CINETEMP TERMS OF SERVICE
WHEREAS, Provider provides access to the Services to its customers; and
WHEREAS, Customer desires to access the Services, and Provider desires to provide Customer continued access to the Services, subject to these terms and conditions.
WHEREAS, Customer’s accessing of the mobile application, or continuing use of the mobile application acts as Customer’s agreement to these Terms of Service (the “Terms.”)
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
Definitions.
"Authorized User" means Customer's employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to these Terms and (ii) for whom access to the Services has been purchased hereunder.
“Customer” means a user of the CineTemp mobile application.
"Customer Data" means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services.
“Provider” means TKNYE, LLC.
"Provider IP" means the Services and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP does not include Customer Data.
"Services" means the software-as-a-service offering described in Exhibit A.
Access and Use.
Provision of Access. Subject to and conditioned on Customer's payment of the purchase price of the mobile application and compliance with all other terms and conditions of these Terms, Provider hereby grants Customer a non-exclusive, non-transferable right to access and use the Services, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer's internal use. Provider shall provide to Customer the access to the Services.
Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in these Terms. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or any of the underlying IP, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services; or (v) use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
Reservation of Rights. Provider reserves all rights not expressly granted to Customer in these Terms. Except for the limited rights and licenses expressly granted under these Terms, nothing in these Terms grant, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Provider IP.
Suspension. Notwithstanding anything to the contrary in these Terms, Provider may temporarily suspend Customer's and any Authorized User's access to any portion or all of the Services if: (i) Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP; (B) Customer's or any Authorized User's use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider; (C) Customer, or any Authorized User, is using the Provider IP for fraudulent or illegal activities; or (D) Provider's provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of Provider has suspended or terminated Provider's access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with Section 5(a)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits (including but not limited to reshoots or project delays)), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
Informational Use Only. Customer acknowledges and agrees that the Services, including any estimated readings, recommendations, or outputs related to color temperature, exposure, or camera settings, are provided solely for informational purposes and are approximate in nature. The Services are not a calibrated measurement device and should not be relied upon as a substitute for professional tools or judgment.
No Guarantee of Accuracy. Provider does not guarantee that any data, readings, or recommendations provided by the Services are accurate, complete, or reliable. Results may vary based on device hardware, environmental conditions, lighting variability, and user operation. Customer is solely responsible for verifying all settings before use in any professional or critical application.
Assumption of Risk. By using the Services, Customer acknowledges and agrees that: (i) Customer assumes full responsibility for any decisions made based on the Services; (ii) Customer uses the Services at its own risk; and (iii) Customer understands that reliance on estimated data may lead to undesired results.
Use in Professional Environments. If Customer uses the Services in a commercial or professional setting, Customer acknowledges that: (i) the Services are only one tool among many; (ii) Customer remains fully responsible for final output and technical accuracy; and (iii) Customer will independently verify all critical settings.
No Professional Advice. Provider does not provide professional, technical, or engineering advice. All information is provided “as is” without warranties of any kind, express or implied, except as otherwise expressly provided in these Terms.
Support. These Terms do not entitle Customer to any support for the Services.
Device and Performance Limitations. Customer acknowledges that the performance of the Services may vary across devices and operating systems. Provider does not guarantee compatibility, consistency, or performance across all hardware.
Fees and Payment.
Fees. Customer shall pay Provider the fees ("Fees") as set forth when purchasing the mobile application from App Store without offset or deduction. Provider, in their sole discretion, may adjust the Fees as it sees fit. Provider may elect to provide access to the Services free of charge to any Customer it sees fit, however, even in the event a Customer is not require to pay a fee, said Customer will still be bound by these Terms in full. In the event it is discovered that Customer’s access was procured without payment of the Fees or a valid waiver of the Fees by the Provider, Provider may suspend Customer's and its Authorized Users' access to any portion or all of the Services until such amounts are paid in full.
Taxes. All Fees and other amounts payable by Customer under these Terms are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider's income.
Intellectual Property Ownership. All content, design, branding, and functionality of the Services are owned by Provider and may not be copied, reproduced, or distributed without Provider's prior written permission.
Provider IP. Customer acknowledges that, as between Customer and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP.
Customer Data. Provider acknowledges that, as between Provider and Customer, any and all data provided to the Provider from the Customer may be collected, stored, and aggregated for Provider’s future permitted use. Customer hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Provider to provide the Services to Customer.
Indemnification and Remedy.
Customer agrees to indemnify and hold harmless Provider and its owners from any claims, damages, losses, or expenses arising from: (i) Customer's use or misuse of the Services; (ii) Customer's reliance on the Services' outputs; or (iii) Customer's violation of these Terms.
Sole Remedy. THIS SECTION 5 SETS FORTH CUSTOMER'S SOLE REMEDIES AND PROVIDER'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. CUSTOMER’S SOLE REMEDY SHALL BE LIMITED TO THE FEES PAID BY CUSTOMER TO THE PROVIDER FOR THE SERVICES.
Limitations of Liability TO THE MAXIMUM EXTENT PERMITTED BY LAW, PROVIDER AND ITS OWNERS, OPERATORS, AND AFFILIATES SHALL NOT BE LIABLE FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO: (I) DIRECT, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES; (II) LOSS OF DATA, REVENUE, OR BUSINESS OPPORTUNITIES; (III) PRODUCTION ERRORS, RESHOOTS, OR PROJECT DELAYS; OR (IV) EQUIPMENT MISUSE OR MISCONFIGURATION. THIS LIMITATION APPLIES REGARDLESS OF THE LEGAL THEORY UNDER WHICH THE CLAIM ARISES. FOR THE AVOIDANCE OF DOUBT IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THESE TERMS.
Termination.
Termination. In addition to any other express termination right set forth in these Terms:
Provider may terminate Customer’s use of the Services, effective on written notice to Customer, if Customer breaches any of its obligations under these Terms;
Provider may terminate Customer’s use of the Services upon ninety (90) days written notice for any reason.
Effect of Expiration or Termination. Upon expiration or earlier termination of these Terms,Customer shall immediately discontinue use of the Provider IP and, without limiting Customer's obligations under these Terms, Customer shall delete, destroy, or return all copies of the Provider IP and certify in writing to the Provider that the Provider IP has been deleted or destroyed.
Miscellaneous.
Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") must be in writing and addressed to hello@tknye.com.
Amendment and Modification; Waiver. Provider reserves the right to amend these Terms at any time and without notice to the Customer. In the event the Provider amends the Terms, Customer’s continued use of the Services shall be deemed as Customer’s assent to the Terms as amended.
Severability If any provision of these Terms is found unenforceable, the remaining provisions will remain in full force and effect.
Governing Law; Submission to Jurisdiction. These Terms are governed by and construed in accordance with the internal laws of the State of Oklahoma without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Oklahoma. Any legal suit, action, or proceeding arising out of or related to these Terms or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Oklahoma, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. These Terms are binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.