We will provide the Services to you on the following terms and conditions.

Definitions and Interpretations

In this Agreement the following expressions have the following meanings, unless otherwise stated:

"API" means application programming interface;

"Assets"are content pieces created by you on our Platform by using our Services;

"Bandwidth"means content and streaming delivery, and is measured as gigabytes delivered via the CDN URLs made available as part of the hosting service that is part of the Services;

"Business Day" means a day other than a weekend or public or bank holiday in New South Wales, Australia;

"Charges" is the fees and rates payable for the Services as specified in accordance with the selected Plan;

"Commencement Date" means the commencement date specified in the Key Terms and if there is no date specified, the date that the last of the Parties sign this Agreement;

"Confidential Information" is defined in clause 7;

"Consultants" means the employees, subcontractors and consultants, which we use to perform the Services;

"Credits" are units of measurement of our Services, and equals:

• One (1) minute of video up to 720p;
• 10 images up to 1000x1000px;
• and any other units of measurement as updated on our pricing page from time to time;

and may have a multiplier added depending on the requested resolution and usage type of our Services, as set out on the pricing page

"Intellectual Property Rights" means all present and future intellectual and industrial property rights throughout the world of whatever nature (whether or not registered or registrable) including, but not limited to, all technical information, know-how, copyright, trade marks, designs, patents, domain names, business names, logos, drawings, trade secrets, the right to have confidential information kept confidential or other proprietary rights, or any rights to registration of such rights, whether created, written developed or brought to existence by us or you in the provision of the Services;

"Plans" are set out in Schedule 1 and inform the Charges payable;

"Platform" means our custom API endpoints, whether accessed from our website, platform or server or accessed via your own servers, website or platform; website where you can access our Services at shotstack.io;

"Overage" is defined in clause 3.7;

"Services" is defined in the Key Terms;

"Storage" means your use of the Service to store Assets, and includes:

• Temporary storage of rendered Assets that are available via the Platform for 24 hours after creation and are deleted thereafter;
• Longer term storage tied to Serve API (for video hosting), designed to provide high performance media delivery and can be deleted yourself using Serve API (uses Storage allowance and additional fees may be charged if you exceed your Plan’s monthly allowance); and
• Storage of media and files uploaded to be used in media generated using the Edit API and can be deleted yourself using Ingestion API (uses Storage allowance and additional fees may be charged if you exceed your Plan’s monthly allowance); and

"Term" is defined in the Key Terms.

If you are contracting with us for the supply of Services directly to a third party then you will:

• procure that such third party will comply with the terms of this Agreement; and
• indemnify us for any claim, loss, damage or expense incurred by us as a result of any breach of the terms of this Agreement by such third party.

You acknowledge and agree that no Services will be provided to you until we have received your acknowledgement and acceptance of this Agreement.

Services

We will perform the Services in return for payment of the Charges.

All information that we provide is supplied in good faith, but we do not warrant or guarantee the accuracy or completeness of any information provided by any third party.

We will not be obliged to provide any Services under this Agreement that are not included in the selected Plan.

We will use reasonable endeavours to provide the Services in accordance with the Key Terms. However, any times quoted for delivery, commencement or completion of any part of the Services will be estimates only and time will not be of the essence.

To the extent possible, Services will be provided in line with the SLA, and different support levels will be provided based on your selected plan. You agree that we are not required to provide Services beyond the limits set out in the SLA.

The provision of Consultants, or our agents, to perform our obligations under this Agreement will be at our discretion.

In providing the Services, we may analyse your Assets and media content that is uploaded to the Platform, including API call data send through to the APIs, as needed for product development purposes.

You acknowledge that we do not store Assets on your behalf, other than when you use the Storage aspect of our Services. Any Assets created will be automatically deleted from the Platform. Retrieval and access of deleted Assets is expressly excluded from our Services.

In some instances, including for use of the Edit API and copy over for the purposes of the Serve API, we may hold video Assets. All Assets will be stored and used in accordance with our privacy policy. You may opt out of automatic storage of your Assets.

Charges and Payment

You will pay us the Charges for the Services supplied and in accordance with the selected Plan set out in the Key Terms.

In case of excess Overage we may charge your card on file before the end of the month.

Any Credits provided to you as part of the Services will expire at the end of the respective calendar month in which you were billed for those Credits.

Unless otherwise stated on an invoice, all Charges are exclusive of GST and any other relevant taxes that may apply.

We may, at our sole discretion, increase the Charges by providing you with reasonable prior notice. Pricing increases are effective from the date of publication on our website. If you do not agree to these changes, you may terminate the Agreement by providing us one month notice, upon which we will close your account prior to the next billing date.

If payment of the Charges is not received within 30 days of the due date, we will be entitled (without prejudice to any other right or remedy) to:

• withhold provision of the Services until payment is received in full and in cleared funds;
• in our sole discretion, require that you make advance payments of the Charges or other amounts due in full or in part prior to the supply or delivery of the Services; and/or
• terminate this Agreement pursuant to clause 8.

You will make all payments without tax deduction unless a tax deduction is required by law. If you are required to make a tax deduction by law, the payment due from you to us will be increased to an amount which (after making the tax deduction) leaves an amount equal to the payment which would have been due if no tax deduction had been required.

You will indemnify us for any loss, liability or cost that we directly or indirectly suffer in relation to any tax other than tax levied under the law of Australia unless that loss, liability or cost is compensated by an increased payment.

From time to time, you may exceed the Credits included in your Plan. In such cases, you will be charged additional costs (“Overage”).

Overage will be charged at the rates published on shotstack.io/pricing from time to time and includes costs for:

• Credits in excess of your Plan allowance;
• Storage in excess of your Plan allowance; and
• Bandwidth in excess of your Plan allowance.

You may track your usage of our Services on the Platform dashboard that will display your live usage.

Refunds may be provided in our sole discretion, and only in cases where you have not used any of our Services included in your selected Plan for the calendar month in question.

Your Obligations

You will comply with your obligations under this Agreement.

You acknowledge and agree that for us to be able to provide the Services without interruption at your cost, you will ensure that your staff, consultants and contractors:

• must follow the developer documentation provided alongside our Services;
• keep safe any secret keys that you receive; and
• comply with all reasonable directions and guidelines from us as advised from time to time.

You will not, and you will ensure anyone accessing your account on the Platform will not:

• modify the Platform or our Services other than as expressly provided under this Agreement;
• utilise our dynamic templates and APIs other than in conjunction with our Services;
• record, reverse engineer, copy, duplicate, reproduce, create derivative works from, frame, download, display, transmit or distribute any of the Platform, our APIs, the source code, or any documents, manuals or setup instructions provided with the Platform or in relation to the Services;
• licence, sell, rent, lease, transfer, assign or otherwise commercially exploit the Platform or the Services without acknowledgement of our ownership of the Platform and Services where it is reasonably appropriate to credit our ownership;
• engage in unlawful behaviour, including unauthorised access to or use of data, services, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures;

• access, store, distribute, transmit or otherwise attempt to bring into the Platform:

  • viruses, worm, trojan or other malicious code that corrupts, degrades or disrupts the operation of the Platform;
  • material that is unlawful, unethical, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive or a contravention of the rights of any third party;
  • material that facilitates illegal activity; or
  • material that abuses or causes damage or injury to any person or property;
• open multiple accounts under different e-mail addresses or usernames or otherwise abuse the Platform, including by rendering large volumes of video on multiple accounts;
• provide Platform login details or passwords, or otherwise provide access to the Platform, to any unauthorised third party and you will take all reasonable steps to prevent unauthorised access to, or use of, our Services and the Platform;
• share any features of the Platform that are not publicly available with any unauthorised third party; and
• engage in any conduct on the Platform that is in breach of this Agreement (or any agreements mentioned therein).

All rights granted to you under this Agreement are personal, and these rights must not be leased, assigned, sold, licensed, resold or transferred to any third party in any manner whatsoever without our prior written consent. You must not in any way encumber or allow the creation of any mortgage, charge, lien or other security interest in respect of the Software.

Any breach of this clause constitutes a breach of this Agreement and we may, at our absolute discretion, terminate or suspend your access to, and/or use of, the Platform or the Services, and/or take further actions against you for breach of this Agreement.

You will procure all necessary rights from third parties, which are from time to time required in order for us to be able to provide the Services.

If we are delayed or impeded or obliged to spend additional time or incur additional expenses in the performance of any of our obligations under this Agreement, by reason of your acts or omissions or failure to provide information or instructions or perform your obligations under this Agreement, then we may, in our sole discretion, temporarily disable your access to the Services.

It is your obligation to ensure that the Key Terms, invoice or any other written notification we send to you confirming the terms of this Agreement, correctly states the information set out in them and if that information changes during the period of this Agreement, you must write to us to request a change to them.

Warranties

We will use reasonable care and skill in performing the Services.

We will investigate any problem or error in the Service, provided that you notify us in writing within seven (7) days following delivery of the Service, giving us all necessary information to be able to investigate the problem, breach or error and limit our liability to the right to re-perform the Service.

You agree to use your reasonable endeavours to ensure that the information and explanations you supply are full and accurate and notify us in writing if there is any change to the information or explanations supplied.

Except as provided in this Agreement and to the maximum extent permitted by law, no further warranty, condition, undertaking or term, express or implied, statutory or otherwise as to the condition, quality, performance or fitness for purpose of the Services provided hereunder is given or assumed by us and all implied warranties are hereby excluded.

Liability and Exclusions

Nothing in this Agreement will in any way exclude or limit either party's liability to the other for any actions caused by negligence, or liability for fraudulent misrepresentation or for any other liability which by law it is not possible to exclude or limit.

Our total liability to you (whether based on warranty, contract, tort, statute, misrepresentation or otherwise) arising out of, or in connection with, this Agreement, for any one event or a series of related events, will be limited to the total Charges paid (excluding GST and expenses) by you to us for the Services (as applicable) in the twelve (12) months immediately prior to the event(s) complained of.

Neither party will be liable for any indirect, consequential, special or incidental loss or damages of any kind including loss of revenue, loss of profits, failure to realise expected profits or savings, overhead costs or other economic losses, in contract, tort (including negligence) under any statute otherwise arising out of or in any way connected to this Agreement.

The parties acknowledge that the limitations of liability contained in this clause are a fair and reasonable allocation of the commercial risk between the parties.

This clause survives the termination or expiry of this Agreement.

Confidentiality

Both parties agree not to use or disclose confidential information relating to, owned by, received from or disclosed by the other party, save for use or disclosure required in order to perform their respective obligations under this Agreement. Disclosure will be limited to such of the receiving party's employees, officers, agents or contractors directly involved in performing the receiving party's obligations.

The parties agree that information is not to be regarded as confidential and that the receiving party will have no obligation regarding confidentiality where that information is already in the public domain or enters the public domain through no fault of the receiving party, is received from a third party without any obligations of confidentiality, is used or disclosed with the prior written consent of the owner of that information, is disclosed in compliance with a legal requirement or is independently developed by the receiving party.

Any confidential information will be returned or destroyed by the receiving party at the prior written request of the owner.

We will be allowed to refer to you in any publicity after performance of the Services and during the Term.

If the parties execute a separate confidentiality agreement, the terms of that agreement will prevail.

This clause survives the termination or expiry of this Agreement.

Termination

We may terminate this Agreement (or at our discretion, the supply to you of the Services) immediately if you fail to pay our invoices and such sum remains unpaid for seven (7) days after notice has been given to you that such sum has not been paid.

Either party may terminate this Agreement immediately on notice if:

• the other is in breach of this Agreement to a material extent and fails to remedy the breach within fourteen (14) days of being notified of the breach (if it is capable of being remedied); or
• the other party is bankrupt, in a voluntary arrangement, in liquidation or receivership or has ceased business or threatened to cease business or is otherwise insolvent.

On termination of this Agreement for whatever reason, we will be entitled to payment for all Charges properly incurred up to the date of termination and during any notice period.

Intellectual Property

All Intellectual Property Rights created out of your use of the Services immediately and automatically vests with you. If required, we may, at our sole discretion, assist with practicable steps to ensure that these Intellectual Property Rights vest in, and remain vested in, you.

You grant us a non-exclusive, non-transferable, revocable license to use the Intellectual Property Rights owned by you, including those created in accordance with this clause and including those that have been provided to us for the purpose of carrying out this Agreement during the Term and for maintenance and upgrade of our Services.

We will not sub-license our rights under clause 9.2 without your prior written consent, such consent not to be unreasonably withheld. You expressly consent to us sharing and storing Assets that have Intellectual Property Rights attaching to them, to third party services including AWS, for the sole purpose of carrying out this Agreement.

Non-solicitation

You will not attempt to employ either directly or indirectly or as consultants any of our Consultants during the Term without our prior written consent. If you are in breach of this clause, we will be entitled to terminate this Agreement in accordance with clause 8.

Situations or Events Outside Our Resonable Control

There are certain situations or events that occur, which are not within our reasonable control. Where one of these occurs we will notify you of such and attempt to recommence performing the Services as soon as the situation, which has stopped us performing the Services, has been resolved. In such circumstances there may be a delay (sometimes a substantial delay) before we can start or continue performing the Services.

Notices

Any notice required to be given pursuant to this Agreement will be in writing (including email) and will be sent to the other party at the address specified in this Agreement (or to such other address as either party may notify to the other party in writing in accordance with this clause). We will notify you on the e-mail you provide during your initial registration or as updated in your admin portal. It is your responsibility to ensure that your contact details remain up-to-date.

A correctly addressed notice sent by post will be deemed to have been delivered 72 hours after posting, and correctly addressed emails will be deemed to have been delivered 24 hours after sending.

Dispute Resolution

If a dispute arises in relation to this Agreement, a party ("Provider") may give the other party ("Recipient") a written notice adequately identifying the matters in dispute ("Dispute Notice").

If you are the Provider and we are the Recipient, the Dispute Notice must be provided to support@shotstack.io. Upon receipt of the Dispute Notice, you must allow us up to 5 business days to attempt to resolve the dispute and find a reasonable solution to your complaint (“Internal Complaints Process”).

Failing resolution through our Internal Complaints Process, the parties must meet informally and attempt to resolve the dispute. If a resolution is not achieved within 10 days from the informal meeting, the Provider may give the Recipient written notice requiring the dispute to be referred to mediation ("Mediation Notice").

If a Mediation Notice is given, the parties will appoint a mediator in writing, or if the parties cannot agree on a mediator within 7 days of the Mediation Notice being served, a mediator will be appointed by the Chair of Resolution Institute or the Chair's designated representative. The parties or their nominated representatives must attend any arranged mediation to attempt to resolve the dispute and unless otherwise agreed by the parties, the Resolution Institute Mediation Rules will apply to the mediation.

The costs of mediation will be shared equally by the parties unless otherwise agreed in writing.

If the dispute identified in the Mediation Notice is not resolved within 14 days of appointment of the mediator, either party may seek mediation again pursuant to this clause, with the parties agreeing that the mediator will make a binding resolution.

No party may commence litigation unless they have first complied with this clause, except where the party is seeking urgent interlocutory relief.

Notwithstanding the existence of a dispute, each party must continue to perform its obligations under this Agreement.

This clause survives the termination or expiry of this Agreement.

General

Variations to this Agreement will only be effective if in writing and signed by authorised representatives of both parties.

We may assign, sub-contract, or otherwise transfer any or all of our rights and/or obligations under this Agreement. You may only assign, subcontract, or otherwise transfer any or all of your rights and/or obligations under this Agreement with our prior written consent, which can be refused at our absolute discretion.

If either party chooses to waive or ignore a breach of this Agreement, this will not prevent that party from taking action in respect of the same type of breach at a future date.

This Agreement will not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in this Agreement. Neither we nor you will have, nor represent that it has, any authority to make any commitments of this kind on the other party's behalf.

If any provision of this Agreement is held invalid or unenforceable, such provision will be deemed deleted from this Agreement and replaced by a valid and enforceable provision which so far as possible achieves the parties' intent in agreeing to the original provision. The remaining provisions of this Agreement will continue in full force and effect.

This Agreement is governed by the laws of New South Wales, Australia and the parties submit to the non-exclusive jurisdiction of the courts exercising jurisdiction there.

This Agreement may be executed in counterparts and all counterparts taken together will constitute one instrument.

This Agreement constitutes the entire agreement between the parties in respect of the subject matter of this Agreement and supersedes and replaces any prior written or oral agreements, representations or understandings. The parties confirm that they have not relied on any representation that is not expressly incorporated into this Agreement.