PLOTAGRAPH SOFTWARE SERVICES LICENSE AGREEMENT
The Plotagraph software is written for dynamic content creation, by creating output files (“Outputs”) that have the appearance of animation as a derivative from the original files. By accessing or using the Plotagraph software and services, you agree to be bound by the following terms, conditions, restrictions and limitations.
Scope of License Granted
Plotagraph Social Free Trial License (“Social”). Subject to all of the other terms, conditions, restrictions and limitations set forth or referenced herein, the Social license grants to a single, individual user a free, personal, limited, nonexclusive and nontransferable right and license to access and use a limited functionality version of the Plotagraph software for personal, non-commercial and evaluation purposes only. After 30 days, Plotagraph reserves the right to terminate the Social License and block further access to the Plotagraph software and services unless the user upgrades to one of Plotagraph’s paid subscription licenses. You agree not to sell, transfer or license any Outputs created under a Social license or derivative works created from the Outputs.
Plotagraph Pro Single User License (“Pro”). Subject to all of the other terms, conditions, restrictions and limitations set forth or referenced herein, the Pro license grants to a single, individual user a personal, limited, nonexclusive and nontransferable right and license to access and use a version of the Plotagraph software for personal and commercial purposes. The Pro license provides additional features and functionality beyond those available under a Social version and as specified on the Plotagraph Site.
Plotagraph Pro+ Single User License (“Pro+”). Subject to all of the other terms, conditions, restrictions and limitations set forth or referenced herein, the Pro+ license grants to a single individual user a personal, limited, nonexclusive and nontransferable right and license to access and use a version of the Plotagraph software for personal and commercial purposes. The Pro+ license provides additional features and functionality beyond those available under a Social or Pro versions and as specified on the Plotagraph Site.
Plotagraph Agency/Small Business Site License (“Agency”). Subject to all of the other terms, conditions, restrictions and limitations set forth or referenced herein, the Agency license grants to a single business entity a limited, nonexclusive and nontransferable site license to access and use of a full version of the Plotagraph software for business and commercial purposes. Under an Agency site license, the licensee is responsible to insure that all employees or agents who use or have access to the Plotagraph software and services are aware of and comply with all the terms, conditions, restrictions and limitations applicable to their use of and/or access to the Plotagraph software and services.
The Pro, Pro+ and Agency licenses are further expressly limited to the production of up to 10,000 Outputs created with the Plotagraph software and services for sale, transfer or licensing by the licensee to a third party or parties. You also agree that any sell, transfer or license of any Outputs created under a Pro, Pro+ or Agency license, or derivative works created from the Outputs, will be transacted through an authorized Plotagraph platform, such as Plotaverse, and not through a third party platform.
Except for those rights specifically and expressly granted to a user/licensee hereunder, Plotagraph hereby expressly reserves all other rights in and to the Plotagraph software and services. Any use of the Plotagraph software or services beyond the scope of the license granted shall constitute a material breach of the license and this Agreement.
Subscriptions and Payments
The Pro, Pro+ and Agency licenses are provided on a subscription basis. Plotagraph may revise its subscription rates at its sole discretion upon notification of any such change at least 45 days prior to the next charge. Once you enter into a subscription, you agree to pay to Plotagraph the then applicable monthly or annual subscription fee applicable to the specific type of license, and you hereby authorize Plotagraph (by and through its authorized payment agent) to charge your payment card for the applicable subscription fee on a monthly or yearly basis, as the case may be, automatically and without further authorization from you. To terminate the subscription and avoid further charges, at least 30 days prior to the end of the current subscription period you must provide to Plotagraph electronic notice of your termination of your subscription.
You are responsible to maintain and update current payment information on the Plotagraph Site. In the event payment is declined for whatever reason, Plotagraph reserves the right, without notice, to immediately terminate your subscription/license and to block access to the Plotagraph software and services, including, but not limited to access to any of your stored Content and Outputs.
Term and Termination
The Pro, Pro+ and Agency licenses shall continue from month-to-month or from year-to-year, as the case may be, until terminated as provided herein.
Either party may terminate this Agreement if: (i) immediately for failure to provide timely payment of an applicable monthly or annual subscription fee for any reason whatsoever; (ii) the other party is in material breach of the Agreement and, if the breach is for a reason other than non-payment of the applicable subscription fees, fails to cure that breach within thirty days after receipt of written notice; or (iii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days.
If this Agreement terminates: (a) the rights and licenses granted by Plotagraph to licensee will cease immediately; (b) Plotagraph may, at licensee’s request, provide licensee access to its account at then-current fees so that licensee may export its Content, Outputs and other licensee-owned data; and (c) after a commercially reasonable period of time, Plotagraph may delete any license Content, Outputs, other licensee-owned data, and/or other data relating to licensee’s account.
DISCLAIMER OF WARRANTIES, LIMITATIONS OF LIABILITY AND INDEMNITY
THE PLOTAGRAPH SOFTWARE AND SERVICES ARE PROVIDED TO YOU “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY. PLOTAGRAPH DOES NOT MAKE ANY, AND HEREBY DISCLAIMS ALL, WARRANTIES THAT MIGHT ARISE FROM YOUR USE OR RELIANCE THE SOFTWARE OR SERVICES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT.
TO THE FULLEST EXTENT PERMITTED BY LAW, PLOTAGRAPH WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, USE, DATA, OR OTHER INTANGIBLES, EVEN IF PLOTAGRAPH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. IN ADDITION, PLOTAGRAPH RESERVES THE RIGHT, FROM TIME TO TIME AND AT ITS DISCRETION, TO MODIFY, UPDATE OR CHANGE THE PLOTAGRAPH SOFTWARE AND SERVICES. IN EITHER CASE, YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE PLOTAGRAPH SOFTWARE OR SERVICES IS TO STOP USING THEM.
TO THE FULLEST EXTENT PERMITTED BY LAW, PLOTAGRAPH’S AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY LICENSEE TO, AND RECEIVED BY PLOTAGRAPH HEREUNDER DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS PLOTAGRAPH, ITS AFFILIATES AND ITS SUPPLIERS, AND EACH OF THEIR RESPECTIVE PARTNERS, EMPLOYEES, REPRESENTATIVES AND AGENTS, FROM AND AGAINST ALL CLAIMS, LOSSES, COSTS, DAMAGES, LIABILITIES, AND EXPENSES (INCLUDING BUT NOT LIMITED TO ATTORNEYS FEES) ARISING OUT OF: (A) YOUR USE OF, ACCESS TO AND/OR ACTIVITIES IN CONNECTION WITH THE PLOTAGRAPH SOFTWARE OR SERVICES; (B) ANY VIOLATION OF THIS AGREEMENT BY YOU; (C) ANY IMPROPER OR UNAUTHORIZED USE OF THE PLOTAGRAPH SOFTWARE OR SERVICES BY YOU; OR (D) ANY ALLEGATION THAT ANYTHING YOU TRANSMIT THROUGH OR IN CONNECTION WITH THE PLOTAGRAPH WEBSITE, SOFTWARE OR SERVICES INFRINGES OR OTHERWISE VIOLATES THE COPYRIGHT, TRADEMARK, TRADE SECRET, PRIVACY, OR OTHER RIGHTS OF ANY THIRD PARTY.
Additional Terms Incorporated by Reference
PLOTAGRAPH MEMBERSHIP & SOFTWARE
Terms of Service
BASIC TERMS AND CONDITIONS
1. You agree to comply with all applicable laws, rules and regulations in accessing and/or using the Site, any information available via this Site, and/or using the Software. In addition, your use of the Site and/or the Software is conditioned on your compliance with the following rules of conduct. You agree not to:
a. Sell, transfer or license to any third party any Outputs created with the Software if you are using the Software during a free trial period (if you want to use the Software for other than strictly personal use and enjoyment or for use beyond the free trial period, you must purchase a paid subscription).
b. Provided that you have a paid subscription for commercial use of the Software, sell, transfer or license to a third party (or parties) more than 10,000 Outputs created with the Software.
c. Purchase a single license to the Software if you are or are part of a business, stock company, agency, marketing or branding company (if you are or are part of a business, stock company, agency, marketing or branding company, you must purchase an agency or enterprise membership for access to the Software).
d. Use, sell, transfer or license to any third party any Outputs created with the Software, or derivative works created from the Outputs, to promote, market, or advertise any other software that creates output files that have the appearance of animation. You also agree not to sell, transfer or license any Outputs, or derivative works created from the Outputs, through a third party platform. Rather, you must only sell, transfer or license Outputs, or derivative works thereof, through an authorized Plotagraph platform, such as Plotaverse.
e. Use the Site and/or the Software for any fraudulent or unlawful purpose.
f. Impersonate any person or entity, including, but not limited to, any Plotagraph employee, agent, or representative; falsely state or otherwise misrepresent your identity or your affiliation with any person or entity; or express or imply that Plotagraph endorses any statement you make.
g. enable or allow others to use the Site or the Software using your account information;
h. circumvent any access or use restrictions put into place to prevent certain uses of the Site or the Software;
i. Interfere with or disrupt the operation of the Site or the Software.
j. Transmit or otherwise make available in connection with the Site any spam, virus, worm, Trojan Horse, or other harmful code.
k. Restrict or inhibit any other person from using the Site or the Software, including by means of hacking or defacing any portion of the Site or the Software.
l. Interfere with or violate any other Site visitor’s or user’s right to privacy or other rights, or harvest or collect personally identifiable information about Site visitors or users, or about Plotagraph, its owners, directors, officers, agents, employees and representatives identified on the Site, without their express consent.
m. Sell, resell, demonstrate, market, transfer, license, or exploit for any commercial purposes any use of or access to the Site, the Software, the information found on the Site, or any ideas of the Software’s abilities or usefulness.
n. Modify, reuse, adapt, translate, reverse engineer, decompile, or disassemble any portion of the Site or the Software.
o. Frame or mirror all or any part of the Site without our prior express written authorization.
p. access or attempt to access the Site or the Software by any means other than the interface we provide or authorize, or access Plotagraph’s private APIs or tools by any other means than the Software application itself.
q. Crawl, scrape, or otherwise use any data mining or similar data gathering and extraction methods in connection with the Site or the Software, including but not limited to user profiles.
r. Refer to or otherwise identify the Outputs as cinemagraphs, after effects, or motion graphics, including in hashtags, when publishing, posting, or otherwise disseminating Outputs created with the Software. Rather, the Outputs should be referred to as Plotagraph animations.
s. Upload, submit, post, or import to the Site or the Software any Outputs, photos, or videos that depict sexual acts, genitalia, violence, abuse, or the like, or that is otherwise unlawful, harmful, threatening, abusive, tortious, defamatory, libelous, vulgar, lewd, profane, invasive of another’s privacy, or hateful;.
t. Hold Plotagraph responsible in any way for any damage or harm caused to you or your property, including your computers, tablets, mobile phones or other devices, by your accessing the Site, using the Software, or viewing of Outputs or Content available on the Site or related sites controlled by Plotagraph or created with the Software.
2. If you use or access the Software for any reason, the additional terms, conditions, restrictions and limitations set forth in the Plotagraph Software License Agreement shall also apply and, by so doing you agree to be bound thereby.
3. Portions of the Site or the Software may include photos, videos, or Outputs that depict nudity (other than genitalia). Such photos, videos, or Outputs are available to users that acknowledge, either during their registration or the management of their account settings, that they are at least 18 years old. If you do not want to have access to such photos, videos, or Outputs, you may refrain from acknowledging that you are at least 18 years old.
4. You are solely responsible for your conduct and any data, text, information, screen names, graphics, photos, profiles, audio and video clips, links (“Content”) that you submit, post, upload, or import to the Site or the Software.
5. You agree that the Site and the Software are the sole property of Plotagraph and the Software includes Plotagraph’s valuable trade secrets. You agree to treat the Software as confidential and will not disclose information about it without Plotagraph’s express written authorization.
6. If you request a return or refund within 7 days of purchasing the Software, Plotagraph will provide a full refund of the purchase amount. If you request a return or refund after 7 days of purchase, no refund will be given.
7. Violation of any of these agreements may result in the termination of your Plotagraph account.
1. Plotagraph reserves the right to modify the Site and/or the Software for any reason, without notice and any time.
3. Plotagraph reserves the right to refuse service to anyone for any reason at any time. Further, Plotagraph reserves the right in its sole discretion to cancel any account for any reason at any time.
4. Plotagraph reserves the right to force forfeiture of any username that becomes inactive, violates a trademark, or may mislead other users.
6. Plotagraph reserves the right to reclaim usernames on behalf of businesses or individuals that hold legal claim or trademark on those usernames.
8. The Site and the Software are provided to you “AS IS” without any warranties of any kind, whether express, implied, or statutory. Plotagraph does not make any, and hereby disclaims all, warranties that might arise from your use or reliance on the Site and the Software, including without limitation any implied warranties of merchantability, fitness for a particular purpose, title, or non-infringement. Plotagraph will not be responsible or liable for any direct, indirect, incidental, consequential, special, exemplary, or punitive damages of any kind, under any contract, negligence, strict liability, or other theory, including but not limited to damages for loss of profits, use, data, or other intangibles, even if Plotagraph has been advised of the possibility of such damages in advance. Your sole remedy for dissatisfaction with the Site or the Software is to stop using the Site or the Software.
9. You agree to defend, indemnify and hold harmless Plotagraph, its affiliates and its suppliers, and each of their respective partners, employees, representatives and agents, from and against all claims, losses, costs, damages, liabilities, and expenses (including but not limited to attorneys fees) arising out of: (a) your activities in connection with the Site and/or the Software; (b) any violation of this Agreement by you; (c) any improper or unauthorized use of the information found on the Site or in the Software by you; or (d) any allegation that anything you transmit through or in connection with the Site or the Software infringes or otherwise violates the copyright, trademark, trade secret, privacy, or other rights of any third party.
10. The Site is controlled and operated by Plotagraph from its principal office in Santa Barbara, California, U.S.A., and is not intended to subject Plotagraph to the laws or jurisdiction of any state, country, or territory other than that of California and of the United States of America. Plotagraph does not represent or warrant that the Site or the Software, or any aspect thereof, are appropriate or available for use in any particular jurisdiction. Those who choose to access the Site or Software do so on their own initiative and at their own risk, and are responsible for complying with local laws. Plotagraph may limit the availability of the Site or Software to any person, geographic area, or jurisdiction it chooses, at any time in Plotagraph’s sole discretion. You agree not to transport, import, export or re-export all or any part of the Software or the information found on the Site to (or to a national or resident of), or to use all or any part of the Software or the information found on the Site from (as applicable): (a) Balkans, Burma (Myanmar), Cuba, Iran, Liberia, North Korea, Sudan, Syria, or any other country to which the United States has embargoed goods; or (b) any person or entity on the United States Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders, and you represent, warrant, and covenant to us that you are not located in or under the control of any such country or on any such list.
11. Unless Plotagraph expressly acknowledges in writing prior to receiving any communication, all communications made under the Site or the Software should be presumed by you to be non-confidential. You acknowledge and understand that you have no expectation of privacy in any such communication and that no confidential, fiduciary, contractually-implied or other relationship is created or implied between Plotagraph and you by reason of such communication. If a particular page of the Site or the Software permits the transmission of communications that Plotagraph intends to treat as confidential, that fact will be stated in an appropriate legal notice presented on such page.
12. This Agreement is governed by and shall be construed in accordance with the laws of the State of California, United States of America, without regards to its principles of conflicts of law. In the event of a dispute arising under or relating to this Agreement, the Site or the Software, you agree to the exclusive jurisdiction of the federal and state courts located Central District in the State of California, and waive any jurisdictional, venue, or inconvenient forum objections to such courts.
13. If any provision of this Agreement is found for any reason to be unlawful, void, or unenforceable, then that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision. Any heading, caption or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof. A party’s failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. This, together with any of our policies referred to herein and any agreement accompanying or provided in connection with the Software, is the entire Agreement between you and Plotagraph relating to your use of the Site or the Software, and supersedes any and all prior or contemporaneous written or oral Agreements between you and Plotagraph regarding the same subject matter (except other written, fully-executed contracts between you and Plotagraph, including but not limited to click-wrap agreements or any other). Neither the course of conduct between you and Plotagraph, nor trade practice, shall act to modify any provision of this Agreement. Plotagraph shall not be liable for any failure to perform due to causes beyond its reasonable control. No promise, representation, warranty, or covenant not included in this Agreement may be relied upon by you. This Agreement shall not create any rights in or inure to the benefit of any third party. If you use the Site or the Software as an employee of a company, you represent that you are able to bind your employer to the terms of this Agreement and such use shall constitute such a binding agreement and representation. A breach of this Agreement entitles Plotagraph to attorneys’ fees and reasonable costs to enforce the terms of this Agreement. All rights not expressly granted by Plotagraph herein, are hereby reserved.
14. Many of the designations used by manufacturers and sellers to distinguish their products are claimed as trademarks. Where those designations appear in Plotagraph, and Plotagraph, Inc. was aware of a trademark claim, the designations appear as requested by the owner of the trademark. All other product names and services identified throughout, but not necessarily at the request or with the express prior authorization of the trademark owner are used in editorial fashion only and for the benefit of such companies with no intention of infringement of the trademark. No such use, or the use of any trade name, is intended to convey endorsement or other affiliation with Plotagraph.
PROPRIETARY RIGHTS IN CONTENT
1. Plotagraph does not claim any ownership rights in the Content that you submit, post, upload, or import to the Site or the Software, or to the Outputs created therewith using the Software. Notwithstanding the foregoing, you hereby grant to Plotagraph a non-exclusive, fully payed and royalty-free, worldwide, limited license to use, publicly perform, publicly display, or reproduce such Content and Outputs on the Site and in other advertising materials to advertise the Site and/or the Software without further consent from you.
2. You represent and warrant that: (i) you own the Content that you submit, post, upload, or import to the Site or the Software or otherwise have right to use the Content and grant the license set forth above, (ii) the use of the Content on the Site or in the Software does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any person, and (iii) the use of the Content on the Site or in the Software does not result in a breach of contract between you and a third party. You agree to pay for all royalties, fees, and any other monies owing any person relating to Content that you use in connection with the Site and/or the Software and agree to indemnify and hold Plotagraph harmless from any claim, demand, cause of action, suit, liabilities, expenses or damage arising or relating to the Content.
3. The Site and the Software contain Plotagraph content that is protected by copyright, trademark, patent, trade secrets and other laws, and Plotagraph owns and retains all rights in the Plotagraph content.