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TheTakes SaaS Terms of Service
TheTakes.com, Inc. ("TheTakes") IS WILLING TO ALLOW [OTHER PARTY] ("You") TO SUBSCRIBE TO THE LICENSE FOR USING THE SOFTWARE IDENTIFIED BELOW ("Licensed Software") IF YOU ACCEPT THE TERMS IN THIS AGREEMENT (this "Agreement"). PLEASE READ THE AGREEMENT CAREFULLY. BY LOGGING INTO OR USING THE LICENSED SOFTWARE, YOU ACCEPT THE TERMS OF THE AGREEMENT. TO REGISTER YOURSELF FOR THE LICENSED SOFTWARE, INDICATE YOUR ACCEPTANCE BY CHECKING THE APPROPRIATE BOX. PLEASE NOTE, ANY PERSON WHO USES THE LICENSED SOFTWARE MUST ABIDE BY THE TERMS OF THIS AGREEMENT; SO, IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO ACT FOR AND TO BIND THAT PERSON, COMPANY, OR LEGAL ENTITY TO THESE TERMS AND THAT YOU AND, IF APPLICABLE, THE PERSON, COMPANY, OR LEGAL ENTITY WHO YOU ARE ACTING ON BEHALF OF, ARE OF LEGAL AGE AND OTHERWISE NOT INCAPACITATED TO ENTER INTO A BINDING CONTRACT.
1. WELCOME TO THETAKES
1.1 Cloud Computing Application and Ownership. TheTakes owns the proprietary computer software application known as the Licensed Software;
1.2 Your Desired Computing Use. You desire to obtain a subscription to use TheTakes' proprietary computer software by remote access to a computing environment controlled and hosted by a third party datacenter in accordance with the terms and conditions of this Agreement. The software is intended to be used by representatives, employees, or other authorized users (as defined in this agreement) in their capacity or connection with your Production Company. Specifically, the software allows film industry professionals to track and analyze certain data more effectively; to collect and report information regarding development, writing, actors, locations, and other important film-related factors; and to provide a more efficient and convenient collaboration tool your Production Company.
2. DEFINITIONS
Throughout this Agreement, we may use certain words or phrases, and it is important that you understand the meaning of them. The list is not all-encompassing and no definition should be considered binding to the point that it renders this Agreement nonsensical:
"Customer" means the Production Company representative, employee of the Production Company, or legal entity granted the license to use TheTakes' proprietary computer software referenced in Section 1.1.
"Data Conversion" TheTakes may provide data conversion services from another product into Licensed Software's data format at additional cost and other terms to be set forth in a separate agreement between TheTakes and Customer.
"Documentation" means help files made available electronically by TheTakes to Customer.
"Optional Enhancement" means any improvement, addition, update or revision to the Subscription and/or Documentation that is developed by TheTakes, and made available to Customer for an additional fee, pursuant to a separate agreement between the Customer and TheTakes.
"Privacy Policies" mean the privacy policy as set forth on TheTakes' website and the privacy policy applicable to the Licensed Software as published by TheTakes on its website from time to time.
"Rules and Regulations" mean the reasonable rules and regulations related to the use of the Licensed Software as published by TheTakes on its website from time to time.
"Service Rates" means the rates charged by TheTakes for services other than the Subscription Rates.
"Standard Enhancement" means any improvement, addition, update or revision to the Subscription and/or Documentation that is implemented for TheTakes' customers generally at no additional fee.
"Subscription" means a license to use TheTakes' proprietary computer software referenced in Section 1.1, together with related Documentation, and including, at any given time, all previously implemented Standard Enhancements and any Optional Enhancements which may be implemented for Customer by TheTakes.
"Subscription Plan" means the particular plan for the various Subscription Rates chosen by the Customer, which is given in an attachment to this Agreement.
"Subscription Rates" mean the applicable rates charged by TheTakes for the Subscription Plan in effect for each particular period of the Subscription Plan. The Subscription Rates in effect on the date that the Customer agreed to this Agreement have already been chosen by the Customer. TheTakes' Subscription Rates as published by TheTakes in the Licensed Software, on TheTakes' website or otherwise, shall be deemed a part of this Agreement.
"Terms of Use" means the terms of use applicable to TheTakes' website and the terms of use applicable to the use of the Licensed Software as published by TheTakes on its website from time to time.
3. SUBSCRIPTION FOR LICENSED RIGHTS
3.1 Subscription for License. TheTakes hereby grants to Customer, and Customer hereby accepts from TheTakes, during the term of this Agreement and subject to compliance by Customer with the terms and conditions hereof, a nonexclusive, nontransferable license to permit a number of concurrent users not exceeding the number set forth on the Subscription Plan to access and use the Licensed Software solely for the purpose intended. More specifically, TheTakes is intended to be used for movie making professionals during pre production, production, and post-production phases of filmmaking.
3.2 Restrictions on Licensed Rights. Customer acknowledges that the Licensed Software is subject to copyrights owned by TheTakes and its licensors. Customer is prohibited from copying, duplicating, or permitting anyone else to copy or duplicate the Licensed Software or any module or other portion thereof. Customer is further prohibited from (a) using the Licensed Software to process any data, other than Customer's own data or data that it has permission to utilize, and (b) from modifying, adapting, or creating derivative works based on the Licensed Software other than that which is contemplated by the regular use of the Software. Customer acknowledges that the Licensed Software contains information that is confidential and proprietary to TheTakes and its licensors, and which derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from their disclosure or use, and is the subject of efforts by TheTakes that are reasonable under the circumstances to maintain its secrecy. Customer is expressly prohibited from reverse engineering, reverse compiling, disassembling, or otherwise deriving the source code for the Licensed Software.
3.3 Access Procedures. Customer shall either create, or be assigned, a subdomain for their project, within which they may make use of unique usernames. In addition, Customer may be given the opportunity to formulate unique usernames and passwords for the individuals whom Customer authorizes to access and use the Licensed Software. Customer shall also have the opportunity to change, or to require its users to change, such passwords from time to time in accordance with Customer's own internal security policies. Customer acknowledges and agrees that Customer and the individuals Customer authorizes to access and use the Licensed Software shall be responsible for maintaining the confidentiality of the usernames, passwords, account information and Customer shall be liable for any consequences that may result from their disclosure, including but not limited to any resulting access to, use of, or modification of the Licensed Software and access to, integrity of and loss of the Customer's data that can be accessed using the Licensed Software or disclosure of information that Customer intended to keep confidential.
3.4 No Access to Persons Under 18; Customer Obligation to Deny Access. Due to the variation of privacy protection for minors among different countries, all users must be at least 18 in order to use the Licensed Software. Customer must communicate to its authorized users and guests that the use of the Licensed Software is restricted to adults only. Customer must include the following language in all invitations and descriptions pertaining to the use of the Licensed Software: "You must be 18 years or older to visit this site." If the authorized age of a user's country is higher than 18, Customer must not provide such a user with access to the Licensed Software unless the person is at least as old as that higher age.
3.5 Computing Environment. Customer acknowledges that the Licensed Software resides in a third party hosting company's computing environment, which comprises both servers and telecommunications services, and that certain uses of the capabilities offered by the Licensed Software may render the Licensed Software inaccessible or may impair the performance of the computing environment for Customer and/or TheTakes' other customers. In the event of any such use by Customer, TheTakes shall so notify Customer and Customer shall be obligated to put an immediate stop to such use and will notify TheTakes, in writing, that it has stopped such use. In the event of Customer's failure to put an immediate stop to such use, TheTakes reserves the right to terminate Customer's access to the Licensed Software. More specifically, if Customer overutilizes any part of the Computing Environment, through storage or excessive use, TheTakes reserves the right to terminate Customers' use or charge for such excessive use.
3.6 Prohibited Use of Licensed Software; Rules of Use. Customer shall not cause or allow submission of any data or information to TheTakes or the Licensed Software of any illegal, infringing, misleading, defamatory, obscene, profane, confidential or proprietary to third parties, invades anyones privacy rights, or inconsistent with the non-religious and non-political purposes of the Licensed Software as determined by TheTakes. Also, Customer shall not use the Licensed Software for any illegal purpose,including but not limited to, uses in violation of the CAN-SPAM Act of 2003; Directive 2002/58/EC of the European Parliament as implemented by any EU member state having jurisdiction over the provision or use of the Licensed Software or the parties to this Agreement; or any other applicable privacy laws. TheTakes may enact and enforce reasonable rules of use as promulgated and amended from-to-time by TheTakes regulating the use of the Licensed Software by Customer and its users, and Customer agrees to be bound by such rules. Breach of such rules or this section may result in the offending information being removed by TheTakes or termination of this Agreement.
3.7 No Resale or Sublicensing of Licensed Software. TheTakes provides the Licensed Software for the Customer's use and the use of Customer's authorized users and guests. However, Customer shall not resell, sublicense, assign or otherwise allow the use of the Licensed Software by or for the benefit of any other person, entity or group without the express written approval of TheTakes.
3.8 Restrictions on use . We reserve the right to limit the maximum disk space that you utilize and the maximum number of times you may access the services at a given time. Although we provide storage space and access for your use of our Licensed Software, we may limit what types of data you can upload and can integrate with our system. We do not routinely monitor the content of any account, but retain the right to do so. We may suspend or restrict access to any account, or remove content that is prohibited by applicable law, at any time and in our sole discretion. We only do this in very limited circumstances and will keep any information confidential unless required to disclose it by law.
4. SETUP AND CONFIGURATION
4.1 Setup. Customer will be responsible for input of Customer's data, setup and implementation of the Licensed Software as described in the Documentation. TheTakes may provide data conversion services from another product into Licensed Software's data format at additional cost and other terms to be set forth in a separate agreement between TheTakes and Customer.
4.2 Custom Configuration. TheTakes shall not be obligated to perform any custom configuration of the parameters of the Licensed Software. In the event that Customer desires custom configuration services, or wishes to request development of Optional Enhancements, TheTakes may agree to perform such work at additional cost and other terms to be set forth in a separate agreement between TheTakes and Customer.
4.3 Script Importing. TheTakes is unique in that it allows for the automatic parsing of Microsoft Word or Adobe PDF documents. You can also important screenplays from other software like FinalDraft, Celtix, and more. While we strive to make sure all data imports correctly, it is up to you to make sure that the final work that is imported matches up with the original. Not all software versions may be supported so make sure to check before importing anything.
5. MAINTENANCE
5.1 Operational Support. TheTakes' client services support staff may be contacted by e-mail to answer reasonable general or technical questions regarding the Licensed Software from any of the Customer's designated representatives, as mutually agreed upon by Customer and TheTakes. TheTakes shall endeavor to respond within a timely manner, though responses may vary based on the complexity of the question, the number of other users TheTakes is assisting, holidays, and other factors. Customer shall be entitled to change any or all of the persons so designated to TheTakes through the Licensed Software or as otherwise allowed by TheTakes.
5.2 Error Investigation. In the event that the Licensed Software becomes inaccessible or its operation deviates materially from the Documentation and such deviation can be replicated by Customer, Customer shall give TheTakes written notification of the inaccessibility or the deviation, and in the case of deviations, sufficient information to permit replication and analysis. Upon receipt of notice from Customer of any inaccessibility or deviation, TheTakes shall use efforts that it considers to be reasonable in its sole discretion to diagnose the cause of the inaccessibility or deviation. Upon completion of the diagnosis, TheTakes shall advise Customer of the cause of the inaccessibility or deviation and shall use efforts that it considers to be reasonable in its sole discretion, without charge, to restore access to the Licensed Software or to correct or avoid the deviation. Notwithstanding the foregoing, TheTakes shall have no obligation to resolve any inaccessibility or deviation caused by (a) modification of the Licensed Software by anyone other than TheTakes, (b) use of the Licensed Software for any purpose other than intended, (c) misuse or incorrect use of the Licensed Software or inoperable computers, or (d) malfunction of any Customer computer or any telecommunications services not under the control of TheTakes. With respect to any inaccessibility or deviation which TheTakes is not obligated to correct, Customer shall be invoiced for the cost of the diagnosis in accordance with the applicable TheTakes Service Rates.
5.3 Data Maintenance. It shall be the responsibility of TheTakes to implement the data archive procedures resident in the Licensed Software at regular intervals, and Customer acknowledges that the liability for loss, destruction or damage to any data Customer may store in TheTakes' computing environment is limited pursuant to this Agreement and the hosting provider agreement.
5.4 Database Maintenance. TheTakes has the sole right and responsibility to maintain and update the logical and physical organization and structure of the databases and associated files within the Licensed Software. In connection with maintenance and update pertaining to Optional Enhancements requested by the Customer, Customer shall provide to TheTakes any testing assistance that TheTakes may reasonably request.
5.5 Standard Enhancements. TheTakes reserves the right, as reasonably necessary or convenient for TheTakes' own purposes or to improve the quality of the Licensed Software, to change access procedures, types of equipment utilized in the TheTakes computing environment, system interfaces, operating and other system and network software, utilities, and database software, and to implement Standard Enhancements to the Licensed Software. TheTakes shall strive to give Customer at least twenty-four (24) hours advance notice of the scheduled implementation of any Standard Enhancement, though this may not be done where such notice could negatively affect TheTakes, its users, or the systems, hardware, software, or services of any person.
5.6 Access Interruptions. Customer acknowledges and agrees that in order for TheTakes to perform the maintenance services set forth herein, TheTakes or its hosting provider may be required from time to time to interrupt Customer's ability to access the Licensed Software. Insofar as it is practicable and would not otherwise have a negative effect on TheTakes or another person, TheTakes shall attempt to confine such interruptions to scheduled interruptions and give Customer at least twenty-four (24) hours' notice of a scheduled interruption.
6. OPTIONAL ENHANCEMENTS, CONFIGURATION AND OTHER SERVICES.
6.1 Optional Enhancements. TheTakes may develop Optional Enhancements requested by the Customer, if any, in accordance with a separate agreement to be entered into by the parties.
6.2 Other Optional Services. Customer may request optional services not otherwise provided for in this Agreement at any time. Customer shall be charged for such services at the TheTakes Service Rates.
7. PAYMENTS.
7.1 Payment of Subscription Rates. In consideration of the license granted in Section 3 and the maintenance services described in Section 5, Customer shall pay the Subscription Rates chosen by Customer on a timely basis. The Subscription Rates for the periods chosen by Customer shall be due and payable upon the beginning of each payment period and, if applicable, upon expiry of any Trial Period, as specified in Section 7.5 hereof. The Subscription Rates for each subsequent renewal period shall be TheTakes' Subscription Rates in effect at the beginning of each such renewal term and shall be payable not later than the first day of each such renewal term.
7.2 Optional Services. Customer shall be charged at the TheTakes Service Rates for all optional services performed by TheTakes in accordance with the provisions of Section 6.
7.3 Taxes. Unless otherwise stated, all amounts described herein or in TheTakes' Service Rates are exclusive of all federal, state, municipal or other governmental excise, sales, value-added, use, court-appointed, personal property and occupational taxes, excises, withholding obligations and other levies now in force or enacted in the future and, accordingly, the amount of all payments hereunder is subject to an increase equal to the amount of any tax TheTakes may be required to collect or pay in connection with the Licensed Software and related services other than any tax on the net income of TheTakes.
To the extent that TheTakes is not legally bound to collect a tax applicable to the provision of the Licensed Software and accompanying services, you agree that you will remit such taxes to the proper authorities. For example, certain jurisdictions may not apply a sales tax to TheTakes, but may apply a "use tax" to residents of such jurisdictions who use TheTakes' services. In such instances, where TheTakes is not responsible for remitting such taxes, you agree that you will do so.
7.4 Payment Terms and Renewals. All amounts due and payable to TheTakes hereunder shall be remitted by Customer at the time of Customer's Subscription or renewal of Customer's Subscription. Continued use of the Licensed Software by Customer or its authorized users or guests shall automatically renew Customer's Subscription at the Subscription Rates then in effect.
7.5 Trial Period. As a part of a promotion, TheTakes may, but is not required, offer a free or reduced-price Trial Period to Customer for a given period of time. At the expiration of such a Trial Period, Customer will be charged the Subscription Rates according to the Subscription Plan chosen by Customer unless Customer has canceled the Subscription Plan by prior written notice to TheTakes before the expiration of the Trial Period.
7.6 No Refunds. TheTakes does not offer any refunds, even on a pro rata basis, and will continue to provide the remainder of any purchased services for which TheTakes has already received payment after the cancellation of that service. Cancellations shall only prevent the renewal of the subscription period, but shall have no impact on the services already subscribed to.
8. OWNERSHIP.
8.1 Licensed Software; Documentation. The components of the Licensed Software are subject to copyrights and other proprietary rights of TheTakes and its licensors. All rights, title and interest in and to the Licensed Software, the Documentation and any and all modifications thereto, which are prepared by or for TheTakes, shall not pass to Customer, but shall remain with TheTakes and its licensors. TheTakes shall be the sole owner of all inventions, discoveries, improvements, or enhancements relating to the Licensed Software (including without limitation any work of authorship that constitutes a "derivative work" of the Licensed Software within the meaning of the definition set forth in Section 101 of the U.S. Copyright Act), whether in written or unwritten form, that are developed by TheTakes.
8.2 Customer Data. Any Customer data that is collected or generated through use of the Licensed Software on TheTakes' production server shall be deemed Confidential Information of Customer, which shall be subject to the provisions of Section 9 and Section 16. Customer shall be responsible for the accuracy and legality of the Customer data. Customer hereby grants to TheTakes a nonexclusive, perpetual, worldwide, paid-up license to use Customer data that is collected or generated through use of the Licensed Software on TheTakes' production server to perform TheTakes' obligations under this Agreement and to analyze, transfer and use such Customer data, and to disclose and distribute Customer data if required by law, in an aggregated form from which all personally identifiable information has been removed, for purposes of benchmarking system performance, preparing statistics and system metrics, marketing and other purposes. All information concerning the production of the Customer's work shall be confidential, and will not be disclosed unless required to by law. Unless otherwise prohibited, TheTakes will notify Customer of the requested disclosure so that Customer may take necessary steps, at their sole expense, to protect their rights.
8.3 Unauthorized Use.
(a) Customer agrees to notify TheTakes immediately of the unauthorized possession, use, or knowledge of any component of the Licensed Software to which Customer or its authorizesd users or guests is given access under this Agreement and of other information made available to Customer under this Agreement, by any person or organization not authorized by this Agreement to have such possession, use or knowledge. Customer will promptly furnish full details of such possession, use or knowledge to TheTakes, will assist in preventing the recurrence of such possession, use or knowledge, and will cooperate with TheTakes, at TheTakes' expense, in any litigation against third parties deemed necessary by TheTakes to protect its proprietary rights. Customer's compliance with this Section shall not be construed in any way as a waiver of any right by TheTakes to recover damages or obtain other relief against Customer for any act or omission which may have resulted in the unauthorized possession, use or disclosure.
(b) TheTakes agrees to notify Customer within a timely manner of the knowledge of unauthorized possession, use, or knowledge of any Customer data furnished to TheTakes by Customer or otherwise accessible by TheTakes under this Agreement and of other information made available to Customer under this Agreement, by any person or organization not authorized by this Agreement to have such possession, use or knowledge. TheTakes will promptly furnish full details of such possession, use or knowledge to Customer, will assist in preventing the recurrence of such possession, use or knowledge, and will cooperate with Customer, at Customer's expense, in any litigation against third parties deemed necessary by Customer to protect its proprietary rights. TheTakes' compliance with this Section shall not be construed in any way as a waiver of any right by Customer to recover damages or obtain other relief against TheTakes for any act or omission which may have resulted in the unauthorized possession, use or disclosure. The notification described in this subparagraph may not be provided in a timely manner where necessary for certain beneficial purposes including, but not limited to, investigative purposes, protection of one or more users, or any other purpose which TheTakes believes in good faith requires the delay of such notification.
9. CONFIDENTIAL INFORMATION
In connection with this Agreement, Customer and its employees, agents, contractors, authorized users and guests may have access to private and confidential information owned or controlled by TheTakes relating to equipment, devices, programs, software, specifications, scripts drawings, pricing and other data. Similarly, TheTakes and its employees and agents may have access to Customer data that is collected or generated through use of the Licensed Software on TheTakes' production server. All such information acquired by either party under this Agreement through its employees, authorized users, guests, agents or contractors shall be and remain its owner's exclusive property, and the receiving party shall keep, and shall obligate its employees, authorized users, guests, agents and contractors to keep, any and all such information confidential and shall not copy or disclose it to others without the owner's prior written approval, and shall return all tangible copies of such information to the owner promptly upon request.
10. LIMITED WARRANTY; DISCLAIMER
10.1 Limited Warranty. TheTakes warrants that, during the term of the Agreement, it will make a good faith effort to cause the performance of the Licensed Software to function similarly to how it is described in the Documentation. The performance of the Licensed Software may deviate materially from the Documentation in instances including, but not limited to, differentiations in operating systems, internet connections, computers, languages, or other variations between users. The Documentation may also fail to immediately address recent updates of the Licensed Software.
10.2 Exclusive Remedy. In the event of any failure by the Licensed Software to perform, in any material respect, in accordance with the warranty set forth herein, the only liability of TheTakes to Customer, and Customer's sole and exclusive remedy, shall be to cancel Customer's Subscription with thirty (30) days prior written notice to TheTakes at which time Customer, its authorized users, and guests shall stop using the Licensed Software.
10.3 Disclaimers. THE LIMITED WARRANTY SET FORTH HEREIN IS EXCLUSIVE AND IN LIEU OF, AND THETAKES HEREBY DISCLAIMS, ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE LICENSED SOFTWARE FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THETAKES AND ITS LICENSORS DO NOT WARRANT THAT THE LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT THE DATA OR OTHER RESULTS GENERATED BY THE LICENSED SOFTWARE WILL BE ACCURATE OR COMPLETE. IT IS THE RESPONSIBILITY OF CUSTOMER TO EVALUATE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ALL DATA AND RESULTS GENERATED THROUGH THE USE OF THE LICENSED SOFTWARE. UNDER NO CIRCUMSTANCES SHALL THETAKES BE LIABLE IN ANY WAY FOR THE FAILURE OF CUSTOMER OR OTHER USERS TO HAVE SOFTWARE WHICH IS COMPATIBLE WITH THETAKES.
11. CHOICE OF LAW; FORUM OF DISPUTE; COSTS
11.1 Choice of Law. The law applicable to this Agreement and to any disputes arising therefrom shall usually be that of the United States. In the event that a European Union member state has a superior claim to jurisdiction over this Agreement over that of the United States, by means of a suitable nexus with such member state, the law of England and Wales, including applicable European law, shall apply.
11.2 Forum of Dispute. Regardless of where a dispute regarding TheTakes is brought, the lowest court of first instance shall have jurisdiction to decide a dispute brought by Customer. In the event that Customer is located within the European Economic Area, such a dispute shall, where eligible, be heard solely by the United Kingdom Government's Money Claim Online service ( https://www.moneyclaim.gov.uk/web/mcol/welcome ).
In any case where the amount to which Customer is entitled exceeds the monetary jurisdiction of the lowest court, Customer agrees to waive such excess damages. Customer also agrees to waive any right to equitable or other non-monetary relief that the lowest court is not entitled to grant. Where a claim cannot be heard by the lowest court of first instance in a jurisdiction, Customer agrees that Customer shall bring it in the next lowest and/or most summary court having jurisdiction over the subject matter of the dispute.
11.3 Costs. If Customer brings a dispute in a manner other than in accordance with this section, TheTakes may move to have it dismissed, and Customer shall be responsible for TheTakes' reasonable attorneys' fees, court costs, and disbursements in doing so.
Customer agrees that the prevailing party in any dispute will be entitled to claim from the unsuccessful party the entire amount of the prevailing party's reasonable attorneys' fees, costs, and disbursements in relation to the dispute.
11.4 Indemnity. You agree to indemnify and hold harmless TheTakes and all of its officers, agents, and employees from any loss, liability, claim, or demand, including attorneys fees, costs, or other for any claims made by any third party due to or arising from your use or misuse of our Licensed Software or Website. This includes, but isn't limited to, the breach of this Agreement by you or any party associated with you or any violation by you of our rights. Your obligations under this section survive the termination of this Agreement.
12. TERM AND TERMINATION
12.1 Initial Term; Renewal. The term of this Agreement shall commence upon the date that Customer first accepts this Agreement and remits payment to TheTakes (except in case of any Trial Period in which case payment may not be required to commence the term of this Agreement), and shall remain in effect during the period of Subscription Plan chosen by Customer and any renewal periods, unless sooner terminated in accordance with Section 12.2. Following the expiration of its initial term, this Agreement shall be automatically renewed for subsequent periods of the same duration as the Subscription Plan chosen by Customer unless either party gives written notice to the other party, not less than thirty (30) days prior to the expiration of any term, of its intention not to renew.
12.2 Termination. TheTakes may terminate this Agreement immediately and without prior notice in the event of (a) non-payment or late payment by Customer; (b) use of the Licensed Software in a way that TheTakes reasonably believes is a violation of law, may result in injury or damage to any party to this Agreement or any third party; (c) material violations of the reasonable rules of use of the Licensed Software as promulgated by TheTakes from time to time. This Agreement and the licensed rights granted hereunder may be terminated by either party in the event that the other party has not performed any material obligation or has otherwise breached any material term of this Agreement; (d) immediately upon receipt of written notice thereof if the breach or nonperformance is incapable of cure; or (e) upon the expiration of thirty (30) days (or any longer cure period authorized by the non-breaching party with respect to any individual breach) after receipt of written notice by mail or e-mail thereof if the breach or nonperformance is capable of cure and has not then been cured.
12.3 Subsequent Obligations. Customer's and its authorized users' and guests' access codes for the Licensed Software shall be terminated on the effective date of any termination or expiration of this Agreement, and Customer and its authorized users shall thereupon have no further ability to access or use the Licensed Software or any data Customer may have stored in the TheTakescomputing environment. TheTakes may, but is not obligated to, retain all Customer data stored in TheTakes' computing environment for a minimum of thirty (30) days after the effective date of any termination or expiration of this Agreement, and so long as Customer has renewed its subscription by paying the appropriate amount within the thirty (30) day period, TheTakes shall continue to provide the services and data that Customer used prior to the commencement of such period. Upon the expiration of such thirty (30) day period, Customer agrees that TheTakes may purge all Customer data from the TheTakes computing environment. Customer is responsible for ensuring that they have adequate backups of any information they provide, and will hold TheTakes harmless for loss of data that is caused by non-payment or breach by Customer.
13. PROPRIETARY RIGHTS.
13.1 Infringement Claim. In the event of a claim that the Licensed Software or Customer's use of the Licensed Software in accordance with the terms of this Agreement infringes any proprietary right of any third party, TheTakes shall have the option to (a) obtain for Customer the right to continue using the infringing item; (b) replace the infringing item or modify it so that it becomes non-infringing; or (c) terminate the Subscription and licensed rights granted herein. Where such infringement claim is based on the actions of Customer or its designates, guests, or other users, all expenses relating to such claim and TheTakes' response to it shall be the responsibility of Customer.
13.2 Notice by Customer. Customer shall promptly notify TheTakes in the event of the threat or initiation of any claim, demand, action or proceeding to which any infringement claim set forth above may apply and shall assist TheTakes in the defense or settlement of the matter.
13.3 Non-liability. TheTakes shall not be liable for any alleged infringement based upon modification of the Licensed Software by anyone other than TheTakes or use of the Licensed Software in combination with other products or services if such claim would have been avoided but for such modification or combination.
14. LIMITATION OF LIABILITY.
14.1 Limitations and Exclusions. IN NO EVENT SHALL THETAKES BE LIABLE FOR LOST PROFITS, LOST BUSINESS, LOST DATA, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCURRED BY THE OTHER PARTY AND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER BASED ON CONTRACT (INCLUDING BUT NOT LIMITED TO BREACH OF WARRANTY) OR TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER IS RESPONSIBLE FOR DETERMINING WHETHER THE LICENSED SOFTWARE IS SUITABLE FOR CUSTOMER'S INTENDED USES. CUSTOMER UNDERSTANDS THAT USAGE MAY NOT BE UNINTERUPTED AND ERROR-FREE. THIS SOFTWARE IS PROVIDED ON AN "AS IS" BASIS AND ALL EXPRESS AND IMPLIED WARRANTIES ARE DISCLAIMED FOR ANY OF THE UNDERLYING SERVICES, PRODUCTS, INFORMATION, OR CONTENT. THIS INCLUDES, WITHOUT LIMITATION, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY, VIOLATION OF PRIVACY, AND/OR FITNESS FOR A PARTICULAR PURPOSE. THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, COMPUTER VIRUS, HACKING, TIMEBOMBS, CONGESTION, COMMUNICATION LINE FAILURE, THEFT, TORTIOUS INTERFERENCE, OR BREACH BY THIRD PARTIES.
THETAKES ADVISES IT'S CUSTOMER TO SAVE ANY AND ALL DATA STORED ON THE SITE AND TO VERIFY IT BEFORE UPLOADING. WE ARE NOT RESPONSIBLE FOR THE ACCURACY OR COMPLETENESS OF ALL INFORMATION AND THERE ARE NO WARRANTIES AS TO THE RESULTS OBTAINED FROM THE USE OF THE INFORMATION. IN ADDITION, UNLESS OTHERWISE PROVIDED FOR IN THIS AGREEMENT, THERE WILL BE NO THIRD PARTY BENEFICIARIES TO THIS AGREEMENT.
IF YOU ARE A CALIFORNIA RESIDENT THEN BY ACCEPTING THIS AGREEMENT YOU ARE WAIVING CALIFORNIA CIVIL CODE SECTION 1542 WHICH STATES "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
14.2 Maximum Aggregate Liability. THE TOTAL AGGREGATE LIABILITY OF THETAKES UNDER THIS AGREEMENT, WHETHER ARISING OUT OF BREACH OF CONTRACT (INCLUDING BUT NOT LIMITED TO BREACH OF WARRANTY) OR TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), SHALL IN NO EVENT EXCEED THE TOTAL AMOUNTS ACTUALLY PAID TO THETAKES BY CUSTOMER UNDER THIS AGREEMENT FOR THE ONE (1) MONTH PRECEEDING THE TIME DURING WHICH THE CLAIM(S) AROSE OR $50-WHICHEVER IS GREATER. IN JURISDICTIONS WHERE LIMITATIONS ARE PROHIBITED, THE MAXIMUM DAMAGES SHALL NOT EXCEED THE STATUTORY LIMIT.
For Jurisdictions that do not allow us to limit our liability: Notwithstanding any provision of these Terms, if your jurisdiction has provisions specific to waiver or liability that conflict with the above then our liability is limited to the smallest extent possible by law. Specifically, in those jurisdictions not allowed, we do not disclaim liability for: (a) death or personal injury caused by its negligence or that of any of its officers, employees or agents; or (b) fraudulent misrepresentation; or (c) any liability which it is not lawful to exclude either now or in the future.
14.3 Acknowledgment. The parties acknowledge that they have reached agreement on Subscription Rates and other charges set forth in this Agreement in reliance on the disclaimers of warranty and limitations and exclusions of liability set forth in this Agreement and that the same form an essential basis of the bargain between the parties.
15. GENERAL TERMS.
15.1 Assignment. Neither this Agreement nor any rights granted hereby may be assigned by Customer without the prior written consent of TheTakes.
15.2 Modification. This Agreement can only be modified by a written agreement duly signed by persons authorized to sign agreements on behalf of Customer and of TheTakes, and variance from the terms and conditions of this Agreement in any written notification given by either party shall have no force or effect.
15.3 Severability. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable for any reason, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
15.4 Relationship of Parties. TheTakes and Customer will be and shall act as independent contractors, and neither party is authorized to act as or shall be an agent or partner of, or joint venturer with, the other party for any purpose. Neither party by virtue of this Agreement shall have any right, power, or authority to act or create any obligation, express or implied, on behalf of the other party.
15.5 Notices. All notices shall be in writing and shall be deemed to be delivered when deposited in the United States registered mails, postage prepaid, return receipt requested, or when sent by facsimile transmission promptly confirmed by return transmission, by telegram or by telex. All notices shall be directed to Customer or TheTakes at the respective addresses set forth below or to such other address as either party may, from time to time, designate by notice to the other party.
15.6 Injunctive Relief. In the event that (a) Customer or any of its members or guests attempts or threatens to use, copy, license, or convey the items supplied by TheTakes hereunder in a manner contrary to the terms of this Agreement, or (b) either party attempts or threatens to violate its obligations under Section 9, the aggrieved party shall have, in addition to any other remedies available to it, the right to injunctive relief. Each party hereby acknowledges that other remedies at law are inadequate in the circumstances set forth herein.
15.7 Force Majeure. Except for the Customer's failure to make required payments, neither party shall be liable for any damages or penalty for any delay in performance of, or failure to perform, any obligation hereunder or for failure to give the other party prior notice thereof when such delay or failure is due to the elements, acts of God, government regulation, political instability, acts of war, acts of terrorism, power outages, changes in law, internet disruption or other causes beyond that party's reasonable control.
15.8 Non-Waivers. No express or implied waiver by either party of any event of default hereunder shall in any way be, or be construed as, a waiver of any future or subsequent event of default.
15.9 Survival. The respective rights and obligations of the parties under Sections 7, 8, 9, 11, 12.3, 13, 14, 15, and 16 shall survive the termination of this Agreement.
15.10 Entire Agreement. The parties acknowledge that this Agreement, together with the Subscription Rates, Rules and Regulations, Privacy Policies, and Terms of Use set forth the complete, exclusive and integrated understanding of the parties which supersedes all proposals or prior agreements, oral or written, and all other prior communications between the parties relating to the subject matter of this Agreement.
15.11 Nonsolicitation. During the term of this Agreement and for a period of one (1) year after its termination, neither party shall, without the prior written consent of the other party, employ or otherwise engage, or offer to employ or otherwise engage, any person who is then employed by the other party or whose employment with the other party has been terminated, for any reason other than the convenience of the other party, during the six (6) month period immediately preceding the date on which an offer of employment would be made but for the provisions of this Section.
15.12 Export. Customer shall not export or re-export the Licensed Software in violation of U.S. export laws.
15.13 Statute of Limitations . Claims must be filed within one year. To the extent permitted by law, any claim related to this contract or the Service must be brought within one year. The one-year period begins on the date when the claim first could be filed. Any claim that is not filed within that time is permanently barred. This section applies to you and your successors. It also applies to us and our successors and assigns.
15.14 Export Controls . Our Licensed Software may not be downloaded, used, or exported to any country which is on the U.S. Export control list or where the U.S. has embargoed goods to that Nation, or where the U.S. Treasury Department has designated such country as a part of its Specially Designated Nationals list. By accessing or using our Licensed Software or Website you agree you are not prohibited to do so by your own countries laws or are not located in or a citizen/resident of a country that would be prohibited by the United States from utilizing the Licensed Software or Website. We are not liable for your failure to comply with this section.
15.15 Government Use . If the Licensed Software is to be utilized by the federal government, or any of its agencies, then our software is a "commercial" item as defined further in 48 C.F.R. 2.101 and the license is limited to only those provisions applicable to government users and is limited in scope. If such agency desires rights not found in those sections they must negotiate with TheTakes for additional terms and conditioned upon both parties agreeing in writing for the provision of additional rights.
15.16 Notice to California Users . California users may contact us about pricing, complaints, or inquiries at the email address on our contact page. In addition, California users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
16. DATA PRIVACY.
16.1 Introduction. TheTakes recognizes that Customer and/or its users may be from many different parts of the world, subject to different jurisdictions in regards to privacy law. This section is designed to ensure that the services provided, and practices engaged in, by TheTakes, are compatible with all applicable law.
16.2 United States Law. Where all users and servers are located in the United States, users agree that privacy laws regarding the United States shall apply. Specifically,certain state laws, such as California Business and Professions Code §§ 22575-22579 may apply to our collection and disclosure of your privacy information.
As stated earlier, no person under the age of 18 may use our LicensedSoftware, therefore although we may in these cases be subject to the Children's Online Privacy Protection Act, it is unlikely to have any impact on our relations with any Customer.
16.3 European Law. Where TheTakes has a nexus with a European Union member state that subjects us to European law (such as, without conceding such examples actually create a sufficient nexus, a headquarters in a member state, or hosting servers in a member state), we will comply with European privacy legislation. Our application of such law may or may not be specific to the member state(s) having jurisdiction over us. For example, some member states may implement European Union directives in a unique way compared to another member state, and implement such directives through national legislation specific to that member state. In other instances, a member state may not take action to implement a specific directive, but there may nonetheless be European law which applies to privacy rights and can be enforced according to applicable treaties and, if necessary, appealed tothe European Court of Human Rights (see, for example, MGN Ltd v United Kingdom, [2011] ECHR 66. Where a directive must be followed but is not specifically implemented by a member state, TheTakes shall comply according to the directive itself. Where such directive has been implemented by a member state, TheTakes shall comply with the national legislation implementing the directive, notwithstanding the fact that Customer may feel the national legislation departs from the directive.
16.4 Conflict of Laws. Where two or more states, whether European Union member states or otherwise, have jurisdiction over this Agreement, our Licensed Software, or any other matter which causes privacy legislation to apply, the most restrictive provisions shall apply. If it is impossible to comply with conflicting provisions, TheTakes shall make a decision in good faith as to which jurisdiction has the strongest nexus with the services contracted.
16.5 Other Countries. Where any other country has jurisdiction over this Agreement, TheTakes shall comply with their privacy legislation.
16.6 European Notification. In accordance with Directive 95/46/EC of the European Parliament, you are hereby notified that your data is being collected TheTakes.com, Inc. 2780 S. Jones Boulevard, Ste. 3698, Las Vegas, NV 89146, for the purpose of providing the services related to the Licensed Software described in this Agreement. Your data may be stored in the cloud system provided by Amazon Web Services (EC2), EBS Storage, Elastic Load Balancing, and ElastiCache. Note that this notification does not represent any concession on the part of TheTakes that we are subject to any European law. If our services would not otherwise be subject to the jurisdiction of any member state, this notification should be considered as a courtesy only, and not required in any way for compliance with any applicable law.
16.7 European Economic Area. In accordance with Articles 25 and 26 of Directive 95/46/EC of the European Parliament, any data collected or stored subject to the jurisdiction of a European Economic Area ("EEA") state shall be transferred and stored only in a country with an adequate level of data protection according to European law, or, failing that, to specific third parties in non-EEA states which have such adequate levels of data protection.