ANIMAZE COMMERCIAL LICENSE AGREEMENT
BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OF THESE MASTER TERMS AND CONDITIONS (THIS “AGREEMENT”) OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT OR BY OTHERWISE USING OR ACCESSING THE APPLICATION (AS DEFINED BELOW) (THE “ACCEPTANCE”), YOU AGREE YOU HAVE READ AND ARE BOUND BY THE TERMS 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 AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” WILL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE APPLICATION.
This Agreement, by and between Customer and Holotech Studios, Inc. (“Holotech”), is effective as of the date of Acceptance (the “Effective Date”) and governs Customer’s use of the Holotech services, and all related software, documentation, updates and upgrades that replace or supplement the application and are not distributed with a separate license (together, the “Application”).
The following terms, when used in this Agreement will have the following meanings:
“Affiliates” means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity, so long as such Control exists. For the purposes of this definition, “Control” means beneficial ownership of 50% or more of the voting power or equity in an entity.
“Confidential Information” means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
“Documentation” means the printed and digital instructions, on-line help files, technical documentation and user manuals made available by Holotech for the Application.
“Non-Holotech Product” means a third party or Customer web-based, mobile, offline or other software application that integrates with the Application (other than third party data hosting services used by Holotech). For clarity, the Application excludes Non-Holotech Products.
“Order Form” means an order form, quote or other similar document that sets forth the specific Application and pricing therefore (including in relation to overages), permitted number of users and subscription term, and that references this Agreement and is mutually executed by the parties.
2. The Application
2.1 Provision of Application. Subject to the terms and conditions of this Agreement, Holotech will make the Application available to Customer pursuant to this Agreement, and the applicable Order Form, and hereby grants Customer a non-exclusive right to access and use the Application.
2.2 Support. Holotech technical support is available on days when the Romanian office is open, which excludes national holidays. Technical support can be contracted via email at email@example.com or via the Discord Channel made available in the customer communication platform (https://animaze.tv/discord).
2.3 Data Security. Holotech will maintain a security program materially in accordance with industry standards that is designed to (i) ensure the security and integrity of Customer data uploaded by or on behalf of Customer to the Application (“Customer Data”); (ii) protect against threats or hazards to the security or integrity of Customer Data; and (iii) prevent unauthorized access to Customer Data.
2.4 Customer Limitations. The rights granted herein are subject to the following restrictions (the “License Restrictions”). Customer will not directly or indirectly:
(a) reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying the Application or any portion thereof;
(b) attempt to probe, scan or test the vulnerability of the Application, breach the security or authentication measures of the Application without proper authorization or wilfully render any part of the Application or any portion thereof unusable;
(c) use or access the Application or any portion thereof to develop a product or service that is competitive with Holotech’s products or Application or engage in competitive analysis or benchmarking;
(d) transfer, distribute, resell, lease, license, or assign the Application or any portion thereof, or otherwise offer the Application on a standalone basis;
(e) use the Application to impersonate any person or entity, or falsely state or otherwise misrepresent your or their affiliation with a person or entity; or
(f) otherwise use the Application of any portion thereof in violation of applicable law or outside the scope expressly permitted hereunder and in the applicable Order Form.
2.5 Customer Responsibilities.
(a) Customer acknowledges that Holotech’s provision of the Application is dependent on Customer providing all reasonably required cooperation, and Customer will provide all such cooperation in a diligent and timely manner.
(b) Customer will (i) be responsible for all use of the Application under its account, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Application and notify Holotech promptly of any such unauthorized access or use and (iii) be responsible for obtaining and maintaining any equipment, software and ancillary services needed to connect to, access or otherwise use the Application, including as set forth in the Documentation. Customer will be solely responsible for its failure to maintain such equipment, software and services, and Holotech will have no liability for such failure (including under any service level agreement).
2.7 Customer Generated Content. By using the Application, Customer can create and publish audio and video content featuring avatars, backgrounds, audio assets and other accessories (“Assets”) made available to Customer through the Application (“Customer Created Content”). Customer acknowledges and agrees:
(a) the use of Customer Created Content may include the use of Assets that are Non-Holotech Products or provided to Customer via Links (“Third Party Assets”);
(b) Third Party Assets may be further governed additional licensing terms provided within the Application and additional limitations regarding use or ownership may apply on a case by case basis, as dictated by the creators/licensors of such Third Party Assets;
(c) Customer is responsible for understanding and complying with the licensing terms and limitations associated with such Third Party Assets; and
(d) Customer Created Content shall not: (i) infringe any third party intellectual property or other proprietary or publicity/privacy rights, (ii) violate any law or regulation, (iii) be defamatory, profane, obscene, child pornographic or harmful to minors (as determined in Holotech’s sole discretion), (iv) contain any viruses, trojan horses, worms, time bombs or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information, (v) alter or remove existing intellectual property notices or (iv) violate the terms and conditions of this Agreement.
2.8 Legal Notices. Holotech is required to pass through the following legal notices regarding Non-Holotech Products and/or Links:
(a) This Application contains Live2D Cubism SDK developed by Live2D Inc. of which the copyrights are held by Live2D Inc. If this Application is utilized as a primary element of a business* and its annual sales made directly or indirectly by this Application or content produced by this Application exceed 20 million JPY, you shall be obliged to execute Publication License Agreement with Live2D Inc. and pay required license fee. You shall also be obliged to immediately notify Live2D Inc. when the annual sales exceed 20 million JPY. Any violation of these obligations means the utilization of Live2D Cubism SDK beyond the scope permitted by Live2D Inc. with regard to this Application and the infringement of intellectual property rights of Live2D Inc., and you may receive legal claims from Live2D Inc.
* “Utilizing this Application as a primary element of a business” includes but not limited to operating a VTuber streaming business. It does not include streaming video contents for sales promotion.
(b) The Application is licensed under the AVC patent portfolio license. Such license extends to the Application only and only to the extent of other notices which may be included herein. The license does not extend to any other product regardless of whether such product is included with this licensed product in a single article. Additional information may be obtained from MPEG LA, LLC, see http://www.mpegla.com.
3.1 Fees. Customer will pay Holotech the fees set forth in the Order Form. Except as otherwise specified herein or in any applicable Order Form, (a) fees are quoted and payable in United States dollars and (b) payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable. Holotech may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Holotech thirty (30) days after the mailing date of the invoice.
3.2 Late Payment. Holotech may suspend access to the Application immediately upon notice if Customer fails to pay any amounts hereunder at least five (5) days past the applicable due date. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection.
3.3 Taxes. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”). Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of Holotech. Customer will not withhold any taxes from any amounts due to Holotech.
4. Proprietary Rights and Confidentiality
4.1 Proprietary Rights. As between the parties, Holotech exclusively owns all right, title and interest in and to the Application, System Data and Holotech’s Confidential Information, and Customer exclusively owns all right, title and interest in and to the Customer Data, and Customer’s Confidential Information. “System Data” means data collected by Holotech regarding the Application that may be used to generate logs, statistics or reports regarding the performance, availability, usage, integrity or security of the Application.
4.2 Feedback. Customer may from time to time provide Holotech suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Application. Holotech will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. Holotech will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
4.3 Confidentiality. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. However, either party may disclose Confidential Information (a) to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law. Neither party will disclose the terms of this Agreement to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section or the License Restrictions, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
5. Warranties and Disclaimers
5.1 Holotech. Holotech warrants that it will, consistent with prevailing industry standards, provide the Application (and the Custom Services, to the extent applicable) in a professional and workmanlike manner and the Application will conform in all material respects with the Documentation. In the event of a breach of the foregoing warranty, Holotech will correct the deficiency at no additional charge to Customer. Customer will use commercially reasonable efforts to notify Holotech in writing within thirty (30) days of identifying the deficiency, but Customer’s failure to notify Holotech within such period will not affect Customer’s right to receive warranty remedies unless Holotech is unable to, or impaired in its ability to, correct the deficiency due to Customer’s failure to notify. The remedies set forth in this section will be Customer’s sole remedy and Holotech’s sole liability for breach of such warranty unless the breach of warranty constitutes a material breach of this Agreement and Customer elects to terminate this Agreement as set forth below, in which case Holotech will provide Customer with a pro rata refund (based on the applicable termination date) of prepaid subscription fees for breach of such warranty.
5.2 Customer. Customer warrants that it has all rights necessary to provide any information, data or other materials that it provides hereunder, and to permit Holotech to use the same as contemplated hereunder.
5.3 DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. HOLOTECH DOES NOT REPRESENT OR WARRANT THAT THE APPLICATION WILL BE ERROR-FREE. HOLOTECH IS NOT RESPONSIBLE OR LIABLE FOR ANY NON-HOLOTECH PRODUCTS OR LINKS, DOES NOT GUARANTEE THE CONTINUED AVAILABILITY THEREOF OR ANY INTEGRATION THEREWITH, AND MAY CEASE MAKING ANY SUCH INTEGRATION AVAILABLE IN ITS DISCRETION.
5.4 BETA PRODUCTS. FROM TIME TO TIME, CUSTOMER MAY HAVE THE OPTION TO PARTICIPATE IN A PROGRAM WITH HOLOTECH WHERE CUSTOMER GETS TO USE ALPHA OR BETA PRODUCTS, FEATURES OR DOCUMENTATION (COLLECTIVELY, “BETA PRODUCTS”) OFFERED BY HOLOTECH. THE BETA PRODUCTS ARE NOT GENERALLY AVAILABLE AND ARE PROVIDED “AS IS”. HOLOTECH DOES NOT PROVIDE ANY INDEMNITIES, SERVICE LEVEL COMMITMENTS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, IN RELATION THERETO. CUSTOMER OR HOLOTECH MAY TERMINATE CUSTOMER’S ACCESS TO THE BETA PRODUCTS AT ANY TIME.
6.1 Indemnity by Holotech. Holotech will defend Customer against any claim, demand, suit, or proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Application as permitted hereunder infringes or misappropriates a United States patent, copyright or trade secret and will indemnify Customer for any damages finally awarded against Customer (or any settlement approved by Holotech) in connection with any such Claim; provided that (a) Customer will promptly notify Holotech of such Claim, (b) Holotech will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Holotech may not settle any Claim without Customer’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Customer of all related liability) and (c) Customer reasonably cooperates with Holotech in connection therewith. If the use of the Application by Customer has become, or in Holotech’s opinion is likely to become, the subject of any claim of infringement, Holotech may at its option and expense (i) procure for Customer the right to continue using and receiving the Application as set forth hereunder; (ii) replace or modify the Application to make it non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii) are not reasonably practicable, terminate this Agreement and provide a pro rata refund of any prepaid fees corresponding to the terminated portion of the applicable subscription term. Holotech will have no liability or obligation with respect to any Claim if such Claim is caused in whole or in part by (A) compliance with designs, guidelines, plans or specifications provided by Customer; (B) use of the Application by Customer not in accordance with this Agreement; (C) modification of the Application by any party other than Holotech without Holotech’s express consent; (D) Customer Confidential Information or Customer Created Content; (E) the combination, operation or use of the Application with other applications, portions of applications, product(s) or services where the Application would not by itself be infringing (clauses (A) through (E), “Excluded Claims”). This Section states Holotech’s sole and exclusive liability and obligation, and Customer’s exclusive remedy, for any claim of any nature related to infringement or misappropriation of intellectual property.
6.2 Indemnification by Customer. Customer will defend Holotech against any Claim made or brought against Holotech by a third party arising out of the Excluded Claims, and Customer will indemnify Holotech for any damages finally awarded against Holotech (or any settlement approved by Customer) in connection with any such Claim; provided that (a) Holotech will promptly notify Customer of such Claim, (b) Customer will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Customer may not settle any Claim without Holotech’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Holotech of all liability) and (c) Holotech reasonably cooperates with Customer in connection therewith.
7. Limitation of Liability
EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS, A BREACH OF CONFIDENTIALITY OR THE LICENSE RESTRICTIONS OR A PARTY’S INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST CONTENT OR DATA, EVEN IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS, ANY AGGREGATE DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR CLAIM.
8.1 Term. The term of this Agreement will commence on the Effective Date of the initial Order Form and continue until terminated as set forth below. The initial term of each Order Form will begin on the Order Form Effective Date of such Order Form and will continue for the subscription term set forth therein. Except as set forth in such Order Form, the term of such Order Form will automatically renew for successive renewal terms equal to the length of the initial term of such Order Form, unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current term.
8.2 Termination. Each party may terminate this Agreement upon written notice to the other party if there are no Order Forms then in effect. Each party may also terminate this Agreement or the applicable Order Form upon written notice in the event (a) the other party commits any material breach of this Agreement or the applicable Order Form and fails to remedy such breach within thirty (30) days after written notice of such breach or (b) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days. In addition, if a Change of Control of Customer occurs, Holotech may immediately terminate this Agreement. For purposes of this Agreement, a “Change of Control” is defined as an acquisition of all or substantially all of Supplier’s assets, or any merger by or with Customer in which Customer is not the surviving entity or in which Supplier’s principals do not remain in control of the surviving entity.
8.3 Survival. Upon termination of this Agreement all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such termination will survive, including the License Restrictions and terms and conditions relating to proprietary rights and confidentiality, disclaimers, indemnification, limitations of liability and termination and the general provisions below.
8.4 Customer Data Retrieval. Upon Customer’s written request made on or prior to expiration or termination of the applicable Order Form, Holotech will give Customer limited access to the Application for a period of up to thirty (30) days after such expiration or termination, at no additional cost, solely for purposes of retrieving Customer Data. Subject to such retrieval period and Holotech’s legal obligations, Holotech has no obligation to maintain or provide any Customer Data and may, unless legally prohibited, delete Customer Data; provided, however, that Holotech will not be required to remove copies of the Customer Data from its backup media and servers until such time as the backup copies are scheduled to be deleted, provided further that in all cases Holotech will continue to protect the Customer Data in accordance with this Agreement. For clarity, during the term of the applicable Order Form, Customer may extract Customer Data using Holotech’s standard web services as described in the Documentation.
9.1 Export Compliance. Each party will comply with the export laws and regulations of the United States, European Union and other applicable jurisdictions in providing and using the Application.
9.2 Publicity. Customer agrees that Holotech may refer to Customer’s name and trademarks in Holotech’s marketing materials and website; however, Holotech will not use Customer’s name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without Customer’s prior written consent (which may be by email).
9.3 Assignment; Delegation. Neither party hereto may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent in the event of a Change of Control, provided that such party provides the other party with prompt written notice of any such Change of Control, subject to Holotech’s termination rights set forth in Section 8.2. Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.
9.4 Amendment; Waiver. No amendment or modification to this Agreement, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both parties. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
9.5 Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
9.6 Unenforceability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.
9.7 Governing Law. This Agreement will be governed by the laws of the State of California, exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
9.8 Notices. Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery. Notices to the parties must be sent to the respective address set forth in the Order Form, or such other address designated pursuant to this Section.
9.9 Entire Agreement. This Agreement comprises the entire agreement between Customer and Holotech with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by Holotech, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement.
9.10 Force Majeure. Neither Party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.
9.11 Interpretation. For purposes hereof, “including” means “including without limitation”.