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Terms of use

USE OF THIS SITE.
10. INDEMNITY 
 
          1.      ACCEPTANCE OF TERMS OF USE.
 
Derivative Inc. ("Derivative", “we” “us” or “our”) makes TouchDesigner, TouchEngine and TouchPlayer (collectively the “Products”), and this Web site, available for your access and use, including any feature, content, or tool accessible through this Web site, subject to the following terms and conditions ("Terms of Use"). By accessing and/or using the Web site, you, the “User”, agree to fully accept and be bound by these Terms and Conditions without modification. The term “User” shall mean either (i) an individual accessing or using the Web site for their own personal use; or (ii) the firm, company, or organization accessing and using the Web site. The term “End User” shall mean individual users using or accessing the Web Site on behalf of such firm, company, or organization, including a User’s employees, contractors, officers, directors, agents, students, faculty, and other end users who are provided access to the Products by such User. The User assumes total responsibility and risk for its End Users’ access to or use of the Web site and Products, including any User Contributions (defined below) made by such End Users, and further agrees to ensure its End Users’ compliance with these Terms and Conditions. If you do not agree with these Terms and Conditions, you should immediately discontinue all use of this Web site. These Terms and Conditions are subject to change without notice to you and it is your responsibility to check this Web site regularly for any such changes. Your continued use of this Web site shall constitute your acceptance of any changes to these Terms and Conditions. If you do not comply with these Terms and Conditions at any time, or if Derivative has reasonable grounds to suspect same, Derivative reserves the right to terminate your membership, your subscribership to the Derivative mailing list, your participation in any Derivative forums, your customer account and/or your access to this Web site (or any part of this Web site, including its Products), as applicable, in Derivative’s sole discretion.
 
          2.      INTELLECTUAL PROPERTY NOTICE
 
Copyright © Derivative Inc., 2001. All rights reserved. Derivative either owns the intellectual property rights, including, without limitation, copyright, in all programs, components, text, HTML code, videos, images, graphics, multimedia files, audio, data files, streamed content, icons and other content that is made available to you on this Web site by Derivative (collectively, "Content"), or has obtained all necessary licenses to use the Content on this Web site and to grant to you the limited license set out in these Terms and Conditions. "Content" shall be deemed to include all programs, component, text, HTML code, videos, images, graphics, multimedia files, audio, data files, streamed content, icons and other content that is posted, transmitted or otherwise distributed through the Derivative web site, forums or mailing lists by Derivative.
 
          3.      USER ASSETS
 
3.1   "User Assets" means all files uploaded to this Web site by licensees of the Products and registered members of the Web site, including, without limitation, TouchDesigner Components (.tox), TouchDesigner Environments (.toe) and associated media files, python scripts, shaders, data files and documentation. “User Posts” means any content contributions, including articles, posts, comments, announcements, tutorials and forum posts made by a User or End User on this Web site. By uploading or otherwise submitting any User Assets or User Posts (collectively the “User Contributions”) to this Web site or any Product you represent and warrant that:
         a.          you either own the intellectual property rights in such User Contributions, including all components thereof, or have obtained all necessary right, authority, or licenses to upload to this Web site, use, display, and reproduce such User Contributions, including all components thereof, and to grant to the licenses set out in Section 3(a);
 
         b.          the User Contributions do not contain material that defames or vilifies any person, people, races, religion or religious group and is not obscene, pornographic, indecent, harassing, threatening, harmful, invasive of privacy or publicity rights, abusive, inflammatory or otherwise objectionable;
 
         c.          the User Contributions does not contain malicious code, including but not limited to viruses, “trojan horses”, worms, time bombs, cancelbots, ransomware or any other computer programming routines that are may damage, interfere with, surreptitiously intercept, or expropriate any system, operation, program, data, or personal information; and
 
         c.          the User Contributions does not infringe the intellectual property rights or other rights of any person or entity, including copyright, moral rights, trademark, patent or rights of privacy or publicity.

 
3.2  Removal of User Assets
 
         3.2.1          Derivative has no obligation to censor, remove, review, screen, edit, or monitor any User Contributions but reserves the right to refuse to post, and to delete or remove any User Contributions without notice in its sole discretion at any time and for any reason, including for violation or suspected violation of these Terms and Conditions, if you create liability for us, or if we reasonably believe any User Contributions may cause harm to other third parties.
 
         3.2.2          You acknowledge and agree that Derivative shall not be responsible or liable, directly for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any User Contributions available on or through this Web site, including through any Products. User Contributions are provided by and solely the responsibility of the Users (or its End Users’, where applicable) that provide such User Contributions. No advice or information obtained from Derivative or through the Web site will create any warranty not expressly made herein.
 
         3.2.3          You may remove your User Contributions from the Web site or Products at any time. You must remove your User Assets if you no longer have the rights required by these Terms and Conditions.
 
3.3  Moral Rights. When you upload User Contributions, you agree to irrevocably waive, in favor of Derivative and any licensees of Products, all claims and assertions of moral rights or attribution that you may have, as author, with respect to such User Contributions, including, without limitation, the right to attribution of authorship, the right to restrain any distortion, mutilation or other modification of such User Contributions and the right to prohibit any use of such User Contributions in association with a product, service, cause or institution that might be prejudicial to your honor or reputation (collectively, "Moral Rights").
 
3.4  Feedback. You agree that any ideas, suggestions, and feedback (e.g. suggested improvements, corrections, etc.) about Derivative, this Web site, or the Products that you provide are entirely voluntary, and that Derivative may use such ideas, suggestions, and feedback without compensation or obligation to you.
 
3.5  Ownership of User Contributions.
 
         3.5.1          User shall retain ownership and/or other applicable rights to User Contributions. Derivative has no control over, takes no responsibility for and does not expressly or implicitly endorse any User Contributions.
 
         3.5.2          By uploading or otherwise submitting any User Contributions, you grant to Derivative a royalty-free, perpetual, worldwide, non-exclusive, transferrable, sublicensable, irrevocable license to publish, perform, communicate to the public by telecommunication, display, print, download, upload, copy, use and modify (to the extent that the applicable file format is modifiable) such User Contributions and to grant to Users, including End Users, a limited, personal, royalty-free, non-exclusive sublicense to publish, perform, communicate to the public by telecommunication, display, print, download, upload, copy, use and modify (to the extent that the applicable file format is modifiable) such User Contributions.
 
          4.     ACCEPTABLE USE POLICY
 
4.1  WHILE USING THIS WEB SITE, INCLUDING THE PRODUCTS, YOU MAY NOT, AND YOU ARE RESPONSIBLE FOR ENSURING THAT END USERS DO NOT:
 
 
  a.   post, upload, transmit, submit or otherwise distribute:
 
                  i.          any threatening, abusive, libelous, defamatory, obscene or unlawful User Contributions;
 
                  ii.          any confidential information of Derivative or any third party without the authorization of the owner of such confidential information;
 
                  iii.          information constituting or encouraging conduct that would constitute a criminal offense or give rise to civil liability, or otherwise use this Web site in a manner which is contrary to law or would serve to restrict or inhibit any other user from using this Web site;
 
                  iv.          any unsolicited or unauthorized advertising or promotional materials, (excluding promotions regarding workshops, events, books, jobs and training related to the Products); or
 
                  v.          any materials that contain a virus, trojan horse, worm, cancelbot, ransomware or other harmful or disruptive component.
 
  b.         post or transmit messages constituting "spam", which includes but is not limited to bulk unsolicited messages, inappropriate postings to forum groups and blogs, false commercial messages, advertisements, chain letters, any other form of solicitation or any other abuse of group servers;
 
  c.   use or try to use another user’s account on this Web site without their written permission;
 
  d.   buy, sell, license, or otherwise trade in user names or other unique identifiers on this Web site;
 
  e.   use the Web site to gather addresses or other personal data for commercial mailing lists or databases;
 
  f.   violate any system or network security measures including but not limited to engaging in unauthorized access or use of Derivative’s or a third party’s network, data or information;
 
  g.   remove any marks showing proprietary ownership from materials you download from this Web site;
 
  h.   display any part of this Web site on other Web sites with an inline frame or <iframe> or embed a part of all of the Web site in another Web site or HTML document;
 
  i.   disable, avoid, or circumvent any security or access restrictions of this Web site;
 
  j.   strain infrastructure of this Web site with an unreasonable volume of requests, or requests designed to impose an unreasonable load on information systems underlying this Web site; and
 
  k.   encourage or help anyone in violation of these terms.
 
4.2  Derivative may suspend or terminate your account or ability to access or use all or part of this Web site or Products at any time: (i) for violation of, or encouraging others to violate, the Terms and Conditions; (ii) if Derivative is required to do so to comply with a legal requirement or a court order; or (iii) if Derivative believes there has been conduct that creates or could create liability or harm to any other User or End User, other third party, or Derivative. Derivative reserves the right to modify, suspend, or discontinue this Web site (in whole or in part) at any time, with or without notice to you. You agree that Derivative will not be liable to you or to any third party for any modification, suspension, or discontinuation of this Web site or any part thereof.

 

          5.     LIMITED LICENSE
 
  5.1       Content License: Derivative grants to you a limited license to download, display, print and use the Content (excluding User Assets which is addressed in Section 5.3) solely for personal or internal business purposes, provided that you do not, except as expressly permitted by any license agreement entered into by you in respect of Derivative software:
 
        i.     modify the Content;
 
        ii.     include the Content in or with any product that you create or distribute; or
 
        iii.     copy the Content onto your or any other person’s Web site.
 
  5.2       Notwithstanding the above, materials such as job postings, comments, articles and tutorials authored by Derivative (together, “Derivative Posts”) are not included in the limited license granted pursuant to Section 5.1. For clarity, Content does not include products that are licensed separately by Derivative.
 
  5.3       User Asset License: Derivative grants to you, for the term of any license agreement entered into by you in respect of Derivative software, a limited, personal, royalty-free, non-exclusive sublicense to publish, perform, communicate to the public by telecommunication, display, print, download, upload, copy, use and modify (to the extent that the applicable file format is modifiable) any User Asset uploaded by third parties, provided that: (i) you do not use such User Assets for the purpose of operating a catalog of User Assets; and (ii) you do not rent, transfer or grant a sublicense to publish, perform, communicate to the public by telecommunication, display, print, download, upload, copy, use or modify such User Assets, except when authorized to do so by Derivative in writing. You acknowledge that the foregoing sublicense is subject to Derivative being granted by the applicable third parties the rights required to grant such sublicense, in accordance with these Terms and Conditions.
 
  5.4       Derivative grants to you, for so long as you participate in any Derivative forum, a limited, personal, non-exclusive, royalty-free sublicense to use, publish, communicate to the public by telecommunication and reproduce any User Posts posted, transmitted or otherwise distributed by third parties through such forum. You acknowledge that the foregoing sublicense is subject to Derivative being granted by the applicable third parties the rights required to grant such sublicense, in accordance with these Terms and Conditions.
 
  5.5       No other use of the Content by you is permitted. Nothing in these Terms and Conditions shall be construed as conveying to you any ownership or intellectual property rights to any aspect of Derivative, the Products, the Web site, or User Contributions submitted by any other Users or End Users.
 
          6.     TRADE-MARKS
 
"Derivative", "TouchDesigner" and "TouchPlayer" and “TouchEngine” (collectively, the "Derivative Marks") are the trade-marks of Derivative. All other trade-marks and trade-names referred to on this Web site are the property of their respective owners. The display of trade-marks or trade-names on this Web site does not convey or create any license or other rights in such trade-marks or trade-names. Any unauthorized use of the Derivative Marks is strictly prohibited.
 
          7.     YOUR PERSONAL INFORMATION
 
If you register for membership, join the Derivative mailing list or license or purchase any Derivative products or services, you agree to provide Derivative solely with true, accurate and complete information about yourself and to update such information as required in order to keep it true, accurate and complete. Derivative respects your privacy and wants you to feel secure in your use of this Web site and Derivative’s products and services. To understand how your personal information will be treated by Derivative, please review Derivative’s Privacy Policy. Users are solely responsible for the information associated with their accounts and activity related to such accounts. You must maintain the security of your accounts, including your End User’s accounts, and promptly notify Derivative if you discover or suspect that someone has accessed your accounts without your permission.

 

           8.     NO WARRANTIES
 
  8.1       The Web site and Content, including the User Contributions and Derivative Posts (together, the “Total Content”) are provided on an "as is" and "as available" basis. Derivative expressly disclaims any and all warranties and conditions of any kind, whether express or implied, including, without limitation, the implied warranties or conditions of merchantability, fitness for a particular purpose and non-infringement. Without limiting the generality of the foregoing, Derivative does not warrant the quality, accuracy, completeness, integrity or reliability of the Total Content and that your use of, or reliance on the Total Content is solely at your own risk.
 
  8.2       Derivative makes no specific commitments, representations or warranties of any kind with respect to the Web site, including any representations or warranty that the use of the Web site will (a) be timely, uninterrupted, or error-free or operate in combination with any other hardware, software, system or data; (b) meet your requirements or expectations; (c) be free from errors or that defects will be corrected; (d) be free of viruses or other harmful consequences; (e) be entirely secure or that the information you share with us will be secure; (f) have specific features, be accurate, complete, current, reliable, available, or able to meet your needs; (g) provide access to any User Contributions or Content.
 
 
          9.     LIMITATION OF LIABILITY
 
 EXCEPT AS REQUIRED BY APPLICABLE LAW, DERIVATIVE, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS WILL NOT BE RESPONSIBLE FOR ANY LOSS OF PROFITS, REVENUES, USE, BUSINESS OPPORTUNITIES, GOODWILL, ANTICIPATED SAVINGS, OR OTHER INTANGIBLE LOSSES; LOSS OR CORRUPTION OF DATA; INDIRECT OR CONSEQUENTIAL LOSS; INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND CAUSED BY:
 
         A.          YOUR ACCESS TO, USE OF, OR INABILITY TO ACCESS OR USE THE TOTAL CONTENT;
         B.          ERRORS, MISTAKES, OR INACCURACIES IN THE TOTAL CONTENT;
         C.          PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM YOUR USE OF ANY PART OF THE TOTAL CONTENT;
         D.          ANY INTERRUPTION OR CESSATION OF THE WEB SITE;
         E.          ANY VIRUSES OR MALICIOUS CODE TRANSMITTED TO OR THROUGH THE WEB SITE BY ANY THIRD PARTY;
         F.          CONDUCT OF ANY THIRD PARTY OR USER USING THE WEB SITE OR PRODUCTS, INCLUDING WITHOUT LIMITATION, DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OR USER CONTRIBUTIONS;
         G.          ANY USER CONTRIBUTIONS OR DERIVATIVE POSTS, INCLUDING YOUR USE OF SAME; AND/OR
         H.          THE REMOVAL OR UNAVAILABILITY OF ANY USER CONTRIBUTIONS OR DERIVATIVE POSTS.
 
THIS PROVISION APPLIES TO ANY CLAIM, REGARDLESS OF WHETHER THE CLAIM ASSERTED IS BASED ON WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, WHETHER OR NOT DERIVATIVE HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION, DERIVATIVE’S TOTAL CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING FROM OR RELATING TO THE WEB SITE, INCLUDING FOR ANY IMPLIED WARRANTIES, IS LIMITED TO CAD $50.
 
          10.     INDEMNITY
 
To the extent permitted by applicable law, you agree to defend, indemnify and hold harmless Derivative, its officers, licensors, licensees, directors, employees and agents, as applicable, at your expense, from and against any and all claims, demands, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to legal fees) arising from: (i) your use of and access to the Total Content; (ii) your violation of any term of these Terms and Conditions; (iii) your violation of any third party right, including without limitation, any claim that the use, publication, communication, or reproduction of your User Contribution infringes any intellectual property rights or privacy right of a third party; (iv) any claim that your User Contribution caused damage to a third party; or (v) your violation of applicable laws or regulations. Derivative reserves the right to control the defence of any matter for which you are required to indemnify us, and you agree to cooperate with our defence of these claims. This defense and indemnification obligation will survive the termination or expiry of these Terms and Conditions and your use of the Web site and Products.
 
          11.     THIRD PARTY LINKS
 
This Web site may contain links to third party Web sites. The inclusion of any such links does not imply any approval, endorsement or recommendation of the material on such third party Web sites, or any association with the applicable third parties by Derivative. Your use of any such link is entirely at your own risk. Derivative does not make, and expressly disclaims, any warranty or condition, express or implied, statutory or otherwise, respecting any third party Web sites to which you may link via this Web site, including, but not limited to, any warranties or conditions of merchantability, fitness for a particular purpose or non-infringement.
 
          12.    APPLICABLE LAW
 
These Terms and Conditions shall be governed by the laws of the Province of Ontario and the laws of Canada applicable therein. Any dispute arising out of or in connection with these Terms and Conditions shall be settled in the courts of the City of Toronto in the Province of Ontario, although the foregoing shall not limit the ability of Derivative to seek injunctions and other remedies in other jurisdictions, as required, in order to stop continuing breaches of these Terms and Conditions by you.
 
          13.    COMPLIANCE WITH LOCAL LAWS
 
This Web site is controlled and operated at offices in Toronto, Ontario, Canada. Derivative makes no representation that the Content or User Contributions are appropriate or available for use in locations other than the foregoing. If you choose to access this Web site from other locations, you do so on your own initiative and you are responsible for compliance with local laws, if and to the extent that local laws are applicable.
 
          14.    REPORTING AND CONTACT INFORMATION
 
To report email abuse, SPAM or other illegal use or security issues, please send an email to support@derivative.ca.