Terms and Conditions
End User License Agreement
This License Agreement (“Agreement”) dated today is between Clixie Media, LLC, a Delaware Limited Liability Company (“Licensor”), which has its principal place of business at 2232 South Main Street, Ste. 444, Ann Arbor, MI 48103, and End User (“Licensee”). This Agreement is effective on the date (“Effective Date”) of first use of the Clixie platform by Licensee. The terms for duration of use is defined by the package purchased by the Licensee and in this Agreement.
Licensor provides the Clixie Interactive Authoring and Data Analytics platform as a Software as a Service (“SaaS”) solution installed in the cloud and available remotely at Licensee’s location. Licensor’s platform, which is owned by Licensor, provides licensees with the ability to create interactive objects within videos (.MP4 format) and audio files (podcasts) that are published online. The Clixie Video software is described in more depth in the Statement of Work attached as Exhibit A.
Licensor desires to license the Clixie platform to Licensee for use on Licensee’s (or other) online presence, such as (but not limited to) a portal, website or Learning Management System (“LMS”).
Licensor may also wish to integrate the Clixie Video software into the Licensee’s existing 3rd party software platforms, such as a proprietary Video Player or a Content Management System (“CMS”). Clixie will provide our Application Programmer Interfaces (“API’s”) for use in standard integrations at Licensee location. Non-standard integration assistance is also available upon request and for a separate fee. Standard support terms and conditions are attached as Exhibit B.
In exchange for the mutual promises contained herein, and for good and valuable consideration the sufficiency and receipt of which is hereby acknowledged, the Parties agree to be legally bound as follows:
1. Nature of Relationship. This Agreement will define the Parties’ obligations to each other with respect to Licensee’s receipt of a license to use the Clixie Video software. Licensee desires to license the use of the Clixie Video platform and Licensor desires to provide those services pursuant to the terms of this Agreement.
2. License. On Licensee’s acceptance/first use, and in consideration for the license fee to be paid pursuant to that Statement of Work, Licensee becomes a Licensee under the terms of this Agreement and Licensor grants to Licensee a limited, worldwide, non-exclusive, non-transferrable, and non-sub licensable license to reproduce, display, and use the Clixie platform (through the user interface) for its customary and intended purposes and upon the terms and for the duration specified in the purchase agreement. The License granted under the terms of this Agreement will not provide Licensee with the right to create derivative works of or to reproduce the Clixie Media platform. This License will immediately terminate upon the expiration of the License duration as specified or upon Licensee’s breach of any term or condition of this Agreement.
In the event the Parties modify or make changes to the original grant of any License or renew or extend the term of any License, Licensee will bound by said modification, change, renewal, or extension upon its acceptance, which thereafter will be incorporated by reference into this Agreement and subject to the terms contained herein.
3. Licensor’s Obligations. Pursuant to the terms of this Agreement, Licensor will deliver to Licensee the access credentials required to access the Clixie platform. Licensor does not, however, warrant that Licensee’s use of the Clixie platform will be uninterrupted or error-free or that Clixie’s functionality will meet Licensee’s requirements. Licensee acknowledges and agrees that Licensor will not be held responsible for any infrastructure, internal internet, delays, delivery failures, or any other loss or damage resulting from downtime, delays, interruptions, and the use of third party software, services, or hosting, or the transfer of data over third party communications networks and facilities. Licensor agrees to allow access by authorized Clixie employees to Licensee’s technical infrastructure upon reasonable request (in person or remotely) to perform software upgrades and/or other related services.
4. Licensor’s Warranties. Licensor represents and warrants that no part of the Clixie platform will: (i) infringe upon any third party’s copyright, patent, trademark, trade secret, or other proprietary rights, personal rights, or rights of publicity or privacy; (ii) violate any term or provision of this Agreement; or (iii) violate any law, statute, ordinance, regulation, or treaty, whether local, state, provincial, national, or international.
5. Licensee’s Obligations. Licensee will provide Licensor with all necessary cooperation, security access, and access to information needed by Licensor to provide access to the Clixie platform pursuant to the terms of the attached Exhibit A.
6. Licensee’s Warranties. Licensee represents and warrants that it will timely pay Licensor pursuant to the terms of the attached Exhibit A and that it will not: (i) use the Clixie platform to infringe upon any third party’s copyright, patent, trademark, trade secret, or other proprietary rights, personal rights, or rights of publicity or privacy; (ii) use the Clixie platform in violation of any term or provision of this Agreement; (iii) use the Clixie platform in association with any content that is pornographic, obscene, lewd, lascivious, harassing, hazardous, or abusive; (iv) circumvent or disable the Clixie platform’s technology protection measures; or (v) use the Clixie platform to violate any law, statute, ordinance, regulation, or treaty, whether local, state, provincial, national, or international.
7. Mutual Warranties. Each Party represents and warrants that it has the full right, power, legal capacity, and authority to enter into, and fully perform under, this Agreement. Any agent executing this Agreement on behalf of his employer or client represents and warrants that he has the actual authority to bind his employer or client to the terms stated herein.
8. Ownership Rights. Under the terms of this Agreement, Licensee will not acquire any rights of ownership in the Clixie platform, and Licensee understands and agrees that Licensor is the owner of all right, title, and interest in and to Clixie platform, including, but not limited to all copyright rights, patent rights, trade secret rights, trademark rights, and other proprietary and personal rights.
Licensor acknowledges and agrees that all Intellectual Property and other original materials developed, produced, conceived or authored by Licensor or its employees, agents or subcontractors pursuant to this Agreement or any SOW, and any and all modifications and/or enhancements to the foregoing, whether in finished or incomplete form (all such Intellectual Property, modifications and/or enhancements being the “Materials”), shall belong exclusively to Licensor at all times.
9. Payment Terms. Licensee will pay Licensor pursuant to the terms of the purchased package. All late payments will accrue interest equal to the maximum amount allowable under law compounded monthly. Licensee’s failure to make full and timely payment will constitute a material breach of this Agreement. Licensor will be entitled to recover all reasonable costs of collection, including but not limited to attorneys’ fees, expenses, and costs incurred in attempting to collect payment from Licensee. All payments will be made to Licensor in US Dollars. Licensee understands and agrees that Licensor will report as income to the appropriate governmental agencies all compensation received under the terms of this Agreement and will pay to such agencies all taxes that Licensor is required to pay by law. Licensee understands and agrees that Licensor will not be held responsible for paying any taxes required by law to be paid by Licensee. Licensee shall be responsible for the transfer fees, transfer taxes or taxes (local, state and/or Federal) that are assessed on the payment to Licensor in the United States.
10. Term and Termination. The term of this Agreement will commence on the last date that it is executed by both Parties (as referenced above in Section 2, License) and will continue until terminated pursuant to this Section or until all Licenses granted have expired. Termination of this Agreement will not relieve Licensee from its obligation to pay any fees that have accrued prior to the date of termination. Each Party may terminate this Agreement at any time and without cause. Either Party may terminate this Agreement hereunder if the other Party (i) breaches any term or condition of this Agreement; (ii) becomes insolvent or files an assignment for the benefit of creditors; (iii) is the subject of an insolvency proceeding, including, but not limited to, an involuntary bankruptcy; (iv) violates the rights of third parties, including, but not limited to, intellectual or other personal or proprietary rights; or (v) voluntarily files a petition for bankruptcy. Termination of this Agreement will not limit either Party from pursuing any other remedies available to it, including injunctive relief. Any provision of this Agreement that contemplates performance or observance subsequent to termination or expiration hereof will continue in full force and effect.
11. Disclaimer of Warranties and Limitation of Liability. EXCEPT AS OTHERWISE PROVIDED HEREIN, THE CLIXIE MEDIA INTERACTIVE AUTHORING AND DATA ANALYTICS IS PROVIDED ON AN “AS IS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, LICENSOR MAKES NO WARRANTIES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THE ABSENCE OF LATENT OR OTHER DEFECTS), GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE, EXCEPT AS EXPRESSLY SET FORTH HEREIN. NEITHER PARTY IS RESPONSIBLE FOR DELAYS CAUSED BY ACCIDENT, WAR, ACTS OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE, OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL. NEITHER PARTY WILL BE LIABLE FOR ANY PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES, OR INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOSSES, COSTS, OR EXPENSES OF ANY KIND WHATSOEVER AND HOWEVER CAUSED, WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, STATUTE, OR OTHERWISE, INCLUDING (WITHOUT LIMITATION) LOSS OF PRODUCTION, LOSS OF OR CORRUPTION TO DATA, LOSS OF PROFITS OR OF CONTRACTS, BUSINESS INTERRUPTION, LOSS OF OPERATION TIME AND LOSS OF GOODWILL OR ANTICIPATED SAVINGS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSS, COST, OR EXPENSE. OTHER THAN AS SET FORTH HEREIN, EACH PARTY’S TOTAL OBLIGATIONS AND/OR LIABILITY, IF ANY HEREUNDER, SHALL BE LIMITED TO THE AMOUNTS LICENSEE HAS PAID LICENSOR UNDER THE APPLICABLE STATEMENT OF WORK.
12. Indemnification. Licensee understands and agrees that it will indemnify, defend, and hold harmless Licensor, as well as its officers, directors, employees, affiliates, independent contractors, and agents, for any and all damages, losses, claims, actions, costs, judgments, liabilities, and expenses, including attorneys’ fees and costs, arising out of or related to any: (i) breach by Licensee of any representation or warranty set forth in this Agreement; (ii) use of the Clixie platform to violate the rights of third parties; or (iii) use of Clixie platform to violate any law, statute, ordinance, regulation, or treaty, whether local, state, provincial, national, or international. If any action is or will be brought against Licensor with respect to any allegation for which indemnity may be sought, Licensee will provide reasonable cooperation to Licensor, at Licensee’s expense, to defend against or settle any such claim. Licensee’s obligation to defend Licensor under the terms of this Agreement will not provide Licensee with the ability to control Licensor’s defense, and Licensor reserves the right to control its defense and select its counsel.
Licensor understands and agrees that it will indemnify, defend, and hold harmless Licensee, as well as its officers, directors, employees, affiliates, independent contractors, and agents, for any and all damages, losses, claims, actions, costs, judgments, liabilities, and expenses, including attorneys’ fees and costs, arising out of or related to any: (i) breach by Licensor of any representation or warranty set forth in this Agreement; or (ii) violation of any law, statute, ordinance, regulation, or treaty, whether local, state, provincial, national, or international. If any action is or will be brought against Licensee with respect to any allegation for which indemnity may be sought, Licensor will provide reasonable cooperation to Licensee, at Licensor’s expense, to defend against or settle any such claim.
13. Confidentiality. Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party’s Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this agreement.
Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
The Licensee acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Licensor’s Confidential Information.
The Licensor acknowledges that the Licensee Data is the Confidential Information of the Licensee.
This clause shall survive termination of this agreement, however arising.
14. Choice of Laws. THIS AGREEMENT WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MICHIGAN. THE PARTIES’ SOLE AND EXCLUSIVE FORUM AND REMEDY AT LAW FOR ANY DISPUTES ARISING OUT OF OR IN RELATION TO THIS AGREEMENT, INCLUDING THE INTERPRETATION THEREOF, WILL BE BINDING ARBITRATION. ARBITRATION UNDER THIS AGREEMENT WILL BE HELD IN ANN ARBOR, MICHIGAN AND WILL BE CONDUCTED BY A SINGLE ARBITRATOR, WHO WILL BE RANDOMLY SELECTED FROM THE AMERICAN ARBITRATION ASSOCIATION NATIONAL ROSTER OF ARBITRATORS. THE ARBITRATOR WILL DECIDE ANY AND ALL CLAIMS IN ACCORDANCE WITH THE LAWS AND LEGAL PRINCIPLES OF THE STATE OF MICHIGAN AND THE AMERICAN ARBITRATION ASSOCIATION’S MOST RECENTLY EFFECTIVE COMMERCIAL ARBITRATION RULES AND WILL HAVE THE AUTHORITY TO AWARD COSTS AND ATTORNEYS’ FEES. THE LOSING PARTY WILL BE REQUIRED TO PAY THE PREVAILING PARTY’S ATTORNEYS’ FEES. THE PARTIES AGREE THAT THE DETERMINATION OR AWARD OF ANY SUCH ARBITRATOR OR ARBITRATION PROCEEDING MAY BE ENTERED AS A JUDGMENT IN ANY COURT SITTING WITHIN THE STATE OF MICHIGAN THAT HAS JURISDICTION OVER THE SUBJECT MATTER OF THE DISPUTE. THE PARTIES UNDERSTAND AND AGREE THAT THEY WILL BE REQUIRED TO BE PRESENT WITHIN THE STATE OF MICHIGAN IN ORDER TO PERFORM THEIR OBLIGATIONS UNDER THE TERMS OF THIS AGREEMENT. THE PARTIES HEREBY SUBMIT TO THE EXCLUSIVE PERSONAL AND SUBJECT MATTER JURISDICTION OF ANY SUCH ARBITRATOR OR ARBITRATION PROCEEDING.
15.1 This Agreement, all Statements of Work, and any addenda thereto, contain the entire understanding of the Parties with respect to the subject matter addressed herein and supersede, replace and merge all prior understandings, promises, representations and agreements, whether written or oral, relating thereto. This Agreement may not be modified except in writing signed by both Parties. No terms or conditions of either Party’s invoice, purchase order or other administrative document shall modify the terms and conditions of this Agreement, regardless of the other party’s failure to object to such form. The remedies accorded the Parties under this Agreement are cumulative and in addition to those provided by law.
15.2 Any waiver of a Party’s right or remedy related to this Agreement must be in writing, signed by that party to be effective. No waiver shall be implied from a failure of either Party to exercise a right or remedy. In addition, no waiver of a Party’s right or remedy will affect the other provisions of this Agreement.
15.3 If any provision of this Agreement and/or Statement of Work is held by a court of competent jurisdiction to be invalid or unenforceable, such provision will be enforced to the fullest extent that it is valid and enforceable under applicable law, and all other provisions of this Agreement shall remain in full force and effect.
15.4 All notices must be in writing and sent either by hand delivery; messenger; certified mail, return receipt requested; overnight courier; or by facsimile or by e-mail (with a confirming copy) and shall be effective when received by such Party at the address listed herein or other address provided in writing.
15.5 Licensee may not assign this Agreement, or any Statement of Work, in whole or in part, without Company’s prior express written consent, which shall not be unreasonably withheld or delayed. Any attempted assignment without such written consent shall be void. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their successors and permitted assigns.
LICENSOR and LICENSEE have caused this Agreement to be duly executed and delivered as of the Effective Date of LICENSEE first use of the Clixie platform.
Clixie Media, LLC.
Timothy J. Moore
Its: Executive Director
Licensor has provided the Clixie platform, which provides Licensee with the ability to:
1. Have access to selected video playback with modern video and audio formats from the Clixie Server SaaS platform. The preferred video format is .mp4; preferred audio format is podcasts. Create “Clixies” (clickable images that appear when tagged objects are clicked, that allows viewers to launch object website).
2. Tag the videos/audio files with the desired objects and associate them with appropriate Clixies.
a. Shapes choices are Square, Circle and Freehand Draw (aka Spline).
b. Multiple Clixies can be associated with a Shape or multiple shapes can be associated with a single Clixie.
c. Multiple events can trigger the same Clixie or multiple Clixies can be triggered by the same event.
d. Define the duration that the Shape appears in the video by manipulating the Shape bar in the timeline.
e. Create simple Visual Markers (images that visually appear during playback) that are associated with specific Clixies, which will alert viewers that objects are interactive.
f. Manually manipulate the Shape (Square, Circle and Spline) by “grabbing” a point on the shape and moving the point to a different location on the object.
g. Move the defined Shape over an active object within video (e.g. a running horse) by “dragging” the shape over the object frame-by-frame or in active slow-motion playback.
h. Cause a Clixie to appear, regardless of viewer interaction, based on an event other than a click by the viewer. These events are Time (aka “Timed Event”), Page View, Video Play, Video Pause or Video End. Timed Events are described as when an object appears, or a word is spoken at a specific time in the video.
3. Preview/Post the work done on the video, so customer can interact with/see the defined objects, Clixies and Visual Markers.
4. Edit the work that has been done, for dynamic error correction and updates.
5. Generate script instructions to publish the video enhanced with the Clixie functionality to a website, to be viewed on computer web browsers (EXCEPTION: Internet Explorer 7 and 8), tablets (iPad and Android) and smart phone apps.
6. Access specific events that occur within the tagged video (s) for summary and specific data. These events are:
a. Page Views
b. Video Views
d. False Clicks
e. Video Starts
f. Video Stops
g. Video Play
h. Video Pause
i. Click-Throughs to 3rd-party websites
j. Interactive Heat Map
k. Geo-mapping of viewer locations
Licensee shall log any support (Critical, High, Medium or Low severity) issues through its support feature in the Clixie platform, or via phone/email at https://clixiemedia.com/.
Additional support services may be purchased separately and will encompass other terms and conditions.
Licensor will be available on a 24×7 basis to answer questions and otherwise assist in troubleshooting critical and high level problems. Company will be available during normal business hours (8:00am to 5:00pm Eastern Time) to assist in medium or lower level problems, which may occur in the day-to-day running of the Services.
The following list shall be utilized for escalating Critical and High-level problems (as defined below) to Licensee that have not been responded to according to this SOW:
1st contact – Tim Moore (office) +1 734 994 5075 x802 – Speaks English, some Spanish and Portuguese
2nd contact – Fabio Miranda (Mobile) +55 11 +97103-5443/99298-2668 – Speaks Portuguese, Spanish and English
3rd contact – Reno Torres (Mobile) +1 734 994 5075 x802 – Speaks English
Contact numbers are subject to change, but all changes to escalation contacts will be communicated to Customer in writing.
|Priority Level||Problem Severity||Description|
|1||Critical||Services are “down” or performance is poor as to render said services unusable. A “down” situation occurs when Services are inaccessible to Users (e.g. error when viewing pages).|
|2||High||A major function/product is unusable which results in limited functionality or affects a large number of Users.|
|3||Medium||There is a loss of a function or resource that does not seriously affect the Services functionalities.|
|4||Low||All other problems with the Services other than those falling within the categories above.|
Problem Escalation and Resolution Criteria.
Problem resolution will be provided by Licensor in accordance with the following criteria, and tracked on a case by case basis:
|Problem Classification||Response Time|