3.1 Technical Requirements. You are responsible for obtaining, configuring, and maintaining at your expense all third-party software, hardware, network access, telecommunications, and other services and equipment necessary for you to access and use the Applications and Services (“Infrastructure”) and for ensuring that all Infrastructure meets the minimum requirements applicable to such Infrastructure as may be published by Switcher from time to time. You are responsible for any data charges incurred from your internet service provider or wireless carrier while using the Applications and Services. You are responsible for monitoring Switcher’s status page at https://switcher.statuspage.io/ (or a successor site designated by Switcher from time to time) or other information Switcher makes available regarding the availability of the Services. Some features and services of the Applications and Services are delivered using third-parties and Switcher is not responsible or liable for such features or services, or interruptions thereof. Switcher is also not responsible or liable for interruptions in service as a result of your internet service provider, wireless carrier or third-party services required to operate Switcher (i.e. Microsoft Azure, Twilio, Cloudflare, etc.).
3.2 Recordings. You are responsible for compliance with all recording laws in connection with your use of the Switcher Properties. By using the Applications and Services, you are giving Switcher consent to store recordings of any sessions for which cloud storage functionality has been enabled. If you do not consent to having a recording stored by Switcher, you may disable this feature when creating an event. These recordings can be downloaded or deleted from your online account. Switcher will retain cloud recordings in accordance with your subscription. For example, if your subscription specifies the retention of ten (10) recordings, only your ten (10) most recent recordings will be retained, and the remaining recordings will be overwritten. You may also have the option to “pin” recordings, in which case such recordings will not be overwritten without your authorization.
4. Support. Self Service technical support is available via the Help Center page of the Website: http://support.switcherstudio.com. Email support is only available to account holders in good standing and is provided via the online dashboard or by emailing firstname.lastname@example.org.
5. Payments Terms.
5.1 Payment. You agree that Switcher may charge to your credit card or other payment mechanism selected by you and approved by Switcher (“Your Account”) all amounts due and owing for the Applications and Services, including taxes and service fees, setup fees, subscription fees, or any other fee or charge associated with Your Account. Switcher may change prices at any time, including charging for Applications or Services that were previously offered free of charge; provided, however, that such price change will not go into effect until the renewal of your subscription. Notice of price change may be provided at any time by posting the updated pricing to the Website pricing page at http://switcherstudio.com/pricing.
5.2 Sales Fee. If you use the Cartr application, Switcher will receive a Sales Fee for products purchased from your videos made using the application. The Sales Fee percentage is determined by your subscription tier. This fee will be billed every 30 days through Shopify. The Sales Fee is capped at $1,000 per month. Merchants must increase the max cap via Shopify. Here are instructions on how to increase the max cap.
5.3 Refunds and Credits. All amounts paid for the Applications and Services are non-refundable. However, Switcher, in its sole discretion, may provide you with a refund or credit based on your specific situation. To request a refund or credit, please contact email@example.com.
5.4 Cancellation. You may cancel your subscription at any time. If you cancel, you will not be billed for any additional subscriptions, and your access to the Applications and Services will continue until the end of the then-current subscription term. If you choose to upgrade or downgrade the subscription plan you have purchased, a prorated credit will be applied for the current plan’s unused term. A charge for the full amount of the new plan will be applied, offset by any credits.
5.5 Subscription Management. You may elect to purchase an annual subscription or a monthly subscription for the Application and Services. Certain Application or Services may be eligible only for monthly subscriptions (e.g., Cartr by Switcher Studio). For an annual subscription, you will pre-pay the annual subscription fees specified in the Order Form for the period between the beginning of the subscription term set forth in the Order Form and the twelve (12) month anniversary thereof, and each subsequent twelve (12) month period thereafter during the subscription term. For a monthly subscription, you will pay the monthly subscription fees specified in the Order Form in advance on a month-to-month basis. You may also elect to purchase a non-recurring Day Pass, which is active for seven (7) days. Recurring subscriptions can be purchased on the Website. Day Pass purchases can be made within the Switcher App or the Switcher Dashboard on the Website. If you purchase a subscription through a Third-Party Property provider (e.g., Shopify), payments for such purchase shall be governed under such Third-Party Property provider’s applicable terms of service.
5.6 Taxes. Unless stated otherwise in the Order Form, all prices and fees are exclusive of taxes and regulatory fees, service fees, set up fees, subscription fees, or any other fee or charge associated with Your Account. Where applicable, taxes and regulatory fees will be charged on the invoices issued by Switcher in accordance with local laws and regulations. The taxes and regulatory fees charged can be changed without notice. All payments made by you to us under this Agreement will be made free and clear of any deduction or withholding, as may be required by law. If any such deduction or withholding (including but not limited to domestic or cross-border withholding taxes) is required on any payment, you will pay such additional amounts as are necessary so that the net amount received by us is equal to the amount then due and payable under this Agreement.
6. Proprietary Rights.
6.1 Ownership. As between the parties, Switcher or its vendors own all right, title, and interest including all intellectual property rights in and to the Switcher Properties, and all modifications, enhancements, and new versions thereof. Switcher reserves all other rights, title, and interest not expressly granted in this Agreement, and you shall not take any action to challenge or impair the rights of Switcher or its vendors in or to the Switcher Properties. “Switcher Studio”, “Switcher Cast”, “Cartr” and all other names, logos, and icons identifying Switcher’s products and services are proprietary marks of Switcher or its vendors, and any use of such marks by you shall inure to the benefit of Switcher or its vendors. Except as expressly provided in this Agreement, any use of such marks without Switcher’s prior written consent is strictly prohibited.
6.2 Your Feedback. You and your Authorized Users may provide suggestions, requests, recommendations, and other feedback to Switcher concerning the functionality and use of the Switcher Properties (collectively, “Feedback”). Any Feedback provided to Switcher shall be the sole property of Switcher, and you assign all right, title, and interest in the Feedback to Switcher.
8. No Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SWITCHER PROPERTIES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND SWITCHER DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING: (a) ANY IMPLIED WARRANTIES OF ACCURACY, TITLE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE; (b) ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE; AND (c) ANY WARRANTIES REGARDING THE USE OR THE RESULTS OF THE USE OF SWITCHER PROPERTIES, SWITCHER CONTENT, OR THIRD PARTY CONTENT. SWITCHER DOES NOT REPRESENT OR WARRANT THAT THE SWITCHER PROPERTIES WILL OPERATE ERROR-FREE, UNINTERRUPTED, OR IN A MANNER THAT WILL MEET YOUR OR ANY AUTHORIZED USER’S REQUIREMENTS. SWITCHER SHALL NOT BE RESPONSIBLE FOR ANY UNAUTHORIZED ACCESS TO OR USE OF THE SWITCHER PROPERTIES.
9. Term; Termination. Unless earlier terminated in accordance with this provision, this Agreement shall remain in effect while you maintain a subscription to the Applications or Services. You may terminate the subscription by following the process set out on the Website. If you have purchased a subscription to the Application or Services for a specific term, such termination will be effective on the last day of the then-current term. Your Order Form may provide that a renewal term will begin automatically unless either party provides notice of termination at least thirty (30) days prior to the commencement of the next renewal term. If you fail to comply with any provision of this Agreement, Switcher may terminate this Agreement immediately and retain any fees previously paid by you. Sections 5, 6, and 8-12, inclusive, shall survive any termination or expiration of this Agreement. Upon any termination of this Agreement, you must cease any further use of the Applications and Services.
10. Indemnity. You shall indemnify, defend, and hold harmless Switcher from and against any and all claims, damages, costs, expenses (including attorney’s fees and court costs), and liabilities (including settlements) brought or asserted by any third party against Switcher related to, resulting from, or arising out of: (i) You Content; (ii) any data breach, break-in, hacks, or theft by third parties or persons to the Switcher Properties, to the extent that you or an Authorized User enabled such data breach, break-in, hack, or theft; (iii) any breach or alleged breach of this Agreement by you or any Authorized User; (iv) any violation by you or any Authorized User of any applicable laws (including national, international, federal, provincial, state, or common laws) or regulations concerning publicity, data security, or privacy; or (v) any claim for personal injury or tangible property damage directly attributable to the willful misconduct or gross negligence of you, its employees, agents, representatives, or contractors, or any Authorized User.
11. Limitation of Liability.
11.1 Limitation of Liability. IN NO EVENT SHALL SWITCHER BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR SPECIAL DAMAGES ARISING OUT OF OR RESULTING FROM THIS AGREEMENT, WHETHER AN ACTION BASED UPON CONTRACT, TORT OR OTHERWISE.
11.2 Maximum Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF SWITCHER FOR ANY AND ALL CLAIMS UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION, EXCEED THE FEES PAID OR PAYABLE BY YOU UNDER THIS AGREEMENT WITH RESPECT TO THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE THE FIRST CLAIM GIVING RISE TO SUCH LIABILITY AROSE (OR, IF SUCH FIRST CLAIM AROSE DURING THE INITIAL TWELVE (12) MONTHS OF THE TERM, THE FEES THAT WOULD BE PAID OR PAYABLE BY YOU FOR THE FULL INITIAL TWELVE (12) MONTHS OF THE TERM).
12.1 Changes to this Agreement. Switcher may change this Agreement on a going-forward basis at any time and in its sole discretion. If Switcher makes changes to this Agreement, it will notify you of the changes. This notice to you may include sending a message to the email address or text message number you provided to us or notice through the Switcher Properties. Switcher will also update the “Last Updated” date at the top of this Agreement when it makes changes. Your continued use of the Switcher Properties will confirm your acceptance of the revised Agreement. If you do not agree to the revised Agreement, you must stop using the Switcher Services and delete your account.
12.2 Assignment. Except as explicitly set forth in this Agreement, you shall not assign or otherwise transfer this Agreement or any of its rights hereunder or delegate or subcontract any of your duties hereunder, without Switcher’s prior written consent. Any purported assignment, transfer, delegation, or subcontracting in violation of this Section shall be null and void. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of, the parties and their respective successors and assigns.
12.3 Force Majeure. Neither party shall be liable for any failure to perform any of its obligations under this Agreement (except for payment obligations) due to unforeseen circumstances or causes beyond the party’s reasonable control, including acts of God, riot, embargoes, acts of governmental authorities, fire, earthquake, flood, acts of terror, lack of availability or operability of third-party software or services, and computer attacks or malicious acts (such as attacks on or through the internet, any internet service provider, telecommunications, or hosting facility).
12.4 No Third-Party Beneficiaries. This Agreement is not intended to confer any benefit on any person or entity not a party to this Agreement.
12.5 Relationship. The relationship between the parties is and shall be that of service provider and customer only, and nothing in this Agreement shall be construed or used to create or imply any relationship between the parties of partners, joint venturers, or employer and employee.
12.6 Waiver, Amendment, or Modification. No failure or delay by either party in exercising any right, power, or remedy with respect to any of the provisions of this Agreement shall operate as a waiver thereof. This Agreement may be amended, and any provision of this Agreement may be waived, only by a written instrument executed by both parties. The terms of this Agreement shall not be amended or changed by the terms of any purchase order, acknowledgment, invoice, or similar document, even though a party may have signed or accepted such document.
12.7 Severability. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, void, or unenforceable, the parties agree that, unless it materially affects the entire intent and purpose of this Agreement, the invalidity, voidness, or unenforceability of such provision shall affect neither the validity of this Agreement nor the remaining provisions of this Agreement, and the provision in question shall be deemed to be replaced with a valid and enforceable provision most closely reflecting the intent and purpose of the original provision.
12.8 Governing Law. This Agreement has been made and shall be construed and enforced solely in accordance with the laws of Delaware without regard to conflict of laws principles. The parties hereby submit to exclusive subject matter jurisdiction, personal jurisdiction and venue of the federal and state courts in Wilmington, Delaware, for any disputes between the parties under or arising out of this Agreement.
12.9 Information or Complaints. If you have a question or complaint regarding the Switcher Properties, please send an email to firstname.lastname@example.org. Please note that email communications will not necessarily be secure; accordingly you should not include credit card information or other sensitive information in your email correspondence with us. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
12.10 Copyright Infringement Claims. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available through the Services infringe your copyright, you (or your agent) may send to Switcher a written notice by mail or email, requesting that Switcher remove such material or block access to it. If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send to Switcher a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/ for details. Notices and counter-notices must be sent in writing to us as follows:
By mail to:
Switcher Support Team
3058 Bardstown Rd. , #1060
Louisville, KY 40205
By email to:
12.11 Export Controls. You are responsible for complying with United States export controls and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant, and covenant that you are not: (a) located in or a resident or a national of any country subject to a U.S. government embargo or other restriction or that has been designated by the U.S. government as a “terrorist supporting” country; or (b) on any of the U.S. government lists of restricted end users.
12.12 Apple-Specific Terms. In addition to your agreement with the foregoing terms and conditions, and notwithstanding anything to the contrary herein, the following provisions apply with respect to your use of any version of the Applications compatible with the iOS operating system of Apple Inc. (“Apple”). Apple is not a party to this Agreement and does not own and is not responsible for the Applications. Apple is not providing any warranty for the Applications except, if applicable, to refund the purchase price for it. Apple is not responsible for maintenance or other support services for the Applications and shall not be responsible for any other claims, losses, liabilities, damages, costs or expenses with respect to the Applications, including any third-party product liability claims, claims that the Applications fails to conform to any applicable legal or regulatory requirement, claims arising under consumer protection or similar legislation, and claims with respect to intellectual property infringement. Any inquiries or complaints relating to the use of the Applications, including those pertaining to intellectual property rights, must be directed to Switcher in accordance with the “Information or Complaints” section above. The license you have been granted herein is limited to a non-transferable license to use the Applications on an Apple-branded product that runs Apple’s iOS operating system and is owned or controlled by you, or as otherwise permitted by the Usage Rules set forth in Apple’s App Store Terms of Service. In addition, you must comply with the terms of any third-party agreement applicable to you when using the Applications, such as your wireless data service agreement. Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement and, upon your acceptance of the terms and conditions of this Agreement, will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof; notwithstanding the foregoing, Switcher’s right to enter into, rescind or terminate any variation, waiver or settlement under this Agreement is not subject to the consent of any third party.
12.13 Right to Use User Content. Switcher may ask you to use certain User Content to use for its marketing, promotions, training, and other purposes. To the extent you permit such use, you grant Switcher a non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up, worldwide, fully sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, transmit, perform, and display such User Content and your (and other individuals’ that appear in the User Content) name, voice, and/or likeness as contained in such User Content, for such purposes.
12.14 Entire Agreement. This Agreement and any attachments, exhibits, or schedules hereto and thereto represents the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous statements, representations, or agreements, whether oral or written, with respect to the subject matter of this Agreement.