CAMERAFI SDK TERMS OF SERVICE

Last Updated: 05/11/2016

RECITALS

THESE TERMS OF SERVICE (“AGREEMENT”) GOVERN YOUR ACQUISITION AND USE OF CAMERAFI’S SERVICES.

IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.

WHEREAS, Supplier is willing to provide such CameraFi services and perform such support services, on terms set forth more fully below.

NOW THEREFORE, in consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged and intending to be legally bound, the parties agree as follows:

AGREEMENT

  1. DEFINITIONS

1.1   “Customer Data” means data or content contained in data files or data streams published by Customer or its users to the CameraFi Services.

1.2   “Customer Service means the features, products, and services that Customer makes available on or through the Customer Products.

1.3   “Customer Products” means any websites, applications, or other portals accessible to End Users which are owned and operated by the Customer or at the direction of the Customer or under license from the Customer.

1.4   “End User” means any subscriber, person or entity that uses the CameraFi Services to access, use, interact with, view or otherwise consume a Customer Service. .

1.5   “End User Data” means any data or information of any End User that is provided to or obtained by any Party in the performance of its obligations under this Agreement, including but not limited to, all lists of End Users, former End Users, and all information relating to and identified with such End Users.

1.6   “Fees” means the money in US Dollars that Customer is obligated to pay Supplier for the provision of the CameraFi Services.

1.7   “Intellectual Property Rights” means all (i) copyrights (including, without limitation, the right to reproduce, distribute copies of, display and perform the copyrighted work and to prepare derivative works), copyright registrations and applications, trademark rights (including, without limitation, registrations and applications), patent rights, trade names, mask-work rights, trade secrets, moral rights, author’s rights, privacy rights, publicity rights, algorithms, rights in packaging, goodwill and other proprietary rights, and all renewals and extensions thereof, regardless of whether any of such rights arise under the laws of Republic of Korea or any other state, country or jurisdiction; (ii) intangible legal rights or interests evidenced by or embodied in any idea, design, concept, technique, invention, discovery, enhancement or improvement, regardless of patentability, but including patents, patent applications, trade secrets, and know-how; and (iii) all derivatives of any of the foregoing.

1.8   “CameraFi Admin Tools” means the section of the CameraFi website to which access is restricted, allowing the Customer to configure account settings, access and view information about their Usage of the CameraFi Servic

1.9   “CameraFi Proprietary Materials” means (i) CameraFi Services, CameraFi’s SDK’s, API’s and Services Documentation; (ii) any content (other than Customer Service or Customer Products or any derivative works thereof) embodied in or used in connection with the implementation, operation, maintenance, or hosting of the CameraFi Services; and (iii) all Intellectual Property Rights embodied therein and all derivative works, improvements, updates, modifications, or translations thereof.

1.10   “CameraFi Platform” means CameraFi’s communications platform, also known as the CameraFi Cloud, used by Supplier to provide the CameraFi Services, for the transmission of images, videos and other data (in website, application, and other formats), including any APIs to such platform.

1.11   “CameraFi Services” means Supplier’s services provided under this Agreement.

1.12   “Monthly Active User’s Device” or “MAUD” means the total number of unique user’s device in which the user has used CameraFi Services at least once within a calendar. Unique value will be sent to CameraFi server, for example through device MAC address.

1.13   “Order Form(s)” means the form evidencing an order for the CameraFi Platform and CameraFi Services submitted online or in written or electronic form, specifying, among other things, the Effective Date, the applicable Fees, the billing period, and other charges, each such Order Form is automatically incorporated into and becomes a part of this Agreement.

1.14   “Services Documentation” means collectively, written guides and guidelines that describe the CameraFi Services, the operating instructions, getting started guides, user manuals, and help files, in written or electronic form, made available to Customer by download or on CameraFi website, and that are intended for use in connection with the CameraFi Services.

1.15   “Service Period” means a calendar month.

1.16   “SLA” means the service level agreement signed between Supplier and the C

1.17   “Support” means Supplier’s technical support provided to its Customers described in CameraFi SDK Pricing Plan Document, as such may be updated from time to time.

1.18   “Trademarks” means all common law or registered trademark, service mark, trade name and trade dress rights and similar or related rights arising under any of the laws of Republic of Korea or any other country or jurisdiction, whether now existing or hereafter adopted or acquired.

1.19   “Usage” means the volume of data, number of Monthly Active User’s Device the Customer has processed or registered through the CameraFi Service and the volume of data stored in the CamraFi Cloud during a Service Period.

 

  1. LICENSES

2.1   LICENSE TO CAMERAFI PLATFORM, CAMERAFI SERVICES AND SERVICES DOCUMENTATION. During the Term and subject to the terms of this Agreement, Supplier grants to Customer and Customer accepts from Supplier a non-exclusive, non-transferable limited license and right to access the CameraFi Platform and CameraFi Services.

2.2   CUSTOMER LICENSE TO CAMERAFI. Customer grants to Supplier a non-exclusive, non-transferable, worldwide, perpetual, royalty-free license to collect, analyze or use data relating to its delivery of the CameraFi Service derived from, or related to, the Customer Data, including the generation of reports for internal, external, and public use. Supplier shall distribute such data publicly only in aggregate, non-personally identifiable form that cannot be used to identify Customer and individual End Users. Customer grants to Supplier a non-exclusive, worldwide, perpetual, irrevocable, sublicensable, royalty-free right and license to use and incorporate into the CameraFi Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer relating to the operation of the CameraFi Services.

2.3   CUSTOMER DATA. Other than to the limited extent provided in ARTICLE 2 and ARTICLE 3, Customer will have control over any and all Customer Data which Customer or End Users upload through the Customer Service. Customer hereby grants to Supplier a non-exclusive, royalty-free, worldwide license during the Term of this Agreement to reproduce, distribute, publicly perform, publicly display and digitally perform the Customer Data in conjunction with the CameraFi Services. Additionally, Customer understands that the technical processing and transmission of the CameraFi Services, including any Customer Data provided by Customer, may involve (i) transmissions over various third party networks, and (ii) changes to conform and adapt to technical requirements of connecting networks or devices, and Customer consents to such transmission and changes.

2.4   USE OF TRADEMARKS. Each party shall strictly comply with all standards with respect to the other party’s marks which may be furnished by such party from time to time. Further, neither party shall create a combination mark consisting of one or more marks of the other party. All uses of the other party’s marks shall inure to the benefit of the party owning such mark. Notwithstanding the foregoing, Supplier may identify Customer by name, with or without use of the Customer’s trademark, in general promotional lists of CameraFi’s customers without Customer’s prior consent.

2.5   LICENSES RESTRICTIONS. Except as specifically provided in this Agreement, the license grant under this Agreement does not permit Customer (directly or indirectly, in whole or in part) to: (a) reverse engineer or attempt to derive the source code from or create derivative works of the CameraFi Platform, or any portion thereof; (b) sublicense or distribute the CameraFi Platform or CameraFi Services or rent, electronically distribute, timeshare, or market CameraFi Proprietary Materials by interactive cable, (c) access, use, or copy any portion of the CameraFi Platform or CameraFi Services to directly or indirectly to develop, promote or support any product or service that is competitive with the CameraFi Services or CameraFi Platform, (d) remove any identification, patent, trademark, copyright, or other notice from the CameraFi Platform or CameraFi Services; (e) interfere with or disrupt the integrity or performance of the CameraFi Platform or CameraFi Services or third-party data contained therein; (f) attempt to gain unauthorized access to the CameraFi Platform or CameraFi Services, including access to other CameraFi customer’s data; (g) disclose or publish, without Supplier’s express prior written consent, performance or capacity statistics or the results of any benchmark test performed on the CameraFi Services; (h) use the CameraFi Platform and CameraFi Services including the transmission of Customer Data, in any manner that violates in any law, rule, regulation or any other legal or regulatory requirement imposed by any regulatory or government agency or political subdivision, whether federal, state, local, or foreign; (i) use, reproduce, distribute, or permit others to use, reproduce, or distribute any CameraFi Proprietary Materials for any purpose other than as specified in this Agreement; or (j) utilize CameraFi SDK for commercial use, use in an app store or app marketplace, or in a manner that is noncompliant with the restrictions set forth by CameraFi as noted in the CameraFi Admin Tools.

2.6   RESERVATION OF RIGHTS. Customer acknowledges and agrees that except for the rights and licenses expressly granted to Customer in this Agreement, Supplier shall retain all right, title and interest in and to the CameraFi Proprietary Materials and any derivatives, modifications or improvements of the foregoing; and, nothing contained in this Agreement shall be construed as conferring upon Customer by implication, operation of law, estoppel, or otherwise, any other license or right.

 

  1. CERTAIN RIGHTS AND OBLIGATIONS OF CAMERAFI

3.1   CERTAIN RIGHTS AND OBLIGATIONS OF CAMERAFI.

3.1.1   Delivery of CameraFi Services. Subject to the terms and conditions of this Agreement, including the payment of all applicable Fees as set forth in Article 5 below, CameraFi shall provide to Customer the CameraFi Services in accordance with the SLA signed by the Customer and CameraFi, as applicable, and Support, as applicable.

3.1.2   Suspension / Deactivation of an End User Account. Supplier reserves the right, but not the obligation, to suspend or deactivate, or to require Customer to suspend or deactivate, an End User’s account and access to the CameraFi Services at any time for any reason, including the malicious use of the CameraFi Services, or use of the CameraFi Services to facilitate illegal activity.

3.1.3   Suspension / Deactivation of Customer. Supplier reserves the right to suspend or deactivate a Customer’s account and access to the CameraFi Services if continued operation of the Customer Service threatens the stability or performance of the CameraFi Services or CameraFi Platform, or if the Customer Service is not implemented in accordance with the Services Documentation or uses the CameraFi Services to facilitate illegal activity.

3.1.4   Availability. Subject to the terms and conditions of this Agreement, Supplier will use commercially reasonable efforts to make the CameraFi Platform and CameraFi Services available. Supplier does not warrant that Customer’s or End Users’ use of the Service will be error-free or uninterrupted.

 

  1. CERTAIN RIGHTS AND OBLIGATIONS OF CUSTOMER

4.1   CERTAIN RIGHTS AND OBLIGATIONS OF CUSTOMER

4.1.1   Customer’s Service Responsibility. Except for the express obligations of Supplier set forth in this Agreement, Customer is solely responsible for all activities required by or otherwise related to the development, production, delivery, updating and promotion of the Customer Service. Customer is solely responsible for all customer service issues relating to Customer Services, including functionality, warranty, and technical and End User support.

4.1.2   Compliance. Customer shall comply with all applicable laws in the performance of its obligations hereunder, and shall ensure that each of the following complies with all applicable law: (a) the Customer Services and all related features and functionality; (b) the terms and conditions applicable to the Customer Services; (c) the fees and charges applied to or in connection with any Customer Service; (d) and all materials related to the Customer Services, including, without limitation, all marketing and informational materials and disclosures.

4.1.3   Notification of End User Misconduct. Customer shall notify Supplier regarding any End User that engages in (or that Customer believes has engaged in) activity that is illegal, fraudulent, malicious, or violates any rights of any third party or the terms of this Agreement. Customer shall promptly notify Supplier if it becomes aware of any actual or suspected unauthorized use of its account, usernames or passwords, or any other breach or suspected breach of security related to the CameraFi Services. Supplier will not be liable for any loss or damage arising from unauthorized use of any accounts, usernames or passwords.

4.1.4   Proper Implementation. Customer shall promptly fix any bugs in Customer Service or software that causes the CameraFi Services to be accessed in a way that is not consistent with the Services Documentation, or is otherwise detrimental to the performance of the CameraFi Platform or CameraFi Services.

4.1.5   Content Notices. Customer is responsible for processing and handling notices it receives from any third party claiming that Customer’s or its End User’s content in connection with the CameraFi Platform and CameraFi Services violates such party’s rights including without limitation. Supplier reserves the right to block any Customer Data and Customer account that violates the terms of Sections 2.4 and 4.1.

 

  1. FEES AND PAYMENT

5.1   FEES

5.1.1   CameraFi Fees. As compensation for its services under this Agreement, Customer shall pay to Supplier the amounts set forth on the CameraFi website (http://camerafi.com/camerafi-sdk/) unless otherwise agreed in an Order Form, and Customer shall pay to Supplier any applicable Support fees as ordered by Customer in an Order Form. Customer agrees to pay the applicable fees including any Usage fees. There will be no refunds or credits for partial months of service, upgrades, downgrades, or unused months. Fees listed do not include any applicable sales, use, excise or VAT taxes. Customer shall be responsible for payment of all such taxes (excluding taxes based on Supplier’s net income), fees, duties and charges, and any related penalties and interest, arising from the payment of such fees or the delivery or use of the CameraFi Services.

5.1.2   Upgrades, Downgrades, Cancellations. Prepaid package upgrades, downgrades, or cancellations must be processed within the CameraFi Administrative Portal. To ensure upgrades, downgrades, or cancellations are processed for an upcoming Service Period, requests must be submitted before the end of the current month (using Pacific Standard Time) to avoid billing of fees for the next month. Customer’s requested upgrades, downgrades and cancellations shall constitute an Order Form once confirmed by Supplier.

5.1.3   Modification of Fees. Supplier has the right to modify the CameraFi Fees and other charges upon written notice to Customer, which will be provided no less than thirty (30) days prior to the new charges going into effect.

5.1.4   Billing Correspondence. Supplier will send billing correspondence to the email address entered as billing contact by Customer in the CameraFi Admin Tools.

5.1.5   Payment Disputes. In the event of a good faith dispute as to the calculation of a charge, Customer shall promptly give written notice to Supplier stating the details of any such dispute and shall promptly pay any undisputed amount. The acceptance by Supplier of such partial payment shall not constitute a waiver of payment in full by Supplier of the disputed amount. Customer agrees to pay all costs and expenses of whatever nature, including reasonable attorneys’ fees, incurred by or on behalf of Supplier in connection with the collection of any unpaid amounts due to Supplier hereunder.

5.1.6   Timely Payment; Suspension of Service. Any undisputed amount due to Suplier under this Agreement and not paid within 30 days of invoice due date may be subject to a finance charge payable by Customer which is equal to one and one-half percent (1.5%) or the highest rate allowable by law, whichever is less, determined and compounded daily from the date such amount is due until the date such amount is paid. Notwithstanding anything to the contrary contained in this Agreement, failure to make timely payments of undisputed amounts shall constitute a default hereunder and shall entitle CameraFi to suspend Customer access to the CameraFi Platform and CameraFi Services without notice at Supplier’s sole discretion.

 

  1. WARRANTIES AND DISCLAIMERS

6.1   CAMERAFI WARRANTIES

6.1.1   CameraFi Warrants. It has full power and authority to enter into and perform the CameraFi Services as described in this Agreement.

6.1.2   With respect to CameraFi Services, Supplier represents and warrants that the CameraFi Services and CameraFi Platform provided to Customer hereunder will conform substantially to specifications set forth in the applicable Services Documentation, as may be amended from time to time at Supplier’s sole discretion.

6.1.3   The preceding warranties will not apply if: (a) any products, services, or deliverables provided by Supplier hereunder are used in material variation with this Agreement or the Services Documentation; (b) any products, services, or deliverables licensed hereunder or any part thereof have been modified without the prior written consent of Supplier; or (c) a defect in any products, services, or deliverables provided hereunder has been caused by any of Customer’s equipment, software or third party software. In addition, the preceding warranties do not apply to downtime, service interruption or other related issues covered by CameraFi’s SLA (the “SLA Obligations”). Customer’s sole and exclusive remedies for CameraFi’s failure to meet an SLA Obligation is described in the applicable SLA.

6.1.4    In the event Customer discovers that the CameraFi Services provided by Supplier hereunder, as applicable, are not in conformance with the representations and warranties set forth in Section 6.1 and reports such non-conformity to Supplier, Supplieri will, at Supplier’s discretion, (i) exercise commercially reasonable efforts to correct the non-conformity at no additional charge to Customer, or (ii) refund Customer any prepaid fees covering the remainder of the then-current term dating from the Customer’s notice of such non-conformance. THE REMEDY STATED IN THIS PARAGRAPH AND THE REMEDY STATED IN CAMERAFI’S SLA, AS APPLICABLE, CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND CAMERAFI’S ENTIRE LIABILITY UNDER SECTIONS 6.1 OF THIS AGREEMENT.

6.2   CUSTOMER WARRANTIES

6.2.1   Customer represents and warrants that at all times during the term of this Agreement, Customer’s installation, configuration, and use of CameraFi Services shall (a) conform to specifications set forth in the applicable Services Documentation and (b) comply with all license and use restrictions with respect to any third party software used by, or incorporated into, the CameraFi Services.

6.2.2   Customer hereby represents and warrants that, prior to transmitting End User Data using the CameraFi Services, it will provide all reasonably necessary disclosures and/or obtain all reasonably necessary consents from each End User regarding the intended disclosures and uses of the End User Data.

6.2.3   Customer further represents and warrants that, at all times while this Agreement is in effect, Customer shall maintain and adhere to all commercially reasonable security measures to protect Customer Service and the data contained therein from unauthorized control, tampering, or any other unauthorized access, including, without limitation, compliance with applicable laws.

6.3   DISCLAIMERS

6.3.1   EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PRODUCTS AND SERVICES PROVIDED HEREUNDER BY SUPPLIER ARE PROVIDED “AS IS” WITH ALL FAULTS AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES. THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH THE CUSTOMER. SUPPLIER DOES NOT REPRESENT OR WARRANT THAT THE CAMERAFI SERVICES WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ENTIRELY ERROR-FREE. THIS DISCLAIMER OF WARRANTY EXTENDS TO CUSTOMER AND END USERS OF CUSTOMER’S PRODUCTS AND SERVICES AND IS IN LIEU OF ALL WARRANTIES AND CONDITIONS WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT WITH RESPECT TO THE PRODUCTS AND SERVICES, AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.

 

  1. INDEMNIFICATION AND LIMITATION OF LIABILITY

7.1   INDEMNIFICATION. Customer will defend Suplier, its officers, directors, employees, and the successors and assigns of the foregoing from and against any and all claims by an unaffiliated third party directly or indirectly arising from or related to (a) facts that, if true would constitute a breach of this Agreement by Customer, (b) Customer’s or its End Users’ access to, use, misuse or illegal use of the CameraFi Service, Customer Data or End User Data, or (c) the violation or infringement by the Customer Service or the Customer Products of such third party’s U.S. Intellectual Property Rights. CameraFi reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section, in which case Customer agrees to cooperate with any reasonable requests to assist Supplier’s defense of such matter.

7.2   LIMITATION OF LIABILITY. IN NO EVENT WILL SUPPLIER BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OTHER LEGAL OR EQUITABLE THEORY FOR: (A) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE, PROFITS OR BUSINESS, COSTS OF DELAY, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE; COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, OR (B) ANY AMOUNTS IN EXCESS, IN THE AGGREGATE, OF THE FEES PAID OR PAYABLE TO CAMERAFI HEREUNDER DURING THE SIX MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.

 

  1. TERM, TERMINATION, AND EFFECTS

8.1   TERM AND TERMINATION

8.1.1   This Agreement shall commence on the Effective Date and unless otherwise indicated on an Order Form shall continue until on a month-to-month basis until terminated as set forth herein.

8.1.2   Supplier may terminate this Agreement, without cause, upon providing Customer with thirty (30) days prior written notice.

8.1.3   Notwithstanding the foregoing, Supplier reserves the right to fully or partially discontinue, at any time and from time to time, temporarily or permanently, any free, trial, or beta versions with or without notice.

8.2   EFFECTS OF TERMINATION. Upon expiration or termination of this Agreement, all licenses granted to the CameraFi Services and the Services Documentation shall expire. Supplier shall discontinue the provision of the CameraFi Services, and Customer shall immediately pay any outstanding invoices for services rendered through the date of termination.

 

  1. GENERAL TERMS

9.1   CONFIDENTIAL INFORMATION

9.1.1   Definition. Confidential Information means any data or information, oral or written, treated as confidential that relates to either party’s (or, if either party is bound to protect the confidentiality of any third party’s information, such third party’s) past, present, or future research, development or business activities, including any unannounced products and services, any information relating to services, developments, Services Documentation (in whatever form or media provided), inventions, processes, plans, financial information, End User data, revenue, transaction volume, forecasts, projections, and the financial terms of this Agreement. Notwithstanding the foregoing, Confidential Information shall not include information if: (a) it was already known to the receiving party prior to the Effective Date of this Agreement, as established by documentary evidence; (b) it is in or has entered the public domain through no breach of this Agreement or other wrongful act of the receiving party; (c) it has been rightfully received by the receiving party from a third party and without breach of any obligation of confidentiality of such third party to the owner of the Confidential Information; (d) it has been approved for release by written authorization of the owner of the Confidential Information; or, (e) it has been independently developed by a party without access to or use of the Confidential Information of the other party.

9.1.2   Each Party acknowledges and agrees that, from time to time, it may receive Confidential Information from the other Party. The Party that receives Confidential Information (the Receiving Party) hereby agrees (a) to hold the other Party’s (the Disclosing Party) Confidential Information in strict confidence and to take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions the Receiving Party employs with respect to its own confidential materials), (b) not to divulge any such Confidential Information or any information derived therefrom to any third person; (c) not to make any use whatsoever at any time of such Confidential Information except as contemplated hereunder, (iv) not to copy or reverse engineer any such Confidential Information, and (d) that any employee, subcontractor, or agent given access to any such Confidential Information must have a legitimate need to know and shall be bound in writing to comply with confidentiality obligations at least as restrictive as the Receiving Party’s confidentiality obligations in this Agreement.

9.2   ENTIRE AGREEMENT; SEVERABILITY. This Agreement, and any other references, appendices, exhibits or attachments, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any and all written or oral prior agreements and understandings between the parties concerning such subject matter. Except as provided in Section 9.11, no modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment, or waiver is to be asserted. Additionally, terms, provisions or conditions on any purchase order, acknowledgement, or other business form or writing (aside from an Order Form) that Customer may provide to Supplier or use in connection with the procurement of CameraFi Services will have no effect on the rights, duties or obligations of the parties hereunder, regardless of any failure of Supplier to object to such terms, provisions or conditions. In the event of any conflict or inconsistency among the following documents, the order of preference shall be: (a) the applicable Order Form, (b) this Agreement, (c) pricing per the CameraFi website (http://camerafi.com/camerafi-sdk/). If any one or more of the provisions of the Agreement shall for any reason be held to be invalid, illegal or unenforceable, the same shall not affect any of the other portions of this Agreement.

9.3   WAIVERS. The waiver by either Party of a breach of any provision contained herein shall be in writing and shall in no way be construed as a waiver of any subsequent breach of such provision or the waiver of the provision itself. Failure or delay by either party in exercising any right hereunder shall not operate as a waiver of such right.

9.4   COMPLIANCE WITH EXPORT CONTROLS AND OFAC REGULATIONS. The CameraFi Platform and CameraFi Proprietary Materials are subject to the trade laws and regulations of the Republic of Korea and other countries. Customer agrees that it will not import, export, re-export, transfer or otherwise use the CameraFi Platform or CameraFi Proprietary Materials in violation of these laws and regulations, including by engaging in any unauthorized dealing involving (i) a U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan and Syria), (ii) a party included on any restricted person list, such as the OFAC Specially Designated Nationals List, or the Commerce Department’s Denied Persons List or Entity List, or (iii) the design, development, manufacture, or production of nuclear, missile, or chemical or biological weapons. By using the CameraFi Platform and CameraFi Proprietary Materials, Customer represents and warrants that Customer is not located in any such country or on any such list. Customer will not engage in activity that would cause Supplier to be violation of these laws and regulations, and will indemnify Supplier for any fines, penalties or other liabilities incurred by Supplier for Customer’s failure to comply with this provision.

9.5   RELATIONSHIP OF THE PARTIES. The Parties shall perform all of their duties under this Agreement as independent contractors, and nothing in this Agreement shall be construed to give either Party the power to direct or control the activities of the other Party, or to constitute the Parties as principal and agent, employer and employee, franchiser and franchisee, partners, joint venturers, co-owners, or otherwise as participants in a joint undertaking. The Parties understand and agree that neither Party grants the other Party the power or authority to make or give any agreement, statement, representation, warranty, or other commitment on behalf of the other Party, or to enter into any contract or otherwise incur any liability or obligation, express or implied, on behalf of the other Party, or to transfer, release, or waive any right, title or interest of such other Party.

9.6   ASSIGNMENT. Neither this Agreement nor any rights hereunder may be transferred or assigned by either Party without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, Supplier may assign or transfer this Agreement or any rights or obligations hereunder without Customer’s consent to a third party acquirer of all, or substantially all, of the assets or business of Supplier, whether by sale, merger, or otherwise. Except as provided in this section, any attempts by either Party to assign any of its rights or delegate any of its duties hereunder without the prior written consent of the other Party shall be null and void.

9.7   FORCE MAJEURE. Neither Party hereto shall be responsible for any failure to perform its obligations under this Agreement if such failure is caused by acts of God, natural disasters, war, acts of terrorism, strikes, revolutions, lack or failure of transportation facilities, lack or failure of public utilities, laws or governmental regulations or other causes that are beyond the reasonable control of such Party. Obligations hereunder, however, shall in no event be excused but shall be suspended only until the cessation of any cause of such failure. In the event that such force majeure should obstruct performance of this Agreement for more than ten (10) days, the Parties hereto shall consult with each other to determine whether this Agreement should be modified or terminated.

9.8   SURVIVAL. Any provision of this Agreement that contemplates performance or observance subsequent to any termination or expiration of this Agreement, including, without limitation, all provisions with respect to confidentiality, Intellectual Property, limitation of liabilities, and indemnification shall survive any termination or expiration of this Agreement and continue in full force and effect in perpetuity.

9.9   GOVERNING LAW; ARBITRATION. This Agreement shall be governed by and construed under the laws of Republic of Korea without regard to conflicts of laws provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods. Any dispute arising from or relating to the subject matter of this Agreement that cannot be resolved thereby within a period of sixty (60) days after notice of a dispute has been given by one party hereunder to the other (the last day of such sixty (60) day period being herein referred to as the Arbitration Date), shall be finally settled by arbitration in Republic of Korea. The arbitrator shall have the authority to grant specific performance and to allocate between the parties the costs of arbitration (including service fees, arbitrator fees and all other fees related to the arbitration) in such equitable manner as the arbitrator may determine. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for preliminary injunctive or other equitable relief without recourse to arbitration. For all purposes of this Section 9.9, the parties consent to exclusive jurisdiction and venue in the Republic of Korea are the courts located in the Republic of Korea. Notwithstanding the foregoing, either party has the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments, a temporary restraining order, temporary injunction, permanent injunction and/or order of specific performance, as may appear reasonably necessary to preserve the rights of either party. The application by either party to a judicial authority for such measures shall not be deemed to be an infringement or a waiver of the arbitration agreement and shall not affect the relevant powers reserved to the arbitrator.

9.10   NOTICES. Any notice required or permitted to be given hereunder will be deemed to have been delivered and given for all purposes: (a) on the delivery date, if delivered by hand courier to the Party to whom such notice is directed; (b) two (2) Business Days after deposit with a commercial overnight carrier; (c) five (5) Business Days when mailed by Republic of Korea mail; (d) upon completion of transmission, if sent via facsimile with a confirmation of successful transmission; and (e) the first business day after sending by email (provided email shall not be sufficient for notices of an indemnifiable claim). Suspension-related notices to Customer shall be sent to the account holder designated in the CameraFi Admin Tools.

9.11   MODIFICATIONS. We may revise this Agreement from time to time, and will always post the most current version on our website. If a revision meaningfully reduces your rights, we will notify you (by, for example, sending a message to the email address associated with your account, posting on our blog or on this page). By continuing to use or access the Services after the revisions come into effect, you agree to be bound by the revised Agreement.

9.12   Entire Agreement. This Agreement is the entire agreement of the parties and supersedes any prior agreements between them, whether written or oral, with respect to the subject matter hereof. No waiver, alteration, or modification of any of the provisions of this Agreement shall be binding unless in writing and signed by duly authorized representatives of the parties hereto.

Background
Image ( sample )
Overlay