This StoryTap Services Agreement (the “Agreement”) is entered into upon signing of the agreement, the Effective Date between StoryTap Technologies Inc. (“StoryTap”), with its principal place of business located at Suite 3000, Bentall Four 1055 Dunsmuir Street, Vancouver BC V7X 1K8 and the company who is licensing the StoryTap platform (the “Company”). Each of StoryTap and Company shall individually be referred to as a “Party” and jointly as the “Parties”.
This Agreement sets forth the terms and conditions that govern the provision and use of: (i) the StoryTap Services (as defined below) for building, creating and sharing user-generated, directed video stories; (ii) consulting, training and other professional services made available by StoryTap in respect of the StoryTap Services; and (iii) Company’s use of StoryTap Services to capture user-generated video stories. This Agreement may be entered into and the StoryTap Services may be used by companies in furtherance of their own brand strategy (“Brands”) or advertising agencies (“Agencies”) acting on behalf of Brands.
1. Definitions
(a) “Company Content” means any Content, information, content, records, and files that Company (or any of its Manager Users) loads, receives through, transmits to or enters into the StoryTap Services.
(b) “Confidential Information” means information marked or otherwise identified in writing by a Party (“Discloser”) as proprietary or confidential, or information that, under the circumstances surrounding the disclosure, the Party receiving the Confidential Information (“Recipient”) should recognize as being confidential; provided that Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by Recipient without access to Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of Recipient; or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.
(c) “Content” means any Content, information, scripts, guides, documents, content, records, and files that is loaded, received through, transmitted to or entered into the StoryTap Services, including the story guides and Video Content.
(d) “Dashboard” means a central interface allowing Company to provision and to monitor the StoryTap Services.
(e) “End User” means anyone to whom the Company makes the StoryTap Services available in order to capture video stories.
(f) “Fees” has the meaning set out in Section 6.
(g) “Manager Users” means those employees, independent contractors, and other end users of the Company and, if the Company is an Agency, of a Brand for which the Agency is providing services, authorized by Company to access and use the StoryTap Services to manage Video Content.
(h) “Modifications” means modifications, improvements, customizations, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.
(i) “Order Form” means the form set out at Exhibit A, or any additional order form that references this Agreement once executed by both Parties.
(j) “Personal Information” means information about an identifiable individual.
(k) “StoryTap Services” means services through which StoryTap hosts and makes available the StoryTap Software for building, creating, and sharing directed video stories submitted by End Users. The term “StoryTap Services” includes the StoryTap Software and Technical Support Services.
(l) “StoryTap Software” means StoryTap’s software platform to build, create, and share Video Content, made available under the name “StoryTap”, and any updates provided as part of the StoryTap Services.
(m) “StoryTap Story Policy” means the story policy set out on the Website at https://storytap.com/terms#content
(n) “StoryTap Terms and Conditions” means the terms and conditions set out on the Website at https://storytap.com/terms.
(o) “Technical Support Services” means the support services described in Section 5.
(p) “Term” has the meaning set out in Section 10(a).
(q) “Video Content” means the directed video stories posted by End Users that may be viewed on or accessed through the StoryTap Software.
(r) “Website” means any websites used by StoryTap to provide the StoryTap Services, including the websites located at www.storytap.com and app.storytap.com.
2. StoryTap Services
(a) Provisioning of the StoryTap Services. Subject to Company’s compliance with the terms and conditions of this Agreement, StoryTap will make the following available to the Company:
(i) the StoryTap Services for its own purposes, and if Company is an Agency, to Brands to which it provides services, and for demonstration purposes to End Users and potential End Users;
(ii) the Dashboard for the purposes of provisioning the StoryTap Services for Manager Users and End Users; and
(iii) the right to make the StoryTap Services available to Manager Users and End Users.
(b) Accounts. Upon Company’s request, StoryTap will issue one or more administrator accounts (the “Administrator Accounts”) to Company that provides Company with the capability to create user accounts for Manager Users (each, a “Manager User Account”) that Company wishes to have access to and use of the StoryTap Services. Company will ensure that Manager Users only use the StoryTap Software or StoryTap Services through a Manager User Account. Company will not allow any Manager User to share their Manager User Account with any other person, let anyone access their Manager User Account, or do anything else that might jeopardize the security of their Manager User Account. Company will not allow any Manager User to transfer their Manager User Account without first receiving StoryTap’s written permission. Company will promptly notify StoryTap of any actual or suspected unauthorized use of the StoryTap Services. StoryTap reserves the right to suspend, deactivate, or replace a Manager User Account if it determines that the Manager User Account may have been used for an unauthorized purpose. Company will ensure that if StoryTap disables a Manager User Account, the Manager User will not create or be provided with another one without StoryTap’s permission. StoryTap may review any Administrator Account or Manager User Account for compliance with this Agreement, the StoryTap Terms and Conditions, and the StoryTap Story Policy, including usage of the StoryTap Services. Company will comply with all applicable laws, including privacy laws, for any Personal Information of Manager Users that is collected, stored, used, or disclosed in related to a Manager User Account.
(c) Responsibility for Video Content. Company will remain solely responsible for the Video Content that Company, or if Company is an Agency, that the Brand, creates, collects, transmits, stores, uses, or processes using the StoryTap Services.
(d) Terms Applicable to Agencies. If Company is an Agency, Company will enter into an agreement with each Brand prior to making the StoryTap Services available to such Brand which contain provisions that are sufficient to enable Company to comply with its obligations set out in this Agreement. In addition, each Manager User will be required to accept the StoryTap Terms and Conditions and the StoryTap Story Policy set out on the Website in advance of accessing or using the StoryTap Services.
(e) Responsibility for Manager Users. Company is responsible for identifying and authenticating all Manager Users and for Manager Users’ compliance with this Agreement.
(f) Restrictions on Use. Company must not itself, and will not permit Manager Users to:
(i) except as permitted in Section 2(a) sub-license, sell, rent, lend, lease or distribute the StoryTap Services or any intellectual property rights therein or otherwise make the StoryTap Services available to others;
(ii) use or access the StoryTap Services in violation of any applicable law or intellectual property right, in a manner that threatens the security or functionality of the StoryTap Services, or for any purpose or in any manner not expressly permitted in this Agreement;
(iii) use or access the StoryTap Services in a manner which violates the StoryTap Terms and Conditions or the StoryTap Story Policy;
(iv) use the StoryTap Services to create, collect, transmit, store, use or process any Content:
(A) that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or Content; or
(B) that violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity);
(v) Modify the StoryTap Services;
(vi) reverse engineer, de-compile or disassemble the StoryTap Services;
(vii) remove or obscure any proprietary notices or labels on the StoryTap Services, including brand, copyright, trademark and patent or patent pending notices;
(viii) access or use the StoryTap Services for the purpose of building a similar or competitive product or service; or
(ix) perform any vulnerability, penetration or similar testing of the StoryTap Services.
(g) Suspension of Access; Scheduled Downtime; Modifications. StoryTap may, at its discretion:
(i) suspend Company’s, any End User’s or any Manager User’s access to or use of the StoryTap Services, the Dashboard or any component thereof and may monitor or remove any Video Content submitted to the StoryTap Services:
(A) for scheduled maintenance;
(B) if Company or Manager User violates any provision of this Agreement;
(C) if Company or any End User posts Video Content that is offensive, libelous, obscene, indecent, harassing, defamatory, hateful, infringing, illegal, or that otherwise violates any provisions of the StoryTap Story Policy;
(D) if Company (or in the case of an Agency, a Brand provided access by the Company), Manager User, or End User violates any provisions of the StoryTap Terms and Conditions; and
(E) to address any emergency security concerns; and
(ii) Modify the StoryTap Services. Company is required to accept all patches, bug fixes and updates made by or on behalf of StoryTap to the StoryTap Services.
3. Ownership; Reservation of Rights
(a) As between StoryTap and Company, Company retains all ownership and intellectual property rights in and to Content loaded to the StoryTap Services. Company grants to StoryTap a nonexclusive, worldwide, royalty-free, irrevocable, fully paid-up right to use, Modify, process and transmit such Content to provide the StoryTap Services. StoryTap may analyze Content and information relating to the provision, use and performance of the StoryTap Services and related systems and technologies, and during and after the Term of this Agreement, StoryTap may (i) use such Content information relating to the provision, use and performance of the StoryTap Services and related systems and technologies to improve and enhance the StoryTap Services and for other development, diagnostic and corrective purposes in connection with the StoryTap Services; and (ii) use and disclose Content and information relating to the provision, use and performance of the StoryTap Services and related systems and technologies solely in aggregated and de-identified form in connection with its business generally, including using and disclosing (portions of) story guides created with or assembled using the StoryTap Services provided such use and disclosure does not identify the Company, products or services, which are the subject of the story guide.
(b) StoryTap or its licensors retain all ownership and intellectual property rights in and to: (i) the StoryTap Services; (ii) anything developed or delivered by or on behalf of StoryTap under this Agreement; and (iii) any Modifications to the foregoing (i) and (ii).
(c) All rights not expressly granted by StoryTap under this Agreement are reserved.
4. Privacy
Company agrees (on Company’s behalf and on behalf of each Manager User) to StoryTap’s access, use, collection, storage and disclosure of Company’s and each Manager User’s Personal Information for the purposes authorized under this Agreement. Company understands that Personal Information, including the Personal Information of Manager Users and End Users, will be treated in accordance with StoryTap’s privacy policy located at http://storytap.com/terms/#privacy (the “Privacy Policy”).
5. Support
Company will generally have access to StoryTap’s technical support from 9:00 am Pacific Time to 5:00 pm Pacific Time each Monday to Friday (excluding statutory and civic holidays observed in Vancouver, British Columbia, Canada); and (ii) via email at hello@storytap.com.
6. Fees and Payment
(a) Fees. Company will pay to StoryTap the fees described in each Order Form (the “Fees”). Company will be billed for usage and Company will pay the fees in accordance with this Agreement. Unless otherwise noted in the Order Form, all Fees are identified in US dollars and are payable in advance.
(b) Changes to the Fees. Except as otherwise provided for in the Order Form, StoryTap reserves the right to change the Fees and institute new charges following each anniversary of the Term upon providing not less than 60 days prior notice to Company, by providing a replacement Order Form to Company.
(c) Invoicing. Except as otherwise provided for in the Order Form, StoryTap will prepare and send to the Company, at the then-current contact information on file with StoryTap, an invoice for any Fees that have become due and payable. Unless otherwise expressly stipulated in an invoice, Company will pay all invoiced amounts within 30 calendar days of the invoice date.
(d) Disputed Invoices or Charges. If Company believes StoryTap has charged or invoiced Company incorrectly, Company must contact StoryTap no later than 30 days after having been charged by StoryTap or receiving such invoice in which the error or problem appeared in order to request an adjustment or credit. In the event of a dispute, Company will pay any undisputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts in good faith in order to resolve the dispute.
(e) Late Payment. Company may not withhold or setoff any amounts due under this Agreement. StoryTap reserves the right to suspend Company’s access to the StoryTap Services until all due amounts are paid in full. Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid.
(f) Taxes. The Fees set out in this Agreement do not include applicable sales, use, gross receipts, value-added, GST or HST or other taxes. Company will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement, other than taxes based on the net income or profits of StoryTap.
(g) Suspension. Any suspension of the StoryTap Services by StoryTap pursuant to the terms of this Agreement will not excuse Company from its obligation to make payments under this Agreement.
7. Confidential Information
(a) Confidentiality Covenants. Recipient hereby agrees that during the Term and at all times thereafter it will not: (i) disclose Confidential Information of the Discloser to any person, except to its own personnel or affiliates having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writing; or (ii) use Confidential Information of the Discloser except to exercise its license rights or perform its obligations under this Agreement.
(b) Exceptions to Confidentiality. Notwithstanding Section 7(a), Recipient may disclose Discloser’s Confidential Information to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order.
8. Warranty; Disclaimer; Indemnity
(a) GENERAL DISCLAIMER. STORYTAP DOES NOT WARRANT THAT THE STORYTAP SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE STORYTAP SERVICES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE STORYTAP SERVICES (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY STORYTAP TO COMPANY ARE PROVIDED “AS IS” AND “AS AVAILABLE”.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, STORYTAP HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, STORYTAP EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY CONTENT OR INFORMATION PROVIDED TO COMPANY IN CONNECTION WITH COMPANY’S USE OF THE STORYTAP SERVICES (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY COMPANY FOR ANY PURPOSE WHATSOEVER.
STORYTAP DOES NOT ENDORSE THE VIDEO CONTENT AND SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE, OR OTHERWISE), INJURY, CLAIM, LIABILITY OR OTHER CAUSE OF ANY KIND OR CHARACTER BASED UPON OR RESULTING FROM ANY VIDEO CONTENT.
(b)Indemnity. Company will defend, indemnify and hold harmless StoryTap, its employees, officers, directors, affiliates, agents, contractors, successors, and assigns against any and all third party (including End User’s and Manager User’s) liability (including damages, recoveries, deficiencies, interest, penalties and legal fees), directly or indirectly arising from or in connection with: (i) Company Content; (ii) Company’s breach of any of Company’s obligations, representations or warranties under this Agreement; (iii) use of the StoryTap Services (or any part thereof) by Company or any Manager User in combination with any third party software, application or service; or (iv) End User’s use of any of the StoryTap Services, including use contrary to the StoryTap Terms and Conditions or the StoryTap Story Policy. Company will fully cooperate with StoryTap in the defense of any claim defended by Company pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of StoryTap.
9. Limitation of Liabilities
(a) AMOUNT. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF STORYTAP IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY COMPANY FOR THE UNDER THIS AGREEMENT IN THE PRIOR 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL STORYTAP’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
(b) TYPE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL STORYTAP BE LIABLE TO COMPANY, A CUSTOMER OR ANY PERMITTED USER FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST SAVINGS, PROFIT, CONTENT, USE, OR GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
10. Term and Termination
(a) Term. This Agreement will commence on the Effective Date and continue to be in effect for the period agreed to in the order form (the “Term”). The Term will automatically renew for successive terms unless either Party provides the other Party with written notice of its intention not to renew not less than 30 days prior to the end of the then current Term.
(b) Termination for Cause. Either Party may, in addition to other relief, suspend or terminate this Agreement if the other Party commits a material breach of any provision of this Agreement and fails within 15 calendar days after receipt of notice of such breach to correct such material breach.
(c) Transition Services. Upon termination of this Agreement, Company will no longer have rights to access or use the StoryTap Services. All StoryTap hosted content will immediately become publicly inaccessible. For 60 calendar days following termination, StoryTap will provide Company the ability to download their Company Content.
(d) Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 3 (Ownership; Reservation of Rights), Section 4 (Privacy), Section 6 (Fees and Payment), Section 7 (Confidential Information), Section 8 (Warranty; Disclaimer; Indemnity), Section 9 (Limitation of Liabilities), Section 10 (d) (Survival), and Section 11 (General Provisions).
11. General Provisions
(a) Notices. Notices sent to either Party will be effective when delivered in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be in writing and sent: (i) if to StoryTap, to the following address: Suite 3000, Bentall Four 1055 Dunsmuir Street V7X 1K8, Attn: Bernadette Butler / hello@storytap.com
and (ii) if to Company, to the current postal or email address that StoryTap has on file with respect to Company. Company is solely responsible for keeping its contact information on file with StoryTap current at all times during the Term.
(b) Assignment. Company will not assign this Agreement to any third party without StoryTap’s prior written consent. StoryTap may assign this Agreement or any rights under this Agreement to any third party without Company’s consent. Any assignment in violation of this Section will be void. This Agreement will inure to the benefit of and be binding upon the Parties, their permitted successors and permitted assignees.
(c) Choice of Law. This Agreement and any action related thereto will be governed by and construed in accordance with the substantive laws of the Province of British Columbia and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Vancouver, British Columbia, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This choice of jurisdiction does not prevent StoryTap from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.
(d) Export Restrictions. Company will comply with all export laws and regulations that may apply to its access to or use of the StoryTap Services.
(e) Construction. Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion”, when used in respect of StoryTap in this Agreement means the right of StoryTap to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to Company.
(f) Force Majeure. Neither Party will be liable for delays caused by any event or circumstances beyond StoryTap’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving StoryTap’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party websites.
(g) Severability. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
(h) Waiver. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
(i) Independent Contractors. StoryTap’s relationship to Company is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and will not represent to any third party that it has, any authority to act on behalf of the other Party.
(j) Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications, whether written or oral.
(k) Amendments. No amendment, supplement, modification, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby.
(l) English Language. It is the express wish of the Parties that this Agreement and all related documents be drawn up in English.
IN WITNESS WHEREOF, the Parties’ authorized representatives have executed this Agreement as of the Effective Date.
