TotalVU Corp.

                                        

END USER LICENSE AGREEMENT for

TotalVU Video Experience Platform

                                        

WatchParty@TotalVU, TotalVU Virtual Crowd

And Related Software Products and Services

                                        

Thank you for choosing software from TotalVU Corp, LLC (“TotalVU”). This End User License Agreement (this “EULA”) is a legally binding license agreement between you and TotalVU that describes your rights to use software and services provided by TotalVU, including TotalVU software and technical support and maintenance for that software.

                                        

This EULA is divided into various sections, including the following License Overview that provides a summary of the EULA. Please read this EULA carefully and in its entirety before clicking “I AGREE”, installing, or using TotalVU software or other software provided to you by TotalVU.

                                        

BY DOWNLOADING, INSTALLING, COPYING, OR USING SOFTWARE PROVIDED BY TotalVU, OR BY OTHERWISE SIGNIFYING YOUR ACCEPTANCE OF THIS EULA, YOU ACKNOWLEDGE AND AGREE: (1) THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (2) THAT YOU AGREE TO BE BOUND BY EACH AND EVERY TERM OF THIS EULA; AND (3) IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, THAT YOU HAVE THE POWER AND AUTHORITY TO DO SO AND TO BIND SUCH COMPANY.

                                        

IF YOU DO NOT AGREE TO EACH AND EVERY TERM AND CONDITION OF THIS EULA, YOU MAY NOT USE ANY SOFTWARE PROVIDED BY TotalVU. If you do not agree with each and every of the terms and conditions of this EULA, do not take any action that signifies your agreement to this EULA and return the software to TotalVU immediately. TotalVU will gladly provide you with a refund of any license fees paid if you have not installed or used the software provided by TotalVU.

                                        

Although this EULA contains specific terms and conditions for how TotalVU may update or modify this EULA, the most current version of license agreements for TotalVU software are available on the TotalVU Website. If you have questions about this EULA or in the future would like to request a copy of the license agreement that you entered into, please email info@smartblondeco.com.        THIS EULA IS AN AGREEMENT TO LICENSE SOFTWARE, NOT AN AGREEMENT FOR THE SALE OF SOFTWARE.

 

LICENSE OVERVIEW

This license overview is provided as a convenience only. You are cautioned that this overview does not contain a summary of each term of the EULA and that you should read the EULA in its entirety to understand your and TotalVU’s respective rights and obligations. In the event of a conflict between this License Overview and the EULA, the EULA shall control and be given full force and effect.

                                        

What is covered by this EULA? This EULA governs the relationship between you and TotalVU related to: (i) all Software licensed under this EULA along with software AddOns and other related software components licensed under this EULA (collectively, “Software”); and (ii) support and maintenance for the Software.

                                        

Who does this EULA apply to? This EULA applies to you as an individual and to the company or companies that you represent if you are accepting this EULA or installing or using Software on behalf of a company or companies. If you are accepting this EULA or installing or using Software on behalf of a company or companies, you are representing that you have the full power and authority to do so on behalf of such company or companies and to bind such company or companies to the terms of this EULA. Regardless, your agreement to this EULA indicates your representation to TotalVU that you are of sufficient legal age to enter into this EULA and to bind yourself, along with any company or companies that you are acting on behalf of, to its terms.

                                        

What are License Keys? License Keys are alphanumeric codes provided to you by TotalVU, which facilitate your use of TotalVU software.

                                        

How may I use the Software? The Software is licensed, not sold. You are permitted to install and use one or more copies of the Software on one or more Servers, as described further in the EULA.

                                        

Are there things I may not do with the Software? Yes. This EULA contains various restrictions on your use of the Software, including without limitation, that you may not copy the Software except for archival or backup purposes, and that you may not modify, create derivative works based on, or reverse engineer the Software.

                                        

May I resell or distribute TotalVU Software, or include TotalVU software in my product? No. You may not resell, distribute, or bundle the Software in any manner. Only authorized TotalVU partners may resell, distribute, or include TotalVU software in their products. If you are interested in becoming an authorized TotalVU partner, please contact sales@smartblondeco.com.

                                        

How may this EULA be modified or superseded? This EULA may be modified in one of three ways: (i) by a writing signed by you and TotalVU; (ii) by email notice from TotalVU to you, to Your Email Address (as defined in the EULA); or (iii) by TotalVU posting an updated version of this EULA on the TotalVU Website (as defined in the EULA). Separately, this EULA may be superseded by a subsequent license agreement (including a subsequent version of this EULA) if you agree to such subsequent license agreement version, such as when you download, install, or use a patch, Software update, or other bug fix.

 

LICENSE AGREEMENT

                                

1. DEFINITIONS.

                                                                        

1.1 “Additional Terms” means those terms and conditions referred to herein, such as terms and conditions on the TotalVU Website, along with the License Overview and the text preceding the License Overview.

                                        

1.2 “AddOn” is a subset of Software (defined below), and means any one (1) of the additional software features offered by TotalVU that compliments the Software.

                                        

1.3 “Channel” means one (1) unique media stream for input into one (1) unique Instance of the Software.

                                        

1.4 “Concurrent Connections” means the total number of simultaneous connections to the Software.

                                        

1.5 “Content” means any video, audio, data, and other input to or output from the Software.

                                        

1.6 “EULA” means this End User License Agreement, including the preceding text and License Overview and Additional Terms.

                                        

1.7 “Instance” means one unique installation of the Software on a Server.

                                        

1.8 “License Key” means an alphanumeric code or similar installation, access, or usage control code issued to you by TotalVU to activate and use one (1) or more Instances of the Software on one (1) or more single Servers, depending on your specific TotalVU license type.

                                        

1.9 “Offline License Key” means a type of License Key that is not required to “call into” and connect with TotalVU licensing servers. Offline License Keys include License Keys tied to a “MAC address” or a USB device.

                                        

1.10 “Player” means the audiovisual player software that may be provided to You by TotalVU from time to time.

                                        

1.11 “Sample Code” means sample source code or scripts distributed by TotalVU from time to time and identified as such when provided to you.

                                        

1.12 “Server” means a single physical computer running no more than one (1) unique copy of an operating system. Multiple Servers include: (i) multiple computers that share processing power or operate in a networked configuration as a single logical computer, such as a “server farm,” “cluster,” or similar arrangement; and (ii) multiple virtual machines within a technical environment that partitions a physical computer into multiple virtual machines such that each virtual machine has the appearance and capability of running on its own dedicated machine.

                                        

1.13 “Services” means maintenance and support services, and includes Support, Updates, and Upgrades.

                                                                        

1.14 “Services Period” means the period(s) of time during which you have purchased the right to obtain the Services. License Keys each have individual Services Periods.

                                        

1.15 “Software” means software products owned or distributed by TotalVU that are licensed to you under this EULA including, but not limited to, any related AddOns, components, application programming interfaces, associated media, printed materials, online or electronic documentation, and any updates, maintenance releases, bug fixes, corrections, enhancements, or other modifications thereto. Except where explicitly stated otherwise, “Software” includes the Player (as defined above).

                                        

1.16 “Support” means the provision of technical assistance by TotalVU to you according to TotalVU’s then-current policies. Support includes, at a minimum, technical support related to the Software provided by email communication with a TotalVU representative.

                                        

1.17 “Total Number of Instances” means the maximum concurrent number of Instances you are using or have used during any billing period, as calculated by TotalVU according to its then-current policies and procedures.

                                        

1.18 “Total Number of Channels” means the maximum concurrent number of Channels you are using or have used during any billing period in connection with a TotalVU Monthly Edition License or a TotalVU Daily Edition License, as calculated by TotalVU according to its then-current policies and procedures.

                                        

1.19 “Upgrade” means newer versions of the Software that may utilize a distinct installer package and may require an additional License Key, commonly referred to as a “full version” or “dot” release. For example, transitioning from TotalVU 4 version 4.0 to TotalVU 4 version 4.1 would require an Upgrade.

                                        

1.20 “Update” means updates, fixes, or other relatively minor modifications to the Software, which are applied through TotalVU’s update process. For example, transitioning from TotalVU version 4.0 to TotalVU 4 version 4.0.0.01 would require an update.

                                        

1.21 “TotalVU” means TotalVU Corp, LLC, 14060 Marquesas Way, UNIT 2424, Marina Del Rey, CA 90292, USA, and its affiliates.

                                        

1.22 “TotalVU Trademarks” mean all names, trademarks, service marks, trade names, logos, designs, trade dress, domain names, and other brand designations used, registered, owned, or licensed by TotalVU in connection with its products and services, not limited to “TotalVU” and “VXP”,  “Video Experience Platform.”

                                        

1.23 “TotalVU Website” means www.smartblondeexperiential.com, its constituent pages, and other websites owned, managed, or operated by TotalVU, including but not limited to totalvu.tv.

                                        

1.24 “You” or “you” means, and references to “Your” or “your” shall be deemed references to: (i) the natural person, the legal entity, or both, that is or are agreeing to this EULA by downloading, installing, copying, or using the Software; (ii) your employees and third party contractors or employees and third party contractors employed or engaged by the legal entity agreeing to this EULA; (iii) your customers who use the Software; and (iv) any other third party that uses or gains access to the Software or License Key, whether with your permission or otherwise.

                                        

1.25 “Your Email Address” or “your Email Address” means the electronic mail (commonly referred to as “email”) address you provided TotalVU, either when you downloaded the Software from the TotalVU Website, obtained a License Key from TotalVU, or at some other time. In the event you have provided multiple electronic mail addresses to TotalVU, TotalVU may use the electronic mail address of its choosing for purposes of communication regarding the Software or Services, or for communications required or permitted by this EULA, unless you have explicitly notified TotalVU that a specific electronic mail address should be removed from TotalVU’s records.

 

1.26 “App” means the TotalVU GoLive app used to stream from phones to the TotalVU Ingest server.

 

1.27 “Ingest server” means the TotalVU VXP instance that receives the feeds from the TotalVU GoLive App, TotalVU rack, or IP video feeds.

 

1.28 “Encoding server” means the TotalVU VXP instance that transcodes the video and originates the feed to a CDN or TotalVU player.

                                        

2. LICENSE GRANTS; TITLE; USAGE BY THIRD PARTIES.

                                        

2.1 Software Licensed, Not Sold.

The Software is licensed, not sold. This EULA does not transfer or modify any ownership rights related to the Software, which are exclusively held by TotalVU and its licensors.

                                        

2.2 License Grant to the TotalVU Video Server Software “TVS”.

Subject to the terms of this EULA and payment of applicable fees, TotalVU hereby grants you a limited, world-wide, non-exclusive, non-transferable, revocable license, without the right to sublicense, and to use the TVS for the purposes set forth in the applicable TVS documentation, to the extent permitted by your payment of applicable fees and the specifications of your specific license grant and license type, as further described herein. Source Code, from which the Software object code is derived (except for source code contained in any Sample Code), is not being provided or licensed to you and is a valuable trade secret of TotalVU and its licensors.

                                        

2.3 License Grant to the TotalVU Player Software “Player”.

Subject to the terms of this EULA and payment of applicable fees, TotalVU hereby grants you a limited, world-wide, non- exclusive, non-transferable, revocable license, without rights to sublicense, to download, use, access, operate, integrate, and install the TotalVU Player on Your websites, solely for the purpose of facilitating playback and streaming of Content on Your website, where such Content has been streamed from a TotalVU service or a TotalVU server Instance to the Player. You may not distribute, re-license, sell, lease, transfer, or make the Player available for public use. For the avoidance of doubt, as used in this EULA, “Software” includes the Player except where expressly stated otherwise. The scope of the Player license granted to You by TotalVU, the Player features and functionality made available to You, and the Player limitations applicable to You, will each vary according to the commercial terms pursuant to which TotalVU provides You with the Player. TotalVU reserves the right to change the scope of the Player license granted to You, and the features, functionality, and limitations regarding the Player applicable to You, at any time and without prior notice to You; Your continued use of the Player following receipt of notice of any such change constitutes your acceptance of such change. WHILE USING THE TVS AND THE PLAYER, YOU MUST USE AND COLLECT INFORMATION ABOUT PEOPLE WHO VIEW CONTENT IN A LEGALLY COMPLIANT MANNER, AND PROVIDE REQUIRED AND CUSTOMARY PRIVACY NOTICES AND DISCLAIMERS.                                

                                        

2.4 Sample Code.

You may download, install, use, copy, and modify Sample Code provided to you by TotalVU, if any. Sample Code is distributed on an "AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied.

                                        

2.5 Title.

TotalVU retains all right, title, and interest in and to the Software, copies of the Software, Sample Code, and License Keys, and in and to all related copyrights, trade secrets, patents, trademarks, service marks, domain names, and other intellectual and industrial property and proprietary rights, including registrations, applications, renewals, and extensions of such rights.

                                        

2.6 Rights Reserved.

Any and all rights not expressly granted to you by this EULA are reserved in all respects by TotalVU.

                                        

2.7 Usage by Others.

You agree to reasonably communicate the terms and conditions of this EULA to anyone who may or will come into contact with the Software, License Keys, and other intellectual property of TotalVU, including without limitation, your customers, employees, and contractors. You agree to use best efforts to ensure their compliance with the terms and conditions of this EULA and you agree to be solely responsible for any failure by a third party to comply with this EULA.

                                        

3. LICENSE RESTRICTIONS. In addition to the other restrictions herein, you shall not:

3.02. Nondisclosure of Software. 

Licensee acknowledges that the Software is the confidential and proprietary property of Licensor. Licensee agrees [to hold it in trust and] not to sell, rent, license, distribute, transfer, or, directly or indirectly, disclose or permit the sale, rental, licensing, distribution, transfer, or disclosure of the Software or its contents to any other party [, and to use its best efforts to prevent inadvertent disclosure of the Software to any third party], either during the term of this Agreement or thereafter.

3.03. Security. 

Licensee agrees to keep the Software in a secure place, under access and use restrictions ______________________[designed to prevent disclosure of the Software to unauthorized persons or satisfactory to Licensor] and not less strict than those applicable to Licensee’s own trade secrets.

3.04. Degree of Care. 

Licensee further agrees to instruct its personnel to keep the Software confidential by using the same care and discretion that they use with other data designated by Licensee as confidential.

3.05. Disclosure Constitutes Breach. 

Licensee agrees that any disclosure of the Software to a third party constitutes a material breach of this Agreement and shall terminate the license granted by this Agreement.

3.06. Damages for Breach. 

Licensee further agrees that it shall be strictly liable for all damages to Licensor that result from any disclosure of the Software to any third party.

3.07. Copyright or Other Marks. 

Licensee agrees not to remove, deface, or destroy any copyright, patent notice, trademark, service mark, other proprietary markings, or confidential legends placed on or within the Software.

 

                                        

3.1 copy the Software except for a reasonable number of machine-readable copies of the Software for backup or archival purposes only;

                                        

3.2 remove, alter, or obfuscate any titles, TotalVU Trademarks, trademarks, service marks, trade names, copyright notices, legends, watermarks, or other proprietary markings on or in the Software or Sample Code;

                                        

3.3 sell, lease, license, sublicense, rent, assign, distribute, or otherwise transfer or share, in whole or in part, the Software or License Key(s), or your rights in or to the same, to another party, including rights on a membership, subscription, or hosted basis;

3.4  modify or create derivative works based upon the Software;
                
3.5  decompile, disassemble, reverse engineer, or otherwise attempt to derive source code from the Software, in whole or in part;

                                        

3.6 unbundle, break apart or repackage the Software or any of its component parts for any reason whatsoever;

3.7  bundle or distribute the Software in any manner whatsoever;

3.8  provide use of the Software in a third party outsourcing facility, on a service or service bureau arrangement, or on a rental, application service provider, or timesharing basis;                

3.9 use the Software to transmit, reproduce, store, or share Content that you do not have the right to transmit, reproduce, store, or share;                                        

3.10 at any time provide an evaluation license to the Software to any other person or entity, or otherwise permit any other person or entity to evaluate the Software;

3.11  make any changes, modifications, or alterations to this EULA;

3.12  make any statements, warranties, or representations concerning the Software or Sample Code that exceed or are inconsistent with the documentation provided by TotalVU;

3.13 export or re-export the Software except in compliance with applicable law, including, without limitation, the applicable provisions of the United States Export Administration Act and its related rules and regulations, along with applicable international export laws, rules, and regulations;

                                        

3.14 Use or collect information about people who come into contact with the Software or receive Content, that is in any way illegal, violates the rights of such people, or is otherwise prohibited;

                                        

3.15 assist, encourage, or permit any other person or entity to do anything prohibited or not permitted by this EULA.

                                        

4. LICENSE TYPES AND ADDITIONAL LICENSE RESTRICTIONS.

The Software is licensed under various types of licenses. For example, TotalVU offers perpetual, subscription, per-event and trial licenses to the Software as four distinct license “types.” Each License Key enables your use of the Software under a single license type – in other words, your use of the Software is specifically limited to one (1) license type per License Key. Significant additional details, limitations, and restrictions regarding license types and costs, including for example, whether certain features are enabled with a specific license type, may be provided on the TotalVU Website or in other communications from TotalVU to you, and that information incorporated herein by reference. Not all types of licenses are available to every customer and the requirements for obtaining a specific license type are available from TotalVU and may be provided on the TotalVU Website.

                                        

4.1 Determining your License Type.

In general, the type of license to the Software that you hold can be determined by examining the purchase documents received from TotalVU (such as a receipt), the ordering, purchase, and confirmation webpages on the TotalVU Website, or the License Key obtained from TotalVU. A list of your License Keys and information about those License Keys is viewable in the TotalVU TVS Manager.

                                        

4.1.1 A trial license type is denoted by the words “Trial” or “Trial Edition”, and a License Key beginning “ET...”

                                        

4.1.2 A developer license type is denoted by the words “Developer” or “Developer Edition”, and a License Key beginning “EDEV4”.

                                

4.1.3 An R&D license type is denoted by “R&D”, and a License Key beginning “ERDA4”.

                                        

4.1.4 A testing license type is denoted by the word “Testing” and a License Key beginning “ETEA4”.

                                        

4.1.5 A perpetual license type is denoted by the words “Perpetual” or “Perpetual Edition”, and a License Key beginning “ENGP4”, “ENPN4”, “EPB14”, “EPBU4”, “ENCU4”, “ENCM4”, “ENCC4”, “ENC04”, or “ENCG4”.

                                        

4.1.6 A subscription license type is denoted by the words “Daily”, “Monthly”, or “Annual”, and a License Key beginning “ENGD4” or “ENGM4”.

                                        

4.1.7 A developer program license type is denoted by the words “Developer Program” and a License Key beginning “EDPA4”.

                                        

4.2 Trial and Developer License Types.

This section applies only if you have obtained a valid TotalVU Trial Edition License Key or a valid TotalVU Developer Edition License Key to the Software, or are otherwise using the TotalVU Trial Edition Software or TotalVU Developer Edition Software. In addition to the other terms contained herein, for each separate, unique, and valid TotalVU Trial Edition License Key or TotalVU Developer Edition License Key:

                                        

4.2.1 your license to the Software is limited to one (1) Instance of the TVS Software on one (1) Server ; the number of Player instances is determined in the purchase receipt.

                                        

4.2.2 your license to the Software expires automatically without notice, either thirty (30) or one-hundred and eighty (180) calendar days following the date the License Key is issued to you, as provided on the TotalVU Website and in your TotalVU documentation;

                                        

4.2.3 you shall not use the Software for any commercial purposes whatsoever or in any manner intended to benefit, aid, or assist a third party; and

                                        

4.2.4 your license to the Software is limited to a maximum number of ten (10) Concurrent Connections;

                                        

4.2.5 you shall not apply clustering, load balancing, or other operational performance improvements to any Server on which the TotalVU Trial Edition Software or TotalVU Developer Edition Software is installed, used, or accessed; and

                                        

4.2.6 your license to the Software may also include feature limitations as more fully described in the applicable documentation for the Software or on the TotalVU Website.

                                        

4.3 R&D License Type.

This section applies only if you have obtained a valid TotalVU R&D Edition License Key to the Software, or are otherwise using the TotalVU R&D Edition Software. In addition to the other terms contained herein, for each separate, unique, and valid TotalVU R&D Edition License Key:

                                        

4.3.1 your license to the Software is limited to one (1) Instance of the TVS Software on one (1) Server;

                                        

4.3.2 your license to the Software expires automatically without notice three- hundred and sixty-five (365) calendar days following the date the License Key is issued to you;

                                        

4.3.3 you shall not use the Software for any commercial purposes whatsoever or in any manner intended to benefit, aid, or assist a third party;

                                        

4.3.4 your license to the Software is limited to a maximum number of ten (10) Concurrent Connections;

                                        

4.3.5 you shall not apply clustering, load balancing, or other operational performance improvements to any Server on which the TotalVU R&D Edition Software is installed, used, or accessed; and

                                        

4.3.6 your license to the Software may also include feature limitations as more fully described in the applicable documentation for the Software or on the TotalVU Website.

                                        

4.4 Testing License Type.

This section applies only if you have obtained a valid TotalVU Testing Edition License Key to the Software, or are otherwise using the TotalVU Testing Edition Software. In addition to the other terms contained herein, for each separate, unique, and valid TotalVU Testing Edition License Key:

                                        

4.4.1 your license to the Software is limited to one (1) Instance of the Software on one (1) Server;

                                        

4.4.2 your license to the Software expires automatically without notice thirty (30) calendar days following the date the License Key is issued to you;

                                        

4.4.3 you shall not use the Software for any commercial purposes whatsoever or in any manner intended to benefit, aid, or assist a third party;

                                        

4.4.4 your license to the Software may also include feature limitations as more fully described in the applicable documentation for the Software or on the TotalVU Website.

                                        

4.5 Perpetual License Type.

This section applies only if you have obtained a valid TotalVU Perpetual Edition License Key to the Software, or are otherwise using the TotalVU Perpetual Edition Software. In addition to the other terms contained herein, for each separate, unique, and valid TotalVU Perpetual Edition License Key:

                                        

4.5.1 your license to the Software is limited to one (1) Instance of the TVS Software on one (1) Server; and

                

4.5.2 you may be required to obtain a separate Software license and License Key for each paid AddOn that will be used with a TotalVU Perpetual Edition license and your use of such AddOns, if any, shall be governed by the applicable provisions herein.

                                        

4.6 Subscription License Types.

This section applies only if you have obtained a valid TotalVU monthly subscription License Key, a valid TotalVU annual subscription License Key, or a valid TotalVU daily subscription License Key to the Software, or you are otherwise using the TotalVU monthly subscription Software, TotalVU annual subscription Software, or TotalVU daily subscription Software. In addition to the other terms contained herein and in documentation provided by TotalVU and on the TotalVU Website, for each separate, unique, and valid TotalVU monthly subscription Software License Key, TotalVU Annual subscription License Key, or TotalVU Daily Edition Software License Key:

                                        

4.6.1 notwithstanding Section 2 (License Grant), your license to the Software allows you to use one (1) or more Instances of the TVS Software on one (1) or more Servers;

                                        

4.6.2 notwithstanding Section 3 (License Restrictions), you have the right to lease, sublicense, and rent to another party your rights to use the Software, solely for the purposes of use in a membership, subscription, or hosted service arrangement, and in any event subject to the terms of this EULA;

                                        

4.6.3 notwithstanding Section 3 (License Restrictions), you have the right to provide use of the Software in a third party outsourcing facility on a service or service bureau arrangement, or on a time-sharing basis, subject to the terms of this EULA;

                                        

4.6.4 TotalVU shall use the Total Number of Instances and Total Number of Channels to calculate your annual, monthly, or daily fee, as set forth on the TotalVU Website and in documentation from TotalVU. You shall pay the annual, monthly, or daily fee in U.S. dollars according to the payment policies set forth on the TotalVU Website. In the event you have obtained a valid TotalVU Annual subscription License Key, your annual subscription License Key permits you to use a Total Number of Instances up to and including the number of “server instances” you obtained and paid for; if your Total Number of Instances at any time exceeds the number of “server instances” you have obtained and paid for, your payment method on file with TotalVU will automatically be charged the then-current rate for the number of monthly Instances required to meet the Total Number of Instances calculated by TotalVU for such period; you may increase the number of annual “server instances” included in your subscription at any time through the “my account” section of the TotalVU Website. The annual, monthly, or daily fee shall be a net amount, exclusive of all taxes, and is not subject to offset or reductions because of any costs, expenses, disputes, or liabilities incurred by you or imposed on you;

                                        

4.6.5 TotalVU reserves the right to change the annual, monthly, and daily fees to be paid by you, as set forth on the TotalVU Website, at any time without advance notice and in TotalVU’s sole discretion; changes in license fees will be posted on the        TotalVU Website and may additionally be provided to you by email to your Email Address;

                                        

4.6.6 in the event TotalVU does not receive amounts due from you to TotalVU related to your annual, monthly, or daily subscription(s) by the due date for any reason, or your payment is disputed, declined, reversed, refused, charged back, or dishonored, TotalVU shall have the right to immediately terminate your license to the Software without further notice to you;

                                        

4.6.7 in the event any overdue amount owed by you is not paid following ten (10) days notice from TotalVU to your Email Address, then in addition to the amount due, TotalVU may impose and you shall pay a late payment charge in addition to the overdue amount at the rate of one percent (1%) per month on such overdue amount, or the highest amount allowable by applicable law, whichever is higher;

                                        

4.6.8 your license to the Software may permit the use of paid and free AddOns (which may require additional payment), provided, however, that your use of such AddOns shall be additionally governed by the applicable provisions herein as if you had been issued a separate, unique License Key to such AddOn;

                                        

4.6.9 TotalVU may, in its sole discretion, discontinue or limit the supply or availability of the Software at any time;

                                        

4.6.10 in the event this EULA is terminated for any reason, your obligation to pay the annual, monthly, or daily fees accrued prior to the date of termination shall survive termination of this EULA;

                                        

4.6.11 you agree to keep a valid form of payment on file with and available to TotalVU, in the system or systems dictated by TotalVU, at all times.

                                        

4.7 TotalVU Transcoder AddOn (1-channel) License.

This section applies only if you have obtained a valid TotalVU Transcoder AddOn (1-channel) License Key to the Software, or are otherwise using the TotalVU Transcoder AddOn (1-channel) Software. Transcoder AddOn (1-channel) License Keys begin with “TRN14”. In addition to the other terms contained herein, for each separate, unique, and valid TotalVU Transcoder AddOn (1-channel) License Key:

                                        

4.7.1 your license to the TotalVU Transcoder AddOn (1-channel) Software is limited to one (1) Instance of the TotalVU Transcoder AddOn (1-channel) Software on one (1) Server for use with no more than one (1) Instance of TotalVU Perpetual Edition Software, which shall permit you to transcode no more than one (1) Channels;

                                        

4.7.2 you must obtain at least one (1) TotalVU Perpetual Edition license to use one (1) or more TotalVU Transcoder AddOn (1-channel) licenses; and

                                        

4.7.3 you may use more than one (1) TotalVU Transcoder AddOn (1-channel) license with each TotalVU Perpetual Edition Instance.

                                        

4.8 TotalVU Transcoder AddOn (Unlimited) License.

This section applies only if you have obtained a valid TotalVU Transcoder AddOn (Unlimited) License Key to the Software, or are otherwise using the TotalVU Transcoder AddOn (Unlimited) Software. Transcoder AddOn (Unlimited) License Keys begin with “TRNU4”. In addition to the other terms contained herein, for each separate, unique, and valid TotalVU Transcoder AddOn (Unlimited) License Key:

                                        

4.8.1 your license to the TotalVU Transcoder AddOn (Unlimited) Software is limited to one (1) Instance of the TotalVU Transcoder AddOn (Unlimited) Software on one (1) Server for use with no more than one (1) Instance of TotalVU Perpetual Edition Software, which shall permit you to transcode an unlimited number of Channels; and

                                        

4.8.2 you must obtain at least one (1) TotalVU Perpetual Edition License to use one (1) or more TotalVU Transcoder AddOn (Unlimited) licenses.

                                        

4.9 TotalVU DRM AddOn License.

This section applies only if you have obtained a valid TotalVU DRM AddOn License Key to the Software, or are otherwise using the TotalVU DRM AddOn Software. DRM AddOn License Keys begin with “DRMA4”. In addition to the other terms contained herein, for each separate, unique, and valid TotalVU DRM AddOn License Key:

                                        

4.9.1 your license to the TotalVU DRM AddOn Software is limited to one (1) Instance of the TotalVU DRM AddOn Software on one (1) Server for use with no more than one (1) Instance of TotalVU Perpetual Edition Software;

                                        

4.9.2 you may not use more than one (1) TotalVU Perpetual Edition license with each one (1) TotalVU DRM AddOn Software license; and

                                        

4.9.3 you may not use more than one (1) TotalVU DRM AddOn Software license with a single (1) TotalVU Perpetual Edition license.

                                        

4.10 TotalVU nDVR AddOn License.

This section applies only if you have obtained a valid TotalVU nDVR AddOn License Key to the Software, or are otherwise using the TotalVU nDVR AddOn Software. nDVR AddOn License Keys begin with “DVRA4”. In addition to the other terms contained herein, for each separate, unique, and valid TotalVU nDVR AddOn License Key:

                                        

4.10.1 your license to the TotalVU nDVR AddOn Software is limited to one (1) Instance of the TotalVU nDVR AddOn Software on one (1) Server for use with no more than one (1) Instance of TotalVU Perpetual Edition Software;

                                        

4.10.2 you may not use more than one (1) TotalVU Perpetual Edition license with each one (1) TotalVU nDVR AddOn license; and

                                        

4.10.3 you may not use more than one (1) TotalVU nDVR AddOn Software license with a single (1) TotalVU Perpetual Edition license.

                                        

5. LICENSE KEY INTEGRITY; DATA COLLECTION.

In addition to the types of licenses discussed in Section 4, above, TotalVU offers different types of License Keys. In general, License Keys are either “online” or “offline”. Offline License Keys are defined in Section 1. The type of License Key you obtain from TotalVU dictates further requirements and restrictions, as described in this Section 5.

                                        

5.1 Non-Offline License Keys.

                                        

5.1.1 Unless you have an Offline License Key, the Software shall periodically call into and connect with hardware, software, or other systems designated by TotalVU to assist TotalVU in validating your Software license; you shall permit the Software to do so. Information that may be collected by TotalVU for this purpose shall include, without limitation: (i) the version of Software you are using; (ii) a global unique identifier (“GUID”) based on such version; (iii) your operating system and processor information; (iv) information regarding your usage of the Software; (v) your Java version information; (vi) whether you are using a particular feature or not; and (vii) your AddOn usage, if any. TotalVU will take ordinary care to protect information collected pursuant to this Section but may use such information in any way and for any purpose, in its sole discretion.

                                        

5.1.2 Unless you have an Offline License Key, in the event the Software fails to periodically call into and connect with the hardware, software, or other systems designated by TotalVU, TotalVU shall have the right to terminate your license to use the Software without further notice to you three (3) days following of the last date of successful contact of the Software with the TotalVU hardware, software, or designated system.

                                        

5.2 Other License Key Types and Data Collection.

                                        

5.2.1 If you have a type of License Key or licensing mechanism not specifically described here, that License Key may include additional restrictions, limitations, or specifications, in each case as provided by TotalVU, either on the TotalVU Website or by email or other notice to you. You agree to comply with any such additional restrictions, limitations, or specifications.

                                        

5.2.2 Regardless of the type of Software license or License Key you have the Software may periodically call into and connect with hardware, software, or other systems designated by TotalVU, and TotalVU may collect, maintain, process, and use diagnostic, technical, usage, and related information, including but not limited to information about your computer, system, application software, and peripherals, along with information about usage of the foregoing. Such information may also be collected in connection with TotalVU’s provision of the Services. TotalVU may use such information to facilitate the provision of Software updates and support, verify your compliance with this EULA, improve TotalVU’s products and services, or for any other purpose in its sole discretion.

                                        

5.3 License Keys, Generally.

You agree to not take any action that is intended or likely to defeat, weaken, or threaten any security or License Key integrity measures employed by TotalVU, including without limitation, measures intended to prevent duplicate, pirated, or similar unauthorized License Keys or use of the Software. You agree that you are solely and completely responsible for License Key abuse related to an Offline License Key issued to you.

                                        

6. MAINTENANCE AND SUPPORT.

TotalVU offers maintenance, upgrades and support (“the Services”)  during applicable Services Periods on a per-License Key basis, and for an additional charge. Additional terms and        conditions regarding the Services may be posted on the TotalVU Website or communicated to you by TotalVU from time to time.

                                        

6.1 Services Provided Per-License Key.

The Services are provided on a per-License Key basis, and not on a per-customer or per-company basis. Each License Key has an individual Services Period that begins on the date you obtained such License Key from TotalVU or purchased an additional Services Period for such License Key from TotalVU. You agree to only access or obtain the benefit of the Services for the specific License Key(s) provided to TotalVU when requesting such Services and you agree to not use the Services, including Updates and Upgrades, for the benefit of any License Key not then entitled to the Services.

                                        

6.2 Services Periods.

Services are only provided during the Services Period. Services Periods vary by license type. License types are more fully described in Section 4, above.

                                        

6.2.1 The Services Period for Trial, Developer, Testing, and Developer Program license type License Keys begin on the date you obtain the corresponding License Key from TotalVU and end at the expiration of such license and License Key.

                                        

6.2.2 The Services Period for R&D license type License Keys is the Services Period of your perpetual or subscription license type License Key.

                                        

6.2.3 The Services Period for subscription license type License Keys is the term of such subscription license for the Software.

                                        

6.2.4 The initial Services Period for perpetual license type License Keys is either one (1) or three (3) years from the date you obtained a TotalVU Perpetual Edition License Key from TotalVU, as specified in your purchasing documents. In order to obtain the Services beyond the initial Services Period, you must purchase additional Services Period(s) from TotalVU. In the event of any ambiguity, the Services Period for all perpetual type License Keys shall be deemed to be one (1) year from the date you obtained a TotalVU Perpetual Edition License Key from TotalVU.

                                        

6.2.5 If you obtained your Software, License Key, or both from a party other than TotalVU (such as a TotalVU authorized reseller or OEM partner), your Services Period may differ from those described herein.

                                        

6.3 The Services.

Subject to the terms of this EULA and other terms and conditions on the TotalVU Website and provided to you from time to time, TotalVU will provide the Services to you during the Services Period for each individual License Key.

                                        

6.3.1 TotalVU will not provide Services related to: (i) prior versions of the Software; (ii) improper installation or use of the Software; (iii) software or other products or services not offered, licensed, and provided to you by TotalVU, and the implementation or use of the Software with any of the foregoing; (iv) modified code; (v) other things not specifically described herein as within the scope of the Services.

                                        

6.3.2 In the event a Services Period expires for a given License Key and you elect to not purchase additional Services Periods but later wish to receive Services from TotalVU related to such License Key, TotalVU may, in its sole discretion, require you to purchase Services Periods retroactively to the date on which the relevant Services Period previously lapsed, pay a reinstatement fee, or both.

                                        

6.3.3 TotalVU may suspend or terminate the Services without owing a refund to you if your use of the Services is determined by TotalVU, in its sole and reasonable discretion, to be excessive or improper.

                                        

6.3.4 The Services will be provided within the timeframes described on the TotalVU Website or in other documentation provided by TotalVU. No failure to meet a timeframe to provide Services shall be deemed a breach of this EULA or any obligation of TotalVU.

                                        

7. INTELLECTUAL PROPERTY RIGHTS; CONFIDENTIALITY.

                                        

7.1 License Keys and Software are valuable trade secrets and the confidential and proprietary information of TotalVU.

                                        

7.2 The Software and any copies thereof are the exclusive intellectual property of TotalVU and protected by copyright laws and international treaties as well as other intellectual property laws and treaties. The structure and organization of the Software, along with its source code and object code, are confidential information and valuable trade secrets of TotalVU. You agree that any disclosure by you of TotalVU’s confidential information will cause immediate, irreparable harm to TotalVU for which a court of competent jurisdiction may award equitable remedies, as well as any other available legal remedies. Except as expressly stated herein, TotalVU does not grant you any intellectual property rights in or to the Software. TotalVU reserves all rights not expressly granted herein.

                                        

7.3 You hereby agree to maintain the confidentiality of the Software, License Keys, and other intellectual property of TotalVU using your best efforts, and in no case less than reasonably prudent care for extremely sensitive and proprietary confidential information. You agree to reasonably communicate the terms and conditions of this EULA to those persons employed or engaged by you, or who otherwise come into contact with the Software, License Keys, and other intellectual property of TotalVU, and to use best efforts to ensure their compliance with the terms and conditions of this Section 7, including, without limitation, not permitting such persons to use any portion of the Software, License Keys, and other intellectual property of TotalVU for the purpose of deriving the source code of the Software or copying, defeating, or otherwise circumventing License Key codes.

                                        

7.4 You are granted no right, title, license to, or interest in the TotalVU Trademarks or the copyrights owned by TotalVU, and you hereby agree to not use the TotalVU Trademarks without TotalVU’s prior written consent. Notwithstanding the foregoing, you agree that any use of the TotalVU Trademarks, whether permitted or otherwise, shall inure to the sole benefit of TotalVU. You agree to not: (i) file or prepare any application for registration of any of the TotalVU Trademarks; (ii) assert any right, title, license to, or interest in the TotalVU Trademarks; (iii) adopt, use, file for registration, or register any trademark, service mark, trade name, logo, or domain name which may be, in TotalVU’s sole discretion, either an infringement of a TotalVU Trademark or TotalVU domain name, or may result in a likelihood of confusion with a TotalVU Trademark or TotalVU domain name; or (iv) encourage, assist, or permit any other person or entity to do anything prohibited by this Section. Notwithstanding the foregoing, you are permitted to identify the Software as “TotalVU” and to identify the source of the Software as “TotalVU” or “TotalVU Corp.” Please contact sales@TotalVU.com if you are interested in obtaining additional rights related to TotalVU Trademarks.

                                        

7.5 You agree that TotalVU may use your name, organization name, logos, and other identifying information to identify you as a TotalVU customer in marketing and similar efforts, such as marketing collateral, trade show signage, and website content. You agree that such use of your name shall be without royalty or other obligation to you by TotalVU.

                                        

7.6 From time to time you may provide TotalVU with feedback, suggestions, or ideas for changes to the Software (collectively, “Ideas”). Regardless of how TotalVU receives or becomes aware of them, all Ideas are the exclusive property of TotalVU, are confidential information, and may be used in any manner and for any purpose by TotalVU without obligation of any kind to you.

                                        

8. TERMINATION.

                                        

8.1 Termination.

TotalVU may terminate this EULA immediately and without notice if you fail to comply with any term of this EULA or fail to timely pay any amounts due TotalVU. Unless you have a TotalVU Perpetual Edition license, TotalVU may terminate this EULA for any reason or no reason upon thirty (30) days advance notice to your Email Address.

                                        

8.2 Effect of Termination.

In the event of termination, you must immediately and completely cease using the Software in any way, and destroy all copies of the Software and License Keys in your possession or under your control licensed under this EULA. In addition, you must remove the Software and all copies thereof, including all backup copies, from all Servers, computers, and other media on which it is installed, stored, or archived. If requested by TotalVU, you shall provide TotalVU with written certification that you have complied with these requirements within three (3) business days of such request.

                                        

 

 

9. INDEMNIFICATION BY YOU.

                                        

9.1 Generally.

You will indemnify, defend, and hold harmless TotalVU and its affiliates, and each of their respective officers, directors, shareholders, unitholders, members, employees, agents, advisors, and representatives (collectively, the “Indemnified Parties”) against all liabilities, obligations, losses, costs, damages, and other expenses and attorneys’ fees (collectively, “Indemnified Costs”) arising out of or relating to your breach of this EULA or any other of your acts, omissions, or representations. Without limiting the foregoing, your indemnification under this paragraph shall include, without limitation, indemnification for Indemnified Costs incurred by the Indemnified Parties caused by or related to: (i) the Content; (ii) your violation of applicable law or regulation; or (iii) your provision of services to any third party utilizing the Software; (iv) any Claims alleging that TotalVU is liable as a fiduciary; and (v) any failure to pay required taxes or other amounts due to third parties related to the Software or this EULA.

 

9.2 Intellectual Property Indemnification.

You will indemnify, defend, and hold harmless the Indemnified Parties against all Indemnified Costs arising out of or relating to a claim that any of the following infringes any patent, trademark, copyright, trade secret, or other IP right: (i) your modification of the Software; (ii) your use of the Software in combination with any products or services not provided by TotalVU; (iii) your use of a version of the Software other than the most current or immediately preceding version; (iv) information, design, specification, instruction or other material provided by you; or (v) your use of the Software other than in accordance with this EULA and other applicable documentation, instructions, and information provided by TotalVU or its representatives.

                                        

10. LIMITED WARRANTY AND LIMITATION OF LIABILITY.

                                        

10.1 Limited Warranty.

TotalVU warrants that the Software will substantially conform to the description contained in the applicable end user documentation for a period of 90 days after the earlier of the date TotalVU issues the License Key or the date you downloaded the Software. EXCEPT FOR THE PRECEDING EXPRESS LIMITED WARRANTY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TotalVU PROVIDES THE SOFTWARE AND SERVICES WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS EULA OR COMMUNICATION WITH YOU, AND TotalVU SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. TotalVU DOES NOT WARRANT THAT THE SOFTWARE OR SERVICES WILL MEET YOUR NEEDS OR THAT THE SOFTWARE OR SERVICES WILL BE OR PROVIDE FOR ERROR FREE OPERATION OR OPERATION WITHOUT INTERRUPTION. IN THE EVENT YOU OBTAINED THIS LICENSE FROM A RESELLER, DISTRIBUTOR, OR OTHER THIRD PARTY, TotalVU SHALL HAVE NO OBLIGATION TO YOU UNDER ANY WARRANTY GIVEN BY SUCH RESELLER, DISTRIBUTOR, OR THIRD PARTY, OR THEIR RESPECTIVE AGENTS OR EMPLOYEES.

                                        

10.1.1 The exclusive remedy for breach of the preceding warranty with regard to the Software is, at TotalVU’s sole discretion and subject to TotalVU’s limitation of liability, to either: (i) repair the Software; (ii) replace the Software; or (iii) terminate the license to the Software granted to you and provide you with a pro-rata refund the fees paid by you for the Software for the period of time, if any, that you were prevented from using the Software.

                                        

10.1.2 The exclusive remedy for breach of any warranty with regard to the Services is, subject to TotalVU’s limitation of liability, to re-perform the Services in a commercially reasonable manner.

                                        

10.2 Limitation of Liability.

                                        

10.2.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL TotalVU BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE RELATED TO THE SOFTWARE, SERVICES, OR OTHER SUBJECT MATTER HEREOF. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE PRECEDING LIMITATION MAY NOT APPLY TO YOU.

                                        

10.2.2 TotalVU'S LIABILITY UNDER THIS EULA WILL NOT, IN ANY EVENT, EXCEED THE FEES, IF ANY, PAID BY YOU FOR THE SOFTWARE AND SERVICES LICENSED TO YOU UNDER THIS EULA. THE FOREGOING LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF WHETHER TotalVU HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. YOU AND TotalVU AGREE THAT, GIVEN THE PRICE OF THE SOFTWARE AND THE NATURE OF THE CIRCUMSTANCES, THE PRECEDING LIMITATIONS ARE FAIR AND REASONABLE.

                                        

11. TAXES.

                                        

11.1 You shall be solely responsible for, and shall pay directly, all taxes, duties, and charges incurred related to this EULA or the Software or Services, including, without limitation, sales and use taxes, withholding taxes, duties and charges imposed by federal, state or local governmental authorities in the United States or elsewhere. This Section 11.1 shall not apply to taxes levied against the income or capital of TotalVU or upon TotalVU as employer of TotalVU’s employees.

                                        

11.2 You shall collect, report, and pay to the relevant taxing authority, and indemnify TotalVU for, any liability relating to applicable excise, property, sales and use, value-added (VAT), or similar taxes, along with any withholding requirement in addition to or in lieu thereof, and any customs, import, export or other duties, levies, tariffs, taxes, or other similar charges that are imposed by any jurisdiction for any and all services provided to any third party as permitted by this EULA.

                                        

12. GENERAL.

                                        

12.1 Entire Agreement.

This EULA, including the Additional Terms, sets forth TotalVU's entire liability and your exclusive remedy with respect to the Software, Services, and other subject matter hereof, and supersedes the terms of any purchase orders and any other communications or advertising with respect to the Software, Services, and other subject matter hereof. You acknowledge that this EULA, including Additional Terms, is a complete statement of the agreement between you and TotalVU with respect to the Software, Services, and other subject matter hereof, and that there are no other prior or contemporaneous understandings, promises, representations, or descriptions with respect to the Software, Services, and other subject matter hereof. Additional Terms referenced herein are deemed incorporated herein by reference. ANY PURCHASE ORDER OR OTHER DOCUMENT PROVIDED BY OR RECEIVED FROM YOU SHALL BE FOR YOUR INTERNAL USE ONLY AND SHALL NOT BE APPLICABLE TO TotalVU NOR SHALL IT MODIFY THE TERMS OF THIS EULA OR GOVERN YOUR USE OF THE SOFTWARE. TotalVU REJECTS ANY TERMS CONTAINED IN PURCHASE ORDERS OR SIMILAR DOCUMENTS.

                                        

12.2 Headings and Interpretation.

Headings under this EULA are intended only for convenience and shall not affect the interpretation of this EULA. References herein to the singular include the plural, and vice versa. TotalVU and You agree that, if an ambiguity or question of intent or meaning arises with respect to any provision of this EULA, this EULA will be construed as being drafted jointly by TotalVU and you, and no presumption or burden of proof will arise favoring or disfavoring either party by virtue of authorship of any of the provisions of this EULA.

                                        

12.3 Waiver and Modification.

No failure of either party to exercise or enforce any of its rights under this EULA will act as a waiver of those rights. TotalVU may modify this EULA from time to time by one of three methods: (i) posting the changes on the TotalVU Website; (ii) providing notice of such changes to your Email Address; or (iii) signing a written agreement with you specifying changes to this EULA. You agree to be bound by such changes if you continue using the Software following the effective date of any such change to this EULA. Changes to this EULA are effective upon the earlier of: (i) TotalVU posting notice of such changes on the TotalVU Website; (ii) TotalVU providing notice to your Email Address of such changes; or (iii) the signing of a written amendment modifying this EULA by both you and TotalVU. Other than as provided in this Section 12.3, this EULA may only be modified, or any rights under it waived, by a written document executed by the party against which it is asserted.

                                        

12.4 Supersession.

This EULA, Additional Terms, or both may be superseded by a subsequent version of this EULA or Additional Terms, as the case may be. Such supersession may occur if you download, install, or use Software or Software upgrades or updates. This EULA supersedes prior EULA versions under which the Software was licensed to you.

                                        

12.5 Assignment.

You may not assign this EULA or any interest in this EULA without the prior written approval of TotalVU.

                                        

12.6 Notices.

Notices required by or related to this EULA from you must be sent via U.S. Mail or reputable overnight carrier, return receipt requested, to the attention of “Legal Department” at TotalVU’s then-current mailing address, which is presently 523 Park Point Drive, Suite 300, Golden, Colorado 80401 USA, with a copy by electronic mail to LegalNotices@TotalVU.com. TotalVU may provide notices required by or related to this EULA to you at your Email Address.

                                        

12.7 Severability.

If a provision of this EULA 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 EULA will not be affected.

                                        

12.8 Relationship of You and TotalVU.

This EULA shall not be construed to create any employment, partnership, joint venture, franchise, or agency relationship between you and TotalVU, or to authorize either party to enter into any commitment or agreement binding on the other party.

                                        

12.9 No Responsibility for Content.

You acknowledge and understand that the Content is entirely your responsibility. You acknowledge, agree, and agree to assert and acknowledge in legal proceedings that TotalVU exercises no control whatsoever over the Content and that TotalVU will not be liable for Content.

                                        

12.10 Representations.

You represent and warrant that you are authorized to enter into this EULA and comply with its terms, and are of legal age to do the same. Furthermore, you represent and warrant that you will at all times meet your obligations hereunder, and comply with all laws, regulations, and policies that apply to use of the Software. If you are entering into this EULA on behalf of an entity or organization, you represent and warrant that you have full authority to do so and to bind that entity or organization.

                                        

12.11 Force Majeure.

Neither party shall be in default by reason of any failure in performance of this EULA, except for an obligation to pay money, if such failure arises, directly or indirectly, out of causes reasonably beyond the direct control or foreseeability of such party, including but not limited to, default by subcontractors or suppliers, acts of God or of the public enemy, terrorist act, United States of foreign governmental acts in either a sovereign or contractual capacity, fire, flood, epidemic, restriction, strikes, or freight embargos.

                                        

12.12 Governing Law.

This EULA will be governed by the laws of the State of California, without regard to its choice of law principles. Except as provided in the following Section 12.13, you and TotalVU hereby agree to submit to the exclusive jurisdiction and venue of the State and Federal Courts of California  for any dispute arising out of or related to this EULA or any of the subject matter hereof. The United Nations Convention for the International Sale of Goods shall not apply to this EULA or the Software.

                                        

12.13 ARBITRATION FOR NON-U.S. LICENSEES. IF YOU RESIDE (IF YOU ARE AN INDIVIDUAL) OR ARE DOMICILED (IF YOU ARE ENTERING INTO THIS EULA ON BEHALF OF AN ENTITY) OUTSIDE OF THE UNITED STATES, ANY CLAIM OR DISPUTE BROUGHT BY YOU AND ARISING OUT OF OR RELATED TO THIS EULA OR THE SOFTWARE SHALL BE SUBMITTED TO BINDING ARBITRATION IN LOS ANGELES, CA, USA UNLESS TotalVU AGREES IN WRITING TO WAIVE SUCH REQUIREMENT. Such arbitration shall be before an arbitrator-member of the American Arbitration Association (“AAA”) to be mutually agreed to by the parties, or, in the event the parties cannot agree on a single such arbitrator-member, to a panel of three arbitrator-members selected in accordance with the rules of the AAA. The dispute shall be settled in accordance with the Commercial Arbitration Rules of the AAA and the decision of the arbitrator(s) shall be final and binding upon the parties and judgment may be obtained thereon in a court of competent jurisdiction. The prevailing party shall be entitled to recover from the other party the fees and expenses of the arbitration as well as reasonable attorneys' fees, costs and expenses incurred by the prevailing party. The Convention on the Recognition and Enforcement of Foreign Arbitral Awards shall apply to this EULA if you reside or are domiciled outside of the United States.

                                        

12.14 Contact Information. If you have any questions about this EULA, please contact TotalVU at info@smartblondeco.com.

                                        

12.15 Survival of Terms. The following terms shall survive termination of this EULA: Section 1 (Definitions); Section 2 (License Grants; Title; Usage by Third Parties); Section 3 (Licensee Restrictions); Section 4 License Types and Additional Licensee Restrictions); Section 5 (License Key Integrity; Data Collection); Section 6 (Maintenance and Support); Section 7 (Intellectual Property Rights); Section 8 (Termination); Section 9 (Indemnification by You); Section 10 (Limited Warranty and Limitation of Liability); and Section 12 (General).

                                        

13. NOTICE TO U.S. GOVERNMENT END USERS.

13.1 Commercial Items. The Software, including all related documentation, are “Commercial Item(s),” as that term is defined at 48 C.F.R. Section 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. Section 12.212 or 48 C.F.R. Section 227.7202, as applicable. Consistent with 48 C.F.R. Section 12.212 or 48 C.F.R. Sections 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (i) only as Commercial Items; and (ii) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.

                                        

13.2 U.S. Government Licensing of TotalVU Software. You agree that when licensing the Software for acquisition by the U.S. Government, or any contractor therefore, you will license consistent with the policies set forth in 48 C.F.R. Section 12.212 (for civilian agencies) and 48 C.F.R. Sections 227-7202-1 and 227-7202-4 (for the Department of Defense). For U.S. Government End Users, TotalVU agrees to comply with all applicable equal opportunity laws including, if appropriate, the provisions of Executive Order 11246, as amended, Section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974 (38 USC 4212), and Section 503 of the Rehabilitation Act of 1973, as amended, and the regulations at 41 CFR Parts 60-1 through 60-60, 60-250, and 60-741. The affirmative action clause and regulations contained in the preceding sentence shall be incorporated by reference in this Agreement.

TotalVU EULA (20220501)