services until an Upgrade or Addon sufficiently increasing the exceeded quotas is purchased.
3.3. Survival
JayCut’s and Your rights to suspend or terminate Services as set forth in this Section shall not absolve You of any payment or indemnification obligations described herein or diminish any other remedy available to JayCut or its partners/suppliers/resellers. All terms and conditions set forth herein that should by their nature survive termination (including without limitation all provisions relating to payment, non-disclosure, intellectual property, ownership, limitation of liability and indemnification) in order to be given full effect shall continue in full force and effect after any expiration or termination of the Agreement.
4. License to Use the Services
Subject to Your acceptance of and compliance with this Agreement and with the payment requirements for the Services that are set forth on the applicable Order Form on the JayCut Website (as such payment terms may be updated from time to time) or by a JayCut representative, JayCut hereby grant You a limited, revocable, non-exclusive, non-transferable, non-sublicenseable right and license, in and under our intellectual property rights, to access and use the Services, solely in accordance with the terms and conditions of this Agreement. Any exceptions to the above right and license to the Services must be expressly permitted by JayCut in writing, signed by a duly authorized officer.
4.1. Permitted Uses
You and your End-Users may use the JayCut Media Widgets in order to access and make use of the media editing, display and share capabilities of the Services as they are clearly made available by JayCut in the JayCut Media Widgets. You may write an application or website ("Application") that interfaces with the Services using JayCut’s APIs and/or SDKs. You may embed the JayCut Media Widgets on Your webpage. You acknowledge that we may change, deprecate or republish APIs and SDKs (as defined in Section 1.1) for any Service or feature of a Service from time to time, and that it is Your responsibility to ensure that calls You make to any Service are compatible with then-current APIs and/or SDKs for the Service. You may make network calls or requests to the Services at any time that the Services are available.
4.2. Restricted Uses
You may not interfere or attempt to interfere in any manner with the functionality or proper working of the Services. You may not remove, obscure, or alter any notice of any Mark, or other intellectual property or proprietary right appearing on or contained within the Services or on any JayCut Properties. JayCut may give you written permission to remove Marks or explicitly make it possible in a tool or through written description, which shall then be the only exceptions to the limitations put forward in this Section and elsewhere in the Agreement. JayCut may at its discretion revoke such previously granted rights.
4.3. Accounts and Keys
JayCut Accounts are associated with a site name, an API key and a shared secret (separate or together, “Credentials”), which are used to access the Services. When You complete the Account creation process, You will be issued the Credentials. The Credentials (a) identify Your Account and (b) allow You to make requests to JayCut using the API. Parts of the Credentials are immutable and will always uniquely identify Your JayCut Account. The Credentials are for Your personal use only, and You may not sell, transfer, sublicense or otherwise disclose Your Credentials to any other party. You may use Your site name and API key in the open in requests to JayCut; these are therefore not secret. However, You are responsible for maintaining the secrecy and security of Your shared secret. You are fully responsible for all activities that occur under Your Credentials, regardless of whether such activities are undertaken by You or a third party. Therefore, You should contact us immediately if You believe a third party may be using Your shared secret, or if Your shared secret is otherwise lost or stolen. You are responsible for maintaining up-to-date and accurate information (including contact information) for Your JayCut Account. We are not responsible for any unauthorized access to, alteration of, or the deletion, destruction, damage, loss or failure to store any of, Your Content (as defined in Section 1.2), Your Applications, or other data which You submit or use in connection with Your Account or the Services.
4.4. Monitoring Your Use of the JayCut Services
You agree to provide information and/or other materials related to Your Applications as reasonably requested by us to verify Your compliance with this Agreement. You further acknowledge and agree that (a) if an online application, we may monitor the external interfaces of Your Application for the purpose of verifying Your compliance with this Agreement; and (b) if a client-side application, You agree to furnish a copy of Your Application upon request for the purpose of verifying Your compliance with this Agreement. You further agree to upon request by JayCut permit an independent auditor, who is subject to a non-disclosure agreement, to audit such books and records as may reasonably be required to verify Your compliance with this Agreement.
5. License to Use the JayCut Properties
5.1. JayCut Properties
We may make available to You, for Your installation, copying and/or use in connection with the Services, from time to time, a variety of software including but not limited to SDKs, data and other content and printed and electronic documentation (all such materials except those specifically made available by us under separate license terms, the "JayCut Properties"). Subject to Your acceptance of this Agreement, ongoing compliance with its terms and conditions with respect to the subject Service, and payment if and as required for Your right to use the subject Service, we hereby grant to You a limited, revocable, non-exclusive, non-transferable, non-sublicenseable license during the Term, under our intellectual property or proprietary rights in the JayCut Properties, only to install, copy and use the JayCut Properties solely in connection with and as necessary for Your use of the Services and solely to the extent in compliance with all the terms and conditions of this Agreement. You may not in any way alter the JayCut Properties. Any exceptions to the above right and license to the JayCut Properties must be expressly permitted by JayCut in writing, signed by a duly authorized officer.
5.2. Examples and Provision of JayCut Properties
The JayCut Properties may include, without limitation (a)articles and documentation for use in connection with the use and implementation of our APIs and other materials related to the setup and continued use of the Services; (b) textual materials, such as textual product information; and (c) other forms of digital content, data, text, images, logos, user interface designs and other creative designs, audio and video. JayCut Properties may be provided via email or other means of communication and/or made available through the JayCut Website and the websites of JayCut’s licensors, suppliers, partners and/or resellers.
5.3. License to Marks
Subject to the terms and conditions of this Agreement, JayCut grants You, and You grant JayCut, the limited, revocable, non-transferable (except as provided herein), non-exclusive, royalty-free, worldwide right to reproduce and display the other's logos, trademarks, trade names and other similar identifying material (the "Marks") on printed material and Your/JayCut’s website or the website of a JayCut reseller. Any and all use of a party's Marks hereunder shall inure exclusively to the benefit of the owner of the Marks. This Agreement does not convey any ownership interest, right or title in or to the other party's Marks, but only a limited license that is revocable as set forth in this Agreement. Further, JayCut shall be permitted to list You as a customer and use Your standard logo for JayCut’s promotional and marketing use.
5.4. Non-exclusive Rights
The rights granted by JayCut in this Agreement with respect to the JayCut Properties, the Marks and the Services are non-exclusive, and JayCut reserves the right to: (i) itself act as a developer of products or services related to any of the products that You may develop in connection with the JayCut Properties or via Your use of the Services; and (ii) appoint third parties as developers or systems integrators who may offer products or services which compete with JayCut or Your Application.
6. License to Your Content
Subject to the terms and conditions of this Agreement, You hereby grant JayCut a limited, revocable (as set forth herein), non-transferable (except as provided herein), non-exclusive, royalty-free, worldwide license to perform all such acts with respect to the Content as are necessary for JayCut to provide the Services in accordance with this Agreement. For avoidance of doubt, although JayCut shall have the right hereunder to host, secure, store, distribute, encode, reproduce, cache, route, reformat and analyze Content (among other things), the parties expressly agree that JayCut does not hereby take legal title to any Content supplied by You. JayCut may also create algorithms and reports based on access to and use of the Content and/or utilize Content to test JayCut’s internal technologies and processes.
Where a party or any of its sub-contractors, as part of the fulfillment of its obligations under this Agreement, processes personal data as a data processor, such party will, and shall procure that its sub-contractors will:
(a) at all times take all appropriate technical and organizational measures against unauthorized or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data; and
(b) shall not transfer any personal data without appropriate consent and clearance; and
(c) shall preserve the rights of data subjects, including but not limited to subject access rights; and
(d) only process the personal data in accordance with the instructions given by the party responsible for the personal data.
7. Uptime, Downtime and Service Suspensions; Security
7.1. Uptime and Remedies
JayCut will make reasonable efforts to ensure that the Paid Services will be functional and accessible by End-Users (“Uptime”) in accordance with the Uptime guarantee You may choose as an Addon in the Order Form or as separately agreed in writing with a duly authorized JayCut representative, measured over a calendar month (“Availability Target”). If JayCut in any calendar months does not meet the agreed Availability Target, You are entitled to a refund of 5 % of the monthly fees for months in which the Availability Target is not met and for every additional 0,5 % Uptime below the Availability Target, cumulative up to a maximum of 50 % at 4,5 % (“Refund”). If JayCut does not meet the Availability Target for three consequent months, You may in addition to the Refund terminate the Agreement in accordance with Section 3. These Refund and termination rights constitutes Your sole remedies, being any other remedy (e.g. direct or indirect, consequential, incidental damages recovery) hereby explicitly excluded and waived by You. Refunds must be claimed within two weeks of the end of the calendar month during which the Availability Target was not met.
7.2. Downtime and Service Suspensions
In addition to JayCut’s rights to terminate or suspend the Services to You as described in Section 3, You acknowledge that the Services may be unavailable or suspended for the following reasons, and that these periods shall be disregarded for the purpose of calculating the Uptime: (a) downtime that is related to Internet connectivity problems caused by the ISPs or outside the ISPs used by JayCut; (b) planned downtime (three days in advance before planned downtime such information will be emailed to customers of the Paid Services and made available on the JayCut Webpage); (c) Force Majeure Events (as defined in Section 16.2); (d) downtime due to Your Application and/or Content, and how these interact with the Services; and (e) any other events or circumstances that may reasonably be considered to be outside the control or influence of JayCut. Without limitation to Section 11.5, we shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that You may incur as a result of any Service unavailability or suspension.
7.3. Measurements and Reporting
You and/or a third party hired by You can monitor availability of the Services by making requests to JayCut’s servers and/or the servers of a third party infrastructure provider of JayCut’s choice by mutually agreed measurement methods excluding the reasons for downtime to be disregarded in accordance with Section 7.2. When reason to believe that JayCut is in default of the Availability Target, reports on Yours and/or the third party’s measurements must be provided by You to JayCut, upon which JayCut will compare Your measurements to the internal measurements performed. If the difference is less than 0,5 % Uptime, Your measurements will be used. If the difference is more than 0,5 % Uptime, the average of Yours and JayCut’s measurements will be used provided that Your measurement is reasonable.
7.4. Security
JayCut strives to keep Your Content secure, but cannot guarantee that we will be successful at doing so, given the nature of the Internet. Accordingly, without limitation to Section 4.3 and Section 11.5, You acknowledge that You bear sole responsibility for adequate security, protection and backup of Your Content. We strongly encourage You, where available and appropriate, to use encryption technology to protect Your Content from unauthorized access and to routinely archive Your Content. We will have no liability to You for any unauthorized access or use, corruption, deletion, destruction or loss of any of Your Content.
8. Fees and Payment
In consideration of Your use of any of the Paid Services, You agree to timely pay applicable fees for Paid Services in the amounts set forth by a JayCut representative or on Your Order Form. You further agree that by filling out an Order Form and accepting this Agreement You agree to be bound by the fees set out in the Order Form. JayCut may specify the manner in which You will pay any fees. You are solely responsible for all applicable sales, use, import or export taxes, duties, fees, value-added taxes, surcharges, tariffs or other amounts attributable to the Services or Content. JayCut fees not paid when due shall be subject to a late fee equal to the lesser of four percent (4%) of the unpaid balance per month or the highest monthly rate permitted by applicable law.
9. Confidentiality
9.1. Confidentiality
The terms of this Agreement and information and data that one party (the “Receiving Party”) has received or will receive from the other party (the “Disclosing Party”) about the Services, the JayCut Properties, any proprietary technology, pricing, procedures and other matters are proprietary and confidential information (“Confidential Information”), including without limitation any information that is marked as “confidential” or should be reasonably understood to be confidential or proprietary to the Disclosing Party and any reference manuals compiled or provided hereunder. The Receiving Party agrees that for the Term and for three (3) years thereafter, the Receiving Party will not disclose the Confidential Information to any third party, nor use the Confidential Information for any purpose not permitted under this Agreement. The nondisclosure obligations set forth in this Section shall not apply to information that the Receiving Party can document is generally available to the public (other than through breach of this Agreement) or was already lawfully in the Receiving Party’s possession at the time of receipt of the information from the Disclosing Party or is required to be disclosed by order of a court of competent jurisdiction, or to a party’s professional advisers in which case such advisers shall be bound by confidentiality agreements at least as strict as this one.
9.2. Conflict with Separate Non-Disclosure Agreement
If You and JayCut are parties to a separate non-disclosure agreement (“NDA”) and there is a conflict between the terms of the NDA and the terms of this Section 9, the terms of the NDA shall control.
10. Intellectual Property
10.1. Our Services and the JayCut Properties
Other than the limited use and access rights and licenses expressly set forth in this Agreement, we reserve all right, title and interest (including all intellectual property and proprietary rights) in and to: (a) the Services; (b) the JayCut Properties; (c) the Marks; and (d) any other technology, software or other material that we provide or use to provide the Services and the JayCut Properties. You do not, by virtue of this Agreement or otherwise, acquire any ownership interest or rights in the Services, the JayCut Properties, the Marks, or such other technology and software, except for the limited use and access rights described in this Agreement.
10.2. Your Applications, Data and Content
Other than the rights and interests expressly set forth in this Agreement, and excluding JayCut Properties and works derived from JayCut Properties, You reserve all right, title and interest (including all intellectual property and proprietary rights) in and to: (a) Your Content and (b) Your Applications.
11. Representations and Warranties; Disclaimers; Limitations of Liability
11.1. Use of the Services
You represent and warrant that You will not use the Services, JayCut Properties and/or Your Application and Your Content: (a) in a manner that infringes, violates or misappropriates any rights of JayCut or any third party; (b) to engage in spamming or other impermissible advertising, marketing or other activities; (c) in any manner that constitutes or facilitates the illegal export of any controlled or otherwise restricted items, including, without limitation, software, algorithms or other data that is subject to export laws; and/or (d) in a way that is otherwise illegal or promotes illegal activities, including, without limitation, in a manner that might be libelous or defamatory or otherwise malicious or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age.
11.2. Application and Content
You represent and warrant: (a) that You are solely responsible for the development, operation, and maintenance of Your Application and for Your Content, including without limitation, the accuracy, appropriateness and completeness of Your Application and Content and all product-related materials and descriptions; (b) that You have the necessary rights and licenses, consents, permissions, waivers and releases to use and display Your Application and Your Content; (c) that neither Your Application nor Your Content (i) violates, misappropriates or infringes any rights of JayCut or any third party, (ii) constitutes defamation, invasion of privacy or publicity, or otherwise violates any rights of any third party, or (iii) is designed for use in any illegal activity or promotes illegal activities, including, without limitation, in a manner that might be libelous or defamatory or otherwise malicious, illegal or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age; (d) that neither Your Application nor Your Content contains any harmful components; and (e) to the extent to which You use any of the Marks, that You will conduct Your business in a professional manner and in a way that reflects favorably on the goodwill and reputation of JayCut.
11.3. Authorization and Account Information
You represent and warrant that: (a) the information You provide in connection with Your registration for an Account and continuously thereafter is accurate and complete; (b) if You are registering an Account for access to the Services as an individual, that You are at least 18 years of age and have the legal capacity to enter into this Agreement; and (c) if You are registering an Account for access to the Services as an entity or organization, (i) You are duly authorized to do business in the country or countries where You operate, (ii) the individual clicking "Accept" on this Agreement and completing the registration meets the requirements of subsection (b) above and is an authorized representative of Your entity, and (iii) Your employees, officers, representatives and other agents accessing the Services are duly authorized to access the Services and to legally bind You to this Agreement and all transactions conducted under Your Account.
11.4. Disclaimers
JAYCUT MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE OF THE SUITABILITY FOR YOUR PURPOSES OF THE SERVICES OR CONTENT YOU MAY RETRIEVE BY OR THROUGH THE SERVICES, THAT THE USE OF THE SERVICES SHALL BE SECURE, UNINTERRUPTED OR ERROR-FREE, OR THAT THE SERVICES SHALL FUNCTION PROPERLY IN COMBINATION WITH ANY THIRD PARTY TECHNOLOGY, HARDWARE, SOFTWARE, SYSTEMS OR DATA. THE SERVICES AND ANY CONTENT RETRIEVED BY OR THROUGH THE SERVICES ARE PROVIDED “AS IS" AND ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE SERVICES MAY BE SUBJECT TO INTERRUPTION, LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF INTERNET APPLICATIONS AND ELECTRONIC COMMUNICATIONS AND JAYCUT IS NOT RESPONSIBLE FOR ANY SUCH DELAYS, MISDELIVERY, UNTIMELY DELIVERY, DELIVERY FAILURES, OR ANY OTHER DAMAGE RESULTING FROM EVENTS BEYOND JAYCUT’S REASONABLE CONTROL. YOU UNDERSTAND AND AGREE THAT ANY CONTENT OR OTHER MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR APPLICATION, OR LOSS OF DATA THAT RESULTS IN THE DOWNLOAD OF SUCH CONTENT OR OTHER MATERIAL.
Some jurisdictions do not allow the disclaimer of implied warranties. In such jurisdictions, the foregoing disclaimers may not apply to You insofar as they relate to implied warranties.
11.5. Your Applications are Your Responsibility
In addition to the foregoing, we specifically disclaim all liability in relation to, and You shall be solely responsible for the development, operation, and maintenance of Your Application (including any bundled Application) and for all materials that appear on or within Your Application and You agree that You shall, without limitation, be solely responsible for:
11.5.1. the technical operation of Your Application and all related equipment;
11.5.2. the accuracy and appropriateness of any materials posted on or within Your Application (including, among other things, any product-related materials);
11.5.3. ensuring that any materials posted on Your site or within Your Application are not illegal and do not promote illegal activities, including without limitation any activities that might be libelous or defamatory or otherwise malicious, illegal or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age;
11.5.4. ensuring that Your Application accurately and adequately discloses, either through a privacy policy or otherwise, how You collect, use, store, and disclose data collected from visitors, including, where applicable, that third parties (including advertisers) may serve content and/or advertisements and collect information directly from visitors and may place or recognize cookies on visitors' browsers;
11.5.5. any of Your users' or customers' claims relating to Your Application or any Services utilized in connection with Your Application; and
11.5.6. Your election to utilize sample code and libraries that may be made available on the JayCut Website, many of which may be provided by third parties and many of which we have not tested or screened in any way.
11.6. Links
The JayCut Website and/or the Services may contain links to websites that are not under our control ("Third Party Sites"). We are not responsible for the contents or functionality of any Third Party Sites or any website that can be accessed via links on any Third Party Site. We provide these links to You as a convenience and the inclusion of any such links does not constitute or imply our endorsement or validation of any Third Party Site.
11.7. Limitations of Liability
UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM THE PERFORMANCE OR FAILURE OF PERFORMANCE OF ANY PROVISION OF THIS AGREEMENT (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES), SUCH AS, WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER FOR DAMAGES IN EXCESS OF THE TOTAL VALUE OF PAYMENTS EXPRESSLY IDENTIFIED IN THE AGREEMENT. NOTWITHSTANDING ANY OF THE FOREGOING IN THIS ENTIRE SECTION, THE LIMITATIONS SET FORTH IN THIS SECTION SHALL NOT APPLY IN THE CASE OF (a) BREACHES OF SECTION 4 OF THIS AGREEMENT, (b) DAMAGES RESULTING FROM INTENTIONAL TORTS, (c) AMOUNTS PAYABLE PURSUANT TO SECTION 12 ("INDEMNIFICATION") OR (d) BREACHES OF SECTION 9 ("CONFIDENTIALITY").
12. Indemnification
12.1. General
You agree to indemnify, defend and hold us, our affiliates and licensors, each of our and their business partners (including third party sellers on websites operated by or on behalf of us) and each of our and their respective employees, officers, directors and representatives, harmless from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including reasonable attorneys fees), arising out of or in connection with any claim arising out of (a) Your use of the Services and/or JayCut Properties in a manner not authorized by this Agreement, and/or in violation of the applicable restrictions, AUPs, and/or applicable law, (b) Your Application, Your Content, or the combination of either with other applications, content or processes, including but not limited to any claim involving infringement or misappropriation of third-party rights and/or the use, development, design, manufacture, production, advertising, promotion and/or marketing of Your Application and/or Your Content, (c) Your violation of any term or condition of this Agreement, including without limitation, Your representations and warranties, or (d) You or Your employees' or personnel's negligence or willful misconduct.
13. Governing Law
By using the Services, You agree that this Agreement shall be governed by and construed in accordance with the laws of Sweden. Each Party irrevocably agrees to submit to the exclusive jurisdiction of the courts of Sweden over any claim or matter arising under or in connection with this Agreement. Notwithstanding the above, JayCut will always be entitled to pursue any claims for non-payment or infringement of intellectual property in the courts and under the laws of the jurisdiction in which You or any of Your applicable End-Users is domiciled.
The parties expressly exclude application of the United Nations Convention for the International Sale of Goods to this Agreement.
14. Export Compliance and Restrictions
You shall, in connection with Your use of the Services or the JayCut Properties, comply with all applicable export and re-export control laws and regulations in any country.
15. Notices
All notice required to be given under this Agreement shall be in the English language and must be given in writing and delivered either by hand, e-mail, certified mail (return receipt requested, postage pre-paid) or nationally recognized overnight delivery service (all delivery charges pre-paid) and addressed, if to You, to the contact information on Your Account, if to JayCut, to Jaycut AB, Wallingatan 18 bv, SE-111 24 Stockholm, Sweden or notices@jaycut.com.
16. Miscellaneous
16.1. Third Parties
If You authorize, assist, encourage or facilitate another person or entity to take any action related to the subject matter of this Agreement, You shall be deemed to have taken the action Yourself.
16.2. Force Majeure Events
JayCut and its suppliers and resellers shall not be responsible for any failure to perform, or delay in performing any of its obligations to the extent that such a failure or delay results from force majeure causes beyond its control, such as acts of God, acts or omissions of any government or any rules, regulations or orders of any governmental authority or any officer, department, agency or instrument thereof; fire, storm, flood, earthquake, accident, acts of the public enemy, war, rebellion, Internet brownout, denial of service attacks, hacker attacks in general, computer viruses, insurrection, riot, invasion, strikes, or lockouts, or the like (“Force Majeure Events”).
16.3. Severability
If any portion of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect, and any invalid or unenforceable portions shall be construed in a manner that most closely reflects the effect and intent of the original language. If such construction is not possible, the provision will be severed from this Agreement, and the rest of the Agreement shall remain in full force and effect.
16.4. Waivers
The failure by JayCut to enforce any provision of this Agreement shall in no way be construed to be a present or future waiver of such provision nor in any way affect our right to enforce such provision thereafter. All waivers by us must be in writing to be effective.
16.5. Successors and Assigns
This Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
16.6. Entire Agreement
This Agreement incorporates by reference all policies and guidelines posted on the JayCut Website, including all Additional Policies, and constitutes the entire agreement between You and JayCut regarding the subject matter hereof and supersedes any and all prior or contemporaneous representation, understanding, agreement, or communication between You and JayCut, whether written or oral, regarding such subject matter.
16.7. No Endorsement
You understand and acknowledge that JayCut is not certifying nor endorsing, and have no obligation to certify or endorse, any of Your Applications or Your Content.
16.8. Relationship
Nothing in this Agreement is intended to or does create any type of joint venture, creditor-debtor, escrow, partnership or any employer/employee or fiduciary or franchise relationship between You and JayCut.
16.9 Assignment
This Agreement may not be assigned by either Party without the prior written consent of the other Party. Notwithstanding this, JayCut may without restriction assign this Agreement to any third party acquiring all or substantially all of JayCut’s assets.