EULA

End User Licensing Conditions (EULA) Ivory Studio

Latest amendment: 2021-12-01

PRELIMINARY CONSIDERATIONS:

  • Ivory Studio B.V. (“the Supplier”) develops software and the User wishes to use this software (“the Software”);
  • the Supplier is the holder of the rights to the Software;
  • the Software is made available as Software as a Service (SaaS);
  • the Software is web-based and runs on a cloud platform;
  • the User realizes that the provision of services by the Supplier is dependent on the functionality of third-party services;
  • the Software is made available “as is”;
  • in these conditions (“the Licensing Conditions”) the Supplier describes the User’s rights and obligations in connection with the use of the Software;
  • these Licensing Conditions form part of an Agreement concluded between the Supplier and the User and apply to all subscriptions and accounts provided or offered by the Supplier, including test, trial and/or other “freemium” or demo versions of the Software which are offered free of charge or (partly) in return for payment and are intended to give a (temporary and/or limited) impression of the Software;
  • the Supplier’s General Terms and Conditions (NLdigital terms 2020) apply to all services and/or products of the Supplier. In the event of a conflict between the General Terms and Conditions and these Licensing Conditions, these Licensing Conditions will prevail.

1. Definitions

Capitalized terms used in these Licensing Conditions have the meaning defined in this article 1.

1.1 Add-ons: additional Software functionalities, for example in the form of apps, widgets, plug-ins, components or custom work, originating from the Supplier or third parties, which can be used with the Software either with or without additional payment.

1.2 General Terms and Conditions: the general terms and conditions of the Supplier, which can be consulted on https://ivoryvideo.com/terms-of-service.

1.3 Content: this includes text, scripts, graphic design, images, sound, music, videos, audio-visual combinations, interactive elements and other materials that can be loaded, created, edited or played with the Software.

1.4 Error: an error in the Software which results in the Software not functioning in accordance with the recognizable specifications or functionalities, or in the Software otherwise not conforming to the specifications. An Error exists only if it can be identified and reproduced.

1.5 User: the user/end user who makes use of the Supplier’s Software.

1.6 Supplier: Ivory Studio B.V.

1.7 Licence: the right to use the Software subject to certain conditions.

1.8 Licensing Conditions: these conditions.

1.9 Subscription Fee: the fee under the Agreement which the User must pay to the Supplier for the use of the Software. This does not apply if the User uses test, trial and/or other “freemium” or demo versions of the Software.

1.10 New Version: a new release of the Software incorporating predominantly new or changed functionalities, whether or not released under a different name.

1.11 Agreement: the subscription taken out by the User, whether or not online, to which the General Terms and Conditions and these Licensing Conditions apply.

1.12 Privacy Statement: the most recent version of the Supplier’s Privacy Statement, which explains which personal data the Supplier collects in connection with the provision of its services, what these data are used for and to whom these data are provided.

1.13 Software: web-based software Ivory Studio (SaaS), a full-service solution for interactive online video, made available subject to these Licensing Conditions.

1.14 Update: a new release of the Software that corrects or remedies Errors identified until then and/or that incorporates an enhancement of existing functionality.

2. Object of these Licensing Conditions

2.1 Every use and every version of the Software provided or offered by the Supplier, including test, trial and/or other “freemium” or demo versions of the Software which are offered free of charge or (partly) in return for payment and are intended to give a (temporary and/or limited) impression of the Software, is subject to these Licence Terms.

2.2 The Supplier grants the User a temporary, non-exclusive and non-transferable Licence to use the Software as described in more detail in these Licensing Conditions.

2.3 The Supplier will enable the User to use the Software no later than 5 (five) calendar days after receipt of the registration, unless it is evident from the registration or otherwise that the registration is invalid or the registration seems to be invalid.

2.4 When the Supplier releases a New Version, it will also offer that New Version to the User. These Licensing Conditions also apply to New Versions. Article 6 applies by analogy.

3. Term and termination of the Agreement

3.1 The Agreement enters into force after a subscription has been taken out (online or otherwise) and is entered into for a term of one (1) year or three (3) months, unless otherwise stated or agreed by the Supplier. After the expiry of its term, the Agreement will be automatically renewed from time to time by the same period as its initial term, unless the User cancels the Agreement in writing no later than one (1) month before the expiry of the then current term.

3.2 The User cannot derive any rights from the content, quality and duration of test, trial and/or other “freemium” or demo versions of the Software. The Supplier is completely free to change the content of these subscriptions and/or versions at its own discretion and at any time.

3.3 The Agreement will only end if and insofar as it is terminated in accordance with the provisions of this article 3, without prejudice to termination by virtue of the law. The Supplier may also make the Software inaccessible or otherwise cease its obligations if the User acts contrary to the obligations under these Licensing Conditions.

3.4 The Supplier is also entitled to terminate the Agreement in whole or in part with immediate effect, without this giving rise to any obligation to pay compensation for any loss suffered by the User, if one of the following circumstances arises:

3.4.1 the User is declared bankrupt or placed into liquidation;

3.4.2 the User obtains provisional or final court protection from creditors (surseance van betaling);

3.4.3 the User’s business is terminated or transferred in full or in part to a third party.

3.5 If the Agreement ends for any reason, the User undertakes to remove the Software and to keep it removed or to cease using the Software. The Supplier may also prevent the User from accessing the Software from that time.

4. Fees

4.1 The Subscription Fees are part of the Agreement, are agreed upon in advance and depend on the type of account and/or subscription taken out by the User. These Subscription Fees only cover the use of the Software during the term of the Agreement. “Out-of-bundle” charges are not included in the Subscription Fees. Such charges are charged in arrears and consist of charges related to additional and/or other services of the Supplier (such as hosting and maintenance services), unless otherwise agreed in writing.

4.2 The agreed Subscription Fees are charged before the Software is used, unless otherwise agreed in writing. Where payment may be made in arrears, agreed fees must in any case be paid within 14 (fourteen) calendar days of invoicing and/or first use.

4.3 If so agreed the Supplier may collect the amount due by direct debit.

4.4 Complaints about invoices or payments must be notified to the Supplier in writing within 14 (fourteen) calendar days of receipt of the relevant invoice or of the payment obligation being incurred.

4.5 The Supplier is in any case entitled to change the amount of the Subscription Fees due in the following circumstances:

4.5.1 The Supplier may change the agreed Subscription Fees once a year, for the first time one year after the effective date of the Agreement. In doing so, the Supplier may bring the Subscription Fees in line with the User’s actual use of the Software and the Supplier’s fair use policy.

4.5.2 Agreed Subscription Fees may be changed during the term of the Agreement as a result of subscription upgrades requested by the User and/or changes in the number or type of Licence/s.

4.6 If the User fails to pay the amounts due within the agreed periods, the User will be liable to pay interest at the statutory rate on the outstanding amount from the time of default.

5. Conditions of use

5.1 The User may use the Software during the term of the Agreement for the purposes for which the Software is intended, namely the creation, management, analysis and playback of interactive online video.

5.2 The available functionalities of the Software may differ per type of account and/or subscription, for example (but not exclusively) with regard to the number of interactive online videos (“active projects”) that can be realized, the maximum number of viewing minutes per period, out-of-bundle rates, maximum bandwidth or other forms of service. When the agreed usage levels are exceeded, fixed out-of-bundle rates will be charged.

5.3 The User cannot derive any rights from the use of test, trial and/or other “freemium” or demo versions of the Software. The Supplier is completely free to change the content of these subscriptions and/or versions at its own discretion and at any time.

5.4 The Supplier may, at its sole discretion and according to its own policy, immediately remove Content with harmful or unlawful features (including, without limitation, violent or explicit content, threatening or hateful content, nudity and/or sexual content, spam, misleading metadata and/or scams or content that is otherwise harmful or unlawful), intentions or purposes without prior notice.

5.5 In addition, the Supplier may at all times, immediately and without prior notice, remove Content which, in its opinion, infringes the intellectual property rights and/or other rights of third parties (e.g. privacy).

5.6 The User is not entitled to retain or make back-up copies of the Software (a) for back-up purposes, (b) for temporary use, (c) for security purposes or (d) for any other reason.

5.7 The right of use granted in these Licensing Conditions is subject to the following restrictions:

5.7.1 The User is not permitted to grant the use of the Software to third parties, but the User is permitted to use the Software for the benefit of third parties, on condition that such use takes place in the ordinary course of the User’s business.

5.7.2 The User may grant the use of the Software to third parties only with the written permission of the Supplier.

5.73 The User is not permitted to modify or adapt the Software.

5.7.4 The User is not permitted to reconstruct the source code of the Software through reverse engineering. If the User requires information or cooperation to ensure that the Software is compatible with his own computer software or third-party computer software, the User will submit a written and substantiated request to the Supplier for the necessary information. The Supplier will then inform the User within a reasonable term whether and, if so, under what conditions the requested information can be provided to the User.

5.8 The User is not permitted to remove any notice relating to copyrights, (trade) marks, tradenames or other (intellectual) property rights from the Software. If Add-ons or functionalities of third parties are used in conjunction with the Software, the User is also bound by the conditions of those third parties when using the same. The use of Add-ons or functionalities of third parties is optional and entirely at the User’s own risk. The Supplier has no influence on the conditions of these third parties.

5.9 The User may increase/upgrade the number/type of Licences within the Software.

5.10 The Supplier is entitled to examine whether the User uses the Software in a manner that is consistent with these Licensing Conditions. The User undertakes to cooperate in such an examination and to give the Supplier the necessary access. The Supplier bears both its own costs and the User’s costs associated with such examination, unless the examination shows that the User has acted in breach of the Agreement and/or these Licensing Conditions.

5.11 The User must keep back-up copies of his own Content at all times. The User cannot derive any rights from the storage of Content by the Supplier.

6. Fair use policy

6.1 The use of the Software for certain accounts and/or subscriptions is subject to a fair use policy applied by the Supplier. Fair use is the use by the average number of users. The purpose of this fair use policy is to be able to ensure optimum operation and undisturbed use of the Software for as large a group of Users as possible (simultaneously).

6.2 If the Supplier sees reason to do so on the basis of its fair use policy, the Supplier may restrict the agreed usage levels (for example the bandwidth) of a User and/or charge extra for this if the Software is used unreasonably and/or excessively. This is the case, for example (without limitation), if a User’s use/usage level significantly exceeds the average use/usage level of other Users.

6.3 The above-mentioned fair use policy is applied in respect of the (simultaneous) use and/or usage level over a certain period. In enforcing its fair use policy, the Supplier follows the rule: if it is not necessary, the Supplier does not take the measure. This may mean that any use/usage level that is inconsistent with this fair use policy remains without consequences. However, no rights may be derived from this under any circumstances. The Supplier seeks to apply its fair use policy in a reasonable and careful manner and issues warnings to Users to inform them of any transgressions.

7. New Versions

7.1 The Supplier may continue to provide the service using new or modified versions of the Software.

7.2 The Supplier may carry out Updates automatically without prior notice. This means that functionalities may change, be added, be modified or be removed. The Supplier is not obliged to retain or continue to support legacy versions and/or functionalities.

7.3 The Supplier is not obliged to maintain, modify or add certain properties or functionalities of the service or software specifically for the User.

7.4 The Supplier does not provide support for legacy versions of the Software and is in no way responsible for the consequences of the performance of legacy versions.

8. Service

8.1 Although the Supplier makes every effort to enable Users to make optimum use of the Software, the Supplier cannot guarantee that the Software can be used for the purpose intended by the User. The service is provided on the basis of a best efforts obligation.

8.2 The Supplier is not obliged to remedy Errors free of charge. Remedial action may also be taken in the form of a problem-avoiding restriction or by providing a New Version and/or Update.

8.3 If the Supplier does not succeed in resolving the Errors identified, the User is entitled to cancel the Agreement if these Errors significantly hinder the normal use by the User.

8.4 The right to cancel the Agreement as referred to in the preceding paragraph will lapse if and to the extent that the Supplier proves that the relevant Errors have been caused by error repairs, maintenance or modifications made or carried out by or on behalf of the User, or if the User refuses to migrate to a new version.

8.5 The Supplier will make every effort to ensure the highest possible level of availability of the service. The User acknowledges and accepts that the Supplier cannot guarantee that the Software will always be available, as the Supplier is dependent on third parties for the provision of services.

8.6 The Supplier may temporarily disable the Software or any part of it to carry out preventive, corrective or adaptive maintenance.

8.7 The Supplier will ensure that the Software is not disabled for longer than necessary, will give as much notice as possible, and try to minimize inconvenience for Users as far as possible.

8.8 If Users wish to purchase additional service, support and/or other services, the Supplier offers the possibility to lay down such arrangements in (for example) a Service Level Agreement (SLA).

9. Transfer

9.1 The User is not permitted to transfer the rights and obligations under the Agreement to a third party without the Supplier’s prior permission in writing. The Supplier may attach conditions to its permission.

9.2 If the User wishes to make the Software available to a third party to enable such third party to manage the Software for the User, the User must inform the Supplier in writing of the details of the third party that will be charged with such management.

10. Intellectual property rights

10.1 The intellectual property rights in the Software are vested in the Supplier or its licensors or third-party suppliers. It is expressly provided that no transfer of intellectual property rights takes place, unless otherwise agreed in writing.

10.2 The Supplier indemnifies the User from and against claims in legal proceedings instituted against him by third parties, that are based on the allegation that the use of the Software (not the Content) infringes the intellectual property rights vested in such third parties, unless:

10.2.1 the User fails to immediately notify the Supplier in writing of the claim; or

10.2.2 the third-party claims in question are prompted by modifications to the Software made by the User or by third parties engaged by the User; or

10.2.3 the third-party claims in question are prompted by the use of the Software in a manner that is otherwise contrary to these conditions, for example by acting contrary to the conditions applying to Add-ons or functionalities of third parties.

10.3 The indemnification referred to in the preceding paragraph applies only if the User leaves the handling of the case, including the conduct of settlement negotiations, to the Supplier and provides the necessary cooperation to the Supplier upon request.

10.4 The User declares that if a claim as referred to in paragraph 2 of this article is brought, the User agrees that the Supplier may, at its option:

10.4.1 modify the Software (or arrange for the Software to be modified) in such a way as to ensure that it no longer infringes any rights;

10.4.2 replace the Software by a functionally equivalent product;

10.4.3 stop providing the services and (in the case of a paying User) refund to the User a pro rata part of the Subscription Fee paid by the User for a maximum of three (3) months of use.

10.5 The User warrants that he has all the required and necessary licences, rights, consents and permissions to enable the Supplier to make use of uploaded Content for the provision of its services, and indemnifies the Supplier from and against any loss or damage on account of alleged and/or judicially established infringements of third-party rights.

10.6 The intellectual property rights in Content uploaded and/or used by the User are vested in the User and/or his licensors. The intellectual property rights relating to the Content generated with the Software (such as concepts, videos and/or end productions (including parts thereof)) are vested in the Supplier. A valid Software Licence is required at all times for the lawful use (e.g. playback, adaptation and distribution) of this material.

10.7 The User grants the Supplier a worldwide, royalty-free and transferable licence to use the Content uploaded and/or used by the User as referred to in the preceding paragraph for (the Supplier’s own) promotional purposes, including (without limitation) for recording, compiling or distributing collages, promotional videos, showcases, images, illustrations via the website, social media and/or other digital means of expression, at the sole discretion of the Supplier. This licence is perpetual and does not end by operation of law on termination of the Agreement.

11. Maintenance

11.1 The Software is provided “as is” in accordance with these Licensing Conditions without any additional support or services unless separate (written) arrangements have been made in this respect.

11.2 The Supplier offers the User the possibility to enter into a Service Level Agreement (SLA) for the Software. This SLA will set out the arrangements regarding the support to be provided by the Supplier to the User in respect of the use of the Software and define the service levels for the maintenance to be carried out. Once the SLA has been signed it will be an integral part of the Agreement and will be subject to these Licensing Conditions.

12. Liability

12.1 The Supplier is not liable for any loss or damage caused by loss/mutilation of (stored) data and Content. The User is responsible himself for keeping back-up copies of his own Content at all times.

12.2 The Supplier is not liable for the consequences of hacking by third parties, DDoS or other attacks or any other loss of functionality and/or availability of Software and/or data due to any form of cybercrime.

12.3 In accordance with the provisions of articles 5 and 10, the Supplier is not responsible or liable for any loss or damage caused by data or Content generated, uploaded or otherwise used by the User via the Software. The Supplier is never responsible or liable for this Content, the consequences of uploading, posting or displaying this Content or the use of this Content.

12.4 If Add-ons or functionalities of third parties are used in conjunction with the Software, the Supplier is not liable for any breach of the conditions of those third parties during the use thereof. The use of Add-ons or functionalities of third parties is entirely at the risk of the User unless otherwise agreed in writing between the parties.

12.5 The Supplier does not accept any liability for indirect loss or damage, including (without limitation) consequential loss or damage, loss of profits and loss of turnover.

12.6 The Supplier may only be held liable for direct loss or damage, which must be construed to mean exclusively:

12.6.1 reasonable costs that would have to be incurred by the User to ensure that the Supplier’s performance satisfies the Agreement;

12.6.2 reasonable costs incurred to determine the cause and scale of the loss or damage suffered in the context of the Agreement;

12.6.3 reasonable costs incurred to prevent or limit loss or damage, to the extent that the User demonstrates that such costs have resulted in a limitation of the direct loss or damage suffered.

12.7 In the event of an attributable failure by the Supplier to perform its obligations, the User may claim compensation for loss or damage only if the User serves written notice of default upon the Supplier and the Supplier fails to fulfil its obligations within the term set. The obligation to serve notice of default does not apply if performance or repair has already become permanently impossible.

12.8     Any entitlement to compensation is always conditional upon the User notifying the Supplier in writing of the loss or damage as soon as possible after it is caused. Any legal or other proceedings, regardless of the reason why they are brought, must be brought within one (1) month of the date of the occurrence in question or of the date on which the User could have become aware of the occurrence.

12.9 The Supplier’s total liability is in any case limited to the maximum amount which the Supplier can recover from its suppliers or to the amount paid to the Supplier by the insurer under the Supplier’s indemnity insurance policy. In all cases the compensation is limited to the invoice amount for a period of four (4) months of use.

13. Confidentiality

13.1 The Supplier and the User will make every effort to prevent confidential information of the other party from being disclosed to or coming into the hands of third parties. This does not apply if the disclosing party proves that certain information was already in the public domain other than as a result of a breach of this confidentiality obligation or if a party is ordered by a competent (judicial) authority to disclose confidential information.

14. Privacy

14.1 The Supplier complies with applicable data protection law.

14.2 The Supplier collects, processes and uses personal data as set out in our Privacy Statement, which can be found at: https://ivoryvideo.com/privacy.

14.3 If the Supplier acts as a processor for personal data, parties will ensure that the legal requirements for the lawful processing of personal data are met by entering into an appropriate data processing agreement.

14.4 Under personal data protection legislation (the General Data Protection Regulation) the Supplier has obligations to data subjects, including (without limitation) the obligation to provide information on, to give access to, to rectify and to erase personal data of data subjects upon request.

15. Other provisions

15.1 The Supplier reserves the right to amend or supplement these Licensing Conditions at any time. Amendments to these Licensing Conditions also apply to any Agreements already concluded. The Supplier will inform the User of any amendments.

15.2 The articles relating to intellectual property rights, liability, confidentiality and governing law are, by their nature, intended to survive termination of the Agreement and will remain in force after the termination of the Agreement.

15.3 If one or more provisions of these Licensing Conditions are invalid, illegal or unenforceable, this will not affect the validity of the remaining provisions.

15.4 Oral undertakings and agreements will not have any effect unless confirmed in writing by the Supplier.

15.5 If the Supplier does not exercise a right or does not pursue a legal means available to it, this does not imply that the Supplier waives such right or legal means, unless otherwise provided.

15.6 The Supplier is permitted to make reference to the fact that the User is one of its clients, and to use or continue to use the User’s Content in accordance with the article on “Intellectual property rights” in these Licensing Conditions, except as explicitly otherwise agreed in writing.

16. Dispute resolution and governing law

16.1 Any disputes relating to the Licensing Conditions and/or the Agreement will be submitted to the exclusive jurisdiction of the competent courts in the court district of Utrecht.

16.2 The Licensing Conditions and the Agreement are governed exclusively by the laws of the Netherlands.

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