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ENTERPRISE LICENSE AGREEMENT
Updated: May 02, 2023
This Enterprise License Agreement ("Agreement") is a contract between Animaker Inc., (“Animaker”) and the enterprise end user client organization, hereinafter listed as the “Client” or “Customer” or “You'', which incorporates by reference this Agreement, together with the Work Order, Terms of Service and Privacy Policy (available on Animaker website and updated from time to time), governs Client’s use of Animaker’ products, materials, and/or services. The Agreement is entered into by the parties on contract effective date stated in the order form(“Effective Date”).
The parties hereto, intending to be legally bound, hereby agree as follows:
1. DEFINITIONS
1.1 "Party" or "Parties" shall mean Animaker or Client or both, based on the context.
1.2 "Agreement", “Terms”, "hereto", "herein", "hereby", "hereunder" and similar expressions refer to this Agreement and not to any particular Article, Section or other portion hereof, and include any and every instrument supplemental or ancillary to or in implement hereof
1.3. “Client Content” shall mean and include any and all data or other material input, entered into or added or uploaded to the Services, or otherwise provided or made available to Animaker, by, on behalf of, or at the request of, Client or its Users.
1.4 “Content" shall mean videos, photos, images, audio, music, sounds, graphics, special effects,images, logos, branding, marks and other files, information and content, including, without limitation, flash animation and flash files
1.5 “Confidential Information” shall mean all information of a confidential or proprietary nature, in any form whether tangible or not, disclosed or communicated by a party to the other, or learnt or accessed by, or to which the other party is exposed as a result of entering into this Agreement.
1.6 “Renewal Term” means the periods for which the Term shall successively renew, as set out in the Work Order.
1.7 "Services" shall mean Animaker software, content, applications and services, including services or software that allow you to stream, download, view or use certain digital content such as music, video, animated characters, applications and other content that Animaker makes available from time to time.
1.8 “Site” shall mean the Website bearing the URLs https://www.animaker.com, www.animaker.com, www.animaker.es, www.animaker.co, www.animaker.de, www.animaker.fr, www.animaker.kr, www.animaker.ru and/or any other Websites owned and/or operated by us related to the Services.
1.9 “User” shall mean the Client or its authorised parties who use our Services.
1.10 "Videos" shall mean animated videos created using Animaker Services by Client or uploaded by Animaker, depending on the context.
2. TERM
i) The Agreement commences on the Effective Date and the period stipulated in the Work Order, (“Term”) unless terminated earlier in accordance with this Agreement.
ii) At the end of the Term, the Agreement will be automatically extended for successive Renewal Terms unless:
the Work Order states otherwise; or
the Client provides no less than 30 days’ written notice (or such other period set out in the Work Order) prior to the commencement of the relevant Renewal Term of its intention to cancel such automatic renewal; or
this Agreement is terminated earlier in accordance with the terms of this Agreement.
3. LICENSE
Subject to the terms and conditions of the Agreement:
i) Animaker grants its Users a non-exclusive, limited, non-sub licensable, non-transferable license to access and use the Services during the Term in accordance with this Agreement.
ii) Animaker grants its Users, a non-exclusive right to access and use Animaker Services and a perpetual license to distribute the videos made by you subject to the terms and conditions set forth in this Agreement and any such limitations as may be imposed upon you based during the validity of this Agreement, at the time of video creation.
Usage Rights with respect to third party material:
3.1.1 Animaker contains third party licensed material for the exclusive use of its users. These materials have additional restrictions. While using such materials, Client agrees:
not to remove any metadata in third party licensed material,
use the third party licensed material solely in a manner consistent with the rights and restrictions in this Agreement,
to use the third party licensed material only in works created via Animaker website, for display and usage in digital and print formats.
not to sell, modify, re-use, re-sell, distribute, display, reproduce or make any other use of third party licensed material.
not to activate the “right-click” function in third party licensed material, remove any metadata in the same, or reverse engineer, decompile,or disassemble the Animaker website to enable the download or use third party licensed material, on a stand-alone basis.
Third party licensed material may not be used:
on a stand-alone basis with no other content;
for pornographic, defamatory or other unlawful purposes;
in electronic templates used to create electronic or printed products;
in physical or digital retail products, such as e-cards, calendars, posters,or screensavers;
for the purpose of enabling file-sharing of the image file; or
in logos, trademarks, service marks or any other branding or identifiers.
If third party licensed material featuring an individual(s) is used in connection with a sensitive, unflattering or controversial subject, Client must include a statement that the image is used for illustrative purposes only and the individual is a model. Client acknowledges that no ownership or copyrights in third party licensed material is granted to the Client. Client further acknowledges that third party licensed material is available for use only in Animaker website and/or mobile application and is not downloadable outside of Animaker tools.
3.1.2 Usage rights with respect to music:
Music Pieces shall mean the music catalogue, including for avoidance of doubt the sound recordings and the musical composition as embodied therein, at each time hosted in Animaker platform.
Customer may only use the Music Pieces under and subject to the rights and licenses granted under or in accordance with this Agreement. All rights and licenses granted hereunder are non-exclusive, non-transferable and non assignable and may not be sub-licensed. Nothing contained in this Agreement shall be construed as transferring to any Party any title or ownership right or granting any rights other than as explicitly set out in this Agreement, in any intellectual property owned by the other Party. For avoidance of doubt, Users do not acquire any rights of ownership as a result of this Agreement in relation to any Music Pieces and the metadata relating thereto. The Music Pieces and the metadata relating thereto are the sole property of respective licensors who have licensed music to Animaker.
Customers are not entitled, to:
(a) use any Music Piece in
(i) TV shows, (ii) feature films, (iii) radio/podcast productions or similar, (iv) vignettes/theme songs, (v) corporate identification material (meaning sound-logos) or (vi) traditional media advertisements/commercials (meaning productions published within paid media space, such as, but not limited to; TV/cinema/radio/podcast commercials and out of-home displays, but excluding any online advertisements such as pre/mid/post roll);
(b) use the Music Pieces in connection with any material that is defamatory, illegal or inciteful of an illegal act; immoral; racist; hateful or discriminating against any person based on for example race, nationality, religion, ethnic identity, gender, gender identity or sexual orientation; constitutes encouragement of violence or use of weapons; pornographic; or in a manner or context that otherwise violates any rights of anyone associated with the Music Pieces or that otherwise violates any rights of anyone associated with the Music Pieces and/or any third party;
(c) change or edit the Music Pieces or parts thereof, but may cut them as required for inclusion in the Content;
(d) make available, or in any other way exploit the Music Pieces
(i) for the purpose of making the Music Pieces (in whole or in part) available on a stand-alone basis, hence without being synchronized with any production in accordance with the purposes of this Agreement, including, but not limited to, uses where complete or almost complete Music Pieces, on its own or as part of a compilation, are combined with accompanying visual/narrative elements that are of subordinate importance (such as still image(s), panning motions or other limited animation/video/audio) or where the production is tantamount to use of the Music Pieces on a standalone basis, and/or uses of any Music Piece(s) in an End-User Production for the purpose of creating a music listening experience;
(ii) in any way that is intended to allow third parties to download and/or otherwise access or use the Music Pieces on a stand-alone basis, including without limitation in any digital templates or other applications enabling end users to synchronize or otherwise combine the Music Pieces with other content, or in any manner enabling users to create or order on demand products (such as electronic greeting cards or ringtones) or make the Music Pieces available in any physical products (e.g. in speakers);
(iii) in any way to repackage the Music Pieces or upload/use them (in whole or in part) as for example audio samples, sound libraries, sound effects, music beds or upload them in any music recognition systems for any purpose and/or in any way use, distribute or otherwise exploit the Music Pieces as the User’s Content; or
(e) incorporate any End-User Production containing any Music Piece in a software application or video game.
Payment can be made via Cheque, Wire-transfer, Paypal, Mastercard, Visa Card, Amex, Discover, JCB and Client must authorize Animaker to charge the Credit/Debit card and store information of your Credit/Debit card in accordance with Animaker’s Privacy Policy. Client Credit/Debit card shall be billed in advance on yearly basis or as per terms stipulated in the Work Order. Total price will include the price of the Services plus any applicable taxes; such taxes are based on the bill-to address and the tax rate in effect at the time of availing the Services.
Client shall pay to Animaker, the fees for the Services as specified in the Work Order. Animaker will invoice Client in advance for all fees for the Services, and fees are non-refundable and not subject to apportionment by Client. Payment terms shall be as specified in the Work Order. Client shall pay invoiced amounts upon receipt of the invoice. If any invoiced amount is not received by Animaker by the due date, then that amount may accrue interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by the law, whichever is lower. If any invoiced amount is 30 days overdue past billing terms, then Animaker may suspend services until such amounts are paid in full.
The terms and conditions of the Agreement together with this Work Order shall take precedence over inconsistent terms and conditions contained in any other Agreement between parties.
Animaker reserves the right to increase the fees on renewal by giving Client at least sixty (60) days’ notice of such price increase; provided, however, that any such price increase shall not exceed 10% above the price that was in effect for the Animaker services in the immediately preceding term. However such price rise shall apply only to quotes specified in the Work Order and not apply to major product version releases(minor version releases are available) and other Animaker products.
5. TERMINATION
i) Either party may terminate this Agreement with immediate effect by giving written notice to the other party at any time if the other party breaches any material provision of this Agreement which is incapable of being remedied, or where the breach is not remedied within 30 days after receiving written notice from the terminating party requiring it to do so.
ii) Animaker may terminate this Agreement on 30 days’ written notice to Client for any reason.
Upon termination, the Client shall immediately cease the use of the Services. No refund is applicable on termination of Services.
6. LIMITATIONS ON USE
Users agree that they may not use Services provided by Animaker for any of the following:
i) Use unauthorized software or hardware to access the Services or modify an authorized device
ii) any unauthorized way (e.g., through unauthorized repairs, unauthorized upgrades, or unauthorized downloads).
iii) You agree that we have the right to send data, applications or other content to any software or hardware that you are using to access the Services for the purpose of detecting an unauthorized modification and/or disabling the modified device; or
iv) Except to the extent expressly permitted by applicable law notwithstanding this prohibition attempt to disassemble, decompile, create derivative works of, reverse engineer, modify, further sublicense, distribute, or use for other purposes the Services, animated characters, application, or other content available or accessible through the Services, or any hardware associated with the Services or with an authorized device. If you do, Animaker may cancel your ability to access the Services and pursue other legal remedies. Animaker may take any legal action that deem appropriate against users who violate our systems, network security, this Agreement, any additional terms incorporated or referenced in it. Such users may also incur criminal or civil liability.
v) Download (or try to download), extract (or try to extract), screen capture (or try to screen capture) parts of the software assets from Animaker’s library of assets, including but not limited to Characters, Properties, Backgrounds, Text, Numbers, Special Effects, Music and Transition Effects.
vi) Use the Services for any unlawful purpose.
vii) Notwithstanding anything stated herein, the custom characters created for the Client shall be usable within Services alone and may not be used or downloaded outside of the Services.
7. CONFIDENTIALITY
You hereby acknowledge and agree that all information, written and oral, concerning Animaker Services furnished from time to time to you is provided on a confidential basis. You further acknowledge and agree that you will not disclose such information, other than where such disclosure is required by law or where such information is already available to the public other than as a result of disclosure by Animaker, to anyone other than Animaker's officers, directors, employees, legal counsel, accountants, or authorized agents or advisors, who will agree in writing to be bound by the provisions of this Section.
8. INTELLECTUAL PROPERTY RIGHTS
Animaker owns or licenses all rights, title and interests (including Intellectual Property Rights) in the Services. All content, information, and other materials on Animaker’s service platform are protected by relevant intellectual property and proprietary rights and laws. All materials are the property of Animaker.
Client shall own all licenses, rights, title and interests (including Intellectual Property Rights) in Client Content. Animaker shall have the limited right to host, process, display and transmit the Client Content solely for the purpose of and to the extent necessary for providing Services to Client during the Term in accordance with this Agreement.
8.1 Client Content
Client acknowledges that it shall be solely responsible for Client Content. Client shall ensure that Client Content, and its collection, use, processing, disclosure and dissemination through the Services will not infringe any Intellectual Property Rights of any person and complies with all applicable laws.
9. INFORMATION SECURITY
Animaker agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of any Service or customer data. Animaker will also maintain requisite safeguards to reasonably protect the confidentiality, availability, and integrity of Client’s Confidential Information and the Client Content that Client inputs into the Services. Animaker further represents and warrants that it shall provide all Services and use all resources, software, and systems in an appropriately secure manner and in compliance with all applicable industry standards.
10. DISCLAIMER
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (A) THE ANIMAKER SERVICES AND THE CONTENT AND MATERIALS CONTAINED THEREIN ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN WRITING BY ANIMAKER; (B) ANIMAKER DISCLAIMS ALL OTHER WARRANTIES, STATUTORY, EXPRESS, OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT AS TO THE ANIMAKER SERVICES, INCLUDING ANY INFORMATION, CONTENT, OR MATERIALS CONTAINED THEREIN; (C) ANIMAKER RECOGNISES THAT CONTENT CREATION COMES IN MANY FORMS, AND THEREFORE DOES NOT REPRESENT OR WARRANT THAT THE CONTENT OR MATERIALS ON THE ANIMAKER SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE; (D) ANIMAKER IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS RELATING TO TEXT OR PHOTOGRAPHY; AND (E) WHILE ANIMAKER ATTEMPTS TO MAKE YOUR ACCESS AND USE OF THE ANIMAKER SERVICES SAFE, ANIMAKER CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE ANIMAKER SERVICES OR OUR SERVER(S) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNISED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD FROM THE ANIMAKER WEBSITE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ANIMAKER OR THROUGH THE ANIMAKER SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
11. LIMITATION OF LIABILITY
NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGES ARISING FROM OR CONNECTED WITH THIS AGREEMENT, WHETHER OR NOT THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES; AND (B) ANIMAKER’s AGGREGATE LIABILITY TO THE OTHER PARTY IN ANY CAUSE OF ACTION BASED ON CONTRACT, TORT OR OTHERWISE IN CONNECTION WITH ANY SERVICES FURNISHED PURSUANT TO THIS AGREEMENT INCLUDING ITS ANNEXURES SHALL BE LIMITED TO (I) THE TOTAL FEES PAID BY THE CLIENT TO ANIMAKER IN THE TWELVE (12) MONTHS PRECEDING THE CAUSE OF ACTION. TO THE EXTENT THAT APPLICABLE LAW PROHIBITS LIMITATION OF SUCH LIABILITY, ANIMAKER SHALL LIMIT ITS LIABILITY TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW.
CLIENT SPECIFICALLY ACKNOWLEDGES THAT ANIMAKER OR ITS OFFICERS SHALL NOT BE LIABLE FOR CONTENT OR FOR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD-PARTY, AND THAT ANY REMAINING HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH THE CLIENT.
12. WAIVER AND INDEMNITY
By using the Animaker Services, you agree, to the extent permitted by law, to indemnify and hold Animaker, its directors, officers, employees, affiliates, agents, contractors, and licensors harmless with respect to any claims arising out of or related to your breach of this Agreement, your use of the Animaker Services, your use of third-party services, products, links, advertisements, and/or tools, your violations of any third-party rights, including third-party intellectual property rights, the unauthorized use of the Animaker Services by any other person using your information, your interaction with other users, and or any action taken by Animaker as part of its investigation of a suspected violation of this agreement or as a result of its finding or decision that a violation of this agreement has occurred. This means that you cannot sue or recover any damages from Animaker, its directors, officers, employees, affiliates, agents, contractors, and licensors as a result of its decision to remove or refuse to process any information or content, to warn you, to suspend or terminate your access to the Animaker service, or to take any other action during the investigation of a suspected violation or as a result of Animaker's conclusion that a violation of this agreement has occurred. This waiver and indemnity provision applies to all violations described in or contemplated by this agreement.
13. MISCELLANEOUS
13.1 GOVERNMENT RESTRICTIONS
You may not export or re-export any of your content, and Animaker services except in compliance with the laws of the United States of America. The foregoing and all accompanying documentation are deemed to be "commercial computer software" and "commercial computer software documentation," respectively. Any use, modification, reproduction, release, performing, displaying, or disclosing of the foregoing by the Government of the United States of America is governed solely by the terms of this Agreement.
13.2 ASSIGNMENT
Without prior consent of Animaker you may not transfer or assign your rights granted under this Agreement, in whole or in part, except in connection with a merger, acquisition or sale of all or substantial assets to which this agreement relates. You agree to inform Animaker of other parties involved in any Merger or Acquisition. Animaker may freely transfer or assign its rights under this agreement. If you purchase a "Transfer Rights" license or if otherwise expressly authorized by your Paid account or higher subscription, you may assign or otherwise transfer the right to distribute your videos to third parties, subject to you following the procedures and terms outlined by Animaker for the transfer and the assignee separately agreeing with you in writing to be bound by this Agreement. Upon such an assignment or transfer, you may not retain any rights to use that Video further.
13.3 JURISDICTION/DISPUTES
This Agreement shall be governed in accordance with the laws of the State of California, United States of America. All disputes under this Agreement shall be resolved by litigation in the courts of the State of California, United States of America, including the federal courts therein and the Parties all consent to the jurisdiction of such courts, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to it.
13.4 ARBITRATION
Any and all claims and disputes arising under or relating to this Agreement and/or the Animaker Services are to be settled by binding arbitration in the State of California, United States of America. The arbitration shall be conducted on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneys' fees. Any such arbitration shall be conducted by an arbitrator experienced in the software services industry and shall include a written record of the arbitration hearing. The parties reserve the right to object to any individual who shall be employed by or affiliated with a competing organization or entity. An award of arbitration may be confirmed in a court of competent jurisdiction. No claims and disputes arising under or relating to this provision may be brought by a user more than one (1) year after the event giving rise to the cause of action has occurred or should diligently been discovered. Notwithstanding the foregoing, the parties shall be free to bring a request for injunctive relief before a court of competent jurisdiction in the event of immediate and irreparable harm.
13.5 SUCCESSORS
The provisions of the Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, their heirs, administrators, successors and assigns.
13.6 WAIVER
No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same or other provisions of this Agreement.
13.7 SEVERABILITY
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
13.8 INTEGRATION
This Agreement constitutes the entire understanding of the Parties, and revokes and supersedes all prior agreements between the Parties and is intended as a final expression of their Agreement. This Agreement shall take precedence over any other documents which may conflict with this Agreement.
13.9 FORCE MAJEURE
We shall not be bound to meet any obligation if prevented from doing so as a consequence of acts of God or force majeure, including but not limited to measures taken or imposed by any government or public authority or in case of any other event beyond the control of us, including but not limited to natural disasters (such as storm, hurricane, fire, flood, earthquake), war, civil unrest, terrorist activities, states of emergency, government sanctions, embargoes, nationalizations, strikes and breakdowns of public utilities (such as of electricity or telecommunication services). We shall use all reasonable efforts to notify you of the circumstances causing the delay and to resume performance as soon as possible, both without undue delay.
13.10 AFFILIATE DISCLOSURE
We may have an affiliate relationship with third-parties and affiliates to whose products and/or services we link and promote through the Site and/or the Animaker Services. Because of this relationship, we may earn a commission on products purchased by a user from a third-party affiliate.
13.11 AUTHORITY
Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its Terms.
13.12 Rights of Third Parties
These Terms do not give any right to any third party unless explicitly stated herein.
13.13 Relationship of the Parties
The parties are independent contractors under these Terms, and nothing herein shall be construed to create a partnership, joint venture or agency relationship between them. Neither party has authority to enter into Terms of any kind in the name of the other party.
13.14 Right to engage subcontractors, agents and third parties
Animaker may engage subcontractors, agents and or any third party consultants and permit them to exercise the rights granted herein, to provide the Services under this Agreement. However it is understood that Animaker will be responsible for compliance of all terms and conditions and performance of obligations under this Agreement.
13.15 NOTICES
Except as explicitly stated otherwise, any notices shall be given by postal mail to Animaker, Inc. at 1160 BATTERY ST STE 100 SAN FRANCISCO, CA, 94111, United States of America (our “Mailing Address”) and in the case of any user, to the email address you provide to us (either during the registration process or when your email address changes). Notice shall be deemed given twenty- four (24) hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to us upon Account registration/ as stated in order form. In such case, notice shall be deemed given three (3) calendar days after the date of mailing.
13.16 MARKETING CONSENT
Except as explicitly stated otherwise, any notices shall be given by postal mail to Animaker, Inc. at 1160 BATTERY ST STE 100 SAN FRANCISCO, CA, 94111, United States of America (our “Mailing Address”) and in the case of any user, to the email address you provide to us (either during the registration process or when your email address changes). Notice shall be deemed given twenty- four (24) hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to us upon Account registration/ as stated in order form. In such case, notice shall be deemed given three (3) calendar days after the date of mailing.
Annexure 1
SERVICE LEVEL AGREEMENT
Downtime
Downtime is an error rate of more than 10% as measured by our server side error rate or external probing tools
Downtime excludes the following:
Latency or performance issues with individual features
Issues related to third party applications, services or integrations
Any features provided or identified as a pilot, alpha, beta or similar
Any downtime due to a Force Majeure Event
Uptime commitment
Uptime is the percentage of total possible minutes Animaker was available during a rolling 30 day period. Our commitment is to maintain at least 99.5% Uptime as defined by:
((Actual Uptime)/Scheduled Uptime * 100) > 99.5%
Service credits
Should we fall short of our commitment, affected customers can request service credits which will be applied to their account, as stated below:
Monthly uptime percentage: Service credit as a percentage of yearly subscription service cost