Terms of Service
Please read these Terms of Service carefully before any Use of the Products. Your Use constitutes an unconditional agreement to these Terms of Service. If you do not accept the Terms of Service, you are prohibited from using the Products.
- “Adaptation” means any work that modifies, adds to, deletes from, edits, affects the function of or is based on a Product or any previous Adaptation thereof, including but not limited to all plugins and other derivative works as such term is defined by the Copyright Act.
- “Advertising” means any type of advertisement content (including videos, images, graphics, animations, sounds, text and music) displayed, streamed, or played using the Products.
- “Analytics Plugin” means any code that enables Company to collect information regarding Publisher’s Use (such as browser type, device type, events, internet service provider, IP address, operating system).
- “Claims” means claims, suits, demands and actions by third parties.
- “Company” (or “We”, “we”) means Pipeno Inc., a New York company that operates Varrando.
- “Content” means videos, images, graphics, animations, sounds, text, music, and other media hosted, displayed, streamed, or played using the Products.
- “Documentation” means any documentation (including specifications, guidelines, and blog posts) offered by Company to Publisher for use in connection with Products. Generally, it describes how to use the Products. It may be available online or on request.
- “Distribute” means to sell, transfer, assign, circulate or make available to any third party, or the facilitation of the foregoing.
- “Edition” means a particular edition of Products, including Free Edition, Trial Edition, Enterprise Edition. An Edition enforces a set of features, permissions, and limitations.
- “Edition Scope” means all the features, permissions, and limitations applied to a particular Edition, including Advertising authorization, the maximum volume of data, maximum number of Starts, and maximum number of domains.
- “Effective Date” means the earliest date a Product is Used by Publisher.
- “Fee” means the amount payable to Company for Use of Products.
- “Licensing Key” (or “License Key”) means certain code in the Products that permits Company to verify that Use of Products is authorized.
- “Losses” means damages, losses, costs and liabilities, including attorney and professional fees, arising from a Claim.
- “Order Agreement” is an agreement between Company and Publisher setting forth custom pricing and terms for the Use of Products. In the event of any conflict between the terms of an Order Agreement and these Terms of Service, the Order Agreement shall take precedence.
- “Start” (or “Player Start”) is a single play of Content, in whole or in part. When Use the Outstream Player, a Start is when ads start loading (it may be one or more requests, to one or more ad servers, initiated at the same time; it includes all the waterfall requests).
- “Outstream Player” is a version of the Varrando Player that plays only Advertising, loaded from one or more ad servers.
- “Products” means all our products and services including cloud-hosted versions of Varrando Player, Varrando Platform, maintenance and support services, and Documentation.
- “Publisher” (or “You”, “you”) means you and any entity on whose behalf you Use Products.
- “Publisher Information” means personal and non-personal information about Publisher, including but not limited to Publisher’s name, address, email address, phone number, and, if Publisher is enrolled with a paid Edition, financial information such as payment method (valid credit card number, type, expiration date, etc.).
- “Purpose” means Use to facilitate Content and Advertising playback or streaming on Publisher’s websites.
- “Parties” means Company and Publisher.
- “Terms of Service” (or “TOS”, “Agreement”) means this document and any applicable, mutually ratified Order Agreement.
- “Use” means operating, accessing, downloading, installing, integrating or providing Content and/or Advertising through a Product or Adaptation.
- “User” (or “End User”) means an individual or entity surfing the web, that accesses or Uses Publisher’s Content and/or Advertising.
- “Varrando Platform” (or Varrando CMS, CMS) is a web application designed for our clients, that offers, among others, account and content management, configuration tools, and analytics.
- “Varrando Player” (or “Video Player”) means Publisher-hosted or cloud-hosted versions of the Varrando Player software (including plugins and updates) provided by the Company.
The Products are available in different Editions, each having its own Edition Scope. These Terms of Service apply to all Editions. Publisher’s rights and licenses to Use Products are limited to the Edition for which it has enrolled, is eligible and has paid all Fees (for paid Editions) in accordance with these Terms of Service. Any Use of the Products other than is permitted by these Terms of Service is strictly prohibited. The Company reserves all rights and licenses not expressly granted hereunder.
Publisher is authorized to make Adaptations reasonably necessary to exercise its rights under these Terms of Service (e.g. Adaptations to integrate Products into own websites). All Adaptations created by Publisher are strictly for its own Use. The Company reserves the right to prohibit the Use of any Adaptation in its sole discretion.
A license is always bound to a specific Edition, and is limited by its Edition Scope. Licenses are personal to Publisher for its own Use. Subject to the terms and conditions of these Terms of Service, and Publisher’s acceptance thereof, Company hereby grants to Publisher and Publisher hereby accepts a non-exclusive, non-transferable, non-sublicensable, limited right and license to (a) Use the Products solely for the Purpose, (b) make and distribute Documentation internally for use in connection with the Purpose.
Use of any feature that is not permitted by your Edition is strictly prohibited. For instance, Publishers who have not purchased an Edition with Advertising permission, are strictly prohibited from using the Products in any manner to display advertisements.
There are 3 categories of Editions:
- Free Edition
- Standard Editions
- Enterprise Edition (please contact us for custom order)
Publisher must create a username and password, and must provide accurate personal information: email address, name and mailing address. Publisher is strictly prohibited from: (a) providing false sign-up information, (b) using a name, address or email address owned or controlled by another person with the intent to impersonate that person, or (c) providing an email address subject to any rights of a person other than Publisher without appropriate authorization. The Company reserves the right to refuse registration or cancel any account that it reasonably believes is in violation of the foregoing. Publisher shall be responsible for maintaining the confidentiality of its password and is liable for all activities that occur on its account. Publisher agrees to immediately notify the Company of any unauthorized use of Publisher’s username, password or other breach of security.
Except as specifically set forth herein, Publisher shall not Distribute, re-license, sell, lease, transfer, encumber, assign or make available for public use the Products or any Adaptation thereof. Any attempt to take any such actions is void, and will automatically terminate Publisher’s rights under these Terms of Service. Notwithstanding the foregoing, Publisher may duplicate the Products and its own permitted Adaptations solely for its own use, provided, all copyright notices, disclaimers and other identifications on the Products must also be duplicated and displayed on any copies thereof.
Licensing Key and Analytics Plugin
Publisher grants Company a limited, royalty-free license to use the information collected by the Licensing Key and Analytics Plugin to facilitate the operation of Products, validate Use of Products, ensure compliance, and for its internal business purposes.
Term and Termination
These Terms of Service shall become effective on the Effective Date, and shall remain effective until terminated by any party. Unless otherwise provided, either party may terminate these Terms of Service upon 30 days’ written notice. The Company may terminate the Terms of Service of the Free Edition and Trial Edition for its convenience upon seven (7) days’ notice.
An Order Agreement shall provide additional terms, where:
- “Initial Term” is the minimum period of time these Terms of Service shall remain effective.
- Upon the conclusion of the Initial Term, these Terms of Service shall renew automatically for additional successive terms (each a “Renewal Term”, and together with the Initial Term, the “Term”).
- Either party may choose not to renew these Terms of Service by notifying the other no later than thirty (30) days prior to the expiration of the current Initial Term or Renewal Term. The notice must be provided in writing.
These Terms of Service are subject to termination by the Company immediately if (a) Publisher fails to timely pay a Fee, (b) Publisher violates any term of these Terms of Service, (c) the Company has a reasonable basis to believe that Publisher is not abiding by the spirit of these Terms of Service, (d) Publisher becomes insolvent, declares bankruptcy or a receiver or trustee is appointed for Publisher, (e) the Company has a reasonable basis to believe that Publisher is impairing the Company’s business, (f) Publisher is or becomes engaged in a business that is directly or indirectly competitive with the Company’s business, or (g) Publisher exceeds the Edition Scope permitted for its Edition and fails to cure any of the foregoing within seven (7) days of notice thereof.
In the event of any termination by the Company pursuant to (a) – (g) above, the Company is under no obligation to provide a refund for the Fees received from Publisher or apply such fees to future Use of Products. In the event of the Company’s cancellation for convenience, Publisher is entitled to request a pro-rata refund of unused pre-paid Fees. In the event Publisher switches to a different Edition, any pre-paid Fee balance shall be applied towards the Fees due for such Edition until exhausted. No refund shall be available for Publishers switching to a Free Edition.
Effects of Termination
Upon termination of these Terms of Service for any reason, Publisher shall immediately cease Using the Products and uninstall, delete and destroy any copies of the Products. In the event that any Products are no longer under Publisher’s control, Publisher shall use its best efforts to stop Use of such Products no later than ten (10) days after termination. Publisher shall continue to pay Fees until such Use ceases.
Upon termination, all rights, obligations and licenses of the Parties shall cease, except that all obligations that accrued prior to the effective date of termination and remedies for breach of these Terms of Service shall survive. The provisions of the Sections titled Effects of Termination, Intellectual Property, Confidential Information, Fees and Payment, Representations and Warranties, Disclaimer of Warranty, Limitation of Liability, Indemnification, Choice of Law and Jurisdiction, Injunctive Relief and Waiver of Breach shall also survive.
Maintenance and Support
The Company shall provide reasonable technical support and maintenance for the Products in its sole discretion. The Company shall have no obligation to provide additional technical support, maintenance, updates or enhancements to the Products or to provide customer service or support to Publisher’s End Users. All installation and maintenance of Products by Publisher shall be at the sole expense of Publisher. The Company is not responsible for anything beyond its control, including: (a) performance issues caused by low-performance computers, (b) low-bandwidth internet connections, (c) periodic network congestions, (d) low-bandwidth connectivity from redirected video and image sources, (e) improperly configured campaigns, and (f) low-bandwidth connectivity or problems from the Publisher servers. In the event Company identifies slow performance due to its system, Company shall use commercially reasonable efforts to restore the Services to acceptable performance levels. Publisher’s sole remedy for any disruption or failure to provide support shall be a pro-rata refund of the Fee paid by Publisher for the relevant period.
The Company is the sole owner of all intellectual property rights pertaining to the Products, including but not limited to copyright, trademark and patent rights and all rights not expressly granted herein are reserved. If Publisher creates an Adaptation, Publisher shall obtain all intellectual property rights in and to the elements of such Adaptation created by Publisher and the Company shall retain all intellectual property rights in and to any elements of the Products incorporated in such Adaptation. Publisher is prohibited from creating any Adaptation that in any manner infringes the patents, trademarks, copyrights, trade secret rights or other rights of the Company or any third party.
Periodically, the Company may receive Publisher Information from third parties. The Company may also request information about Publisher’s interests and activities, gender, age and other demographic information. The Company may use the Publisher Information to: (a) deliver the Products, (b) manage Publisher’s account, (c) provide customer support, (d) perform analysis about Publisher’s Use of, or interest in Products or Content, or the products, services and content of others, (e) communicate with Publisher via email, phone, mail about products or services that may be of interest to Publisher, (f) display content and advertising tailored to your interests on our site and other sites, (g) enforce Terms of Service, (h) manage our business.
Fees and Payment
The Fees are made available online or provided into an Order Agreement. Unless otherwise provided, the Company may modify the Fees upon sixty (60) days prior written notice. Unless otherwise provided, when an Order Agreement with Initial Term and Renewal Term is in effect, the Company may modify the Fees upon sixty (60) days’ written notice prior to the renewal of the current Initial Term or Renewal Term.
The Fees are billed in advance for the next one (1) month, and payment is due on receipt of invoice. The Publisher shall provide a valid form of payment (credit card, debit card, etc.) and accurate billing information. The Publisher authorizes the Company to charge all Fees incurred, and acknowledges that, periodically (e.g. every one (1) month), Fees will be charged automatically and without separate authorization.
Publisher agrees to timely pay all Fees due during the Term. Company reserves the right to suspend Publisher’s access to Products if Fees are not timely paid. Such suspension shall not remove Publisher’s duty to pay all Fees due, and shall not constitute termination of these Terms of Service. Past-due fees shall incur interest at a rate of two percent (2%) per month or the maximum rate allowed by law, whichever is lesser. Publisher shall be liable to, and fully reimburse Company for all costs (including attorney’s fees) incurred in connection with Company’s collection of past-due Fees or other enforcement of these Terms of Service. All Fees are non-refundable except as otherwise provided in these Terms of Service. Publisher shall be responsible to pay all taxes due in connection with the Fees and Publisher’s Use of the Products.
The Fees depend on the Edition Scope in effect and on volume usage. Additional Fees may be charged for extra volume usage, as specified within the Edition Scope. The Company shall use its own code and servers to track the Use of Products, in order to determine the volume usage and Fees. Publisher acknowledges, and grants Company such rights. No third-party analytics systems are permitted to be used for determining the Fees.
By uploading Content, Publisher agrees to and hereby does grant, and does represent and warrant that it has the right to grant, the Company a royalty-free, fully paid up, worldwide license to use the Content solely in connection with the operation and provision of Products (including storing, hosting, or streaming the Content).
Publisher is solely responsible for any Content or other material that Publisher posts, uploads, submits or Distributes. The Company may review and delete any Content that violates the terms of this Section. Prohibited Content includes any Content that (a) infringes any copyright, trademark, patent, trade secret, right of publicity or other right of any person or entity, (b) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive, tortious, obscene, offensive, vulgar, pornographic, profane or is otherwise inappropriate as determined by the Company in its sole discretion, (c) contains any virus, malicious code, Trojan horse or other program designed, intended or likely to disrupt, damage, limit or interfere with the proper function of any software, hardware or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of the Company or any person or entity, (d) encourages illegal activity, or (e) falsely suggests or implies sponsorship or endorsement by the Company.
Publisher is responsible for doing backups of its Content and Company recommends archiving Your Content periodically. Company has no responsibility for deleted, lost, corrupted or inaccessible Content, regardless whether Company hosts such Content.
Restrictions on Use
Publisher shall not (a) interfere or attempt to interfere with the proper operation of the Products or any activities conducted through the Products, (b) use any robot, spider or other device to retrieve, index, scrape, data mine or in any way gather information, Content or other materials from the Products, (c) decipher, decompile, disassemble, reverse engineer, simulate or derive any source code or algorithms from the Products or use any of the foregoing to create any software or service similar to the Products, (d) create any derivative work or modification of the Products other than Adaptations permitted by these Terms of Service, or (e) license, sublicense, sell, encumber, rent, lease, Distribute, transfer or similarly exploit the Products.
Content transcoded via the Products may only be delivered via the Products. Downloading transcoded content for delivery via other mechanisms or CDN fronting the Products’ delivery functionality is strictly prohibited and may result in additional Fees, account suspension, and/or termination.
Representations and Warranties
Publisher represents and warrants that (a) if Publisher is an individual, it is at least eighteen (18) years old, (b) if Publisher is an entity, its consent to these Terms of Service has been duly ratified, (c) all information provided during the registration process is true and accurate, (d) its Adaptations do not infringe the intellectual property rights of any third party, (e) its Use of Products is in compliance with all applicable laws and regulations, (f) Publisher has the right to enter into and perform this Agreement and is not subject to any obligation or disability which will or might prevent or interfere with it fully keeping and performing all of the terms, covenants, obligations and conditions to be kept or performed hereunder.
Limited Product Warranty
The Company warrants that it will provide the Products in a manner consistent with general industry standards. The Company does not warrant that the Products will be error-free or that any errors in the Products will be corrected.
Disclaimer of Warranty
EXCEPT AS OTHERWISE PROVIDED AND TO THE MAXIMUM EXTENT ALLOWED BY LAW, THE PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS OTHERWISE PROVIDED, USE OF THE PRODUCTS IS AT PUBLISHER’S OWN RISK AND PUBLISHER IS SOLELY RESPONSIBLE FOR DETERMINING THE APPROPRIATENESS OF EXERCISING THE RIGHTS GRANTED UNDER THIS AGREEMENT AND ASSUMES ALL RISKS ASSOCIATED THEREWITH, INCLUDING BUT NOT LIMITED TO THE RISKS AND COSTS OF PROGRAM ERRORS, COMPLIANCE WITH APPLICABLE LAWS, DAMAGE TO OR LOSS OF DATA, PROGRAMS OR EQUIPMENT, SUITABILITY FOR HOSTING AND UNAVAILABILITY OR INTERRUPTION.
Limitation of Liability
EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW OR TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE, IN NO EVENT SHALL THE COMPANY, ITS EMPLOYEES, OFFICERS, DIRECTORS, AFFILIATES, OR AGENTS (THE “COMPANY PARTIES”) BE LIABLE ON ANY LEGAL THEORY (A) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES INCLUDING LOSS OF REVENUE, PROFITS OR GOODWILL, (B) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL, (C) FOR ANY LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, OR (D) FOR ANY DIRECT DAMAGES IN EXCESS OF THE TOTAL FEES PAID BY PUBLISHER TO THE COMPANY PURSUANT TO THESE TERMS OF SERVICE, EVEN IF THE COMPANY PARTIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THESE TERMS OF SERVICE AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
Except as otherwise set forth in these Terms of Service, Publisher will indemnify, defend and hold harmless the Company, its employees, officers, directors, successors, affiliates, or agents (the “Company Parties”) from and against all Claims, and for all resulting Losses (including attorney’s fees) that result or arise from Claims, which in whole or in part, pertain to any Publisher Adaptation or arise from Publisher’s Use, reproduction, Distribution or other exploitation of the Products. Publisher will pay all amounts agreed to in a monetary settlement of the Claims and all Losses that result or arise from the Claims. Notwithstanding the foregoing, Publisher shall have no duty to indemnify or defend the Company from Claims which primarily allege that Products, as provided to Publisher by the Company and used in accordance with the terms hereof, infringe the copyright, patent or trademark rights of a third party.
Publisher acknowledges that it may have access to certain confidential information of the Company, such as information concerning its business, plans, customers, technology and products (“Confidential Information”). Confidential Information will include all information in tangible or intangible form that is marked or designated as confidential or that, under the circumstances of its disclosure, should reasonably be considered confidential. Publisher agrees that it will not use Confidential Information in any way for its own account or the account of any third party, except as expressly permitted by, or required to achieve the purposes of, these Terms of Service, nor will it disclose to any third party (except as required by law or its attorneys, accountants and other advisors as reasonably necessary) any of the Confidential Information and it will take reasonable precautions to protect the confidentiality of such information, at least as stringent as it takes to protect its own Confidential Information. Upon termination or expiration of these Terms of Service for any reason, Publisher will return or destroy, at the Company’s request, all Confidential Information and all documents or media containing any such Confidential Information and any and all copies or extracts thereof.
Publisher shall permit Company to (a) use the Publisher’s trade name and marks, (b) otherwise refer to or publicly identify the Company as a client of Products, generally on Company’s websites and marketing materials.
If a court of competent jurisdiction finds one or more of the provisions contained in these Terms of Service to be invalid, illegal or unenforceable in any respect, then (a) the validity, legality and enforceability of the remaining provisions shall not be affected, and (b) the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law, while protecting the intent of the Parties.
Choice of Law and Jurisdiction
These Terms of Service shall be governed by and construed in accordance with the laws of the State of New York (except that body of law controlling conflict of laws) and specifically excluding from application to these Terms of Service that law known as the United Nations Convention on Contracts for the International Sale of Goods. Each party irrevocably consents to the exclusive jurisdiction, forum and venue of the Commercial Division of the Supreme Court of the State of New York, New York County and the United States District Court for the Southern District of New York over any and all claims, disputes, controversies or disagreements between the Parties or any of their respective subsidiaries, affiliates, successors and assigns under or related to these Terms of Service or the subject matter thereof.
Publisher acknowledges and agrees that unauthorized Use of the Products or disclosure of Confidential Information may cause the Company irreparable harm for which its remedies at law may be inadequate. Publisher hereby agrees that the Company will be entitled, in addition to any other remedies available to it at law or in equity, to obtain immediate injunctive relief to prevent such unauthorized actions.
Company may modify these Terms of Service in its sole discretion. Any modifications shall take effect and be binding on Publisher from the date they are posted on the Company’s website, or electronically delivered to Publisher (e.g. via email). Only the Company has the right to modify these Terms of Service.
Waiver of Breach
No term or provision of these Terms of Service shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the Company. Any consent by the Company to, or waiver of, a breach by Publisher whether expressed or implied, shall not constitute a consent to, waiver of, or excuse for any other breach (different or subsequent).
- Company may conduct audits periodically, solely to confirm the accuracy of Fees paid and compliance with the applicable Edition Scope.
- Company and Publisher are independent contractors and nothing herein constitutes or creates an employer-employee, agency, joint venture or representative relationship between them.
- Publisher agrees and certifies that it will not export or re-export, directly or indirectly, the Products contrary to the laws of the United States or any other country from or to which such export or re-export may occur.
- The Order Agreement shall be used for setting certain custom terms (e.g. Fees, Payment, Term, and others). In the event of any conflict between the terms of an Order Agreement and these Terms of Service, the Order Agreement shall take precedence.
- These Terms of Service constitute the entire agreement between the Company and Publisher with respect to the subject matter hereof, and supersedes all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter.
- Publisher may not assign or transfer this Agreement to any third party without the Company’s express written consent. Any assignment or transfer made in the absence of such consent shall be void and in the event of such unauthorized assignment or transfer the Company may immediately terminate these Terms of Service.
- The failure of either Party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights.
- Headings used in this Agreement are for convenience only and shall have no legal effect on interpretation of the Agreement.