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Account creation agreement
Last updated: Oct 14th, 2014
This Account Creation Agreement (this "Agreement"), effective as of the date you click the "I accept" button below ("Effective Date"), is entered into by and between you ("User") and BunnyForce, Inc., a Delaware corporation having an office at 1355 Market St. Suite #488, San Francisco, CA ("Bunny Inc") (each a "Party", and together, the "Parties").
WHEREAS, Bunny Inc provides services and digital goods to its users; and
WHEREAS, User desires to create an account and obtain digital goods from Bunny Inc.
NOW, THEREFORE, in consideration of the mutual promises contained herein and for other good and valuable consideration, the Parties agree as follows:
"Digital Good" means any good that can be delivered digitally including, but not limited, to audio files, texts, image files, illustration files, photographies, documents, video files, models, translations, software, and data sets, as described in an Order.
"Due Date" means a due date for delivery to Customer of an Digital Good as indicated in an Order.
"On-Acceptance Order" means an Order whose payment terms indicate it is to be paid for before or at the time the Digital Good is accepted (as described in Section 3.2).
"Order" means an order, whether submitted via the Bunny Inc website or otherwise, including but not limited to description of Digital Goods, Due Dates, and payment terms.
"Pre-Paid Order"means an Order whose payment terms indicate it is to be paid for before or at the time the Order is placed. Orders whose payment terms do not indicate whether they are a Pre-Paid Order or On-Acceptance Order will be Pre-Paid Orders.
"Bunny Inc Services" means the provision of Digital Goods, the Hosting, and the Software.
"Hosting" means the internet hosting service provided by Bunny Inc to host Digital Goods, accepted by User in accordance herewith.
"Software" means the widget software provided by Bunny Inc to view Digital Goods, accepted by User in accordance herewith.
"Adaptation" means a work based upon the Digital Good such as a translation, derivative work, or any other form in which the Digital Good may be transformed or adapted including in any form recognizably derived from the original, except that a work that constitutes a Collection will not be considered an Adaptation for the purpose of this Agreement.
"Collection" means a collection of literary or artistic works, such as phonograms or broadcasts, which, by reason of the selection and arrangement of their contents, constitute intellectual creations, in which the Digital Good is included in its entirety in unmodified form along with one or more other contributions, each constituting separate and independent works in themselves, which together are assembled into a collective whole.
Section 2.2 Registration, Accounts and Passwords. User agrees to:
- create only one account;
- provide accurate, truthful, current and complete information when creating
- maintain and promptly update User's account information if it changes;
- maintain the security of User's account by not sharing User's password with others and restricting access to User's account and computer;
- promptly notify Bunny Inc upon discovery or suspicion of any security breaches relating to the account or passwordsweb Site; and
- take responsibility for all direct or indirect damages and be liable for all activity conducted on the web site that can be linked or traced back to User's username or password.
Section 3.1 Orders. On or following the Effective Date, User may submit one or more Orders to Bunny Inc. Following submission of each Order, Bunny Inc shall make commercially reasonable efforts to deliver to User the Digital Goods described in such Order on or before the Due Date set forth in such Order.
Section 3.2 Evaluation and Acceptance. Upon delivery of an Digital Good to User, User shall promptly review such Digital Good. User shall accept such Digital Good unless, in User's commercially reasonable discretion, such Digital Good does not materially conform to the description therefor set forth in the Order. Any Digital Good will be deemed accepted if Bunny Inc has not received from User notice of rejection of the Digital Good within five business days after delivery thereof.
Section 3.3 Rejection. If User rejects an Digital Good as set forth above, such rejection must detail the material non-conformity with the description of such Digital Good in the Order. Upon any such rejection, (i) User shall not be required to pay for such Digital Good, (ii) User shall not use, copy, or publicly perform such Digital Good, (iii) any licenses for such Digital Good granted hereunder shall terminate, and (iv) User shall destroy any copies of such Digital Good. If such rejected Digital Good was created pursuant to a Pre-Paid Order, Bunny Inc may, at Bunny Inc's discretion (i) refund some or all of the payments made for such Order or (ii) provide User with credit towards future Orders.
Section 3.4 Order Termination. In the event Bunny Inc has not delivered an accepted Digital Good by its applicable Due Date, User may terminate the corresponding Order. Such termination will be User's sole remedy for failure to deliver an accepted Digital Good. Bunny Inc sole liability for failure to deliver an accepted Digital Good will be, in the case of an On-Acceptance Order, termination of the Order; and in the case of a Pre-Paid Order, refund of the fees paid for such Order, unless, in Bunny Inc's sole judgment, User's rejection was not commercially reasonable (as required by Section 3.2).
Section 4.1 User Materials. Subject to the terms and conditions of this Agreement, User will retain ownership of all materials submitted by User to Bunny Inc, including but not limited to scripts for ordered Digital Goods. User hereby grants a non-exclusive, worldwide, perpetual license to Bunny Inc to use, reproduce, publicly perform, publicly display, distribute, and prepare derivative works of such materials.
Section 4.2 Digital Good. Upon acceptance of the Digital Good, User will obtain ownership of the Digital Good. User hereby grants a non-exclusive, worldwide, perpetual license to Bunny Inc to use, reproduce, publicly perform, publicly display, distribute, and prepare derivative works of such materials.
Section 4.3 Software. Bunny Inc shall deliver or make available the Software to User upon request. Subject to the terms and conditions of this Agreement, Bunny Inc hereby grants to User a no-cost, revocable, nonexclusive, nontransferable, nonsublicenseable, royalty-free right and license under all of Bunny Inc's intellectual property rights in and to the Software, solely for the purpose of embedding the Software on User's website to view Digital Goods accepted by User in accordance herewith.
Section 4.4 Hosting. On User's request, and subject to the terms and conditions of this Agreement, including but not limited to Section 5.2(c), Bunny Inc may provide the Hosting to User, solely for the purpose of hosting Digital Goods accepted by User in accordance herewith. Bunny Inc shall make commercially reasonable efforts to keep the Hosting operational and functional in all material respects, but, as described in Article 9, will have no liability if the Hosting fails to operate or if Bunny Inc otherwise ceases to provide the Hosting.
FEES AND PAYMENTS
Section 5.1 Payment Mechanisms. Bunny Inc shall have the right to invoice (or otherwise charge) User for fees described in the relevant Order. Unless otherwise stated in the Order, User shall pay such fees within 10 days after the date of invoice or charge, and all payments must be made in U.S. dollars.
Section 5.2 Late Payment. User shall: (i) pay a late fee of 1% per month, or the maximum rate allowed under law, whichever is less, on any balance overdue hereunder; and (ii) pay for the cost of collecting the past due payment, including any attorney's fees.
Section 5.3 Payment Details.
- On-Acceptance Orders. If an Order is an On-Acceptance Order, Bunny Inc may invoice (or otherwise charge) User for payment if and when an Digital Good described in such Order is accepted as described in Section 3.2.
- Pre-Paid Orders. If an Order is a Pre-Paid Order, Bunny Inc may invoice (or otherwise charge) User for payment when such Order is received.
- Hosting. If Bunny Inc determines, in its reasonable commercial judgment, that the Hosting for a Sound Recording is not in its best commercial interests, Bunny Inc and User shall negotiate payment for the Hosting in good faith.
Section 5.4 Taxes. All payments required by this Agreement exclude all sales, value-added, use, on other taxes and obligations, all of which User shall pay in full, except for taxes based on Bunny Inc's net income.
Section 6.1 General Definition. "Confidential Information" means any information disclosed by one Party (the "Disclosing Party") to the other (the "Receiving Party") pursuant to this Agreement that is marked "Confidential," "Proprietary," or should otherwise be known to be confidential.
Section 6.2 Particular Confidential Information. API keys or tokens, account information, passwords, and other security-related credentials shall be considered Confidential Information.
Section 6.3 Obligation. The Receiving Party shall treat as confidential all of the Disclosing Party's Confidential Information and shall not use such Confidential Information except as expressly permitted under this Agreement. Without limiting the foregoing, the Receiving Party shall use at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance, but in no event less than reasonable care, to prevent the disclosure of the Disclosing Party's Confidential Information to any third party, except to persons that have signed a non-disclosure agreement containing substantially the terms of this Article 6.
Section 6.4 Limitations. This Article 6 will not apply to any information that is already in possession of the Receiving Party, is independently developed by the Receiving Party, is received by the Receiving Party from a third party that has no relevant confidentiality obligation to the Disclosing Party, or becomes generally known and available through no action or inaction of the Receiving Party.
Section 7.1 User. User shall defend or settle, and pay any damages or agreed settlement amounts, any and all claims, demands, suits, actions or proceedings ("Claims") brought against Bunny Inc in connection with any Services provided hereunder, provided that Bunny Inc promptly notifies User of any such Claim, allows User sole control of the defense or settlement thereof, and gives User reasonable assistance and information in connection with such Claim. User shall bring no Claim against Bunny Inc. Bunny Inc shall have the right, but not the obligation, to be represented by counsel of its choice and to participate in defense of such Claim; provided, however, that the expense of such counsel and such participation shall be borne by Bunny Inc, and provided, further, that Bunny Inc shall not settle any such Claim without the prior written consent of User.
Section 7.2 Infringement. If any Digital Good accepted by User in accordance herewith or the Software is held to infringe, and/or the distribution, performance, display, or use of any Digital Good accepted by User in accordance herewith or the Software is, or Bunny Inc reasonably believes is likely to be, enjoined, (i) Bunny Inc shall refund the fees paid for the same, (ii) User's license to the same shall terminate, (iii) User shall make no further use of the same, and (iv) User shall destroy all copies of the the same under User's control.
TERM AND TERMINATION
Section 8.1 Term. This Agreement will commence on the Effective Date and continue thereafter until terminated according to the provisions of this Article 8.
Section 8.2 Termination.
- For Convenience. User may terminate this Agreement for convenience upon written notice at any time during which no Order is pending. Bunny Inc may terminate this Agreement for convenience upon written notice at any time.
- For Cause. Either Party will have the right to terminate this Agreement, or any Order then in effect, if the other Party breaches any material term or condition of this Agreement and fails to cure such breach within 30 days after receipt of written notice of the same.
Section 8.3 Effect of Termination. Upon the effective date of termination of this Agreement, any and all payment obligations of User under this Agreement will become due immediately.
Section 8.4 Survival. The following provisions will survive any expiration or termination of the Agreement: Articles 5, 6, 7, 8, 9, and 10. Section 4.2 will survive any termination of the Agreement, except termination as a result of User's failure to pay fees for particular Digital Goods, in which case the license for such Digital Goods shall immediately terminate.
LIMITATIONS OF LIABILITY
Section 9.1 Warranty Disclaimer. NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER ORAL OR WRITTEN, WHETHER EXPRESS, IMPLIED, OR ARISING BY STATUTE, CUSTOM, COURSE OF DEALING OR TRADE USAGE, WITH RESPECT TO THE SUBJECT MATTER HEREOF, IN CONNECTION WITH THIS AGREEMENT. EACH PARTY HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. USER ACKNOWLEDGES THAT THIRD-PARTY LICENSES MAY BE REQUIRED TO EXERCISE THE RIGHTS GRANTED HEREIN, INCLUDING PUBLIC PERFORMANCE RIGHTS. USER AGREES THAT IT HAS THE RESPONSIBILITY TO CLEAR AND OBTAIN ALL SUCH RIGHTS AND LICENSES.
Section 9.2 Exclusions. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF RIGHTS OR SERVICES, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, OR INTERRUPTION OF BUSINESS, EVEN IF THE OTHER PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
Section 9.3 Maximum Liability. BUNNY INC.'S MAXIMUM AGGREGATE LIABILITY TO USER RELATED TO OR IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO THE TOTAL AMOUNT PAYABLE BY USER TO BUNNY INC. HEREUNDER FOR THE PRIOR 12-MONTH PERIOD.
Section 9.4 Basis of the Bargain; Failure of Essential Purpose. User acknowledges that Bunny Inc. has set its prices and entered into this Agreement in reliance upon the limitations of liability, the disclaimers of warranties, and the exclusions of damages set forth herein, and that the same form an essential basis of the bargain between the Parties. The Parties agree that such limitations, exclusions, and disclaimers will survive and apply even if any limited remedies are found to have failed of their essential purpose.
Section 10.1 Independent Contractors. It is the express intention of the Parties that Bunny Inc. is an independent contractor. Nothing in this Agreement will in any way be construed to: (i) give either Party the power to direct and control the day-to-day activities of the other, (ii) constitute the Parties as partners, joint venturers, co-owners, or otherwise as participants in a joint or common undertaking, or (iii) allow either Party to create or assume any obligation on behalf of the other Party.
Section 10.2 Non-Solicitation. User acknowledges that the individuals whose voices are heard on the Digital Goods are a valuable asset to Bunny Inc. and are difficult to replace. Accordingly, User shall not, for the term of this Agreement and for a period of 12 months thereafter, employ nor contract with any such individuals identified to User. The Parties agree that it would be difficult to determine the amount of actual damages to Bunny Inc. that would result from a breach of the foregoing provision. The Parties further agree that in the event User breaches the provisions of this Section 10.2, User shall pay Bunny Inc. liquidated damages of $25,000 for each such breach, which is the Parties estimate of the amount of damages to Bunny Inc. from such breach.
Section 10.3 Governing Law; Dispute Resolution. This Agreement is made under and will be governed by and construed in accordance with the laws of the State of California (except that body of law controlling conflicts of law). Any dispute relating to the terms, interpretation or performance of this Agreement (other than claims for preliminary injunctive relief or other pre-judgment remedies) will be resolved at the request of either Party through binding arbitration. Arbitration will be conducted in California, under the rules and procedures of the American Arbitration Association ("AAA" ). The Parties will request that AAA appoint a single arbitrator. The award rendered by the arbitrator shall be final and binding on the Parties, and judgment may be entered in and enforced by any court of competent jurisdiction.
Section 10.4 Severability; Waiver. In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving Party.
Section 10.5 Assignment. User may not assign its rights or delegate its duties under this Agreement either in whole or in part, by operation of law or otherwise, without the prior written consent of Bunny Inc.. Any attempted assignment or delegation without such consent will be void. Bunny Inc. may assign this Agreement in whole or part. This Agreement will bind and inure to the benefit of each Party's successors and permitted assigns.
Section 10.6 Force Majeure. Except for User's obligations to make payments, neither Party will be liable to the other Party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of such Party. Such events, occurrences, or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, acts of deadly violence, earthquakes, floods, fires and explosions.
Section 10.7 Entire Agreement; Counterparts. This Agreement, including all documents incorporated herein by reference, constitutes the complete and exclusive agreement between the Parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter. Terms and conditions on any User purchase order in addition to or different from those set forth herein are hereby rejected and shall be void and of no force or effect. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument.