SOFTWARE-AS-A-SERVICE AGREEMENT

Last Updated:  August 22, 2019


This Software-as-a-Service Agreement (“Agreement”) governs all uses of the Service (defined below) provided by Backlot Operations, LLC, a Maine limited liability company (“Backlot”) to the Customer agreeing to this Agreement (“Customer”). By using the Service or any part of it, including by registering for the Service, Customer agrees to this Agreement effective on the date that Customer first uses the Service or registers for it (“Effective Date”). Customer’s continued use of the Service after the Effective Date means that Customer consents to any updates that Provider may make to this Agreement, which Provider may do by updating this online document and without separate notice to Customer.


Please Note: The Service (defined below) is a beta product. This means that it is a work-in-progress, not a final product, and you may encounter some bugs, glitches or other non-final features and experiences in using it. We are delighted to have you use the Service during this temporary beta phase, but please do not use it unless you are comfortable with using it in beta form.


1.  Definitions.


“Provider Content” means information and copyrightable written and visual material by Provider and made available to Customer through the iPhone application and the website-delivered product described in Section 2.


Customer” means the individual, company or other legal entity agreeing to this Agreement.


Customer Data” means electronic data and information submitted by or for Customer or any of Customer’s Users to the Service.


“Customer Systems” means any and all hardware, software or other systems that Customer owns, leases or controls.


“Documentation” means any document(s) that Provider may make available to Customer and/or Users from time to time that provide instructions for using the Service.


“Intellectual Property” means copyrights, patents, trademarks, trade secrets, and trade dress.


Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.


The “Service” has the meaning given in Section 2.


“Third-Party Materials” means information, content or other material that is created by, provided by, originating in or owned by a Third-Party Service and which Provider makes available through the Service.


“Third-Party Service” means software or services provided by third parties and incorporated into the Service.


2.  The Service.


The Service is the PYCO petty cash tracking tool for filmed entertainment productions and other creative projects. PYCO is a cloud-based Software-as-a-Service product delivered to Customer in the form of either (at Customer’s election) an iPhone mobile application or a website that does not require or allow download on Customer’s computer or mobile device and is accessed by visiting Provider’s website, https://pycoapp.com. The “Service” refers collectively to the PYCO iPhone application, the PYCO website-delivered product, and all Provider Content made available to Customer through either of them.


Customer may use the Service as either an “Individual” (an individual film professional who uses the Service to create their own film projects and invite other individual Customers to collaborate with them, or work on other individual Customers’ projects) or as a “Company” (a legal entity formed to produce films). The Service allows Customer to upload images of receipts and manually input related financial information, all of which the Service allows Customer to download in CSV format. Customer may access the paid portions of the Service by purchasing a redemption code and redeeming it to create a PYCO production; other portions of the Service may be used by Customer at no charge.


3.  Access to the Service.


Subject to and conditioned on Customer's payment of the Fees and compliance with all other terms of this Agreement, Provider hereby grants Customer a non-exclusive, non-transferable, worldwide, limited right to access and use the Service for the Permitted Use (defined below) during the Term. Such use is limited to Customer's own use. Customer may not provide other individuals or organizations access to the Service via Customer’s account.


4.  Provider’s Responsibilities.


4.1.  During the Term, Provider will use commercially reasonable efforts to make the online elements of the Service available 24 hours a day, 7 days a week, 365 days a year, except for: (a) planned downtime (of which Provider will make commercially reasonable efforts to give advance electronic notice), (b) downtime resulting from downtime of Provider’s hosting provider or of any other Third-Party Services; and (c) force majeure events.


4.2.  Provider will maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Provider will not disclose Customer Data to any third party or use it for any other purpose not necessary for Provider to provide the Service or not permitted by Provider’s Privacy Policy.


4.3.  Except for providing as this Agreement expressly provides, Provider will not provide training, onboarding or other customer services to Customer or any third party.


4.4.  Provider may from time to time in its sole discretion develop and provide Service updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related Documentation, "Updates"). Updates may also modify or delete in their entirety certain features and functionality. Customer agrees that Provider has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. In the case of the iPhone application, based on Customer’s mobile device settings, when Customer’s mobile device is connected to the Internet either (a) the Service will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates.


5.  Intellectual Property.


5.1.  Permitted Use. The “Permitted Use” means copying, performing, displaying, modifying, distributing and transmitting the Provider Content solely to the extent necessary for Customer to display Provider Content in the United States. The Permitted Use includes the right and license to print physical copies of Provider Content for use solely by Customer. The Permitted Use excludes the conduct set forth in section 6.2 below (“Usage Restrictions”).


5.2.  Reservation of Rights. All right, title, and interest in the Intellectual Property embodied in the Service will belong solely to Provider or its licensors. Any and all Intellectual Property rights in Third-Party Materials belong to their respective owners. Customer will have no rights in the Service except as this Agreement expressly grants.


5.3.  Feedback. Provider may allow Customer to provide Provider with comments or suggestions about Provider or the Service (“Feedback”). Customer hereby grants Provider a perpetual, irrevocable, non-exclusive, worldwide, royalty-free license to copy and store any Feedback and use it to develop new products, improve or modify the Service or as Provider may otherwise deem appropriate.


6.  Customer’s Responsibilities and Use of the Service.


6.1.  Customer’s Responsibilities. During the Term, Customer will (a) use the Service consistent with this Agreement and with applicable laws; (b) be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data and Customer’s use of Customer Data with the Service; (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Service, and notify Provider promptly of any such unauthorized access or use; and (d) comply with any terms of service or similar agreements used by any Third-Party Services that Customer may use in connection with the Service.


6.2.  Usage Restrictions. Customer will not use the Service for any purpose outside this Agreement’s scope of access. Customer will not at any time, directly or indirectly, and will not permit any Authorized Users to: (a) sell, resell, license, sublicense, distribute, rent or lease any part of the Service or disclose it to any third parties without compensation; (b) use the Service to store, use or transmit material in violation of third-party privacy or Intellectual Property rights; (c) use the Service to store or transmit Malicious Code, or disable, impair or conduct penetration tests or scans of any hardware, software or other systems that Provider owns, leases or controls; (d) interfere with or disrupt the Service’s integrity or performance; (e) gain unauthorized access to the Service; (f) permit direct or indirect access to or use of the Service in a way that circumvents a contractual usage limit, or access or use any Provider Intellectual Property except as this Agreement allows; (g) modify, copy, or create derivative works based on the Service or any part of it; (h) frame or mirror any part of the Service, other than framing on Customer’s own intranets or otherwise for Customer’s own internal business purposes or as permitted in the Documentation; or (i) disassemble, reverse engineer, or decompile any part of the Service, or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service or (4) determine whether the Service is within the scope of any patent.


Any use of the Service in breach of this Agreement by Customer that in Provider’s sole judgment threatens the security, availability or functioning of the Service may result in Provider’s immediate suspension of the Service.


6.3.  Subscription. The Service is purchased as a subscription. Depending on the extent to which Customer actually chooses to use the Service during the Term, Customer’s actual use of the Service may not make full use of all aspects of the Service in a particular month.


7.  Suspension or Modification of the Service.


7.1.  Suspension. Provider may temporarily suspend Customer's access to any part or all of the Service: (i) if Provider reasonably determines that (A) there is a threat or attack on the Service; (B) Customer's use of the Service disrupts or poses a security risk to the Service or to any other customer or vendor of Provider; (C) Customer uses the Service for fraudulent or illegal activities; or (D) Provider’s provision of the Service to Customer is prohibited by applicable law; (ii) if any vendor of Provider has suspended or terminated Provider's access to or use of any Third-Party Services required to enable Customer to access the Service; (iii) on receipt of a court order or law enforcement request directing such suspension; or (iv) if Customer fails to make payments required by this Agreement (any such suspension described in subclause (i), (ii), (iii) or (iv), a “Service Suspension”). Provider will use commercially reasonable efforts to provide written notice of any Service Suspension to Customer, to provide updates regarding resumption of access to the Service following any Service Suspension, and to resume providing access to the Service 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), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension. 


7.2.  Provider may modify the Provider Content or other components of the Service at any time during the Term, without prior notice to Customer, and Provider will not be liable to Customer or to any third party for any such modification. It may be necessary for Provider to perform repairs or maintenance or remotely patch or upgrade the Service, which may temporarily degrade the quality of the Service or the Provider Content or result in a partial or complete outage of the Service. 


8.  Term and Termination.


8.1.  The “Initial Term” of this Agreement begins on the Effective Date and terminates one year later unless terminated earlier or extended as described here. This Agreement will automatically renew for successive one-year periods (“Renewal Terms”) after the Initial Term’s end until Customer terminates his or her account, or the Agreement is terminated as described here. The “Term” means the Initial Term and all Renewal Terms together.


8.2.  Provider may terminate this Agreement and Customer’s subscription on Provider’s 90 days’ notice to Customer for any reason or as otherwise provided in this Agreement.


8.3.  Any termination of this Agreement will also contemporaneously terminate all authorizations and accesses that it grants.


9.  Fees and Payment.


9.1.  Fees & Taxes. In consideration of Customer’s access to the Service, Customer will pay Provider the fee indicated in the Service (including sales tax, to the extent applicable) for the account for which Customer has registered. All fees are nonrefundable except as expressly provided herein.


9.2.  Future Functionality. Customer agrees that Customer’s purchases and entry into this Agreement are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Provider regarding future functionality or features.


10.  Representations and Warranties.


10.1.  Representations. Each party represents to the other that it has the right, power and authority to enter into and perform its obligations under this Agreement. To the extent Customer uses the Service as a Company, the person using the Service and/or creating an account represents and warrants by doing so that he or she has the authority to bind that Company to this Agreement.


10.2.  Restrictions on Use. Customer represents that Customer is not an agency, department, or other unit of any federal, state, county, municipal or other governmental entity in the United States of America or in any other country.


11. DISCLAIMERS.


The Service is provided “as is” without warranty of any kind. Provider disclaims all warranties to Customer, whether express, implied or statutory, regarding the Service, including without limitation any and all implied warranties of merchantability, accuracy, results of use, reliability, fitness for a particular purpose, title, non-infringement of third-party rights and any warranties or conditions arising out of course of dealing or usage of trade. Provider also disclaims any warranty that the Service will be uninterrupted, error-free, virus-free, or secure, or that Customer Systems will be protected from any form of attack.


The Third-Party Services may vary during the Term if Provider from time to time chooses to remove individual Third-Party Services from the Service, or if suppliers of Third-Party Services discontinue them, discontinue Provider’s access to them or make them available to Provider (to the extent Provider bears costs associated with making them available to Customer) on terms that Provider in its sole discretion deems commercially impracticable. Accordingly, Provider does not warrant or guarantee that any or all Third-Party Materials accessible via the Service at the time of execution of this Agreement will remain accessible to Customer throughout the Term.


The disclaimers in this section apply to the greatest extent permitted by applicable law and notwithstanding anything else in this Agreement.


12.  LIMITATION OF LIABILITY.


Except with respect to either party’s confidentiality or indemnification obligations hereunder or damages arising from either party’s violation of the other party’s Intellectual Property rights, (a) neither party will be liable to the other party or to any third party for any incidental, indirect, punitive, special or consequential damages relating to this Agreement, and (b) each party’s total liability for any and all claims relating to this Agreement will not exceed the total amount paid by Customer during the prior three months of this Agreement. Provider will have no liability to any third party for any losses or damages under any theory of liability. These limitations will apply to all claims for damages, whether based in contract, warranty, strict liability, negligence, tort, or otherwise, and regardless of the person bringing the claim.


This Section 12 (“Limitation of Liability”) is intended to be as inclusive as Maine law and any other applicable law permit. Customer’s agreement to this Agreement confirms that Customer has read it, fully understands it, has had the opportunity to discuss it with legal counsel of Customer’s choice, understands that through it Customer is giving up substantial rights, and intends to completely and unconditionally release liability to the greatest extent allowed by law.


13.  Indemnification.


Provider will indemnify, defend and hold harmless (collectively “indemnify” or “indemnification”) Customer and Customer’s officers, employees, directors, agents, independent contractors, licensors and suppliers (“Customer Indemnitees”) from and against any third party claims, demands, actions and proceedings, and any resulting liabilities, damages, costs and expenses (including reasonable legal fees and expenses), brought against any Customer Indemnitees, alleging that the Service infringes any patent, trademark or copyright of any third parties. Such indemnification, however, excludes such claims which arise or result from (1) any use of the Service by Customer or any other party that violates this Agreement; and/or (2) the combination, operation, or use of the Service in connection with a third-party product or service (the combination of which causes the claimed infringement). This indemnification and hold harmless provision will apply during the Term only.


Customer will promptly notify Provider in writing of any action, threat of suit or claim for arbitration that Customer receives that may qualify for the indemnification provided herein. In such a case, the parties will confer in good faith regarding the appropriate course of conduct, and Provider will have sole discretion regarding the disposition and any settlement of the matter.


This indemnification is the sole and exclusive remedy available to Customer with respect to any third-party Intellectual Property claims against any Customer Indemnitee.


14.  Customer System Requirements.

The PYCO website-delivered product can be accessed with any device and browser. The PYCO iOS mobile application is currently available for iPhone only.


15.  General.


15.1.  Reservation. Nothing in this Agreement will preclude or limit Provider’s rights to market, make available or license any product that Provider now offers or may in the future offer. 


15.2.  Nature of Relationship. Each party will act as an independent contractor with respect to this Agreement, and employees of one party will not be considered to be employees of the other. This Agreement creates no agency, partnership, joint venture, other joint relationship or fiduciary relationship. Neither party may make any commitments binding on the other, nor may either party make any representation that they are acting for, or on behalf of, the other.


15.3.  Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement except as this Agreement may expressly provide.


15.4.  Assignment. Customer may not assign or transfer any of Customer’s obligations, licenses or rights under this Agreement without Provider’s prior written consent. Provider may assign this Agreement without Customer’s prior notice or consent.


15.5.  Force Majeure. Neither party will be held liable for failure to perform any obligation of or delay in performance resulting from or contributing to any cause beyond that party’s reasonable control, including without limitation any act of God, act of civil or military authority, act of war or terrorism, act (including delay, failure to act, or priority) of any governmental authority, power outages, civil disturbance, insurrection or riot, sabotage, fire, severe weather conditions, earthquake, flood, strike, work stoppage or other labor difficulty, embargo, delay in transportation or embargoes or a failure or interruption of service by a supplier of service to Backlot. The affected party’s obligations will be suspended solely to the extent caused by the force majeure and so long as it lasts, and the time for performance of the affected obligation will be extended by the time of the delay that the force majeure causes.


15.6.  Agreement Binding on Successors. This Agreement will bind and inure to the benefit of the parties and their heirs, administrators, successors, and assigns.


15.7.  Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.


15.8.  Waiver. No waiver of any breach of any provision of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver will be effective unless made in writing and signed by an authorized representative of the waiving party.


15.9.  Entire Agreement. This Agreement is the entire understanding of the parties and supersedes all prior agreements between them concerning its subject matter. Any amendment must be in writing and expressly state that it is amending this Agreement.


15.10.  Governing Law & Dispute Resolution. The laws of Maine, except for conflict-of-law rules, will apply to any dispute between the parties related to the Service or to this Agreement. This Agreement will be governed by the laws of Maine without regard to its conflict-of-law rules. Before taking any legal action against Provider, Customer will contact Provider in a good faith effort to resolve the dispute. If Customer does take legal action, Provider in its sole discretion may require Customer to submit any disputes arising from the use of the Service or this Agreement to final and binding arbitration taking place in Maine with a mutually agreeable arbitrator under the rules of the JAMS arbitration service applying Maine law. Customer agrees to arbitrate only on an individual basis, and Customer agrees that this Agreement does not permit class arbitration or any claims brought as a plaintiff or as a class member in any class or representative arbitration proceeding. The arbitral tribunal may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding. If this prohibition on class arbitration is deemed invalid or unenforceable, then the remaining portions of this Section 15.12 will remain in force. Customer has the right to opt out of this agreement to arbitrate by providing Provider with written notice of Customer’s intention to opt out by contacting Provider via its website at https://pycoapp.com, referencing this Section 15.12) within 60 days of Customer’s first use of the Service in any way. Any appeals from an award by the arbitrator must be brought in any court of competent jurisdiction in Maine, and Customer hereby consents irrevocably to the personal jurisdiction and venue of such court or courts.


15.11.  Time Limitation on Disputes. Customer will bring any claim, action or proceeding that Customer may have against Provider (or against any of Provider’s employees, directors, officers, agents or independent contractors) within one year after the cause of action has accrued or within one year after the termination of this Agreement, whichever is earlier. 


15.12.  Notices. Notices to Provider under this Agreement are accepted only when sent by email to legal@pycoapp.com.


15.13.  Survival. The following sections of this Agreement will survive their termination: sections 11 (disclaimers); 12 (limitation of liability); 13 (indemnification); 15.4 (assignment); 15.6 (successors); 15.9 (entire agreement); 15.10 (governing law); 15.11 (time limitation on disputes).


[END]