ATTENTION: THE LICENSED APPLICATION PROVIDED UNDER THIS AGREEMENT IS LICENSED TO YOU AND NOT SOLD. THIS AGREEMENT CONTAINS LIMITATIONS ON REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES, AND LIABILITIES THAT ARE APPLICABLE TO THE LICENSED APPLICATION.
IMPORTANT: BEFORE DOWNLOADING THE LICENSED APPLICATION, PLEASE CAREFULLY READ THIS AGREEMENT, WHICH CONTAINS THE TERMS AND CONDITIONS UNDER WHICH YOU ARE ACQUIRING A LICENSE TO USE THE LICENSED APPLICATION. IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT, PLEASE DO NOT DOWNLOAD THE LICENSED APPLICATION. IF YOU DOWNLOAD THE LICENSED APPLICATION, YOU WILL BE ACCEPTING THIS AGREEMENT, AND YOU WILL HAVE ACCEPTED AND AGREED TO THESE TERMS AND CONDITIONS. THIS AGREEMENT IS CONCLUDED BETWEEN YOU AND APPLICATION PROVIDER ONLY, AND NOT WITH APPLE OR GOOGLE, AND APPLICATION PROVIDER, NOT APPLE OR GOOGLE, IS SOLELY RESPONSIBLE FOR THE LICENSED APPLICATION.
1. Definitions: In this Agreement:
“Agreement” means this Media Beach Mobile App Software License;
“Apple” means Apple Inc. and all of its affiliates;
“Application Provider” means Media Beach Pte. Ltd (company number 201429004E);
“Google” means Google Inc. and all of its affiliates;
“Licensed Application” means the Media Beach Mobile App;
“Media Beach Exchange” means Media Beach’s global content exchange available at http://www.mediabeach.com/ that allows members to upload, store, view and deliver video files to destinations worldwide;
“Media Beach Member” means an entity that has been accepted by Media Beach as a member of the Media Beach Exchange;
“Media Beach Mobile Service” means those services offered by Media Beach in connection with the Media Beach Exchange that allow subscribers of those services to upload content to certain members of the Media Beach Exchange, which members may then, in their discretion, publish such content on the Media Beach Exchange;
“Usage Rules” means the then-current usage rules set forth in Apple’s App Store Terms of Service or in Google’s Google Play Terms of Service as applicable depending on the platform version of the Licensed Application You have downloaded; and
“You” or “Your” means the individual initiating the download of the Licensed Application.
2. Grant of License. Subject to the terms and conditions of this Agreement, Application Provider grants You a non-exclusive, non-transferable, revocable license to use the Licensed Application on any iOS or Android product You own or control for Your use in accordance with the terms and conditions of this Agreement and in all cases subject to the Usage Rules. This license does not allow You to use the Licensed Application on any iOS or Android product that You do not own or control, and You may not distribute or make the Licensed Application available over a network where it could be used by multiple devices at the same time. You must not allow any third party to use the Licensed Application and generally must not deal with the Licensed Application other than in a manner consistent with Your own use for the purpose set out in clause 4. You may not rent, lease, lend, sell, redistribute, transfer, assign, transmit in any form by any process whatsoever or sublicense the Licensed Application. You may not copy (except as expressly permitted by this Agreement), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, adapt or create derivative works of the Licensed Application, any updates, or any part thereof (except as and only to the extent any of the foregoing restrictions are prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open source software components included with the Licensed Application). Any attempt to do so is a violation of the rights of Application Provider and its licensors. If You breach this restriction, You may be subject to prosecution and damages. You must not delete any proprietary information or trade mark notices that appear on any Licensed Application supplied to You at any time. The terms of the Agreement will govern any updates or enhancements provided by Application Provider that replace and/or supplement the original Licensed Application, unless such updates or enhancements are accompanied by a separate license in which case the terms of that license will govern. When using the Licensed Application, You must comply with any applicable third-party agreements to which You are a party. For example, Your use of the Licensed Application must not violate Your internet or wireless server provider agreements.
3. Security. You must not:
(a) submit, or use the Licensed Application to send, any unauthorised commercial communications (such as spam);
(b) access the Licensed Application using automated means;
(c) upload viruses or other malicious code to the Licensed Application or using the Licensed Application;
(d) bypass any measure Application Provider may use to prevent or restrict access to the Licensed Application, any part of the Licensed Application or any other software, systems or networks connected to the Licensed Application (including, without limitation, the Media Beach Exchange); or
(e) do anything that could disable, overburden, or impair the proper working of the Licensed Application or any other software, systems or networks connected to the Licensed Application (including, without limitation, the Media Beach Exchange), such as a denial of service attack.
4. Media Beach Services.
(a) Before You download the Licensed Application and subscribe to the Media Beach Mobile Service, You must be affiliated with a Media Beach Member (as an employee, independent contractor or member of the public who has been invited to provide content by a Media Beach Member) and agree to the Media Beach Mobile Application User Terms between You and the Media Beach Member, which are located at https://asia1.mediabeach.com/terms or any customised terms of service which Your affiliated member has agreed and any additional terms that such Media Beach Member may impose on You. As part of this, You will be provided with a unique serial number that identifies Your affiliation with a Media Beach Member.
(b) If You download the Licensed Application, You must complete the Media Beach Mobile Service registration process including submission of the unique serial number which identifies Your affiliation with a Media Beach Member.
(c) You must not upload any content via the Licensed Application or use the Media Beach Mobile Service until You have successfully completed the Media Beach Mobile Service registration process and been approved by Media Beach.
(d) You agree that, after registration, any content You upload will be directed (without filtering) to the branded ‘Network’ tab, for the Media Beach Member which You are affiliated with, on the Media Beach Mobile Service interface. You agree that the Media Beach Member with which You are affiliated with has no obligation to upload Your content to the Media Beach Exchange. You agree that under the User Terms You assign and/or exclusively license Your intellectual property rights in the content to the Media Beach Member with which You are affiliated and You waive, or provide a consent in relation to, any and all moral rights You may have had in You content and such Media Beach Member may use, publish, sell, license or otherwise exercise rights in that content on the Media Beach Exchange, or otherwise use, publish, sell, license or otherwise exercise rights in any content You upload in any other media including without attribution of You and including resizing or altering of the content or other use in any way.
6. Your Responsibilities. You are responsible for:
(1) all of Your activity on and in connection with the Licensed Application (including Your use of third party sites and tools) and any wireless or data services You access or use via the Licensed Application;
(2) all of the content and details that You submit into the Licensed Application;
(3) what You access on the Licensed Application; and
(4) how You use the Licensed Application.
Application Provider reserves the right to access, read, preserve and disclose any information as Application Provider reasonably believes is necessary to:
(1) satisfy any law or regulation;
(2) enforce this Agreement, including investigation of potential violations of this Agreement;
(3) detect, prevent or otherwise address fraud, security or technical issues; or
(4) respond to support issues to the extent that You have subscribed to the Media Beach Mobile Service.
7. NO WARRANTY. SUBJECT TO PARAGRAPH 9, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED APPLICATION IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, AVAILABILITY, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED APPLICATION IS PROVIDED "AS IS" AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT ANY WARRANTIES OR CONDITIONS OF ANY KIND, AND APPLICATION PROVIDER HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED APPLICATION, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, DURABILITY, QUIET ENJOYMENT, AND/OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. APPLICATION PROVIDER DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE LICENSED APPLICATION OR THAT THE FUNCTIONS CONTAINED IN OR PROVIDED BY THE LICENSED APPLICATION WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE LICENSED APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE LICENSED APPLICATION WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY APPLICATION PROVIDER OR APPLICATION PROVIDER’S AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY. SHOULD THE LICENSED APPLICATION OR SERVICES PROVE DEFECTIVE, AND TO THE EXTENT PERMITTED BY LAW YOU ARE LIABLE FOR THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
8. LIMITATION OF LIABILITY. SUBJECT TO PARAGRAPH 9 AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER APPLICATION PROVIDER NOR ANY OF APPLICATION PROVIDER’S LICENSORS, DIRECTORS, SHAREHOLDERS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS SHALL HAVE ANY LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES ARISING DIRECTLY OR INDIRECTLY IN ANY WAY IN CONNECTION WITH THIS AGREEMENT, THE LICENSED APPLICATION OR IN RESPECT OF YOUR USE OF THE LICENSED APPLICATION INCLUDING FOR ANY DIRECT, INDIRECT, RELIANCE, INCIDENTAL, SPECIAL, PUNITIVE, COVER, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFIT, LOSS OF OR DAMAGE TO DATA, BUSINESS INTERRUPTION, REPLACEMENT OR RECOVERY COSTS, OR OTHER COMMERCIAL OR ECONOMIC LOSS, WHETHER ARISING FROM CONTRACT, EQUITY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), STATUTE OR ANY OTHER THEORY OF LIABILITY, EVEN IF APPLICATION PROVIDER (INCLUDING APPLICATION PROVIDER’S LICENSORS, SHAREHOLDERS, DIRECTORS, SUPPLIERS, SUBCONTRACTORS AND DISTRIBUTORS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR THEY ARE FORESEEABLE. THE LIMITATIONS IN THIS SECTION SHALL APPLY WHETHER OR NOT THE ALLEGED BREACH OR DEFAULT IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM OR FUNDAMENTAL BREACH. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE TOTAL CUMULATIVE LIABILITY OF APPLICATION PROVIDER (INCLUDING APPLICATION PROVIDER’S LICENSORS, DIRECTORS, SHAREHOLDERS, SUPPLIERS, SUBCONTRACTORS AND DISTRIBUTORS) TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES ARISING FROM THIS AGREEMENT OR RELATED TO THE LICENSED APPLICATION EXCEED THE TOTAL PRICE PAID BY YOU FOR THE LICENSED APPLICATION.
THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT. YOU ACKNOWLEDGE AND AGREE THAT BUT FOR THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY, NEITHER APPLICATION PROVIDER NOR ANY OF APPLICATION PROVIDER’S LICENSORS OR SUPPLIERS WOULD GRANT THE RIGHTS GRANTED IN THIS AGREEMENT.
9. Liability for Breach of a Consumer Guarantee. If You are a consumer under the relevant laws, Section 8 does not apply to any liability of Application Provider, Application Provider’s licensors or suppliers for failure to comply with a consumer guarantee, warranty or representation applicable to this Agreement which is implied or granted under any such relevant law (“Consumer Guarantee”). The liability of Application Provider, Application Provider’s licensors and suppliers to You for damages (whether under the law of contract, tort including negligence, statute, equity or otherwise) suffered or incurred by You because of a failure to comply with a Consumer Guarantee is limited to Application Provider (at its election):
(A) replacing the Licensed Application; or
(B) repairing the Licensed Application.
10. TERMS RELATING TO APPLE AND GOOGLE. NEITHER APPLE NOR GOOGLE HAS ANY OBLIGATION WHATSOEVER TO PROVIDE MAINTENANCE AND SUPPORT SERVICES WITH RESPECT TO ANY LICENSED APPLICATION. APPLICATION PROVIDER IS SOLELY RESPONSIBLE FOR PROVIDING ANY MAINTENANCE AND SUPPORT SERVICES FOR, AND ADDRESSING COMPLAINTS IN RELATION TO, THE LICENSED APPLICATION. YOU ACKNOWLEDGE THAT THIS AGREEMENT IS BETWEEN YOU AND APPLICATION PROVIDER AND THAT APPLE AND GOOGLE ARE NOT PARTIES TO THIS AGREEMENT.NEITHER APPLE NOR GOOGLE IS RESPONSIBLE FOR ADDRESSING ANY CLAIMS BY YOU OR BY ANY THIRD PARTY RELATING TO THE LICENSED APPLICATION OR YOUR POSSESSION AND/OR USE OF THE LICENSED APPLICATION, INCLUDING BUT NOT LIMITED TO: (I) PRODUCT LIABILITY CLAIMS; (II) ANY CLAIM THAT THE LICENSED APPLICATION FAILS TO CONFORM TO ANY APPLICABLE LEGAL OR REGULATORY REQUIREMENT; (III) CLAIMS ARISING UNDER CONSUMER PROTECTION OR SIMILAR LEGISLATION; AND/OR (IV) INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.
YOU ACKNOWLEDGE THAT APPLE AND GOOGLE HAVE (TO THE MAXIMUM EXTENT PERMITTED BY LAW) NO WARRANTY OBLIGATIONS WITH RESPECT TO THE LICENSED APPLICATION AND THAT ANY CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES ATTRIBUTABLE TO ANY FAILURE OF THE LICENSED APPLICATION TO CONFORM TO ANY WARRANTY IMPLIED OR IMPOSED BY LAW WILL BE APPLICATION PROVIDER’S RESPONSIBILITY (NOT APPLE’S OR GOOGLE’S).
11. Term. This Agreement shall continue for as long as You use the Licensed Application, however, Application Provider may terminate, disable, block or suspend Your access to the Licensed Application, without notice from Application Provider, if You fail to comply with any of its terms or conditions. This Agreement also terminates if the Application Provider ceases providing the Licensed Application or if You cease to be affiliated with the Media Beach Member You identified during the registration process required pursuant to Section 4 or if You fail to comply with any of the terms or conditions of Media Beach Mobile Service terms of service or any customised terms Your Media Beach Member has agreed to. Without limiting our rights or remedies, You must, upon termination, immediately cease all use of, and destroy all copies of, the Licensed Application. In addition to this Section, the Sections entitled Definitions, Consent to Use Data, No Warranty, Limitation of Liability, Intellectual Property, Liability for Breach of a Consumer Guarantee, Terms Relating to Apple and Google, Third-Party Beneficiaries, and General shall continue in force even after any termination of this Agreement.
12. Support and Updates. This Agreement does not oblige Application Provider to create or release any release updates or enhancements of the Licensed Application or to provide any technical support in respect to the Licensed Application. If Application Provider releases any updates or enhancements to the Licensed Program then You may download them from the Apple App Store or Google Play, as the case may be, in accordance with their applicable terms. You acknowledge and agree that neither Apple nor Google has any obligation whatsoever to provide any maintenance and/or support in respect to the Licensed Application. You may direct any questions, complaints or claims about the Licensed Application to Media Beach.
13. Third Party Sites. The Licensed Application may contain links to other websites or applications owned, operated or produced by third party organisations independent of Application Provider (Third Party Sites). The links are provided for convenience only and Application Provider has not verified and does not sponsor, endorse or approve the operators of, or any materials on (including information, products or services), those Third Party Sites.
14. Third Party Tools. Certain tools, devices, software programs or other features (Tools) available on or through the Licensed Application may be provided by third parties. These Tools are provided as a convenience to You. These Tools are not operated by Application Provider and Application Provider is not responsible for examining or evaluating the content, availability, accuracy, adequacy, timeliness, validity, copyright compliance, legality, decency, quality, completeness or any other aspect of these Tools.
15. Changes to Terms. Application Provider may change the terms set out in this Agreement from time to time by posting the changed Agreement through updates of the Licensed Application or on the Media Beach Exchange at www.mediabeach.com/. By You continuing to use the Licensed Application, such changed Agreement will apply from that point forward.
16. U.S. Government End-Users. The Licensed Application is a "commercial item" as that term is defined at FAR 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are defined in FAR 12.212, and is provided to the U.S. Government only as a commercial end item. Government end users acquire the rights set out in this Agreement for the Licensed Application consistent with: (i) for acquisition by or on behalf of civilian agencies, the terms set forth in FAR12.212; or (ii) for acquisition by or on behalf of units of the Department of Defense, the terms set forth in DFARS 227.7202. Use of the Licensed Application and related documentation is further restricted by the terms and conditions of this Agreement. For the purposes of any applicable government use, the Licensed Application was developed exclusively at private expense, and is a trade secret of Application Provider for the purpose of any Freedom of Information legislation or any other disclosure statute, regulation or provision.
17. Export Restrictions. The Licensed Application and related information are subject to export and import restrictions. By downloading the Licensed Application, You are representing and warranting that You are not located in, under the control of, or a national or resident of any country to which the export of the Licensed Application or related information would be prohibited by the laws and/or regulations of Canada or the United States. You are also representing and warranting that You are not an individual to whom the export of the Licensed Application or related information would be prohibited by the laws and/or regulations of Canada or the United States. You shall comply with the export laws and regulations of Canada and the United States that are applicable to the Licensed Application and related information and You shall comply with any local laws and/or regulations in Your jurisdiction that may impact Your right to export, import, or use the Licensed Application or related information, and You represent and warrant that You have complied with any such applicable laws and/or regulations. The Licensed Application shall not be used for any purposes prohibited by export laws and/or regulations, including, without limitation, nuclear, chemical, or biological weapons proliferation. You shall be responsible for procuring all required permissions for any subsequent export, import, or use of the Licensed Application or related information. By downloading the Licensed Application, You are representing and warranting that You are not: (i) located in a country that is subject to a United States or Canadian government embargo, or that has been designated by the United States or Canadian government as a ‘terrorist supporting’ country; and (ii) listed on any United States or Canadian government list of prohibited or restricted parties.
18. Intellectual Property. All right, title, and interest (including all intellectual property rights) in, to, and under the Licensed Application (including all copies thereof) shall remain with Application Provider and its licensors. Media Beach is a trademark of Application Provider in certain countries. All Application Provider product names and logos are trademarks of Application Provider in certain countries. All other company and product names and logos are trademarks or registered trademarks of their respective owners in certain countries. If a third party claims that the Licensed Application or Your possession and use of that Licensed Application infringes that third party’s intellectual property rights, neither Apple nor Google will have any responsibility for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
19. Third-Party Beneficiaries. Where permitted under applicable laws, both You and Application Provider acknowledge and agree that Apple and Google, and Apple and Google's subsidiaries, are third party beneficiaries of this Agreement, and that, on Your acceptance of this Agreement, Apple and Google will have the right (and will be deemed to have accepted the right) to enforce this Agreement against You as a third party beneficiary of this Agreement.
20. General. This Agreement is the entire agreement between You and Application Provider in respect to the Licensed Application, superseding any other agreements or discussions, oral or written, and may not be changed except by a written license agreement with Application Provider. This Agreement does not govern Your use of the Media Beach Mobile Service. If You wish to subscribe to the Media Beach Mobile Service then You must enter into a separate agreement with Media Beach for the Media Beach Mobile Services. The terms and conditions of this Agreement shall prevail over any pre-printed terms on any quotes, orders, purchase orders, or purchase order acknowledgements, and shall prevail over any other communications between the parties in relation to the Licensed Application and the Licensed Application shall be deemed to be licensed pursuant to the terms and conditions of this Agreement unless You have executed a written license agreement with Application Provider, in which case the Licensed Application shall be deemed to have been licensed pursuant to the terms and conditions of such written license agreement. You may not assign this Agreement whether voluntarily, by operation of law, or otherwise without Application Provider’s prior written consent. Application Provider may assign this Agreement at any time without notice. The failure of a party to claim a breach of any term of this Agreement shall not constitute a waiver of such breach or the right of such party to enforce any subsequent breach of such term. If any provision of this Agreement is held to be unenforceable or illegal, such decision shall not affect the validity or enforceability of such provisions under other circumstances or the remaining provisions of this Agreement and such unenforceable or illegal provisions shall be deleted to the extent necessary to make the remaining provisions enforceable under such circumstances. This Agreement shall be governed by the laws of Singapore. No choice or conflict of laws rules of any jurisdiction shall apply to this Agreement. You shall only be entitled to bring any action or proceeding arising out of or relating to this Agreement, the Licensed Application or any Services in a court in Singapore and You consent to the jurisdiction of such courts for any such action or proceeding. You waive all rights that You may have or that may hereafter arise to contest such jurisdiction of such courts for any action or proceeding brought by You. The parties confirm that it is their wish that this Agreement, as well as all other documents relating to this Agreement, including notices, be drawn up in English. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded. The Uniform Computer Information Act does not apply to this Agreement
October 3, 2014