Terms of Service

On2 Flix Cloud Terms of Service

ON2 FLIX CLOUD SERVICES AGREEMENT

PLEASE READ CAREFULLY – THIS IS A BINDING CONTRACT

THIS ON2 FLIX CLOUD CUSTOMER AGREEMENT ("AGREEMENT") IS A BINDING AGREEMENT BETWEEN ON2 TECHNOLOGIES, INC. ("ON2") AND YOU AND, IF APPLICABLE, THE COMPANY OR LEGAL ENTITY THAT YOU REPRESENT (COLLECTIVELY "YOU"). THIS AGREEMENT INCORPORATES BY REFERENCE THE TERMS OF SERVICE POSTED AT WWW.FLIXCLOUD.COM (THE "ON2 SITE") AS MODIFIED BY ON2 FROM TIME TO TIME.

BY CLICKING THE "ACCEPT" BUTTON BELOW YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU ARE AUTHORIZED TO BIND THAT LEGAL ENTITY TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY OR DID NOT WISH TO BE BOUND TO THE TERMS OF THIS AGREEMENT, CLICK THE "DECLINE" BUTTON BELOW.

1. Services. In exchange for your payment of the fees set forth on the On2 Site, On2 will provide the services described on the On2 Site (the "Services"). On2 will use reasonable efforts to provide the Services in accordance with the Service Level Agreement posted on the On2 Site.

2. Changes to this Agreement. You agree that we may amend the terms and conditions of this Agreement, or any policy or other terms referenced in this Agreement ("Additional Policies") at any time by posting a revised version of the Agreement or Additional Policy on the On2 Site. Any revised terms will become effective fifteen (15) days after we post them to the On2 Site or, if we provide you a click-through or other means of accepting the revised terms, upon your acceptance. By continuing to use the Services after the revised terms become effective, you agree to be bound to the revised terms.

3. Term and Termination. This Agreement is effective when you accept the terms and conditions of this Agreement and will continue in effect until terminated by you or On2 in accordance with this section. Either You or On2 may terminate this agreement effective immediately upon written notice to the other for any reason.

4. Content Submissions.

4.1. Ownership. All data that you submit to us and all output files that you create in your use of the Services ("Your Data") remain your property. On2 makes no claim of ownership in Your Data.

4.2. Content. Your Data and/or your use of the Services may not: (i) interfere in any manner with the functionality or proper working of the Services; (ii) constitute, promote, facilitate or permit gambling; (iii) include, promote or facilitate child pornography or other illegal activities, including without limitation, activities that might be libelous or defamatory, or otherwise malicious or harmful to any person or entity, or that discriminate based on race, sex, religion, nationality, disability, sexual orientation or age; (iv) distribute, share or facilitate the distribution or sharing of unauthorized data, malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code; or (v) violate, misappropriate or infringe the intellectual property or other proprietary rights of any third party.

4.3. License. You grant to On2 a worldwide, royalty-free, non-exclusive, sublicensable right and license to use, copy, and modify Your Data as necessary to perform the Services.

4.4. Third party royalties. Your further use, transmission, broadcast, display or other distribution of Your Data following On2's performance of the Services may require that you obtain a license from and/or pay royalties to the owners of certain third party audio and video formats. You are solely responsible for obtaining such licenses and paying such royalties.

5. Warranties. On2 represents and warrants that it has the legal right to enter into this Agreement and to perform the Services. You represent and warrant that you have the legal right to enter into this Agreement and that Your Data and your use of the Services do not violate the terms of this Agreement.

6. Disclaimer. YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN "AS IS" BASIS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ON2 EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH REGARD TO THE SERVICES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. ON2 DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES WILL BE ACCURATE OR RELIABLE OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE.

7. Indemnification. You agree that you will indemnify and defend On2 from and against any and all liabilities, damages, losses, expenses, demands, claims, suits or judgments, including reasonable attorneys' fees, costs and expenses arising from: (a) your unauthorized use of the Services; (b) claims that Your Data infringes any intellectual property or other right of any third party; or (c) your breach of this Agreement or violation of any law, rule or regulation through your use of the Services.

8. Limitation of Liability. ON2 SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY UNDER ANY CIRCUMSTANCES, OR UNDER ANY LEGAL THEORY, REGARDLESS OF THE CAUSE, FOR THE EFFECTIVENESS OR ACCURACY OF THE SERVICES, FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, THE SERVICES OR YOUR DATA THROUGH ACCIDENT, FRAUD OR OTHER MEANS. ON2 SHALL NOT BE LIABLE TO YOU FOR LOST PROFITS OR LOST SALES, OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, MULTIPLE OR CONSEQUENTIAL DAMAGES ARISING FROM OR OCCASIONED BY YOUR USE OF THE SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ON2'S LIABILITY TO YOU FOR ANY CLAIM ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAID TO ON2 UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ACCRUED.

9. Miscellaneous. You may not assign or otherwise transfer, including by operation of law, any of your rights or obligations under this Agreement without On2's prior written consent. On2 will be entitled to equitable relief, including injunctive relief without the posting of any security, to prevent any breach or continuing breach of this Agreement or any infringement or continuing infringement of any intellectual property or other proprietary rights. This Agreement will be governed by and interpreted under the laws of the state of New York, without reference to any choice of laws principles. Any dispute arising out of or in connection with this Agreement will be resolved in the Federal or state courts located in New York. All notices under this Agreement will be in writing and will be effective only if delivered, if to On2, to On2 Technologies, Inc., 3 Corporate Drive, Suite 100, Clifton Park, NY 12065, and if to you, to the e-mail address that you provided when registering for the Services. No waiver of any provision of this Agreement will be binding unless it is in writing. Except as otherwise provided herein, this Agreement may be amended only by a written document signed by both parties. If any provision or part of any provision contained in this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions or portions thereof, will not be in any way affected or impaired thereby.

ON2 FLIX CLOUD SERVICE LEVEL AGREEMENT

This Service Level Agreement ("SLA") is a policy governing the use of the On2 Flix Cloud service ("Flix Cloud") under the On2 Flix Cloud Terms of Service (the "Flix Cloud Agreement") between On2 Technologies, Inc. ("On2", "us" or "we") and users of Flix Cloud ("you"). Except as otherwise provided herein, this SLA is subject to the terms of the Flix Cloud Agreement. Terms not otherwise defined herein will have the meaning given to them in the Flix Cloud Agreement. We reserve the right to change the terms of this SLA in accordance with the Flix Cloud Agreement.

Uptime Commitment

On2 will use commercially reasonable efforts to make Flix Cloud available with a Service Year Uptime Percentage (defined below) of at least 99% during the Service Year. If On2 does not meet this Service Year Uptime Percentage commitment, you will be eligible to receive a Service Credit as described below.

Definitions

• "Service Year" means the 365-day period preceding the date on which you claim a Service Credit. If you have been using Flix Cloud for less than 365 days at the time you claim a Service Credit, your Service Year is the 365 days preceding the date of your claim and any days prior to your use of the service will be deemed to have had 100% Uptime.

• "Service Year Uptime Percentage" means the percentage of time in the Service Year during which Flix Cloud is available for your use. The Service Year Uptime Percentage is calculated by subtracting from 100% the percentage of time during the Service Year when a customer experiences Downtime. You may not use any Downtime occurring prior to a successful Service Credit claim to calculate the Service Year Uptime Percentage for future claims.

• "Downtime" means any period of 5 minutes or longer during which Flix Cloud services are not available to you and does not include Excluded Downtime.

• "Excluded Downtime" means any downtime described below in this SLA in the section titled "Excluded Downtime."

• A "Service Credit" is a dollar credit, calculated as set forth below, that we may credit back to an eligible Flix Cloud account.

Service Commitments and Service Credits

If the Service Year Uptime Percentage for you is below 99% for the Service Year, you are eligible to receive a Service Credit equal to 10% of the amounts that On2 charged you for Flix Cloud services during the monthly billing cycle in which your recent claimed Downtime occurred.

We will apply any Service Credits only against future Flix Cloud payments otherwise due from you; provided that, we may issue the Service Credit to the credit card that you used to pay for Flix Cloud services for the billing cycle in which the error occurred. You may not use Service Credits to receive any refund or other payment from On2. A Service Credit will be applicable and issued only if the credit amount is greater than one U.S. dollar. Service Credits may not be transferred or applied to any other account. Unless otherwise provided in the Flix Cloud Agreement, your sole and exclusive remedy for any Downtime is the receipt of a Service Credit (if eligible) in accordance with the terms of this SLA or termination of your Flix Cloud Agreement.

Credit Request and Payment Procedures

To receive a Service Credit, you must submit your claim via e-mail to s3@flixcloud.com. In order for your claim to be valid, your e-mail must include your account number, the dates and times of each occurrence of Downtime that you claim to have experienced and your server request logs that corroborate your claimed Downtime. In addition, we will not consider a claim for a Service Credit unless we received your claim within thirty (30) days of the most recent Downtime that you claim to have experienced. If your claim is valid and we agree that the Service Year Uptime Percentage is less than 99% for the Service Year, then we will issue the Service Credit to you within one billing cycle following the month in which we receive your claim.

Excluded Downtime

Downtime does not include unavailability, suspension or termination of Flix Cloud, or any other Flix Cloud performance issues: (i) that result from scheduled maintenance or suspensions of Flix Cloud that we notify you of in advance; (ii) caused by factors outside of our reasonable control, including any force majeure event or Internet access or related problems beyond the demarcation point of Flix Cloud; (iii) that are caused by you or any third party; (iv) that result from the failure of your equipment, software or other technology and/or third party equipment, software or other technology; or (v) arising from our suspension and termination of your right to use Flix Cloud in accordance with the Flix Cloud Agreement (collectively, "Excluded Downtime"). We reserve the right to not issue Service Credits in our discretion if Flix Cloud availability is impacted by factors other than those explicitly listed in this agreement.