Backyard Service Agreement - Extended
YOU ACKNOWLEDGE AND AGREE THAT BY LOGGING IN TO YOUR ACCOUNT CENTER, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SERVICE. If you accept or agree to this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to this Agreement and, in such event, "you" and "your" will refer to that company or other legal entity.
By using the Service, you consent to receive Service related communications, including, but not limited to e-mails and SMS messages. As long as you maintain an account, you may not “opt out” of receiving account-related e-mail messages from Backyard Support (firstname.lastname@example.org). You do have the right, however, to opt-out of all SMS account notifications from within your Account Center or through a verbal or written request with a Backyard Customer Service Agent.
Free Trial Service
The Backyard Starter Lite package will receive a 30-day free trial and has no setup fees. A $1.00 temporary authorization will remain on your bank statement for up to 72 hours and then will automatically drop off. After the 30-day free trial, the service term is month-to-month.
If you do not cancel 48 hours before your 30-day free trial period is over, your account will be billed for the following month of service. This free trial offer applies to new packages only; package upgrades are not eligible for a free trial. There is a limit of one(1) Free Trial offer per account.
Google Advertising Service Provider
Backyard is not affiliated with Google and does not work for Google. Backyard is a third-party reseller of Google Adwords mobile and video advertising, and bundles Google advertising budgets into Backyard service packages. This advertising is set up as Cost-Per-Click ("CPC") and is set to pause once an account's fixed monthly advertising budget has been reached. Backyard cannot guarantee that a customer's Google advertising will be running and visible at any specific time throughout the month or for any guaranteed length of time. Backyard does not guarantee a specific dollar amount of each subscription package be allotted towards Google advertising, and may change the amount of Google advertising included in all Backyard service packages at will.
Without limiting anything else herein, you acknowledge that Backyard at its discretion may distribute the Video, on your behalf or on behalf of Backyard, on third-party websites which are now, or later become, available (the “Third-Party Websites”) in any and all media now known or hereafter developed. You understand that the distribution of the Video through Third-Party Websites may require that the Video be loaded to third-party servers over which Backyard maintains no control and that once= the Video has been loaded to third-party servers that content may continue to be streamed and distributed at the third-party’s sole discretion. Backyard will have no, and hereby disclaims any, liability for any use of the Video, or timing thereof, by any such third-party.
Payment. If your order requires payment, you agree to pay (and continue to pay if signing up for a subscription) PixelFish Inc. (“Backyard”) the amount(s) specified for the video products (each a “Video”) or Services, as specified on the order page. Free trials cannot be combined with any other offer and each business is limited to one free trial offer.
Subscriptions. If you choose one of Backyard’s subscription offerings, you may cancel such subscription at any time. However, by choosing a subscription offering, you are expressly agreeing that Backyard is authorized to charge you a monthly or annual subscription fee, as applicable, any applicable tax and any other charges you may incur to the credit card, PayPal or bank account you provided at time of check-out (or to a different credit card, PayPal or bank account if you change your account information). Additional charges may include edits that are beyond the scope of your original purchase. Subscription fees will be billed at the beginning of your subscription (i.e., the date your final video is delivered to you) and each monthly or annual renewal thereafter unless and until you cancel such subscription. Backyard automatically bills your account each month or year, as applicable, on the calendar day corresponding to the commencement of your subscription. In the event your subscription began on a day not contained in a given month (e.g., 30th or 31st), Backyard will bill your credit card on the last day of such month. All fees and charges for subscription Services are nonrefundable and there are no refunds or credits for partially used periods. If you want to use a different payment method or if there is a change in your account validity or expiration date, you may edit your information by contacting Backyard. In the event that you fail to make payment when due, Backyard may downgrade your subscription to a lesser monthly fee, terminate your subscription, cancel all licenses, take down your hosted Video, and/or restrict your access to your Account Center, as applicable.
You may cancel your subscription at any time and cancellation will be effective immediately. Backyard DOES NOT PROVIDE REFUNDS OR CREDITS FOR ANY PARTIAL SUBSCRIPTION PERIODS.
Backyard reserves the right to terminate your subscription for any or no reason.Custom Video Shoots
Scheduling of Appointments. For your initial video shoot, Backyard will attempt to contact you following submission of your order form in order to schedule an appointment time for your shoot (the “Appointment”). An Appointment must occur within sixty (60) days of the date you place your order. In the event Backyard is unable to contact you within fourteen (14) days or is unable to schedule an Appointment within sixty (60) days of your order, your order may be cancelled.
Location and Appearance Releases. You hereby agree to cooperate with Backyard to help secure location and appearance releases for the filming of the Video content, as applicable.
Cancellations and Refunds. In the event you miss the Appointment, or you reschedule your Appointment with less than forty-eight (48) hours notice to Backyard, or you fail to allow Backyard or its agents access to your place of business or other shoot location at the designated Appointment time or you fail to provide signed location or appearance releases, as appropriate, to Backyard, Backyard shall charge, and you shall pay, a $100 shoot cancellation and reschedule fee. If you cancel your order prior to the shooting of your Video, Backyard shall refund your Payment Amount(s) less a $50 order cancellation fee. If your order includes an upfront payment and you cancel your order following the shooting of your Video, you will not be entitled to a refund of any amount.
Acceptance of Video
Once the Video is ready to preview, Backyard will e-mail you a link to an online preview where you will have the ability to review and approve your video or make change requests. For a Montage or Original Video, you may request the number of edits to the Video included in your purchase. Such requests may only include: lower third corrections (name/title changes), music swaps (limited to music in Backyard’s then-current library), add/remove/replace still images, re-order existing material in the Video, remove sound bites, color correction, and audio level adjustment (relationship between dialogue and music.) For the avoidance of doubt, change requests will not include requests to shoot additional footage. All other change requests, including changes to Ready Ads, may incur an additional fee with will be disclosed to you prior to making such edits. Video review e-mails will specify how many days you will have to submit edit requests (such period to be no less than two (2) and no more than ten (10) days). If you do not make any edit requests within such time period, the Video will be deemed complete and approved by you and may be distributed (if your order includes distribution). If you do make edit requests through the online preview system, Backyard will use commercially reasonable efforts to make such edits and send you the revised Video within five (5) days of receiving such edit requests.
Ownership and License Grants
Upon your purchase, you will be licensing the right, as provided in these Terms, to display your Video solely for purposes of marketing your business. All rights, title and interest, including all copyrights, intellectual and other proprietary rights, in and to each Video as well all raw footage shot by Backyard, including, without limitation, tapes, out-takes, “b-roll”, interviews, location shots and clips (the “Raw Footage”), shall be the property of Backyard. Backyard shall have the right, but not the obligation, to archive the Raw Footage. No intellectual property rights in the Video will be transferred to you, other than the limited license to use and display your Video pursuant to these Terms. Backyard shall own exclusive rights in any and all derivative works created from the Video. The incorporation of any of your Materials into the Video will not affect Backyard’s continued and separate copyright ownership in the Video and Backyard’s ownership will not merge with your ownership of your Materials no deprive Backyard of its copyright ownership. You may not modify, duplicate, distribute, display, perform, sublicense, republish, retransmit, reproduce, create derivative works from, transfer, sell, or otherwise use the Video or any components thereof except as specifically provided herein.
With regard to the Video and any and all components thereof (“Content”) obtained from Backyard, you may not: use the Content in design template applications intended for resale, whether on-line or not, including, without limitation, website templates, Flash templates, business card templates, electronic greeting card templates, and brochure design templates; use or display the Content on websites or other venues designed to induce or involving the sale, license or other distribution of “on demand” products, including postcards, mugs, t-shirts, posters and other items (this includes custom designed websites, as well as sites such as www.cafepress.com); use the Content in any posters (printed on paper, canvas or any other media) or other items for resale, license or other distribution for profit; use any of the Content as part of a trade-mark, design-mark, trade-name, business name, service mark, or logo; incorporate the Content in any product that results in a re-distribution or re-use of the Content (such as electronic greeting card web sites, web templates and the like) or otherwise make the Content available in a manner such that a person can extract or access or reproduce the Content as an electronic file; use the Content in a fashion that is pornographic, obscene, immoral, infringing, defamatory or libelous in nature, or that would be reasonably likely to bring any person or property reflected in the Content into disrepute; use or display any Content that features a model or person in a manner (a) that would lead a reasonable person to think that such person uses or personally endorses any business, product, service, cause, association or other endeavor; or (b) except where accompanied by a statement that indicates that the Content is being used for illustrative purposes only and any person depicted in the Content is a model, that depicts such person in a potentially sensitive subject matter, including, but not limited to mental and physical health issues, social issues, sexual or implied sexual activity or preferences, substance abuse, crime, physical or mental abuse or ailments, or any other subject matter that would be reasonably likely to be offensive or unflattering to any person reflected in the Content, unless the Content itself clearly and undisputedly reflects the model or person in such potentially sensitive subject matter in which case the Content may be used or displayed in a manner that portrays the model or person in the same context and to the same degree depicted in the Content itself; reverse engineer, decompile, or disassemble any part of such Content and to the extent that source code is contained within the Content, reverse engineer, decompile, or disassemble any part of such source code; remove any notice of copyright, trade-mark or other proprietary right from any place where it is on or embedded in the Content; sub-license, re-sell, rent, lend, assign, gift or otherwise transfer or distribute the Content or the rights granted under this Agreement; install and use the Content in more than one location at a time or post a copy of the Content on a network server or web server for use by other users without a formal license to do so from Backyard; use or display the Content in an electronic format that enables it to be downloaded or distributed via mobile devices or shared in any peer-to-peer or similar file sharing arrangement, without a formal license to do so from Backyard; use Content identified as “Editorial Use Only”, for any commercial, promotional, endorsement, advertising or merchandising use. For clarification, in this Agreement “Editorial Use Only” of Content means use relating to events that are newsworthy or of general interest and expressly excludes any advertorial sections (i.e. sections or supplements featuring brand and/or product names or sections or supplements in relation to which you receive a fee from a third-party advertiser or sponsor); use the Content for editorial purposes; or either individually or in combination with others, reproduce the Content, or an element of the Content, in excess of 500,000 times without a formal license to do so from Backyard.
Backyard reserves the right to elect at a later date to revoke or amend the license granted by this Agreement and replace the Content with an alternative for any reason. Upon notice from Backyard the license for the replaced Content immediately terminates for any Video that does not already exist, and the license granted herein automatically applies to the replacement Content. You agree not to use the replaced Content for any other purpose and to take all reasonable steps to discontinue use of the replaced Content in existing Videos.
Upon notice from Backyard, or upon your knowledge that any Content is subject to a threatened, potential or actual claim of infringement, you must immediately and at your own expense (i) stop using the Content; (ii) delete or remove the Content from all uses, including, but not limited to computer systems, storage (electronic or physical) and the Internet.
You hereby grant to Backyard a perpetual, irrevocable, royalty-free, non-exclusive, fully transferable and sub-licensable right and license to access, store, copy, modify, display, distribute, perform, create derivative works from, and otherwise use and exploit all of your Materials in connection with your Video in any form, media, software or technology of any kind now existing or developed in the future and the right to sublicense the foregoing rights. You further grant to Backyard a royalty-free right and license to use your name, image and likeness in advertising and in connection with the licensed rights for the Materials. Backyard shall have no obligation to return the Materials to you following production of your Video.
Without limiting any of the foregoing, Backyard or Backyard’s third party licensors retain all ownership rights, including copyright, to any music included in any Video by Backyard, including without limitation any original musical compositions created by Backyard and any music licensed by Backyard from a third-party, and all related rights of every kind to such music, including without limitations the rights to the musical composition, sound recording, arrangement, reproduction, transmission, broadcast, dissemination by any manner, performance and moral rights (all such rights together, the “Music”). If you are to receive a file or embed code of the Video (as specified on the order page), then, subject to your compliance with the terms and conditions of this Agreement (including all payment terms), you are hereby granted a revocable, non-exclusive, worldwide, license to copy, distribute, transmit and stream the Video, subject to the terms of this Agreement. Notwithstanding any of the foregoing, you agree not to distribute, transmit, stream or otherwise display the Video on any website that promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous or displays pornographic or sexually explicit material of any kind.
Backyard may hire third parties to provide some of the Services, such as photographers. Such third party service providers are independent contractors. Inasmuch as Backyard merely purchases services from them, Backyard makes no guarantee, representation or warranty of any kinds as to the quality, competency, value, reliability, responsiveness, accuracy or completeness of any such third party services or the results obtained therefrom, and Backyard assumes no responsibility or liability for any third party service providers.
Other Legal Details
Backyard Representations and Warranties. Backyard represents and warrants that, subject to your obligations to obtain the necessary releases, the Videos created by Backyard under this Agreement, will not infringe the copyright, trademark or patent of any third party; provided that Backyard makes no representation or warranty of non-infringement with regard to (a) any Materials provided by you to be included in the Video or (b) any Raw Footage (as defined below) that does not become a part of the Video.
EXCEPT AS EXPRESSLY PROVIDED ELSEWHERE, BACKYARD DOES NOT MAKE AND BACKYARD DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WITH RESPECT TO THE VIDEOS AND THE SERVICES, AND EXPRESSLY DISCLAIMS THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BACKYARD MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SERVICE OR THE SERVICES OF ANY THIRD PARTY AND DISCLAIMS WITHOUT LIMITATION: (I) ANY AND ALL ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL OR BUSINESS INJURY OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR USE OF THE SERVICE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR WEBSITE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEB SITE BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT. BACKYARD DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY.
Indemnification. You shall indemnify, defend and hold harmless Backyard, and Backyard’s affiliates, officers, directors, employees and agents, from and against all third party claims, suits, proceedings, liabilities and costs (including reasonable attorneys’ fees) to the extent arising from or based upon (a) your negligence, (b) your breach of any part of this Agreement or of the Site Terms, © a claim that any mark, copyright, logo or other element of your business or any material provided by you to be included in the Video violates the trademark, copyright or other rights of any third party, (d) your use of the Video that is in breach of this Agreement; (e) any edit, change or other alteration made to the Video as delivered by Backyard, (f) a claim that your products or services are defective, injurious or harmful (including, without limitation, any claim for bodily injury or death), (g) a claim that the manufacture, sale, distribution or use of any of your products or services violates the rights of any third party or that the advertising, publicity or promotion of your products or services violates or encourages or induces the violation of the rights of any third party, (h) a claim that a Video contains false or misleading statements or violates any requirements that are imposed upon you as a result of your business activities by any governmental, regulatory or oversight agency, body, tribunal or proceeding.
Limitation of Liability. EXCEPT FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL BACKYARD, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR ITS AFFILIATES (“BACKYARD PARTIES”) BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS) ARISING FROM OR IN ANY WAY CONNECTED WITH ITS PRODUCTS, SERVICES, PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT, WHETHER IN CONTRACT (INCLUDING BREACH OF WARRANTY), TORT (INCLUDING STRICT LIABILITY AND NEGLIGENCE) OR OTHERWISE. ADDITIONALLY, IN NO EVENT SHALL BACKYARD’S AGGREGATE LIABILITY FOR DIRECT DAMAGES EXCEED THE ACTUAL AMOUNTS PAID UNDER THIS AGREEMENT. WITHOUT LIMITATION, THE BACKYARD PARTIES SHALL NOT BE LIABLE FOR (I) ERRORS, MISTAKES, OR INACCURACIES IN YOUR VIDEO, (II) DAMAGES, OF ANY NATURE WHATSOEVER, RESULTING FROM THE CONTENT OF YOUR VIDEO, (III) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVERS. YOU SPECIFICALLY ACKNOWLEDGE THAT BACKYARD SHALL NOT BE LIABLE FOR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
Non-Solicitation. Upon placing an order and continuing for a period of 12 months following the filming of the last Video produced by Backyard for you, you agree that you will not, without Backyard’s prior written consent, directly or indirectly, solicit or encourage any employee or contractor of Backyard or its affiliates to work directly for you.
Modification. No alterations to, or variations of, the terms and conditions of this Agreement shall be valid unless made in writing and signed by all of the parties hereto or their successors or assigns.
Governing Law; Arbitration. This Agreement shall be construed and governed by the laws of the State of California. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
Independent Contractor. Each party is an independent contractor and not an agent or partner of, or joint venture 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.
Assignment. Neither party shall (or shall attempt to) directly or indirectly (including by operation of law) transfer, assign or delegate any right or obligation hereunder, provided that either party may assign this Agreement without consent, but with prior notice, to a person with whom such party has merged or to whom such party has sold all or substantially all of its assets. Any attempt to assign or transfer this Agreement in violation of this agreement and will be null and of no effect.
Force Majeure. Neither party shall be liable or deemed in default for any delay or failure in performance of this Agreement (except for any payment obligations) resulting from any cause beyond the control of that party, but only for so long as, its performance is prevented by any acts or events beyond that Party’s reasonable control.
Final Agreement. This Agreement contains the final and complete contract of the parties hereto with regard to the Service and such Agreement supersedes all prior oral or written promises, undertakings, understandings or negotiations concerning the Service. This Agreement shall inure to the benefit of, and be binding upon, you and Backyard and our respective successors and assigns.
Notices. All notices, requests, demands, and other communications hereunder shall be in writing and shall be deemed to have been duly given if personally delivered or when received if mailed, by courier, overnight delivery services or certified or registered mail, postage pre-paid, to the parties at the address set forth below:
If to Backyard: PixelFish, Inc., Attention CEO, 43174 Business Park Drive., Temecula, CA 92590.
If to you: to the address that you register with Backyard upon registration for the Service or as you have otherwise specified in accordance with this section
Severability. This Agreement shall be deemed severable, and if any portion here of shall be held invalid for any reason, the remainder shall not hereby be invalidated, but shall remain in full force and effect.
Effective July 06, 2012.