THIS SPECIAL OFFER VIDEO LICENSE AGREEMENT (THE “AGREEMENT”) IS A LEGALLY BINDING AGREEMENT BETWEEN YOU (“LICENSEE”) AND brass|MEDIA Inc. REGARDING LICENSEE’S USE OF brass|MEDIA Inc.’s VIDEO PLAYER AND VIDEOS, AS DEFINED BELOW. YOU MUST CLICK TO AGREE TO THE TERMS AND CONDITIONS IN THIS AGREEMENT PRIOR TO ACCESSING, DOWNLOADING, OR OTHERWISE USING THE VIDEO PLAYER AND VIDEOS. CAREFULLY READ THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT BEFORE CLICKING TO AGREE TO THIS AGREEMENT AND BEFORE ACCESSING, DOWNLOADING, OR OTHERWISE USING THE VIDEO PLAYER AND VIDEOS. BY CLICKING TO AGREE TO THIS AGREEMENT AND BY ACCESSING, DOWNLOADING, OR OTHERWISE USING THE VIDEO PLAYER AND VIDEOS, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE DISCLAIMER OF WARRANTIES. IF YOU DO NOT AGREE TO ANY TERM OR CONDITION IN THIS AGREEMENT, DO NOT CLICK TO AGREE TO THIS AGREEMENT AND DO NOT ACCESS, DOWNLOAD, OR OTHERWISE USE THE VIDEO PLAYER AND VIDEOS.
1. Authority to Agree.
BY CLICKING TO AGREE TO THE TERMS AND CONDITIONS IN THIS AGREEMENT, THE PERSON CLICKING TO AGREE REPRESENTS AND WARRANTS THAT HE OR SHE IS AUTHORIZED TO AGREE TO THIS AGREEMENT AND TO BIND THE ENTITY ON WHOSE BEHALF HE OR SHE IS CLICKING TO AGREE. Licensee agrees that brasslMEDIA Inc. need not sign this Agreement in order for it to be a legal and binding agreement between the parties.
2. License Granted; Restrictions.
a. Introduction. Pursuant to the terms and conditions of this Agreement, brasslMEDIA Inc. provides to Licensee the brass Video Player (the “Video Player”) and four (4) free videos (the “Videos”), which are intended for use by financial institutions and organizations only.
b. License. THE VIDEO PLAYER AND VIDEOS ARE LICENSED, NOT SOLD. UPON ACCEPTANCE OF THE TERMS AND CONDITIONS IN THIS AGREEMENT, brass|MEDIA Inc. HEREBY GRANTS TO LICENSEE A LIMITED, REVOCABLE, NON-EXCLUSIVE, NON-SUBLICENSABLE, NON-TRANSFERABLE LICENSE TO USE THE VIDEO PLAYER ON LICENSEE’S PRIMARY WEBSITE SOLELY FOR THE PURPOSE OF PLAYING THE VIDEOS THROUGH THE VIDEO PLAYER ON LICENSEE’S PRIMARY WEBSITE.
brasslMEDIA Inc. RESERVES ALL RIGHTS NOT EXPRESSLY GRANTED HEREIN.
c. Use. The Video Player and Videos are licensed as a single product and must be used together; they may not be used on more than one website at a time. The Video Player is “in use” when it is programmed, embedded or installed into Licensee’s primary website.
d. Use Restrictions. REDISTRIBUTION OF THE brass|MEDIA Inc. VIDEO PLAYER OR VIDEOS IS NOT PERMITTED. Except using the Video Player to play the Videos on Licensee’s primary website, Licensee may not distribute, transmit, sell, lease, loan, or otherwise transfer or provide, electronically or otherwise, the Video Player or Videos, in whole or in part, to any individual or entity for any purpose whatsoever.
Any attempted sublicense, assignment, or transfer of the license granted to Licensee herein will be void and of no force or effect and shall be considered a material breach of this Agreement and the license granted herein.
Licensee shall not, and shall not have any third party, create any derivative works based on or derived from the Video Player or Videos. Licensee shall not, and shall not have any third party, decompile, disassemble, or reverse engineer the Video Player, or copy the Video Player or Videos.
e. Restricting Access. brass|MEDIA Inc. reserves the right to restrict or terminate access to the Video Player and Videos for any reason whatsoever, including without limitation if brasslMEDIA determines, in its sole discretion, that the Licensee is not using the Video Player and Videos in good faith for their intended purposes or otherwise in accordance with this Agreement. brasslMEDIA Inc. has no obligation to notify Licensee of such access restriction or termination.
3. Video Player and Video Features.
The Video Player enables the playing of brass|MEDIA Inc. produced Videos. The Videos shall consist of three to five minute Videos on young adult lifestyle and money related topics.
a. Embedding Video Player. After Licensee embeds the Video Player in the desired location on Licensee’s website, the Video Player will automatically upload the provided Videos.
b. Website Placements. The Video Player may be placed in a single location within Licensee’s website at the discretion of Licensee.
c. Playlists. The Video Player includes a playlist of the provided Videos. Playlist content is determined at the sole discretion of brass|MEDIA Inc.
d. Disclaimer and Attribution of Ownership. The Video Player and Videos must be used in their entirety without editing (pre and post rolls, body and audio), and Licensee may not remove, obscure, conceal, or alter any credits or notice of patent, copyright, trademark, or other proprietary right that may appear on the Video Player or Videos. Use of the Video Player and Videos requires that the following disclaimer be placed in a sufficiently prominent location and font size near the Video Player such that a reader is likely to notice and read the disclaimer:
“The video content presented is meant for general information and educational purposes and not provided as financial, investment or professional advice. brasslMEDIA Inc. is not a broker or investment adviser and does not provide investment advice or recommendations directed to any particular circumstances or person. You should consult with appropriate qualified professionals regarding your specific circumstances."
The video content is the sole and exclusive property of brasslMEDIA Inc. You are only allowed to view the video content on this website. You shall not copy the brasslMEDIA Inc. video content or distribute, transfer, or otherwise provide, electronically or otherwise, the brasslMEDIA Inc. video content to any third party.”
4. brass|ADMIN Features.
The brass|ADMIN is a secure website (admin.brassmedia.com) allowing Licensee to easily manage all of the features of the Video Player. Access to the brass|ADMIN website is login and password protected and encrypted for protection of all information. Licensee is responsible for the use and security of login and password access. Licensee is responsible for all activity that occurs under Licensee’s login and password. Licensee agrees not to provide login and password information to individuals who should not have access to Licensee’s login and password. Licensee shall implement reasonable security practices of updating and changing password access to the brass|ADMIN website to protect against unauthorized access to Licensee’s account from individuals who may no longer be employed or associated with Licensee. To login to the brasslADMIN website, Licensee may be required to provide contact and other personal information. Licensee agrees that brasslMEDIA Inc. may send Licensee information regarding brasslMEDIA Inc.’s products and services that may be interesting or valuable to Licensee via the contact information provided. Licensee’s use of the brasslADMIN website, including the adoption and use of a login and password, is subject to brasslMEDIA Inc.’s Terms of Use located at http://www.brassmedia.com/terms-of-use and Privacy Policy located at http://www.brassmedia.com/privacy-policy. brasslMEDIA Inc.’s Terms of Use and Privacy Policy are incorporated into this Agreement.
5. Updates.
brass|MEDIA Inc. reserves the right to modify and/or update its Video Player and Videos. brass|MEDIA Inc. also reserves the right at any time not to release updates or new versions of its Video Player or Videos or, if released, to charge for improvements, features, capabilities, functions, general availability or other characteristics of the release (“Improvements”). In the event that brass|MEDIA Inc. elects to charge for said Improvements, Licensee will be provided with the option to purchase Improvements at an agreed upon price. Except with respect to fees for use of Improvements, Improvements will be treated as “Video Player and Videos” according to the terms and conditions of this Agreement.
6. Term and Termination of Agreement.
This Agreement will begin on the first day Licensee accepts the terms of this Agreement as activated through the brass|MEDIA website (brassMEDIA.com), and will continue until terminated.
a. Revocation; Termination. If Licensee uses the Video Player or Videos, or any part thereof, in any manner other than as expressly permitted by this Agreement, the license granted herein will immediately and automatically terminate.
brass|MEDIA Inc. RESERVES THE RIGHT TO REVOKE THE LICENSE GRANTED HEREIN AND TERMINATE THIS AGREEMENT AND LICENSEE’S ACCESS TO THE VIDEO PLAYER AND VIDEOS AT ANY TIME, FOR ANY REASON, AND WITHOUT NOTICE OR LIABILITY TO LICENSEE.
Either brass|MEDIA Inc. or Licensee may terminate this Agreement at any time.
b. Effect of Termination. Upon termination of this Agreement for any reason, Licensee shall remove the Video Player and Videos from Licensee’s website, cease any and all other use of the Video Player and Videos, and notify brass|MEDIA Inc. in writing that it has done so.
7. No Fees.
Licensee is licensed to utilize the Video Player and Videos as set forth in this Agreement free of charge for as long as brass|MEDIA Inc. elects to make the offer available, except as set forth in Section 5 regarding payment for Improvements. Notwithstanding the foregoing, brasslMEDIA Inc. reserves the right to charge for the continued use of the Video Player and Videos at any time.
8. Sales/Use Taxes.
All sales, use and/or other excise taxes applicable to or imposed on the Video Player and Videos, free or paid for, provided by brass|MEDIA Inc. to Licensee shall be the sole and exclusive obligation of Licensee. Failure of brass|MEDIA, Inc. to collect state or local sales, use or other excise taxes of any kind does not eliminate the Licensee’s obligation to report and remit such taxes on Licensee’s own accord.
Licensee agrees to indemnify, defend, and hold brass|MEDIA Inc. harmless from any and all of such taxes, and any and all interest and penalties that may be imposed in connection therewith.
Obligations under this Section 8 shall survive termination of this Agreement for any reason, and any reorganization of Licensee, including but not limited to, any reorganization resulting from bankruptcy, merger or the like.
Under certain circumstances, Licensee may have exemption from particular state and/or local taxes. If applicable, Licensee may provide a Buyer’s Retail Tax Exemption Certificate to brass|MEDIA Inc. to demonstrate Licensee’s exempt status.
9. Ownership.
The brass|MEDIA Inc. Video Player and Videos are subject to all copyright, trademark, trade secret, patent, and other intellectual property protection, and other rights of brass|MEDIA Inc. under federal, state and common law. Licensee agrees to abide by the international and U.S. copyright, trademark, trade secret, and patent laws, and all other applicable laws. Licensee acknowledges and agrees that brass|MEDIA Inc. is and shall continue to be the absolute and exclusive owner of all content comprising and incorporated into the Video Player and Videos, including without limitation, all text, graphics, images, sound, animation, and other content; all modifications, improvements, or derivative works based on or derived from the same; and all copyright, trademark, patent, trade secret, and other intellectual property and proprietary rights associated therewith. Licensee’s right to use said content is derived solely from this Agreement; and such right is expressly limited as set forth in this Agreement.
Licensee acknowledges it has no claim to ownership of or other interest in brass|MEDIA Inc.’s Video Player and Videos or brass|MEDIA Inc.’s registered or unregistered trademarks, service marks, trade names, logos, or slogans (including, without limitation, brass, brass Media, brass|MEDIA, brass MAGAZINE, brass|MAGAZINE, brassmedia.com, brassmagazine.com, brass|STUDENT PROGRAM, brass Student Program, “the money side of life,” “young today rich tomorrow,” “the brass|SHOW,” The brass Show, “Making finance Personal,” “Making It, Managing It, Multiplying It,” “money and real world stuff) or any other company material (collectively, “brass IP”), by reason of Licensee’s use of or access to brass IP as authorized hereunder, or on any other basis. Licensee agrees not to remove, obscure, or deface any proprietary legend relating to brass|MEDIA Inc.’s rights. Licensee agrees that it will make no claim of ownership to or challenge the validity of any right, title or interest in any brass IP.
Licensee may not (i) sell, lease, license, sublicense, distribute or otherwise transfer in whole or in part any source code or other content comprising brass|MEDIA Inc.’s Video Player and Videos to another party; or (ii) provide, disclose, divulge, or make available any source code or other content comprising brass|MEDIA Inc.’s Video Player and Videos, in whole or in part, to any third party. Licensee acknowledges that the source code or other content comprising brass|MEDIA Inc.’s Video Player and Videos remains a confidential trade secret of brass|MEDIA Inc. Licensee agrees not to modify the source code or content comprising brass|MEDIA Inc.’s Video Player and Videos, or to attempt to duplicate, reverse engineer, decompile, disassemble, or otherwise reproduce such source code or content, or any part of it, or to modify or create derivative works based upon such source code or content.
10. Bursting Bandwidth Protection; Maintenance.
a. Bursting Bandwidth Protection. brass|MEDIA Inc. reserves the right to temporarily interrupt or discontinue the service of the Video Player and Videos in the event utilization exceeds capacity or unauthorized third-party actions cause harm or the bursting of the bandwidth used for delivery. Although necessary cautions have been implemented to prevent and reduce the probability of such a disruption, this is a necessary precaution to protect both Licensee and brass|MEDIA Inc.
b. System Maintenance. Periodic system maintenance is required. brass|MEDIA Inc. attempts to conduct all system maintenance during periods of low service utilization.
i. Scheduled Maintenance. Scheduled system maintenance is conducted on Wednesdays between 10:00 PM and 5:00 AM Pacific Standard Time. Typically these are short periods of time when servers require rebooting to install security patches and updates.
ii. Unscheduled Maintenance. From time to time, technology changes and third party service providers of both hardware and software will require system upgrades or modifications. In the event of service interruptions, brass|MEDIA Inc. will use reasonable efforts to bring systems back online as fast as possible.
iii. No Service Obligations or Liability. brasslMEDIA Inc. shall have no obligations with respect to maintenance of the Video Player or Videos, or liability to Licensee with respect to service interruptions or other inability to access the Video Player or Videos.
11. Disclaimer of Warranties.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, brass|MEDIA Inc. PROVIDES THE VIDEO PLAYER AND VIDEOS “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND brass|MEDIA Inc. SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, PRODUCTIVENESS, CAPACITY, TITLE, AND NON-INFRINGEMENT.
THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE VIDEO PLAYER AND VIDEOS IS ASSUMED BY THE LICENSEE. brass|MEDIA Inc. IS NOT RESPONSIBLE FOR SERVICING, REPAIR, OR CORRECTION OF THE VIDEO PLAYER OR VIDEOS. NEITHER BRASS|MEDIA INC. NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, OR INFORMATION PROVIDERS, WRITERS OR CONTRIBUTORS SHALL BE LIABLE FOR ANY LOSS OR DAMAGE RESULTING FROM LICENSEE’S, OR ITS MEMBERS’ OR CUSTOMERS’, USE OF AND ACCESS TO THE VIDEO PLAYER AND VIDEOS HEREUNDER.
brass|MEDIA Inc. DOES NOT WARRANT THE RELIABILITY, COMPLETENESS, ACCURACY, OR AVAILABILITY OF THE VIDEO PLAYER AND VIDEOS, OR ANY INFORMATION PROVIDED BY AND THROUGH THE VIDEO PLAYER AND VIDEOS. brass|MEDIA Inc. DOES NOT WARRANT THAT THE VIDEO PLAYER AND VIDEOS WILL MEET LICENSEE’S REQUIREMENTS; WILL BE ERROR FREE OR THAT OPERATIONS WILL BE UNINTERUPTED, TIMELY, OR SECURE; WILL BE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS; OR THAT ERRORS OR DEFECTS IN THE OPERATION OF THE VIDEO PLAYER AND VIDEOS WILL BE CORRECTED.
brasslMEDIA INC. SHALL NOT BE LIABLE FOR, AND WILL NOT BE CONSIDERED TO BE IN BREACH OF OR DEFAULT UNDER THIS AGREEMENT ON ACCOUNT OF ANY DELAY OR FAILURE TO PERFORM ANY OBLIGATION UNDER THIS AGREEMENT DUE TO CAUSES OR CONDITIONS THAT ARE BEYOND brasslMEDIA INC.’S REASONABLE CONTROL, INCLUDING WITHOUT LIMITATION DELAYS OR FAILURE OF PERFORMANCE RESULTING FROM FAILURE OF ANY COMMUNICATION OR DELIVERY METHODS; OR ACTS OF GOD, STRIKES, LOCKOUTS, EQUIPMENT FAILURES, POWER FAILURES, EARTHQUAKES, OR OTHER DISASTERS .
12. Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, brass|MEDIA Inc. SHALL HAVE NO LIABILITY WHATSOEVER TO LICENSEE, ANY OF ITS MEMBERS OR CUSTOMERS, OR ANY OTHER PARTY UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY DIRECT DAMAGES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF OPPORTUNITY, LOSS OF BUSINESS, LOSS OF ANTICIPATED BENEFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF OR DAMAGE TO DATA, COMPUTER FAILURE OR MALFUNCTION, AND THE LIKE UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE ARISING OUT OF THE USE, THE RESULTS OF USE, OR THE INABILITY TO USE THE VIDEO PLAYER OR VIDEOS, EVEN IF brass|MEDIA Inc. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSEE ACKNOWLEDGES AND AGREES THAT ITS USE OF AND ACCESS TO THE VIDEO PLAYER AND VIDEOS ARE PROVIDED FREE OF CHARGE, AND THAT THE FREE ACCESS TO AND USAGE OF THE VIDEO PLAYER AND VIDEOS ARE PREDICATED ON THE EXCLUSION OF brasslMEDIA Inc.’s ENTIRE LIABILITY UNDER THIS AGREEMENT.
13. Indemnification.
Licensee agrees to defend, indemnify, and hold brass|MEDIA Inc., its parents, subsidiaries, affiliates, and its and their respective directors, officers, agents, representatives, and employees (“Indemnitees”), harmless for, from and against any liabilities or losses, including reasonable attorneys’ fees and costs, arising out of or relating to any claim, demand, action, or allegation asserted by any third party against an Indemnitee relating to or arising out of any breach of this Agreement by Licensee or arising out of Licensee’s accessing, downloading, or other use of the Video Player and Videos.
14. General.
a. Entire Understanding. This Agreement constitutes the entire understanding of the parties as to the subject matter set forth in it, and no other agreement, practice or promise with respect to the subject matter of this Agreement not specifically stated herein shall be binding upon the parties. This Agreement cannot be changed without the express written consent of the parties. Any special terms or conditions agreed to by both brass|MEDIA Inc. and Licensee shall be in writing and made part of this Agreement by attaching additional schedules as necessary.
b. No Agency Relationship. This Agreement does not create an agency relationship between the parties and does not establish a joint venture, partnership, employment relationship between the parties. Neither party has the authority to bind the other party or represent to any person that the party is an agent of the other party.
c. Assignment. Licensee may not assign this Agreement to any third party without the express written consent of brass|MEDIA Inc, which consent may be granted or withheld in brasslMEDIA Inc.’s sole discretion. Any attempt by Licensee to assign or otherwise transfer this Agreement and the license granted hereunder shall be void and of no force or effect and shall be considered a material breach of this Agreement and the license granted herein.
d. Notices. Any notice required to be given to the parties shall be deemed given if in writing and delivered by hand or sent by United States Express or Certified Mail, Return Receipt Requested, mailed to the regular place of business of the party to which the notice should be addressed, or such other address provided by notice as herein provided.
e. Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of Oregon, without application of any conflicts of laws provisions or policies. Any action arising out of or relating to this Agreement may be brought only in federal or state courts located in the State of Oregon, Benton County, and the parties consent and attorn to the exclusive jurisdiction and venue of such courts.
f. Government Restrictions. Licensee may not export or re-export the Video Player or Videos or use the Video Player or Videos in any manner prohibited by the United States Bureau of Industry and Security or any export laws, restrictions, or regulations. The Video Player and accompanying documentation may be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performing, displaying, or disclosing of the Video Player and accompanying documentation by the U.S. Government shall be governed solely by the terms of this License Agreement.
g. Injunctive Relief; Attorneys Fees; Cumulative Remedies. Licensee acknowledges and agrees that if Licensee fails to comply with any provision of this Agreement, such default will cause irreparable injury to brasslMEDIA Inc., and brasslMEDIA Inc. shall be entitled, in addition to any other rights and remedies it may have at law or in equity, to specific performance and an injunction (without the posting of any bond) enjoining and restraining any further default. The prevailing party in any action relating to this Agreement shall be entitled to recover all reasonable expenses, including attorneys’ fees, in connection with such action or any appeal thereof. All rights and remedies provided herein shall be cumulative and may be exercised singularly or concurrently.
h. Waiver; Severability. A waiver of any provision of this Agreement by either party shall not be construed as a waiver of any other provision, nor shall a waiver of any right under this Agreement constitute a subsequent waiver of the same right. No waiver shall be valid unless signed and in writing by the party so waiving. If any provision of this Agreement is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this Agreement will not be affected.
i. Survival. Sections 1, 6.b, 8, 9, 11, 12, 13, and 14 and the obligations and rights therein shall survive termination of this Agreement.