Cloud Terms

TERMS AND CONDITIONS FOR CLOUD SERVICES

Last Modified: August 29, 2024

These Terms and Conditions for Cloud Services and Software (the “Terms and Conditions”) are a binding contract between you (“Customer,” “you,” or “your”) and Megapixel, 440 N Barranca Ave #7429, Covina, CA 91723 (“Company”). The Terms and Conditions govern your access to and use of the Services and the Software.

Please read these Terms and Conditions, carefully before using this website, registering for a chargeable subscription for the Services offered on this website operated by the Company, or ordering or using any of the Software.

By completing the online registration form for a chargeable subscription for the Services at https://cloud.megapixelvr.com, ordering or using any of the Software, or clicking on the accept buttons relating to the Company’s Terms and Conditions, and Privacy Policy, you the Customer agree to be legally bound by these Terms and Conditions and Privacy Policy as they may be modified by the Company and posted by the Company on its website from time to time. In the event of any inconsistency between the content of the Terms and Conditions and Privacy Policy, the Terms and Conditions shall prevail followed by the Privacy Policy.

If you do not wish to be bound by these Terms and Conditions and Privacy Policy then you may not purchase or use the Services or the Software.

1. Definitions

In this Agreement, the following words shall have the following meanings:

Agreement	means these Terms and Conditions and the Privacy Policy together;
Business Day	means Monday to Friday excluding any national holiday in the United State of America;
Company Content	means all images, text, information data, audio, video, graphics and other material included or otherwise made available through the Services or the Software (excluding Customer Data);
Company	mmeans H2VR HoldCo, Inc. dba Megapixel;
Confidential Information	means any and all information in whatsoever form relating to the Company or the Customer, or the business, prospective business, finances, technical processes, computer software (both source code and object code), Intellectual Property Rights or finances of the Company or the Customer (as the case may be), or compilations of two or more items of such information, whether or not each individual item is in itself confidential, which comes into a party’s possession by virtue of its entry into this Agreement or provision of the Services or the Software, and which the party regards, or could reasonably be expected to regard, as confidential and any and all information which has been or may be derived or obtained from any such information;
Consequential Loss	means pure economic loss, losses incurred by any client of the Customer or other third party, loss of profits (whether categorized as direct or indirect loss), losses arising from business interruption, loss of business revenue, goodwill or anticipated savings, losses whether or not occurring in the normal course of business, wasted management or staff time and loss or corruption of data;
Customer Data	means all data or content generated by Customer’s devices for the purpose of using the Services or the Software or facilitating the Customer’s use of the Services or the Software , which may include but not be limited to project data, agent information, system data, activity logs, images and related content;
Customer	means the Megapixel customer who completes the online registration form for use of the Services or for a license to the Software;
Effective Date	means the date on which the first payment for the Services or the Software set out in the Order Form is received;
Feedback	means feedback, innovations or suggestions created by Users or the Customer regarding the attributes, performance or features of the Services, the Software, or Company Content;
Fees	means the fees set out in the Order Form sent to the Customer and any later charges included in any subsequent invoices issued during the Term;
Force Majeure	means anything outside the reasonable control of a party, including but not limited to, acts of God, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war, rebellion, insurrection, sabotage, epidemic, quarantine restriction, labor dispute, labor shortage, power shortage, including without limitation where Company ceases to be entitled to access the Internet for whatever reason, server crashes, deletion, corruption, loss or removal of data, transportation embargo, failure or delay in transportation, any act or omission (including laws, regulations, disapprovals or failures to approve) of any government or government agency;
Initial Term	means a period of 1 month starting on the Effective Date;
Intellectual Property Rights	means all copyrights, patents, utility models, trade marks, service marks, registered designs, moral rights, design rights (whether registered or unregistered), technical information, know-how, database rights, semiconductor topography rights, business names and logos, computer data, generic rights, proprietary information rights and all other similar proprietary rights (and all applications and rights to apply for registration or protection of any of the foregoing) as may exist anywhere in the world;
Order Form	means the confirmation invoice sent to the Customer upon acceptance of its online order of the Services or for a license to the Software;
Privacy Policy	means the Company’s privacy policy available at https://megapixelvr.com/privacy-policy/ as amended from time to time;
Renewal Term	means a period of 1 month;
Services	means the Company’s online service (including monitoring technology and computer software programs) which enables the monitoring of Customer’s LED display devices and related equipment purchased from Company, as set out more specifically in the Order Form or any subsequent invoice sent to the Customer during the Term (for clarity, if no Services are set out in the Order Form, Customer is not entitled to any Services under these Terms and Conditions);
Software	means the Company’s proprietary installable software and/or proprietary software embedded in hardware sold by the Company, all for use solely with Customer’s LED display and related equipment purchased from Company, as set out more specifically in the Order Form or any subsequent invoice sent to the Customer during the Term (for clarity, if no Software is set out in the Order Form, Customer is not granted a license to any Software under these Terms and Conditions);
Term	means the Initial Term plus all Renewal Term(s) together;
Terms and Conditions	means these terms and conditions;
Users	means employees or contractors authorized by the Customer to access Customer Data included in the Services or the Software.

2. Services

The Customer engages the Company and the Company agrees to provide the Services to the Customer for the Term in accordance with the terms of this Agreement.
The Services shall be made available to the Customer via the Internet in accordance with the terms of this Agreement.

3. Licenses & Intellectual Property Rights

Subject to the Customer’s payment of the Fees, the Customer is granted a worldwide, non-exclusive, non-transferable license to use the Services and the Software (including any associated software, Intellectual Property Rights, Confidential Information and Company Content) during the Term, but solely in support of Customer’s use and maintenance of Customer’s LED display devices and related equipment purchased from Company for the Customer’s business operations. Where open source software is used as part of the Services or incorporated into the Software, such software use by the Customer will be subject to the terms of the open source licenses.
Unless otherwise specified in this Agreement, the Services, the Software and Company Content are provided and may be used by the Customer solely to facilitate the Customer’s use and maintenance of Customer’s LED display devices and related equipment purchased from Company , and only by Users, who are expressly permitted by Customer to access and use the Services and the Software for the benefit of Customer. The Customer may not: (i) lease, loan, resell, sublicense, assign, transfer, or otherwise distribute the Services or the Software, and or Company Content except as permitted in writing by the Company; (ii) copy, modify, or create derivative works of the Services or the Software, any software component of the Services, the Software or any Company Content, in whole or in part; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services or the Software, in whole or in part; (iv) remove any proprietary notices from the Services, the Software, or any Company Content; (v) use the Services, the Software, or any Company Content 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, regulation, or rule, or (vi) provide access to or allow use of the Services, the Software, or Company Content by or on behalf of any third party.
All Intellectual Property Rights and title to the Services, the Software, and Company Content (except to the extent they incorporate any Customer Data or third party owned item) are solely owned by the Company and/or its licensors and no interest or ownership in the Services, the Software, Company Content, Intellectual Property Rights or otherwise is transferred to the Customer under this Agreement. No right to modify, adapt, or translate the Services, the Software, and Company Content or create derivative works from the Services, the Software, or Company Content is granted to the Customer. Nothing in this Agreement shall be construed to mean, by inference or otherwise, that the Customer has any right to obtain source code for the software that is part of the Services, the Software, or Company Content.
The Customer shall retain sole ownership in Customer Data and shall have the sole responsibility for the legality, reliability, integrity, accuracy and content of Customer Data. The Customer grants the Company a worldwide, non-exclusive, royalty free, perpetual, irrevocable sub-licensable license to use and adapt the Customer Data (including any associated software, Intellectual Property Rights and Confidential Information) for the purposes of providing, developing, improving, distributing and promoting the Services and the Software.
Notwithstanding anything to the contrary in this Agreement, Company may monitor Customer’s use of the Services and the Software and collect and compile data and information related to Customer’s use of the Services and the Software to be used by Company in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services and the Software and the operation of Customer’s LED display devices and related equipment purchased from Company (“Aggregated Statistics”). As between Company and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Company. Customer acknowledges and agrees that Company may compile Aggregated Statistics based on Customer Data input into or collected by the Services and the Software. Customer agrees that Company may (i) make Aggregated Statistics publicly available; (ii) share Aggregated Statistics with third parties; and (iii) use Aggregated Statistics to the extent and in the manner determined by Company; provided, however, that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information.
The Customer assigns all rights, title and interest in any Feedback to the Company. If for any reason such assignment is ineffective, the Customer shall grant the Company a worldwide, non-exclusive, royalty free, perpetual, irrevocable license to use, reproduce, disclose, sub-license, distribute, modify and exploit such Feedback without restriction.
The Customer warrants and represents that it shall maintain reasonable security measures (as may change over time) covering, without limitation, confidentiality, authenticity and integrity to ensure that access to the Services, the Software , and Company Content granted under this Agreement is limited as set out in this Agreement.
The Company may take and maintain technical precautions to protect the Services and the Software from improper or unauthorized use, distribution or copying.
The Customer is responsible for and liable to Company for all uses of the Services, the Software and Company Content resulting from access provided to Users by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Users, and any act or omission by a User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer agrees to use reasonable efforts to make all Users aware of this Agreement’s provisions as applicable to such Users use of the Services, and Software and Company Content, and shall cause Users to comply with such provisions.

4. Fees, Invoicing and Payments

In consideration of the provision of the Services by the Company and the license to use the Software granted by the Company, the Customer shall pay the Company the Fees set out in the Order Form.
The Fees shall be invoiced in US Dollars in installments for the amounts set out in the Order Form. The invoice for the first installment shall be issued on the Effective Date and is payable immediately. Subsequent payments shall be invoiced in accordance with the Order Form, and such invoices are payable by check or bank transfer into a US bank account or via a direct credit card payment..
The Company is entitled to refuse any order placed by a Customer. If an order is accepted, the Company will confirm acceptance by sending an Order Form to the Customer via email.
The Fee payable is the price in force at the date and time of the Customer’s order, set out in the Order Form, or any subsequent invoice. All Fees exclude sales tax.
All invoices shall be issued and paid in US Dollars and shall be payable together with any sales tax (if applicable).
If the Customer fails to pay the Company any Fees due pursuant to this Agreement, the Company shall be entitled to charge interest (both before and after any judgment) on the outstanding amount at the rate of 1.5% per month, accruing on a daily basis and compounded quarterly, from the due date until the outstanding amount is paid in full.
If the Customer fails to pay any sums due to the Company seven days after being sent a payment reminder notice by the Company that sums remain unpaid, and/or if Customer is in breach of any provisions of this Agreement, the Company reserves the right to: (i) suspend the provision of the Services to the Customer and Customer’s access to all websites on which the Services operate, and revoke all of Customer’s license rights to use the Software, until such time as all outstanding invoices have been settled in full in cleared funds, whereupon the Services and access to them, and the license to the Software will be reinstated.

5. Warranties

The Company warrants to the Customer that: (i) it has the right to license the Services and the Software and that the Services and the Software will operate in accordance with their description as provided by the Company; and (ii) that by performing the Services and by granting the license to Customer to use the Software as set forth in these Terms, the Company will not infringe the Intellectual Property Rights of any third party (including but not limited to) or be in breach of any obligations the Company may have to a third party. The foregoing warranties shall not: (a) cover deficiencies or damages relating to any third party software or other components not furnished by the Company; or (b) any third party provided connectivity necessary for the provision or use of the Services. In the event of a breach of the warranties under this section 5.1, the Company shall have no liability or obligations to the Customer other than (i) with respect to the Services, to reimburse the Fees for the noncompliant Services ; or (ii) with respect to the Software, to use reasonable efforts to cause the Software to comply with these warranties.
The Customer warrants and represents that: (i) it has full corporate power and authority to enter into this Agreement and to perform its obligations; (ii) the execution and performance of its obligations under this Agreement does not violate or conflict with the terms of any other agreement to which it is a party and is in accordance with any applicable laws; (iii) it shall respect all applicable laws and regulations, governmental orders and court orders, which relate to this Agreement; (iv) the Customer’s provision of and the Company’s use of Customer Data does not and will not infringe any proprietary right of any third party; and (v) it rightfully owns the necessary user rights, copyrights and ancillary copyrights and permits required for it to fulfill its obligations under this Agreement.
EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, ALL SERVICES AND THE SOFTWARE ARE PROVIDED “AS IS,” AND ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED BY STATUTE, COMMON LAW OR OTHERWISE (INCLUDING BUT NOT LIMITED TO SATISFACTORY QUALITY AND FITNESS FOR PURPOSE), ARE HEREBY DISCLAIMED AND EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. NO WARRANTY IS MADE: (I) REGARDING THE RESULTS OF USAGE OF THE SERVICES AND SOFTWARE; OR (II) THAT THE FUNCTIONALITY OF THE SERVICES AND SOFTWARE WILL MEET THE REQUIREMENTS OF THE CUSTOMER; OR (III) THAT THE SERVICES AND SOFTWARE WILL OPERATE UNINTERRUPTED OR ERROR FREE.
Company does not make any representations or warranties regarding uptime or availability of the Services or the Software. This Agreement does not entitle Customer to any support for Customer’s use of the Services or the Software.

6. Liability

Except for gross negligence or intentional misconduct, in no event shall the Company be liable to the Customer whether arising under this Agreement or in tort (including negligence or breach of statutory duty), misrepresentation or however arising, for any Consequential Loss.
Except for gross negligence or intentional misconduct, the total liability of the Company (whether in contract, tort or otherwise) under or in connection with this Agreement or based on any claim for indemnity or contribution shall not exceed the amount of Fees (excluding any sales taxes) paid by the Customer to the Company during the preceding twelve (12) month period or, if the duration of the Agreement has been less than twelve (12) months, such shorter period, as applicable..
The Customer acknowledges and agrees that in entering into this Agreement, the Customer had recourse to its own skill and judgment and has not relied on any representations made by the Company, any employees or agents of the Company.

7. Intellectual Property Claims

The Company, at its own expense, shall: (i) defend, or at its option, settle any claim or suit brought against the Customer by a third party on the basis that use of the Services or the Software as expressly authorized under this Agreement is an infringement of any Intellectual Property Rights of a third party (excluding any claim or suit deriving from any Customer provided item, including Customer Data); and (ii) pay any final judgment entered against the Customer on such issue or any settlement thereof, provided that: (a) the Customer notifies the Company promptly of each such claim or suit; (b) the Company is given sole control of the defense and/or settlement; and (c) the Customer fully co-operates and provides all reasonable assistance to the Company in the defense or settlement.
If all or any part of the Services or the Software becomes, or in the opinion of the Company may become, the subject of a claim or suit of infringement, the Company at its own expense and sole discretion may: (i) procure for the Customer the right to continue to use the Services or the Software or the affected part thereof; or (ii) replace the Services or the Software or affected part with other suitable non-infringing service(s); or (iii) modify the Services or the Software or affected part to make the same non-infringing.
The Company shall have no obligations under this section 7 to the extent that a claim is based on: (i) the combination, operation or use of the Services or the Software with other services, Customer Data, content provided by Users or software not provided by the Company, if such infringement would have been avoided in the absence of such combination, operation or use; or (ii) use of the Services or the Software in any manner inconsistent with this Agreement; or (iii) the negligence or willful misconduct of the Customer.
The Customer shall indemnify and hold the Company and its suppliers or agents harmless from and against any cost, losses, liabilities and expenses, including reasonable legal costs arising from any claim relating to or resulting directly or indirectly from: (i) any claimed infringement or breach by the Customer of any Intellectual Property Rights with respect to the Customer’s use of the Services or the Software outside the scope of this Agreement; (ii) any access to or use of the Services or the Software by a third party; (iii) use by the Company of any Customer Data or User provided content; and (iv) breaches of data protection law, privacy laws or regulations resulting from the Company processing data on behalf of and in accordance with the instructions of the Customer.
Subject to sections 7.1 to 7.4 inclusive, each party (“the first party”) indemnifies and undertakes to keep indemnified the other party, its officers, servants and agents (“the second party”) against any costs or expenses (including the cost of any settlement) arising out of any claim, action, proceeding or demand that may be brought, made or prosecuted against the second party by any person arising out of or as a consequence of gross negligence or intentional misconduct of the first party, its officers, servants or agents in any way connected with this Agreement whether arising from any failure by the first party to comply with the terms of this Agreement or otherwise.
The indemnity above extends to and includes all costs, damages and expenses (including legal fees and expenses) reasonably incurred by the second party in defending any such action, proceeding claim or demands.

8. Term and Termination

This Agreement shall begin on the Effective Date and continue for the Initial Term. Subsequently, this Agreement will automatically renew for Renewal Terms until either party terminates the Agreement in accordance with its termination rights set out in this section 8.
The Company may immediately terminate this Agreement and/or the provision of any Services provided pursuant to this Agreement and/or all license rights to the Software granted by the Company without notice if: (i) the Customer has used or permitted the use of the Services, the Software, or Company Content in breach of the terms of this Agreement; or (ii) the Company is prohibited, under the laws of the State of New York or otherwise, from providing the Services or licensing the Software.
The Customer shall be entitled to terminate this Agreement by giving thirty (30) days’ notice to Company via email prior to the start of a Renewal Period.
Either party shall be entitled to terminate this Agreement at any time on written notice if the other party: (i) becomes insolvent; makes an assignment for the benefit of creditors; makes or sends notice of a bulk transfer; calls a meeting of its creditors with respect to its inability to pay its obligations owed to such creditors on customary terms; defaults under any agreement, document or instrument relating to such party’s indebtedness for borrowed money; ceases to do business as a going concern; or a petition is filed by or against such other party under any bankruptcy or insolvency laws; or (ii) commits a material breach of any term of this Agreement which, if capable of remedy, is not remedied within five (5) Business Days of receipt of a written notice specifying the breach and requiring it to be remedied.
Upon termination of this Agreement the Company shall immediately cease providing the Services and Company Content to the Customer and all licenses granted to the Customer hereunder (including the license to the Software) shall terminate. The Customer shall promptly pay the Company all unpaid Fees for the remainder of the Term. No Fees already paid shall be refunded.
Termination of this Agreement for whatever reason shall not affect the accrued rights of the parties. Sections 4, 5, 6, 7, 8, 9, 10 and 11 shall, for the avoidance of doubt, survive the expiration or sooner termination of this Agreement and shall remain in force and effect. No Fees already paid shall be refunded following termination of this Agreement.

9. Confidential Information

Each party may use the Confidential Information of the other party only for the purposes of this Agreement and must keep confidential all Confidential Information of the other party except to the extent (if any) the recipient of any Confidential Information is required by law to disclose the Confidential Information.
Each party may disclose the Confidential Information of the other party to those of its employees and agents who have a need to know the Confidential Information for the purposes of this Agreement but only if the employee or agent executes a confidentiality undertaking in a form approved by the other party.
The obligations of confidentiality under this Agreement do not extend to information that: (i) was rightfully in the possession of the receiving party before the negotiations leading to this Agreement; (ii) is, or after the Effective Date, becomes public knowledge (otherwise than as a result of a breach of this Agreement); or (iii) is required by law to be disclosed.

10. Data Protection and Customer Data

Each party undertakes to comply with its obligations under relevant applicable data protection laws, principles and agreements.
To the extent that personal data is processed using the Services or the Software, the parties acknowledge that the Company is a data processor and the Customer is a data controller and the parties shall comply with their respective statutory data protection obligations. The Company agrees that it will only process personal data on behalf of, and in the name of, the Customer.
The Customer shall ensure that the personal data, which it supplies or discloses to the Company, has been obtained fairly and lawfully and that it will obtain all necessary approvals from persons whose data is being processed and registrations with authorities to permit the Company to transfer personal data to third parties pursuant to its obligations under this Agreement.
The Company confirms that it: (i) merely acts as a data processor; (ii) will only process data in accordance with the instructions of the data controller; and (iii) has taken, as well as its subcontractors, licensors and hosts, sufficient technical and organizational measures to protect against unauthorized or unlawful processing of personal data and against accidental loss or destruction of, or damage to personal data, having regard to the state of technological development and cost of implementing any measures, to ensure a level of security appropriate to the harm that might result from such unauthorized or unlawful processing or accidental loss, destruction or damage and the nature of the personal data to be protected.
If a third party alleges infringement of its data protection rights, the Company shall be entitled to take measures necessary to prevent the infringement of a third party’s rights from continuing.
Any information that the Customer provides to the Company, including Customer Data uploaded to the Company servers, information provided during registration or information provided when ordering Services or the Software (such as the Customer’s email address) will be used by the Company in accordance with the terms of this Agreement and the Privacy Policy.
Any content uploaded by Customers when using the Services or the Software must be in accordance with the terms of this Agreement.
Customers are responsible for removing all Customer Data from the Services and the Software prior to the termination or expiration of this Agreement. Notwithstanding the foregoing, the Company reserves the right to remove all Customer Data thirty (30) days after the expiration or termination of this Agreement or the end of a project, whichever is earlier, without giving the Customer any prior notice of such deletion. The Company is not responsible for keeping any backups of Customer Data after expiry of this thirty (30) day period.

11. Third Parties

Nothing contained in this Agreement is intended to create, and shall not be construed as creating, any rights enforceable by any person not a party to this Agreement.

12. Force Majeure

If a party is wholly or partially prevented by Force Majeure from complying with its obligations under this Agreement, that party’s obligation to perform in accordance with the terms of this Agreement will be suspended.
As soon as practicable after an event of Force Majeure arises, the party affected by Force Majeure must notify the other party of the extent to which the notifying party is unable to perform its obligations under this Agreement. If the Force Majeure event last for more than twenty eight (28) days the non-defaulting party may terminate this Agreement with immediate effect without penalty.

13. Miscellaneous

Should a provision of this Agreement be invalid or become invalid then the legal effect of the other provisions shall be unaffected. A valid provision is deemed to have been agreed which comes closest to what the parties intended commercially and shall replace the invalid provision. The same shall apply to any omissions.
This Agreement constitutes the whole agreement and understanding between the parties and supersedes all prior agreements, representations, negotiations and discussions between the parties relating to the subject matter thereof.
No party may assign, transfer or subcontract its rights under this Agreement without the prior written consent of the other party, such consent shall not be unreasonably withheld, however the Company shall be entitled to assign the Agreement to: (i) any company in the Company’s group of companies; or (ii) any entity that purchases the shares or assets of the Company as the result of a merger, takeover or similar event, unless such acquiring entity is a competitor of the non-assigning party.
The Company and the Customer are independent contractors and nothing in this Agreement will be construed as creating an employer-employee relationship.
The Company may at its reasonable discretion, change or modify the terms of this Agreement or Services upon giving the Customer 30 (thirty) days’ notice of the same either by email or notification on its website. Within such 30 (thirty) day period, the Customer may notify the Company in writing that it wishes to terminate this Agreement with effect from the date of any proposed change. If no such notice is received from the Customer, the Customer shall be deemed to have accepted the changes made by continuing to use the Services or the Software.
This Agreement shall be governed by the laws of the State of New York without regard to conflict of laws principles. This Agreement may be enforced only in courts located within the State of New York, and the parties hereby agree that such courts shall have exclusive venue and subject matter and personal jurisdiction.
The Services, the Software, Company Content and other technology that the Company makes available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied party list. The Customer shall not permit Users to access or use any Service or content in a U.S. embargoed country or in violation of any U.S. export law or regulation.