SYNC ONSET™ SUBSCRIPTION AGREEMENT

July 2015

Welcome to wymsee!

Thank you for using Wymsee’s services, including our web and mobile solution for Film and Television crews Sync OnSet available through www.synconset.com or its subdomains (“Sync OnSet”) and any related subdomains or third party portals through which our services are made available (collectively, the “Services”). By using our Services, You and the company You work for signify your agreement to 1) these terms of service (the “Terms”) under which You will access and use the Services and features available through our Services and 2) Wymsee’s Privacy Policy, as updated and available at www.synconset.com/privacy.html from time to time (“Privacy Policy”) which is incorporated herein by references. These Terms are entered into between you (together with the business entity, if any, that you represent, “You” or “Your”) and Wymsee, Inc., with offices at 66 Long Wharf, Boston, MA 02110 (“Wymsee” or “we”, “us” or “our”). The date You first agree to or accept these Terms is referred to herein as the “Effective Date.”

BEFORE YOU CLICK ON THE “REGISTER” BUTTON, CAREFULLY READ THESE TERMS. BY CLICKING ON THE “REGISTER” BUTTON OR USING ANY OF OUR SERVICES, YOU ARE AGREEING TO BE BOUND BY AND ARE BECOMING A PARTY TO THESE TERMS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THESE TERMS ON BEHALF OF THE BUSINESS ENTITY YOU REPRESENT. YOU HEREBY COVENANT TO ENSURE THAT ALL USERS THAT GAIN ACCESS TO THE SERVICES THROUGH YOUR REGISTRATION INFORMATION ARE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO ALL OF THE TERMS, THEN DO NOT CLICK “REGISTER” AND YOU WILL NOT BE PERMITTED TO ACCESS AND/OR USE THE SERVICES. YOU FURTHER ACKNOWLEDGE AND AGREE THAT YOUR ACCESS TO AND USE OF THE SERVICES IS ALSO SUBJECT TO THE TERMS AND CONDITIONS OF USE OF THE WEBSITE(S) THROUGH WHICH YOU ACCESS THE SERVICES, ALTHOUGH WE MAY ATTEMPT TO NOTIFY YOU WHEN MAJOR CHANGES ARE MADE TO THESE TERMS, WYMSEE MAY CHANGE THESE TERMS AND CONDITIONS OF USE FROM TIME TO TIME, WITH OR WITHOUT NOTICE TO YOU; PROVIDED THAT SUCH NEW TERMS WILL NOT BE EFFECTIVE DURING ANY PERIOD FOR WHICH YOU HAVE THEN SUBSCRIBED TO OUR SERVICES FOR A FEE UNLESS YOU EXPRESSLY AGREE TO SUCH NEW TERMS. PLEASE PERIODICALLY REVIEW THE MOST UP-TO-DATE TERMS AT WWW.SYNCONSET.COM. YOU AGREE TO COMPLY IN ALL RESPECTS WITH ALL THESE TERMS AND ANY TERMS AND CONDITIONS SET FORTH ON THE WEBSITES.

1. Registration; General Right to Use Sync OnSet Since we are often improving our Services and may add or remove functionality over time, please refer to our Website for more detailed descriptions of the Services. When You register for the Services, we will require certain information from You and we will provide You with certain information regarding the scope of Your subscription and the applicable fees (collectively, the “Registration Information”). Your right to access and use the Services is revocable, personal, non-transferable and non-exclusive. Provided that you comply at all times with the terms of these Terms, any applicable separate written agreement between you and Wymsee, and, subject to the limitations set forth herein, Wymsee will provide you with access the Services. You are responsible for obtaining any equipment and Internet service necessary to access and use the Services.

2. Use and Access Terms

(a) Access and Use Rights. Subject to Your payment of the applicable fees defined herein, Wymsee hereby grants to You, on the terms and conditions set forth herein, a non-transferable, non-sublicensable, non-exclusive, limited right to access and use the modules of the Services (set forth in the Registration Information) solely for Your internal business purposes, through login credentials to be provided by Wymsee, for a specified number of productions for which you are providing services related to a production (“Projects”), as set forth in the Registration Information. Your access may be for only a specific Project, for specified numbers of your employees (if any other than You) who will also require access and login credentials (“Users”) and/or for certain levels of authorization, as set forth in connection with Your Registration Information. You are responsible for all users who access and use the Services using login credentials provided to You or Your Users. You may utilize the Services solely for Your internal use for the purpose of providing Your own services to Your clients. You shall not provide any output of the Services in a form that is modified from such output or which removes any of the proprietary marks on such output. You will only use the Services in accordance with applicable law. You will not alter, modify, copy or attempt to reverse engineer the Services. You acknowledge that any and all users of the Services will be required to accept the terms of these Terms before they are permitted to first access the Services.

(b) Subscription Periods. You may subscribe to the Services for varying periods of time, as set forth in the Registration Information (each initial subscription period, the “Initial Subscription Period”), for each Project. After that Initial Subscription Period for the applicable Project(s), You and Wymsee may agree on a successive subscription period for that Project (each a “Renewal Subscription Period,” together with the Initial Subscription Period, the “Subscription Period”). Please be aware that if You do not renew the Subscription, then after the Subscription Period ends for a Project, You will no longer be able to modify any of Your data for that Project through the Services. Though Wymsee will be sorry to see you go, we believe preserving your access to your information is important. Wymsee will enable you to view and get your information out the Services for a commercially reasonable period of time after the final Subscription period ends. We will try to give you reasonable advance notice and a chance to get information out the Services prior to revoking access or deleting/destroying any information for that Project.

(c) Fees; Payment Terms. Your rights under these Terms are subject to fees payable by You as set forth in the Registration Information, some of which may be on a Project-by-Project basis. Pricing can be changed by Wymsee at any time. Such pricing changes shall not apply retroactively to any Projects in their existing Subscription Period, but may apply to future Renewal Subscription(s). If there is any dispute regarding whether and which fees are agreed, or if You decline to pay fees invoiced by Wymsee in its reasonable discretion, then Wymsee may terminate these Terms (and all applicable login credentials and Subscription Periods) with respect to You and Your Projects, effective thirty (30) days after delivery of written notice of termination to You, unless such payments are made to Wymsee prior to the end of that thirty (30) day period. You shall pay each amount due under these Terms in full within thirty (30) days of receipt of the applicable invoice. You shall pay interest of 1.5% per month on the amount shown on any invoice that is paid later than the due date.

(d) Training. Wymsee may make available user training to You or Your Users via online or in-person training sessions, but is not obligated to do so. Fees may apply to any such training, as may be agreed by the parties. During the Subscription Period, Wymsee will also use good faith efforts to make available help desk support to you (or your applicable users) if You or Your Users have administrative login credentials from us.

(e) Confidentiality. You agree that the Services and the output thereof, and all pricing and subscription plans provided by Wymsee are the confidential information of Wymsee. You agree not to disclose any of such confidential information to any third party except to the extent expressly permitted by these Terms and to use such confidential information solely for the purposes of these Terms. Wymsee may require You to agree to a non-disclosure agreement prior to sharing certain information with you.

(f) Indemnification. You shall indemnify and hold Wymsee, its directors, officers, employees, suppliers, agents, successors, and assigns harmless from and against all third party liabilities, losses, costs, expenses, (including reasonable attorney’s fees) and damages awarded to a third party to the extent caused by (i) the use of the Services by You, or any of Your Users, whether or not You have knowledge of or have authorized any such access or use; (ii) any information or results obtained through use of the Services or access to the Services or (iii) Your gross negligence or willful misconduct.
Wymsee shall indemnify and hold You and your directors, officers, employees, suppliers, agents, successors, and assigns harmless from and against all third party liabilities, losses, costs, expenses, (including reasonable attorney’s fees) and damages awarded to such third party to the extent caused by a claim by a third party alleging that the Services directly infringe a copyright, a U.S. patent issued as of the Effective Date or a trademark of such third party.
A party’s obligations to indemnify the other party with respect to any third party claim, action or proceeding shall be conditioned upon the indemnified party: (i) providing the indemnifying party with prompt written notice of such claim, action or proceeding under this clause (f), (ii) permitting the indemnifying party to assume and solely control the defense of such claim, action or proceeding and all related settlement negotiations, with counsel chosen by the indemnifying party, and (iii) cooperating at the indemnifying party’s request and expense with the defense or settlement of such claim, action or proceeding which cooperation shall include providing reasonable assistance and information. No indemnified party shall enter into any settlement agreement for which it will seek indemnification under these Terms from the indemnifying party without the prior written consent of the indemnifying party. Nothing herein shall restrict the right of a party to participate in a claim, action or proceeding through its own counsel and at its own expense.

(g) Term. This Agreement shall be in effect from the Effective Date until the one year anniversary of the Effective Date, upon which the Agreement shall automatically renew for successive one (1) year periods unless terminated by either party by delivery of written notice of non-renewal at least thirty (30) days prior to the end of the then-current one (1) year term. Each Subscription Period then in effect shall continue for the remainder of its term. Either party may terminate this Agreement and all Subscription Periods at any time upon thirty (30) days’ written notice in the event of a breach by the other party that is not cured in such thirty (30) day period. As between You and wymsee, Sections 2(c), 2(e), 2(f), 2(g) and 3 through 7 of this Agreement shall survive the expiration or termination of this Agreement according to their terms.

3. Intellectual Property Rights; Restrictions .

(a) Restrictions. You shall not, and shall not permit any person or entity to: (i) resell or use the Services on a service bureau, time sharing or any similar basis, or for the benefit of any other person or entity; (ii) alter, enhance, or make derivative works of the Services; (iii) reverse engineer, reverse assemble or decompile, or otherwise attempt to derive source code from, the Services or any software component of the Services; (iv) use, or allow the use of, the Services for any unfair or deceptive practices or in contravention of any federal, state, local, foreign, or other applicable law, or rules and regulations of regulatory or administrative organizations; and (v) act in a fraudulent, tortious, malicious, or negligent manner when using the Services.

(b) Ownership. You acknowledge that the structure, organization, and code used in conjunction with the Services are proprietary to Wymsee and that Wymsee and/or its suppliers retain exclusive ownership of the Services, documentation, and any other intellectual property rights relating to the Services, including all modifications, enhancements, derivatives, and other software and materials relating to the Services, and all copies thereof. You shall not sell, transfer, publish, disclose, display or otherwise make available the Services including any modifications, enhancements, derivatives, and other software and materials provided hereunder by Wymsee or copies thereof to others in violation of these Terms.

(c) No Other Rights. Except as expressly set forth in these Terms or other written agreement between You and Wymsee, no license or other right in or to the Services are granted to You, by implication, estoppel, or otherwise, and all such licenses and rights are hereby reserved.

(d) Suggestions. If You provide any feedback, improvements or other suggestions (collectively, “Suggestions”) to Wymsee for improvements to the Services or related services, You hereby grant to Wymsee a non-exclusive, royalty-free, perpetual, irrevocable license under such Suggestions and all intellectual property rights therein to exploit and distribute the Suggestions in connection with the Services, except as may be otherwise agreed in writing.

4. Use of Information .

(a) Submitted Data. In the course of Your use of Sync OnSet for each Project, it is contemplated that You will submit content regarding one or more Projects (“Submitted Data”). You represent and warrant that You have the right to provide that Submitted Data to Wymsee for the purposes set forth in these Terms. The rights You grant Wymsee in this license are for the limited purposes of operating and improving Wymsee’s services, developing new ones and supporting You from time to time in using the Services. At all times, you retain ownership over Your Submitted Data, and Wymsee shall not ever have, nor assert, any ownership rights to Your Submitted Data.

(b) Restricted Use of Submitted Data. The Submitted Data is your proprietary information. We understand the importance of keeping confidential Submitted Data, which may include (i) contact or other personal information regarding you or third parties with whom you interact in the course of your Projects (e.g. talent, agents, etc.), (ii) scripts and production information prior to public distribution of Projects. Subject to the restrictions on Wymsee set forth in this Agreement and our Privacy Policy, You hereby grant to Wymsee a non-exclusive, unrestricted, royalty-free right to use and copy the Submitted Data to (a) provide you with the Services and (b) derive aggregated data from the Submitted Data (“Aggregated Data”) and to use and exploit that Aggregated Data without restriction. We may not otherwise use or disclose the Submitted Data, for any purpose, except as provided in these Terms. You agree and acknowledge that Submitted Data, shall not be subject to any use or disclosure restrictions if such Submitted Data is or becomes publicly available information (other than as a result of breach of this Agreement). You hereby agree that publicly available information includes, but is not limited to, derived metadata as it relates to the publicly distributed video arising from the applicable Project.

5. Limited Warranty .

(a) By wymsee: Wymsee warrants that, during the Subscription Period of a Project, the Services will perform substantially in accordance with the documentation provided by Wymsee to You.

(b) Mutual Warranties. Each of You and Wymsee represents and warrants that it has the legal power to enter into these Terms and provide the services and information contemplated herein.

(c) Disclaimers. You acknowledge that the Services are one tool to be utilized by managers in connection with a production and that any reports, data or information generated, obtained or acquired through the use of the Services is at Your sole risk and discretion. Wymsee and its licensor’s are not liable or responsible for any results generated through the use of the Services. Wymsee does not warrant or represent that the Services will be error-free or uninterrupted or secured. EXCEPT AS SET FORTH IN THIS SECTION 5, WE PROVIDE NO OTHER WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON–INFRINGEMENT.

6. Limitation of Liability.

(a) Limitation. Wymsee’s aggregate liability for all claims arising from these Terms shall not exceed the total fees paid by You to Wymsee for the particular Project which is subject to the claim during the then-preceding twelve (12) months.

(b) Disclaimer. IN NO EVENT SHALL WYMSEE OR ITS LICENSORS BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF USE, OR COSTS OF OBTAINING SUBSTITUTE GOODS OR SERVICES) ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICES, WHETHER BASED UPON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.

7. Miscellaneous. This Agreement shall be governed by the laws of the Commonwealth of Massachusetts without regard to its principles of conflicts of law where such principles would permit the application of the law of any other jurisdiction. You may not assign or transfer these Terms in whole or in part to any third party. These Terms shall bind and inure to the benefit of the parties to these Terms and their respective successors, permitted transferees, and permitted assigns. Wymsee and You are independent contractors and are not partners, joint venturers, agents, employees or representatives of the other party. These Terms, together with any written agreement between You and Wymsee, and the terms and conditions set for Wymsee’s Website, contains the entire understanding of the parties with respect to the transactions and matters contemplated hereby, supersedes all previous communications, understandings and agreements (whether oral or written), and cannot be amended except by a writing signed by both parties. The headings and captions used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. If any part of this Agreement is held to be unlawful, void, or unenforceable, that part will be deemed severable and shall not affect the validity and enforceability of the remaining provisions.