Last Revision Date: February 1, 2021
This Terms of Sale and License Agreement ("Agreement") is a legal agreement between you ("you” or “your”) either on behalf of yourself as an individual or on behalf of an organization as its authorized representative, and Infiniscene, Inc., d/b/a Lightstream, a Delaware corporation ("Licensor"), with respect to the products and services offered and/or provided to you by Licensor from time to time (each, a “Subscription Product,” and together, the "Subscription Products") and is effective as of the first date you pay for, download, deploy, install, activate, copy or otherwise use any Subscription Product (the “Effective Date”).
1. Grant of License and Ownership. Subject to the terms and conditions contained in this Agreement, Licensor grants you a non-exclusive, non-transferable license to use the Subscription Products in accordance with the Subscription you chose (the "Purpose").
2. Subscriptions; Billing.
a. Licensor offers the Subscription Products on a subscription basis with recurring payments (a “Subscription”). Subscriptions may differ in length of Subscription (“Subscription Period”), price for each Subscription Period (“Subscription Fee”) and/or the types of Subscription Products and features offered. The Subscription Period, Subscription Fee for each Subscription Period and types of Subscription Products and features offered will be disclosed when you initially chose your Subscription. Unless indicated otherwise when you subscribe, Subscriptions will renew automatically, with payment due prior to each renewal.
b. Your access to the Subscription may not be established until Licensor has verified that the billing method you chose prior to your initial Subscription Period, as changed from time to time in accordance with Licensor’s policies (each, a “Payment Method”) is accurate and that your user account is in good standing. Licensor reserves the right to deny any form of Payment Method in its sole discretion. If the Payment Method being used is a credit or debit card, Licensor may obtain pre-approval for a charge up to the amount of the charge.
c. You agree to pay your Subscription Fee in advance of each Subscription Period. You hereby grant Licensor the right to deduct any Subscription Fee automatically in accordance with the Payment Method in effect at the applicable time. You hereby represent and warrant that (i) you have the right to utilize any Payment Method, (ii) you have the right to provide information regarding any such Payment Method to Licensor, (iii) you have the right to grant Licensor the right to automatically deduct any Subscription Fee(s) using any such Payment Method, (iv) information you provide related to a Payment Method is true, correct and complete, (v) charges incurred by you will be honored by the Payment Method you have chosen and (vi) you will pay the charges incurred by you in the amounts posted, including any applicable taxes.
d. Licensor reserves the right to discontinue or modify any Payment Method. Licensor reserves the right to change or modify a Subscription Fee at any time. Any such modification of a Subscription Fee shall be effective as of the end of the then-current Subscription Period. You are responsible for all charges incurred under the user account associated with your Subscription. Licensor reserves the right to deactivate a Subscription if payment is past due, regardless of the dollar amount. You further agree that Licensor may charge any other applicable fees for Additional Subscription Products (as defined herein), if disclosed to you in connection with your purchase of such Additional Subscription Products, to your Payment Method.
e. Payment processing related to Subscription Products and Subscriptions are processed by a Third-Party Payment Processor, depending on the Payment Method chosen for purchase. You agree to be bound by the terms of any such Third-Party Payment Processor.
3. Additional Subscription Products and Additional Fees and Taxes. Licensor has the right to charge any fees for access to additional Subscription Products, services, add-ons and features that are not initially part of a Subscription (“Additional Subscription Products”). Such Additional Subscription Products may be, but are not limited to, add-ons that go beyond the core features supported, external services to which the Subscription Products can interact and new features for the Subscription Products. You are responsible for maintaining all hardware and software needed to access the Subscription Products and related services and you are responsible for payment of any fees for those services now and in the future. You agree to pay for any Subscription Products or Additional Subscription Products you sign up for, through the Subscription Products or through any related services, upon invoice (or, if applicable, prior to purchase), and you agree not to act in any way that could reasonably be considered fraudulent with respect to making payments. You shall pay all applicable taxes for which you may be liable for any reason.
4. Purchaser Qualifications. To utilize a Subscription, any Subscription Products or any Additional Subscription Products, you must be a registered user with Licensor and you must comply with this Agreement. You acknowledge that you are responsible for maintaining the security of, and restricting access to, your user account, user ID and password, and you agree to accept responsibility for all purchases and other activities that occur under your user account and/or user ID. You are responsible for maintaining the confidentiality of your user account, user ID and password, and you agree to immediately notify Licensor of any unauthorized use of your user account, user ID and/or password. You are required to keep your Payment Method and related billing information current, complete and accurate. You must notify Licensor if your selected Payment Method is cancelled. You must be least 18 years of age to purchase a Subscription. If you are between the ages of 13 and the older of 18 or the age of legal majority where you are domiciled, you may make purchases from Licensor only with the permission of a parent or guardian. Subscriptions and Subscription Products are not available to persons under the age of 13. Licensor reserves the right to refuse or cancel orders, cancel a Subscription or terminate your user account, at any time in its sole discretion, for any reason or no reason.
5. Installation and Use.
a. Your Needs. You are responsible for providing access to the Subscription Products (including, without limitation, high speed Internet access and a device capable of streaming). You have the responsibility to familiarize yourself with the key functions of the Subscription Products before purchasing a Subscription. You shall bear the risk as to whether any Subscription Product or Subscription meets your individual requirements and needs.
b. Improper Use. The Subscription Products may be used only for lawful purposes. Transmission, distribution, or storage of any material in violation of any applicable law or regulation is prohibited. This includes, without limitation, material protected by patent, copyright, trademark, trade secret or other intellectual property right used without proper authorization, and material that is obscene, defamatory, constitutes an illegal threat, or violates export control laws. You acknowledge that transmission, distribution or storage of material, may require you to acquire rights from a third party to avoid infringing on the rights of such third party.
6. Trial Offers, Coupons, Credits and Special Offers. Licensor reserves the right to offer, and to discontinue or modify, trial offers, coupons, credits and special promotional offers at Licensor's sole discretion. All eligibility requirements, and whether you meet such eligibility requirements, for any such trial offer, coupon, credit and/or special promotional offer shall be determined by Licensor in its sole discretion.
7. Intellectual Property Rights. Licensor shall retain all rights, title and interest in the Subscription Products, including, without limitation, all intellectual property rights embodied therein and any and all changes or improvements thereto. You will not acquire any rights, express or implied, in the Subscription Products, other than those specified in this Agreement. All third party licensors and suppliers retain all rights, title and interest in third party software and all copies thereof, including all copyrights and other intellectual property rights. Licensor does not claim any rights to any Subscription Product or material produced by you, by use of the Subscription Products as production tools.
8. License Restrictions. You may not distribute, sublicense, rent or lease the Subscription Products. You may not, nor may you authorize or assist others to: (i) reverse engineer, decompile, or disassemble the Subscription Products; (ii) modify, or create derivative works based upon the Subscription Products in whole or in part; (iii) distribute copies of the Subscription Products; (iv) remove or change any proprietary rights notices or labels on the Subscription Products or related products; or (v) resell, lease, rent, transfer, sublicense, or otherwise transfer rights to the Subscription Products. Any use in violation of this Section 9 shall immediately terminate this Agreement.
9. Term and Termination; Cancellation.
a. Subscriptions. You may choose not to renew or to cancel a Subscription at any time. Any such non-renewal or cancellation shall be effective as of the end of the then-current Subscription Period. You may choose not to renew or to cancel by clicking on the "Cancel plan" link in the Subscription view under your account settings or by contacting customer support at [email protected]. This Agreement shall remain in full force and effect, and you have the right to use the Subscription Products in accordance with the terms of your Subscription for the Purpose, from the Effective Date until you chose not to renew or to cancel your Subscription, or until Licensor sooner terminates your Subscription.
b. Notwithstanding anything to the contrary set forth herein, Licensor reserves the right to refuse or cancel orders, cancel a Subscription or terminate your user account, at any time in its sole discretion, for any reason or no reason.
10. Confidential Information. You acknowledge and agree that any information, documentation, product related information or any other proprietary technology or know-how related to the Subscription Products, that cannot reasonably be considered public knowledge, that might be disclosed to you by Licensor or through the Subscription or any Subscription Product, constitute "Confidential Information" of Licensor, and you agree to keep the same confidential and not to use the same for any purpose, other than the purpose for which Licensor disclosed this information to you. You will protect the Confidential Information by using the same degree of care as you would use to protect your own confidential information, but no less than a reasonable degree of care, from the unauthorized use, dissemination or publication of the Confidential Information. You agree to hold all Confidential Information in confidence indefinitely. You acknowledge and agree that all Confidential Information shall remain at all times the sole property of Licensor. This Section 11 shall survive the termination of this Agreement.
11. Rights to Feedback. You agree that any reports that you provide to Licensor, any suggestions, recommendations, and/or ideas, all authorized modifications or derivations made by you related to the Subscription Products, or any other information you provide Licensor in relation to the Subscription Products ("Feedback") shall be deemed non-confidential to you and by providing Licensor with such Feedback, you are granting Licensor, under your intellectual property rights, a worldwide, royalty-free, irrevocable and non-exclusive license, to use and disclose the Feedback in any manner Licensor chooses and to display, perform, copy, make, have made, use, sell, and otherwise dispose of Licensor's products embodying such Feedback in any manner and via any media Licensor choose, without reference or obligation to you.
12. No Obligation. Licensor is under no obligation to further develop, maintain or market the Subscription Products or to release production or general availability versions. Licensor reserves the right to change or modify all or any portion of any Subscription Product or any Subscription at any time for any reason and without notice.
13. No Warranty. YOU ACKNOWLEDGE THAT THE SUBSCRIPTION PRODUCTS AND RELATED DOCUMENTATION ARE BEING DELIVERED "AS IS" WITHOUT WARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL LICENSOR BE LIABLE TO YOU OR ANY OTHER PERSON FOR DAMAGES, DIRECT OR INDIRECT, OF ANY NATURE OR EXPENSES INCURRED BY YOU IN CONNECTION WITH THE USE OF THE SUBSCRIPTION PRODUCTS. YOUR SOLE AND EXCLUSIVE REMEDY SHALL BE TO TERMINATE THIS AGREEMENT WITH NO REFUND OPTIONS FOR ANY UNUSED PORTION OF ANY SUBSCRIPTION PERIOD.
14. Refund Policy. There are no returns or cancellations for your purchase of any Subscription Products or for any Subscription Fee after it has been paid. There are no refunds or cancellations for any portion of Subscription Fees paid for a Subscription, regardless of whether you cancel any such Subscription prior to the expiration of the then-current Subscription Period. You have the sole responsibility to cancel a Subscription prior to the date upon which the next Subscription Fee is due if you do not wish to continue your Subscription. All sales are final, non-cancelable and non-refundable except as otherwise determined by Licensor in its sole and absolute discretion.
15. Licensor's Commercial Rights.
a. Licensor's Rights to Change Technology in Future Releases. Licensor has the right to update or re-release Subscription Products from time to time in its sole discretion (each, an “Updated Subscription Product,” and together, the “Updated Subscription Products”), which Updated Subscription Products you may or may not accept. Non-acceptance of any such Updated Subscription Products may interfere with your use of the Subscription Products or a Subscription, which interference Licensor shall have no responsibility for. Licensor may, at its sole discretion, maintain access to older releases than a current official release of a Subscription Product for your use. At any time, Licensor has the right to change third party software that is integrated into the Subscription Products. If you update to any Updated Subscription Product, you are also accepting that you may lose rights to earlier versions and releases of the Subscription Products, as well as any integrated third party software that may no longer be used in the Updated Subscription Product.
b. Different Subscriptions. The Licensor reserves the right to provide additional services, features and offers to different types of Subscriptions.
c. Licensor's Right to Launch Ads. Licensor reserves the right to launch ads for products or events supported by Licensor or its affiliates on any Subscription.
16. Indemnification. You agree to defend, indemnify and hold harmless Licensor from any and all claims, liability and expenses, including reasonable attorneys' fees and costs, arising out your breach of any provision of this Agreement or your use of the Subscription Products, or any Subscription, including, but not limited to, the use of the Subscription Products to infringe on any third party intellectual property rights.
17. Limitation of Liability Regarding Subscriptions. LICENSOR IS NEITHER RESPONSIBLE NOR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION) ARISING OUT OF OR RELATING IN ANY WAY TO ANY SUBSCRIPTION, ANY SUBSCRIPTION PRODUCTS OR ANY ADDITIONAL SUBSCRIPTION PRODUCTS AND/OR ANY THIRD PARTY WEBSITE (AS DEFINED HEREIN), WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH ANY SUBSCRIPTION, ANY SUBSCRIPTION PRODUCTS OR ANY ADDITIONAL SUBSCRIPTION PRODUCTS AND/OR ANY THIRD PARTY WEBSITE IS TO STOP USING SUCH ANY SUBSCRIPTION, ANY SUBSCRIPTION PRODUCTS OR ANY ADDITIONAL SUBSCRIPTION PRODUCTS AND/OR ANY THIRD PARTY WEBSITE. TO THE EXTENT ANY ASPECTS OF THE FOREGOING LIMITATIONS OF LIABILITY ARE NOT ENFORCEABLE, THE MAXIMUM LIABILITY OF LICENSOR TO YOU WITH RESPECT TO MATTERS RELATING TO THIS AGREEMENT IS $500 (FIVE HUNDRED DOLLARS).
LICENSOR IS NOT RESPONSIBLE FOR VIOLATION BY YOU OR ANY THIRD PARTY OF ANY LAWS, RULES OR REGULATIONS.
18. Miscellaneous. Licensor reserves the right to revise, amend, modify, change, cancel or terminate all or any portion of this Agreement at any time (each, an “Agreement Modification”). Any Agreement Modification shall be effective as of the end of the then-current Subscription Period, and shall be effective at all times going forward unless otherwise indicated by Licensor in writing. This Agreement shall be governed by and construed in accordance with the laws of Delaware, without reference to its choice of law provisions. Any disputes related to this Agreement shall be adjudicated in state or federal courts located in Cook County, Chicago, Illinois, and you hereby consent and submit to the jurisdiction and venue of such courts. YOU AND LICENSOR HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY. YOU AND LICENSOR AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. You agree that this Agreement supersedes any prior agreement, whether written or oral, and all other communications between Licensor and you relating to the subject matter of this Agreement. Licensor may change the terms of this Agreement at any time by posting modified terms on its website.
21. Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, it shall not affect any other provision of this Agreement, and this Agreement shall be construed as if said provision had never been contained in this Agreement.