Last updated: 06/02/17
This Agreement governs your access to and use of the Service and the Content. Your access to and use of the Service and the Content is conditioned on your acceptance of and compliance with this Agreement. You hereby represent and warrant to Grosh that you are legally capable of entering into and performing this Agreement and are not a person or entity barred from receiving services under the laws of the United States or such other applicable jurisdiction. If you use the Service and the Content on behalf of a business, organization, government, or other legal entity, you hereby represent and warrant to Grosh that you have the authority to legally bind that entity, and your acceptance of this Agreement will be treated as acceptance by that entity. In such case, “you” will refer to that entity in this Agreement.
BY ACCEPTING THIS AGREEMENT OR ACCESSING OR USING THE SERVICE OR THE CONTENT, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT ACCEPT AND COMPLY WITH THIS AGREEMENT, YOU SHALL NOT USE THE SERVICE OR THE CONTENT.
- THE SERVICE
1.1 The Service and Grosh Technology
Grosh may make available several ways to access the Service necessary for the access to and use of the Content, including without limitation, through an installed desktop application or mobile application. The “Service” includes any software applications, technologies, and/or services owned or controlled by Grosh and the underlying Grosh Technology. “Grosh Technology” means Grosh’s proprietary technologies, including but not limited to software, applications, source code, object code, algorithms, systems, processes, methods, or other technology, along with the designs, formatting, selection, organization, coordination, compilation and overall look and feel of the Service, whether or not patentable, copyrightable or otherwise subject to intellectual property protection, whether now in existence or hereinafter devised, and all modifications, reconfigurations, and enhancements thereto.
1.2 Ownership of the Services
All right, title, and interest in and to the Service is and will remain the exclusive property of Grosh, including without limitation, all copyright, patent, trade secret, trademark and other intellectual property rights, in and to the Service. Your use of the Service and the license granted hereunder does not provide you with title to or ownership of the Service, but only a limited right to use the Service in accordance with the Service License and this Agreement.
1.3 Service License
The Service is licensed, not sold. Subject to your compliance with this Agreement, Grosh grants you a nonexclusive, nontransferable, nonsublicenseable, revocable, limited license to access and use the Service solely for purpose of enabling you to use and enjoy the Content licensed by Grosh (the “Service License”). Grosh and its licensors reserve all rights in and to the Service not expressly granted to you under this Agreement.
1.4 Service License Restrictions; Prohibited Uses
You shall not: (a) reverse engineer, decompile, disassemble, decrypt, or otherwise tamper with the Service or any part thereof; (b) derive the trade secrets, source code, object code, algorithms, or such other code (in the form in which it is customarily read and edited) of the Service of any part thereof; (c) defeat, avoid, by-pass, remove, deactivate or otherwise circumvent any software protection mechanisms of or security-related features in the Service, or features that prevent, limit, or restrict use of the Service or the Content; (d) gain unauthorized access to the Service or the Content; (e) interfere with, disrupt, or damage the operation of the Service or any user’s enjoyment of the Service; (f) disseminate viruses, adware, spyware, worms, or other malicious code in or through the Service; (g) overload, flood, spam, or otherwise create an undue burden on the Service infrastructure; (h) reproduce, copy, modify, adapt, translate, emulate, or create derivative works of the Service or any part thereof; (i) distribute, sell, rent, lease, lend, loan, assign, sublicense, import, export, or otherwise transfer or provide access to, in whole or in part, the Service in any form to any third parties; (j) access the Service for the purpose of building a similar or competitive product or service; (k) remove or alter any proprietary notices or marks on the Service; (l) use the Service in any manner that is illegal or in violation of any third party rights; (m) use the Service in any manner that is not authorized by the Service License or this Agreement; or (n) attempt to do any of the foregoing acts, or assist or permit any third party to do any of the foregoing acts. Grosh may terminate your right to use the Service at any time. Your Service License will automatically terminate without notice if you fail to comply with the Service License or this Agreement.
Any comments, suggestions, or other feedback (“Feedback”) you may provide to Grosh regarding the Service is entirely voluntary, and Grosh will be free to use (or not use) such Feedback in any manner and for any purpose. You acknowledge and agree that any such Feedback will become the exclusive property of Grosh, without compensation or any obligation to you, and you hereby irrevocably assign to Grosh all right, title, and interest in and to any Feedback.
1.6 Changes to the Service
Grosh reserves the right to modify, update, or discontinue the Service, or any part of the Service, at any time and without notice (except as required by applicable law).
1.7 Passwords and Account Activity
You will access and use the Service via a registered user account. You are responsible for choosing account identifiers and passwords for your account. You agree to be responsible and liable for safeguarding the account identifier and password that you use to access the Service, and for all activities or actions that occur under your account. Grosh encourages you to use “strong” passwords (e.g. passwords that use a combination of upper and lower case letters, numbers, and symbols) with your account. You agree that Grosh will not be liable, directly or indirectly, for any loss or damage arising from your failure to comply with password security.
1.8 Compatible Devices and Required Equipment
To use the Service, you must download and install the Service on a compatible device, such as a personal computer or mobile phone that meets the system and compatibility requirements that Grosh may establish from time to time (each, a “Compatible Device”). To use the Content on the Service as digital projections for the Production, you will also need a compatible projector and the necessary cables and adapters to connect your Compatible Device to the projector (“Required Equipment”). You are solely responsible for the Compatible Device(s) and Required Equipment necessary to use the Service and the Content.
- THE CONTENT
2.1 The Content
All references to “Content” in this Agreement are limited to the specific content identified in the applicable Order Form. The Content is only accessible and may only be used on or through the Service. “Content” includes all the file(s), image(s), video(s), graphic(s) and other digital media and projection content, including the written materials and files relating to the Content (“Documentation”). The Content may contain technological measures that are designed to prevent its unlicensed or illegal use.
2.2 Ownership of the Content
All right, title, and interest in and to the Content, including all Modifications thereto, is and will remain the exclusive property of Grosh, including without limitation, all copyright, patent, trade secret, trademark and other intellectual property rights, in and to the Content. Your use of the Content and the license granted hereunder does not provide you with title to or ownership of the Content, but only a limited right to use the Content in accordance with the Content License and this Agreement.
2.3 Content License
The Content is licensed, not sold. Subject to your payment of the License Fees and your compliance with this Agreement, Grosh grants you a nonexclusive, nontransferable, nonsublicenseable, revocable, limited license to use the Content in connection with the Service and to publicly display and perform the Content, with or without Modifications, in connection with the Production, in the Territory, during the License Term (the “Content License”). The Content License is restricted to the use of the Content as a scenic design component in the Production, at a certain venue (the “Territory”), during a limited period of time (the “License Term”), as expressly set forth in your Order Form. Grosh may automatically remove the Content from your Compatible Device or the Service after the end of the License Term. Grosh and its licensors reserve all rights in and to the Content not expressly granted to you under this Agreement.
2.4 Content License Restrictions; Prohibited Uses
You shall not: (a) reproduce, copy, modify, adapt, translate, emulate, or create derivative works of the Content, except as permitted in this Agreement; (b) distribute, sell, rent, lease, lend, loan, assign, sublicense, or otherwise transfer or provide access to, in whole or in part, the Content in any form; (c) gain unauthorized access to the Content; (d) defeat, avoid, by-pass, disable, deactivate or otherwise circumvent any digital rights management or other content protection system or security-related features in the Content; (e) remove or alter any proprietary notices or marks on the Content; (f) use the Content in any manner that is illegal or in violation of any third party rights; (g) use the Content in any manner that is not authorized by the Content License or this Agreement; or (h) attempt to do any of the foregoing acts, or assist or permit any third party to do any of the foregoing acts. Grosh may terminate your right to use the Content at any time. Your Content License will automatically terminate without notice if you fail to comply with the Content License or this Agreement.
2.5 Content Delivery
Grosh shall deliver the Content in digital format made available on the Service upon activation. Access to the Content requires activation as explained at completion of an Order Form and in the Documentation. You may activate, download, and install the Content on the number of Compatible Devices set forth in the Order Form. You shall be solely responsible for all expenses incurred in your activation, downloading, installation and use of the Content, including without limitation, any expenses associated with Compatible Devices and Required Equipment.
2.6 Editing Content
The Service may permit you to edit, modify, or manipulate design elements of the Content. Subject to the Content License, Grosh grants you the permission to edit, modify, or manipulate design elements of the Content only as permitted by the Service (“Modifications”). Your permission to perform Modifications to the Content in the Service is conditioned upon your express waiver to any rights in and to any Modifications. Any Modifications you make to the Content is entirely voluntary, and Grosh will be free to use (or not use) such Modifications in any manner and for any purpose. You acknowledge and agree that your Modifications of the Content shall not provide you with title to or ownership of the Modifications or any derivative works based on the Content, but only a limited right to use the Content with Modifications in accordance with the License and this Agreement. You acknowledge and agree that any such Modifications will remain the exclusive property of Grosh, without compensation or any obligation to you, and you hereby irrevocably assign to Grosh all right, title, and interest in and to any Modifications.
- ORDER POLICIES
3.1 Order Form
Each Content License for use on the Service must be purchased by completing an order form (the “Order Form”), which shall include the following specifications:
- a) Licensee – identify you and your contact information as the individual or entity licensing the Content
- b) Content – the specific Content licensed pursuant to this Agreement
- c) Production – the specific theatrical production for which the Content will be used
- d) Territory – the venue and address of the Production for authorized public display of the Content
- e) License Term – the dates or date range of the Production for authorized public display of the Content
- f) License Fees – the fees for the Content License
- g) Compatible Devices – the number and type of Compatible Devices permitted to activate the Content
3.2 License Fees
The fees for your Content License (the “License Fees”) are due in advance, at the time of submission of an Order Form, before your Content License will begin and the Content is first made available to you.
Your access and license to the Content pursuant to the Content License will not be established until Grosh has verified that the payment of License Fees is confirmed (“Payment”). By providing your payment information (e.g. credit card information or bank account information) (“Payment Method”) you are expressly authorizing Grosh to charge your Payment Method for the License Fees and any additional charges incurred in connection with your Content License. Grosh uses a third-party service provider that specializes in payment processing (the “Payment Processor”). You will provide your Payment Method directly to the Payment Processor, who stores and maintains your Payment Method in accordance with accepted security protocols, subject to the Payment Processor’s security and privacy policies. Grosh does not keep or store your Payment Method. Grosh may communicate with the Payment Processor to request the processing of charges for your License Fees in accordance with your applicable Content License. The Payment Processor then attempts to process the charges and, if successful, deposits the proceeds into Grosh’s account. You are solely responsible for any overdraft or other bank fees charged to your Payment Method.
You are responsible for paying any governmental taxes imposed on your Content License, or incident to your use of the Service or the Content, including, but not limited to, sales, use, or value-added taxes, without any reduction in License Fees. To the extent Grosh is obligated to collect or pay such taxes, the applicable tax may be added to your Payment, unless you provide Grosh with a valid tax exemption certificate authorized by the appropriate tax authority. If applicable taxes are not collected at the time of payment, you are solely responsible to remedy any such delinquent tax payments.
The Content License is conditioned upon your Payment of the License Fees and compliance with this Agreement. The Content License will not commence until the Payment is received and compliance with this Agreement is confirmed. If at any time during the License Term, the Payment is declined or cancelled, or you violate the terms of this Agreement, the Content License will immediately terminate without notice (“Default”). Upon Default, you will remain liable for the Payment of the License Fees and any unauthorized or continued use will subject you to statutory damages for copyright infringement. Upon Default, in addition to any remedies Grosh may have at law, Grosh shall have the right to seek and obtain any injunctive or other equitable relief (including an order restraining any threatened or future use of the Content or enjoin further performance of the Content in the Production), on use of affidavit evidence or otherwise, and without furnishing proof of actual damages or posting a bond or other surety. You agree to reimburse Grosh for any expenses (including reasonable attorneys’ fees and collection expenses) incurred by Grosh in enforcing its rights under the Content License.
3.6 No Refunds
Grosh does not issue refunds after the activation of any Content. No License Fees payable by you hereunder are refundable upon cancellation of the Content License and/or this Agreement. Grosh will not refund any prepaid License Fees for the remainder of any unused License Term.
- GENERAL PROVISIONS
You must include in the Production program, playbill, or other written references to credits for the Production, the following credit: “The scenic background projections used in this production are owned by and licensed for use through Grosh Scenic Rentals, Inc. © Grosh Digital. All rights reserved.” Any person performing the cueing, timing, design, hardware, software, or technical services in relation to theprojection of the Content during the performance of the Production shall be labeled a “Projection Technician” or such similar title, and shall not be construed or confused as the originator of the Content. Except for the foregoing credit requirement, you shall not make or publish any public statement concerning Grosh or the Content without the prior express written consent of Grosh.
You shall deliver, within thirty (30) days, upon request from Grosh, a copy of the following materials: (a) the Production program, playbill, or other written references to the credits for the Production in hard copy or digital form, (b) any published news or publicity related to the Production, and (c) photographs or video of the Content in use during a public display of the Production (“Production Materials”), and you shall certify under the penalty of perjury that your use of the Service and the Content was in conformity with this Agreement. You hereby grant to Grosh a worldwide, nonexclusive, royalty-free license to use, reproduce, distribute, prepare derivative works of, display, and perform the Production Materials in any media formats now in existence or hereafter created through any media channels now in existence or hereafter created, solely for the purposes of marketing and publicity of the Content. You also agree to reserve two (2) complimentary tickets, if requested in advance by Grosh, for admission of Grosh designees to the Production.
Grosh, in its discretion, may suspend or terminate your access to or use of the Service or the Content at any time without notice (except as may be required by applicable law). If you violate any of the terms of this Agreement, your rights under this Agreement will automatically terminate without notice, and Grosh may, in its discretion, immediately revoke your access to the Service and the Content without a refund of any License Fees. In no event shall any termination relieve you of the obligation to pay any License Fees payable to Grosh for the period prior to the effective date of termination.
You may end your obligations under this Agreement at any time by discontinuing your use of the Service or the Content; provided, however, such discontinuance of use of the Service or the Content does not excuse your legal and financial obligations under the applicable Order Form and this Agreement.
Upon termination or expiration of this Agreement, you will cease any and all use of the Service and the Content under all applicable Order Forms and this Agreement, and you must return or delete all copies of the Content in your possession, custody, or control. Upon termination or expiration of this Agreement, your Service License and Content License and this Agreement shall immediately terminate, except any provision which, by its nature or express terms should survive, will survive such termination or expiration, including that the following sections shall survive and continue to apply: Sections 1.2, 1.4-1.5, 1.7, 2.2, 2.4, 2.6, 3.3-3.5, 4.3-4.9, 4.18-4.19.
4.4 DISCLAIMER OF WARRANTIES
GROSH WARRANTS THAT IT IS AUTHORIZED TO GRANT THE SERVICE LICENSE AND THE CONTENT LICENSE TO YOU UNDER THIS AGREEMENT, AND MAKES NO OTHER WARRANTIES. YOUR ACCESS TO AND USE OF THE SERVICE OR ANY CONTENT ARE AT YOUR SOLE RISK. YOU UNDERSTAND AND AGREE THAT THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU “AS IS,” “WITH ALL FAULTS,” AND “AS AVAILABLE,” WITH NO WARRANTY. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, GROSH AND ITS PARENTS, SUBSIDIARIES, AFFILIATES, RELATED COMPANIES, AND EACH OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, AFFILIATES, AND LICENSORS (COLLECTIVELY, THE “GROSH ENTITIES”) MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER TO YOU OR ANY OTHER PERSON RELATING TO THE SERVICE OR ANY CONTENT, AND SPECIFICALLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, (I) WARRANTIES OF MERCHANTABILITY, (II) WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, (III) WARRANTIES OF WORKMANLIKE EFFORT, (IV) WARRANTIES OF NON-INFRINGEMENT, (V) ANY WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR PERFORMANCE, (VI) RELATING TO THE COMPLETENESS, ACCURACY, SECURITY, OR RELIABILITY OF THE SERVICE OR ANY CONTENT, (VII) RELATING TO ANY HARM TO YOUR COMPUTER SYSTEM, LOSS OF DATA, MALICIOUS CODE, OR OTHER HARM THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE SERVICE OR ANY CONTENT, (VIII) RELATING TO DELETION OF, OR FAILURE TO STORE OR TRANSMIT, ANY CONTENT ON THE SERVICE, (IX) RELATING TO WHETHER THE SERVICE WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED OR ERROR-FREE BASIS.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY OR THROUGH THE GROSH ENTITIES OR THE SERVICE WILL CREATE ANY REPRESENTATION OR WARRANTY NOT EXPRESSLY MADE IN THIS AGREEMENT.
4.5 LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE GROSH ENTITIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF USE, DATA, PROFITS, GOODWILL, OR OTHER INTANGIBLE LOSSES, REGARDLESS OF WHETHER YOU WERE ADVISED OF OR AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE GROSH ENTITIES (INCLUDING ANY AND ALL DAMAGES AND EXPENSES INCLUDING ATTORNEYS’ FEES) EXCEED THE GREATER OF ONE HUNDRED U.S. DOLLARS (U.S. $100.00) OR THE AMOUNT YOU PAID TO GROSH FOR THE SERVICE OR ANY CONTENT IN THE ORDER FORM RELATED TO THE CLAIM IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE CLAIM. THE LIMITATIONS OF THIS SECTION SHALL APPLY TO ANY THEORY OF LIABILITY, WHETHER BASED ON CONTRACT, WARRANTY, STATUTE, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE. YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE FULLY CONSIDERED THE FOREGOING ALLOCATION OF RISK BEFORE USING THE SERVICE AND THE CONTENT AND FIND IT REASONABLE, AND THAT THE FOREGOING LIMITATIONS IN THIS SECTION ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
You agree to defend, indemnify, and hold harmless the Grosh Entities from and against all claims, demands, suits, actions, damages, losses, liabilities, costs and expenses (including reasonable attorneys’ fees) of any nature whatsoever that result from or arise out of your actual or alleged breach or violation of this Agreement, including without limitation: (a) your use or misuse of the Service or the Content, or (b) your violation of any law, regulation, or third party right. Grosh reserves the right, at your expense, to assume the exclusive defense of any matter for which you are required to indemnify the Grosh Entities, and you agree to cooperate fully with Grosh. Any compromise or settlement shall require the prior written consent of Grosh, such consent not to be unreasonably withheld or delayed. Your indemnification shall be in addition to, and not in lieu of, all other legal rights and remedies Grosh may have.
4.7 Governing Law
This Agreement and any action related thereto shall be governed by the laws of the State of California and the laws of the United States, without regard to or application of its conflict of law provisions or your state or country of residence. To the extent any court proceeding is permitted under this Agreement, you agree to submit to the personal jurisdiction and venue in the state or federal courts located in Los Angeles County in the State of California, United States.
ANY CONTROVERSY, CLAIM, OR DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE RESOLVED BY BINDING ARBITRATION administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitration shall take place in Los Angeles, California. The arbitration shall be before a single, neutral arbitrator who is a former or retired judge with at least ten (10) years of experience in general commercial transactions and contract disputes. Arbitration may be initiated by any party giving to the other party written notice requesting arbitration, which notice shall also include a statement of the claims asserted and the facts upon which the claims are based. The arbitrator shall not have any power to alter, amend, modify or change any of the terms or provisions of this Agreement. Except as prohibited in this Agreement, the arbitrator shall have the authority to award any remedy or relief otherwise available in a court of law. The award of the arbitrator shall be accompanied by a reasoned opinion. Judgment on any award may be entered in any court of appropriate jurisdiction. Any party may bring an action in any court of competent jurisdiction to compel arbitration under this Agreement and to enforce an arbitration award. Any party may also, without waiving any remedy under this Agreement, seek injunctive relief from any court of competent jurisdiction. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties. If for any reason a claim proceeds in court rather than in arbitration YOU AND GROSH WAIVE ANY RIGHT TO A JURY TRIAL.
4.9 Class Action Waiver
YOU AND GROSH AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ON AN INDIVIDUAL BASIS ONLY AND NOT IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION. Unless both parties agree, no arbitrator or judge may consolidate more than one person or entity’s claims or otherwise preside over any form of a representative or class proceeding.
The section headings used in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
4.11 No Relationship
No agency, partnership, joint venture, or other relationship between the parties is intended or created by this Agreement.
4.12 Third Party Beneficiaries
No person or entity, except the parties and their permitted assigns (and with respect to Grosh, the Grosh Entities), shall have any rights under or be a beneficiary to these Terms.
Grosh’s failure to exercise any right or remedy under this Agreement shall not be deemed a waiver of such right or remedy, and shall not prevent a subsequent exercise of such right or remedy. No waiver shall be effective unless in writing and signed by the party granting it. Any waiver of a breach shall not be deemed to be a waiver of any subsequent breach.
If one or more provisions of this Agreement are held to be invalid, illegal, or unenforceable, under present or future law, such provision shall be deemed modified to the least degree necessary to remedy such invalidity, illegality, or unenforceability while retaining the original intent of the parties, and the remainder of this Agreement shall continue in full force and effect.
These Terms cannot be transferred or assigned by you without the prior written consent of Telescope, but may be freely assigned by Telescope without restriction.
Grosh reserves the right, in its discretion, to make changes to this Agreement at any time by posting the amended Agreement terms in connection with the Service or the Content. The most current version of this Agreement will be posted at: http://www.grosh.com/grosh-digital-terms-of-use. To the maximum extent permitted by law, your continued use of the Service or the Content following any changes to this Agreement indicates that you have read and understood this Agreement and will constitute your acceptance of any changes to this Agreement.
4.17 Entire Agreement
This Agreement and such applicable Order Form constitutes the entire agreement between the you and Grosh relating to the subject matter herein, and supersedes all prior or contemporaneous representations, communications, and agreements between you and Grosh regarding the subject matter herein.
4.18 Consent to Electronic Communications
You consent to receiving certain electronic communications from Grosh related to the Service, the Content, and this Agreement. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
4.19 Contact Information
The contact information submitted with the Order Form.
Grosh Scenic Rentals, Inc.
4114 W. Sunset Boulevard
Los Angeles, CA 90029
Toll Free: 877-363-7998