Cultrix Media Terms of Use

Last Updated:Januar 12,

 

These Terms of Use (“TOU”) are entered into by and between Cultrix Media AS, with business address at Bogstadveien 27b, 0355 Oslo, Norway. “Cultrix Media” or “We”) and the entity agreeing to these terms (“Customer” or “You”). These TOU are effective as of the date you first sign up to use Cultrix Media’s services described in these TOU (the “Effective Date”). Regardless if You signed up for a free trial, or have an “Account” (including any other offering by Cultrix Media as a Customer, Partner or Reseller), these TOU and each of the following agreements (to the extent applicable as determined by Cultrix Media) shall apply: Product License Agreement (“PLA”), Reseller Agreement (“RA”), Partner Agreement (“PA”), Cultrix Media Affiliate Program Agreement (“UAPA”) and/or Enterprise Agreement (“EA”) together with all schedules, appendixes and attachments to any of them (and each being an “Applicable Agreement”) and you agree to be bound thereby. If You are accepting on behalf of your employer or another entity, You represent and warrant that: (i) You have full legal authority to bind your employer, or the applicable entity, to these terms and conditions; (ii) You have read and understand these TOU; and (iii) You agree, on behalf of the party that You represent, to these TOU. If You don’t have the legal authority to bind your employer or the applicable entity, please do not sign any Applicable Agreement. These TOU govern Customer’s access to and use of the Cultrix Media software products and services described hereunder and any other products or services as may be offered by Cultrix Media from time to time (the “Cultrix Media Service” or “Service”) through the Cultrix Media website located at www.cultrixmedia.com (the “Website”).

1. Background

The Cultrix Media Service  enables users to enhance, share and track content through the following web-based products and services which You may have access to and use depending on your subscription to the Cultrix Media Service:

Flipbooks

The Flipbooks service converts static documents into digital editions (“Cultrix Media Flipbooks” or “Flipbooks”). Customers use the service to create Flipbooks from PDF content. Customers have access to tools to enhance content, distribute content, restrict access, charge for content and monitor engagement of such content. Customers use a “Flipbook Upload” to add each individual file to its “Account” (where the Customer manages its content). One Flipbook Upload allows for the addition of one file.

Carousel
The Carousel is where you publish the leaflets/magazines. The Carousel is implementet in your website/websites,

Digest
Cultrix Digest is a news digest where a selection of the best articles is delivered to a reader. The publisher can decide to publish either on web or in an APP.
Other Products/Services

Cultrix Media has different offerings which may include one or both of Flipbooks and Carousel.  Furthermore, Cultrix Media may offer access to other “Products” which include emails campaigns (“Emails Sent”), unbranded page views (“Page Views”), Custom Domains (“Domains”), native apps (“Apps”) and any other services offered.

2. License to Use the Cultrix Media Service

Upon agreeing to the TOU and paying for the Cultrix Media Service (if applicable), the Customer will have access to create Flipbooks as applicable to their Package (“Pack”) (defined in Section 7) for the term of the subscription. In general, the Service will be available 24 hours a day, 365 days a year. Cultrix Media reserves the right to take the service down for periodic maintenance and upgrades. Server outages and slow performance are possible, though they are not likely to be frequent or sustained.

3. Use of Services

Cultrix Media make its Service available for Customers to enhance, share, display and track content. The software and technology used to provide the Service is protected by copyright and other intellectual property laws and treaties and is owned by Cultrix Media or our suppliers. You may not sell, share, resell, assign (except as permitted in Section 20) or redistribute access to (including your Account details) the Cultrix Media Service without the prior written consent of Cultrix Media. Except for Cultrix Media approved uses of any Cultrix Media API (Application Programming Interface), Customers may not incorporate the Service or any portion of the Service into another product. Customers may not reverse engineer, decompile, or disassemble the service or otherwise attempt to derive the source code (except where expressly permitted by law). Except for Cultrix Media approved uses of any Cultrix Media API, Customers may not modify, adapt, or create derivative works from the Cultrix Media Service in any way or remove proprietary notices. Customers agree to abide by all laws and regulations in effect regarding use of the Cultrix Media Service. Customers may not authorize or assist any third party to do any of the things prohibited in this paragraph. Please refer to Cultrix Media’s privacy policy, available at (the “Privacy Policy”) for information on how Cultrix Media collects, uses and discloses personally identifiable information from its users. By using the Cultrix Media Service Customers agree to our use, collection and disclosure of personally identifiable information in accordance with the Privacy Policy.

You shall be solely responsible for all material You upload, post, link, publish or otherwise make available via the Cultrix Media Service (such material hereinafter referred to as the “User Content”) and for all of the consequences thereof.  You represent and warrant that You have all of the necessary rights (including all of the necessary intellectual property rights) (i) to upload, post, email, transmit or otherwise make the User Content available through the Cultrix Media Service; and (ii) to grant Cultrix Media the rights granted in these TOU.  You also represent and warrant that You have all of the necessary permissions and/or releases from any identifiable individuals who may appear in the User Content to use the name, likeness or other characteristics of each and every such identifiable individual in the manner contemplated by the Cultrix Media Service.  You acknowledge and agree that Cultrix Media may not pre-screen User Content.  Notwithstanding the foregoing, Cultrix Media and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, move or remove any User Content that is made available by You through the Cultrix Media Service.  Without limiting the generality of the foregoing, Cultrix Media and its designees shall have the right to remove any User Content that violates these TOU or that is otherwise objectionable or problematic as determined by Cultrix Media in its sole discretion.  All Users acknowledge that they must evaluate, and bear all risks associated with, making any User Content available through the Cultrix Media Service.  Opinions and other statements expressed by You and third parties are Yours alone (or those of the applicable third party) and are not opinions of Cultrix Media or endorsed by Cultrix Media. Content created by You is Your sole responsibility and its accuracy and completeness are not reviewed or verified by Cultrix Media. You acknowledge that by Cultrix Media providing You with the ability to view and distribute User Content through our site, Cultrix Media is not undertaking any obligation or liability relating to the User Content. You shall indemnify and hold Cultrix Media and its subsidiaries, affiliates, officers, agents, and employees, harmless from all claims, threats, actions, proceedings, demands, damages, losses, costs and/or expenses, including reasonable attorneys’ fees, arising from or related to any User Content submitted, posted, transmitted or otherwise made available by You through the Cultrix Media Service.

As between Cultrix Media and Customer, Customer exclusively owns and shall retain all right, title and interest in and to the User Content.  For greater certainty, nothing in this Agreement shall restrict Cultrix Media’s right to compile and use Data to provide metrics to Customer and for Cultrix Media’s own purposes including use for improving the Cultrix Media Service.  As used herein the term “Data” means aggregated and statistical data and other information collected through the Cultrix Media Service including (but not limited to) data relating to the number of page views, return visits, bounce rates. For the avoidance of doubt “Data” does not include any original, unmodified User Content or confidential information of Customer.

Customer grants to Cultrix Media and its subcontractors a non-exclusive, non-transferable, royalty-free right and license to access and use the User Content to the extent necessary to provide the Cultrix Media Service as contemplated by this Agreement.  For greater certainty, this license permits Cultrix Media to host, access, use, reproduce, electronically distribute, transmit, perform, format, display, store, archive and index the User Content

Cultrix Media respects the intellectual property rights of others and expects users of the Cultrix Media Service to do the same. We will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to us in accordance with our Copyright Policy and may require you to remove User Content, or we may remove it ourselves and terminate your access to the Cultrix Media Service where we consider it appropriate.

4. Electronic Notification

You authorize us to provide You with required notices, agreements and information concerning Cultrix Media and the Cultrix Media Service electronically. Cultrix Media will provide You our notices either by sending them to the e-mail address that You give to us or by posting the notices on the home page or support page of Cultrix Media or on the relevant web page of the applicable service. If You want to withdraw your consent to receive notices electronically to your email account, You may unsubscribe from newsletters and general marketing materials by notifying us however you cannot unsubscribe from certain essential communications such as important notices to do with your Account, subscription, billing, updates to our Privacy Policy and these TOU.  If you wish to unsubscribe from all notifications of any kind you must discontinue your use of the Cultrix Media Service.

5. Registration

If You sign up to use the Cultrix Media Service, You agree to provide us with current and true registration information and You must be legally competent to enter into contracts and authorized to act as an agent of your company.

6. Changes to Cultrix Media

Cultrix Media may offer new features as part of the Cultrix Media Service from time to time and other features may be discontinued or changed at any time and without notice. Upgrades and changes in the software may result in changes in the appearance and functionality of your Flipbook and/or Carousel or other products and services offered by Cultrix Media pursuant to these TOU. Cultrix Media will use commercially reasonable efforts to notify Customers of any changes to the Cultrix Media Service that have or are expected to have a material impact on the services to which Customer subscribes.  Notification will be by email or through a system notification from within the application Customer is using.

7. Accounts

Master Account – A Master Account is an administrative account which allows a key stakeholder within the Customer’s team to access all Sub-Accounts and content across a Master Accounts’ use of the Cultrix Media Service. Sub-Accounts are individual instances of the Cultrix Media application which can be accessed via a distinct but internally shareable Sub-Account Username. A Master Account can create Sub-Accounts up to a predefined limit (“Allowable Sub-Accounts”). Unless otherwise agreed a Master Account may not resell Sub-Accounts to people or organizations not associated with the Customer’s intended use.

Trial Account – Cultrix Media subscriptions may begin with a free trial period where the user will be given access to a predefined set of features, for a limited time to use the Cultrix Media Service (“Free Trial Period”). After the Free Trial Period, the account will be moved to “Expired Trial” with further limitations on features and access. Cultrix Media reserves the right to modify, cancel and/or limit the Free Trial Period and Expired Trial without notice at any time, and the right to terminate any Expired Trial that has not upgraded after 45 days. Cultrix Media has no obligation to extend or renew any Free Trial Period.

8. Products and Pricing

Cultrix Media Services including Packs and other Products (including Flipbook Uploads, legacy A La Carte Licenses and any overage fees) are charged at defined costs as outlined on the Website or Applicable Agreement. For greater certainty, Cultrix Media reserves the right to change the price of any of its Cultrix Media Services at any time; however, any changes to pricing will be notified on the homepage of the Website or to Customer’s email account thirty (30) days in advance of such new pricing taking effect. If Customer does not agree with a price increase, Customer’s sole remedy is to terminate Customer’s subscription to the Cultrix Media Service. If you have a written contract the the terms of pricing in this contract will be applicable.

Custom Domains – A Custom Domain (“Domain”) serves as the publishing URL for Flipbooks. If the written Contract include Custom Domain it is possible to purchase additional Custom Domains as required.  Purchased Domains are charged as a monthly recurring fee (“Domain Fee”). A Domain is tied to a specific Account and cannot be changed or moved to another Account without paying additional fees. Cultrix Media is not responsible for costs or procedures associated with maintaining the Domain through your registrar.

Page Views – Page Views (where applicable) included in a Pack are for use in the current month for which payment is made. Page Views do not accumulate or carry forward month to month. The number of Page Views in a Customer’s account will be replenished on the first of each month to the level associated with the purchased Pack upon successful processing of payment. To avoid limits on Page Views, Accounts must ensure that the ‘powered by Cultrix Media’ logo is enabled for the entire month.

Page Replacement – Standard and Master Accounts can leverage the Page Replacement tool to correct and update pages in a specific Flipbook without needing to upload a new document. This feature is designed for corrections after a Flipbook has been shared. The Page Replacement tool is not designed to act as a version control tool whereby a Customer replaces every page in a Flipbook in entirety to reduce Flipbook Upload purchases. Cultrix Media has the right to turn off Page Replacement for Customers whose use does not conform with its intended design.

Additional Sub-Accounts – Master Accounts may increase their number of Allowable Sub-Accounts by purchasing additional Sub-Accounts at the associated monthly rates. Prices will be featured in the written contract as well.

Native Library Apps (“App”) – Customers who subscribe to an App agree to the monthly listing fees (“App Fee”) and setup fees (“App Setup”) associated with the App. Customers pay an App Setup Fee which is non-refundable regardless of the approval of the App by the corresponding third party app store. A minimum 12 month term applies for App Fees from the date the App becomes available in the associated app store (“App Environment” i.e. iOS, Android). The App will remain in the App Environment as long as the Customer continues to pay the App Fee. At the discretion of Cultrix Media or the App Environment, Cultrix Media has the right to remove the App if the third party App Environment changes its guidelines or polices for listing Apps. If Cultrix Media has to remove the App in such scenario the App Fee will not be charged in the future but no refunds for previous App Fees or App Setup will be issued. Should a Customer require an unscheduled update to an App including but not limited to requests such as branding or description the Customer will pay a fee based on work performed (“App Update Fee”).

9. Payment

Unless otherwise agreed to in writing between You and Cultrix Media, amounts due shall be paid in advance of the start of the Cultrix Media Service. Payment is charged in advance for monthly subscription fees (Pack Fees, App Fees, Domain Fees, etc) on the first of the month in which such Cultrix Media Service is to be used. Flipbook Uploads or other Products will be applied to the Customer’s Account only after payment, in full, is processed. There is no grace period. Fees for Cultrix Media Services will be fully earned and non-refundable when Cultrix Media Services are first made available for Customer use. You will be billed immediately upon signing up for a paying account. An upgrade from a Trial or Expired Trial to any paying account will end the Trial or Expired Trial. Any overages including but not exclusive to Page Views, Emails Sent, and API Overages will be automatically charged to your credit card on the first of the month after which the overages were consumed. One time fees (including but not limited to App Setup) are charged at the time in which the Applicable Agreement is approved. There will be no refunds or credits for partial months of Cultrix Media Service, upgrade/downgrade refunds, or refunds for months unused with an open Account.
You will be responsible for all reasonable expenses (including reasonable attorneys’ fees) incurred by Cultrix Media in collecting delinquent amounts, except where such delinquent amounts are due to Cultrix Media’s billing inaccuracies. You are responsible for any taxes payable in connection with this Agreement (other than income taxes of Cultrix Media), and You will pay Cultrix Media without any reduction for such amounts. If Cultrix Media is obligated to collect or pay taxes, the taxes will be invoiced to You.

10. Cancellation of Apps

Apps – As an exemption to any of the cancellation terms outlined in the previous scenarios in this paragraph, for App related Products which are listed in App Environments a minimum 12 month term is required from the initial activation of each App. To cancel an App after the first 12 months a minimum of the greater of five business days notice before the next scheduled payment or the applicable App stores’ minimum advance cancellation period is required.

11. Customer Responsibilities

You may use the Cultrix Media Service and the Cultrix Media technology for lawful purposes only. You may not use Cultrix Media to distribute any material, or otherwise engage in any conduct that:

  •  violates or infringes the rights of others including, without limitation, patent, trademark, trade secret, copyright, publicity or other proprietary rights;
  • is unlawful, threatening, abusive, harassing, defamatory, libellous, deceptive, fraudulent, obscene, invasive of another’s privacy or tortuous;
  • victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability; impersonates any person, business or entity, including our employees and agents;
  •  contains viruses or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, or otherwise permit the unauthorized use of a computer or computer network;
  •  encourages conduct that would constitute a criminal offense, or that gives rise to civil liability;
  • offers, promotes or encourages betting or wagering prohibited by law;
  •  violates these TOU, guidelines or any policy posted on the Website, or
  • interferes with the use of the Cultrix Media Service by others.
  • damages or impairs our servers or networks. You may not interfere with any other party’s use and enjoyment of the Cultrix Media Service. You may not attempt to gain unauthorized access to our services, user accounts, computer systems or networks. We may take any legal and technical remedies to prevent the violation of these TOU.
  • Zero Tolerance for SPAM – Cultrix Media has zero tolerance for SPAM. If You are a user of our Subscription Management Module, please ensure your e-delivery campaign emails do not breach our Anti-Spam Policy.

12. Confidentiality

The Cultrix Media platform contains mechanisms (such as the Subscription Management Module or Remote Security API Settings) which allow You to limit access to some, but not all, of your content. It is the Customer’s responsibility to ensure that these mechanisms have been enabled to restrict access to content which may be deemed to be classified as confidential. Cultrix Media will use commercially reasonable efforts to ensure its mechanisms for controlling access to content are performing as intended, but does not take responsibility or assume liability for content which makes its way into the public domain. Cultrix Media has access to your content for troubleshooting purposes. Cultrix Media will not distribute your content without your permission. Should anyone in your audience redistribute your confidential content Cultrix Media does not take responsibility or assume liability for such action.

You agree that we may list You as a client and/or use your logo for our promotional purpose unless You advise us in writing that You do not consent to our so doing.

13. Disclaimer of Warranties

We provide the Cultrix Media Service “as is”, “with all faults” and “as available”. We and our suppliers make no express warranties or guarantees about Cultrix Media. To the extent permitted by law, Cultrix Media and our suppliers disclaim implied warranties that the Cultrix Media Service and all services distributed through Cultrix Media are merchantable, of satisfactory quality, accurate, timely, fit for a particular purpose or need or non-infringing. We do not guarantee that the Cultrix Media Service will meet your requirements, is error-free, reliable, without interruption or available at all times. We do not guarantee that the results that may be obtained from the use of the Cultrix Media Service, including any support services, will be effective, reliable, accurate or meet your requirements. We do not guarantee that You will be able to access or use the Cultrix Media Service (either directly or through third-party networks) at times or locations of your choosing. No oral or written information or advice given by any of our representatives shall create a warranty. You may have additional consumer rights under your local laws that this contract cannot change.

14. Limitation of Liability

Your exclusive remedy regarding any service provided by us shall be the replacement of any such service found to be defective or the right to terminate your subscription for the specific service. Your sole and exclusive remedy for any other dispute with us is to discontinue your use of the Cultrix Media Service. In no event shall our liability or the liability of our parent and our suppliers for any and all claims relating to the use of Cultrix Media exceed the total amount of service fees that You paid us during the one-year period preceding the event giving rise to the claim for the specific service at issue.

We and our suppliers shall not be liable for any indirect, special, incidental, consequential, punitive, or exemplary damages arising from your use of, inability to use, or reliance upon the Cultrix Media Service. These exclusions apply to any claims for lost profits, lost data, loss of goodwill, work stoppage, computer failure or malfunction, or any other commercial damages or losses, even if we knew or should have known of the possibility of such damages. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, our liability, and the liability of our suppliers, shall be limited to the extent permitted by law.

We are not responsible for the availability or content of other services that may be linked to Cultrix Media. Because we have no control over such services, you acknowledge and agree that we are not responsible for the availability of such external services, and that we do not endorse and are not responsible or liable for any content, accuracy, quality, advertising, products or other materials on or available from such services. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any content, goods or services available on or through such services.

15. Independent Contractor

You understand and agree that You are an independent company and have no authority to bind Cultrix Media in any way. You are solely and personally responsible for all of your employees, contractors and agents, or of any of your respective clients, and all labour costs and expenses arising in connection with them and for any and all claims, liabilities, damages and debts of any type whatsoever that may arise on account of your activities, or those of You or your client’s employees, agents and contractors, in the performance of the Applicable Agreement. Except as expressly provided in any Applicable Agreement or these TOU, Cultrix Media shall have no right to exercise any control over You or your activities or operations.

You shall assume full responsibility for the proper reporting and payment of all federal, state, provincial and local taxes of any kind, contributions and/or special levies imposed on it or required of it under employment or unemployment insurance, social security, and/or other laws or regulations, with respect to the performance of the Applicable Agreements by You and your clients employees, agents or contractors, and You agree to indemnify and hold Cultrix Media harmless from any liability, loss, damage or claim arising against or incurred or paid by Cultrix Media by reason of any failure by You to fully or timely to assume said responsibilities.

You shall obtain such authorizations, licenses, permits and other governmental or regulatory agency approvals as are required for your performance of the Applicable Agreements.

16. Indemnification

You agree to defend, indemnify, and hold harmless Cultrix Media and its affiliated companies, and our respective employees, contractors, officers, directors, and agents from any actions, claims, liabilities or expenses or other loss or damage, including attorney’s fees, that arise from your use or misuse of the Cultrix Media Service or arising from any third party action, claim, liability or expense or other loss or damage which Cultrix Media may be subject to as a result of Customer’s use of the Cultrix Media Service in breach of these TOU or Applicable Agreements, including without limitation anything relating to Customer’s infringement of the intellectual property of any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, in which event You will cooperate with us in asserting any available defences.

17. Choice of Law and Location for Resolving Disputes

You agree that the “Norske Lover”, Norway govern this contract and any claim or dispute that You may have against us, without regard to Norway’s conflict of laws rules. You further agree that any disputes or claims that You may have against us will be resolved by a Norwegian Court in Oslo, Norway. You agree and submit to the exclusive jurisdiction of such courts for the purpose of litigating any such claim or action.

Please Note That by Agreeing to These TOU, You Are: (1) Waiving Claims That You Might Otherwise Have Against Us Based on the Laws of Other Jurisdictions, Including Your Own; (2) Irrevocably Consenting to the Exclusive Jurisdiction of, and Venue in, Norway over Any Disputes or Claims You Have With Us; and (3) Submitting Yourself to the Personal Jurisdiction of Courts Located in the Oslo, Norway for the Purpose of Resolving Any Such Disputes or Claims.

18. Severability and Integration

These TOU and all Applicable Agreements and any supplemental terms, policies, rules and guidelines posted on Cultrix Media constitute the entire agreement between You and us and supersede all previous written or oral agreements. If any part of these TOU is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. To the extent of any conflict between these TOU and any Applicable Agreement, the Applicable Agreement will prevail.

19. Revisions to the TOU

Cultrix Media may modify the TOU at any time and will post the latest version of the TOU on the Website.  All changes to the TOU will take effect within 10 days of being notified via the Website or through a system notification in the application you are using or to your email account.  Your continued use of the Cultrix Media Service after changes have been made constitutes your acceptance of the revised TOU.

20. Assignment/Binding Effect

These TOU and any Applicable Agreement, may not be assigned by You without the prior written consent of Cultrix Media; provided, however, that Cultrix Media hereby consents to the assignment of this Agreement to any business entity majority owned or controlled by You or for which You are under common control. These TOU and any Applicable Agreements are binding upon any successors and permitted assigns.

 

21. Force Majeure

Except for payment obligations, if either party shall be delayed or prevented from the performance of any act required by these TOU or any Applicable Agreement by reason of acts of God or circumstances outside that party’s reasonable control including but not limited to third party service failures, transmission, equipment or network problems or limitations, interference, signal strength, maintenance and repair, and national security issues or similar causes.

22. Termination

Your right to use the Cultrix Media Service automatically terminates if You violate these TOU or any rules or guidelines posted in connection with use of the Cultrix Media Service. We also reserve the right, in our sole discretion, to terminate your access to all or part of the Cultrix Media Service, for any reason, with or without notice. Where possible, Cultrix Media will use commercially reasonable efforts to notify Customers prior to any such termination. Customer agrees that Cultrix Media shall not be liable to Customer, any end user, or any third party for any modification, suspension, or termination of the Cultrix Media Service. In no way shall the termination of any Applicable Agreements relieve You from paying to Cultrix Media any amounts then owing by You to Cultrix Media. Sections 9, 13, 14, 15, 16, 17, 18, and 22 shall survive the expiration or termination of any Applicable Agreements.

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