1 By using Pluot and any service or product of Pluot, you agree to these Terms. If you don’t agree to any of the Terms, you can’t use Pluot, Daily.co or any of our products or services. We can change these Terms at any time. By using Pluot on or after that effective date, you agree to the new Terms. If you don’t agree to them, you should delete your account before they take effect, otherwise your use of the site and content will be subject to the new Terms.
2 Description of Service. The “Service” includes (a) the Site, (b) Pluot’s video applications and related technologies, including but not limited to the service known as “Daily.co”, (c) Pluot’s video hardware devices (“devices”), (d) all Software (as defined below); and (e) any data, reports, text, images, sounds, video, and content made available through any of the foregoing (collectively referred to as the “Content”). Any new features added to or augmenting the Service are also subject to this Agreement.3 General Conditions / Access and Use of the Service.
3.1 Subject to the terms and conditions of this Agreement, you may purchase, access and use the Service only for lawful purposes. All rights, title and interest in and to the Service and its components will remain with and belong exclusively to Pluot. You shall not (a) sublicense, resell, rent, lease, transfer, assign, time share or otherwise commercially exploit or make the Service available to any third party; (b) use the Service in any unlawful manner (including without limitation in violation of any data, privacy or export control laws) or in any manner that interferes with or disrupts the integrity or performance of the Service or its components, or (c) modify, adapt or hack the Service to, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks. You shall comply with any codes of conduct, policies or other notices Pluot provides you or publishes in connection with the Service, and you shall promptly notify Pluot if you learn of a security breach related to the Service.
3.2 Any software that may be made available by Pluot in connection with the Service, including without limitation software contained on devices (collectively, “Software”), contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Subject to the terms and conditions of this Agreement, Pluot hereby grants you a personal, non-transferable, non-sublicensable and non-exclusive right and license to use the device and object code of any Software solely in connection with the Service, provided that you shall not (and shall not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code or sell, assign, sublicense or otherwise transfer any right in any Software; or remove any proprietary notices or labels. You agree not to access the Service by any means other than through the interface that is provided by Pluot for use in accessing the Service. Any rights not expressly granted herein are reserved and no license or right to use any trademark of Pluot or any third party is granted to you in connection with the Service. At any time, we may cancel or revoke your access to any part of Daily, including but not limited your access to and use of a domain you have chosen.
3.3 You are solely responsible for all data, information, feedback, suggestions, text, content and other materials that you stream, deliver, provide or otherwise transmit or store (hereafter “transmit(ting)”) in connection with or relating to the Service (“Your Content”). You are responsible for maintaining the confidentiality of your login, password and account and for all activities that occur under your login or account, including as carried out by all users on your account. Pluot may access your account in order to respond to your requests for technical support. By transmitting Your Content on or through the Service, you grant Pluot the right to display and distribute Your Content in connection with the operation of the Service on your behalf. Pluot has the right, but not the obligation, to monitor Your use of the Service or Content, or Your Content, to confirm compliance with the terms of this Agreement, applicable law and the rights of third parties. You further agree that Pluot may block, remove or disable any Content at any time if Pluot reasonably suspects such Content violates the terms of this Agreement, applicable law or the rights of any third party, or might cause harm to Pluot, the Service or any of its users (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content). Notwithstanding anything to the contrary, Pluot shall have the right to collect and analyze data and other information relating to the Services and related systems and technologies (including, without limitation, information concerning Your Content and data derived therefrom), and Pluot will be free (during and after the term of this Agreement) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Pluot offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.
3.4 You understand that the operation of the Service, including Your Content, may be unencrypted and involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices and (c) transmission to Pluot’s third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Service. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Your Content. Pluot will have no liability to you for any unauthorized access or use of any of Your Content, or any corruption, deletion, destruction or loss of any of Your Content.
3.5 You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Service, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, long distance and local telephone service.
4.1 To the extent the Service or any portion thereof is made available for any fee, you may be required to select a payment plan and provide Company information regarding your credit card or other payment instrument. You shall be responsible for all taxes associated with Service other than U.S. taxes based on Pluot’s net income. If you provide Pluot with information regarding your credit card or other payment instrument, you represent and warrant to Pluot that such information is true and that you are authorized to use such payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You hereby authorize Pluot to bill your payment instrument upon purchase of a device or license in accordance with the terms agreed upon by you and Pluot in the applicable Order Form or on the Site, as applicable, and you further agree to pay any charge so incurred. Your purchase of a device will be governed by the Terms & Conditions of Sale, available at https://pluot.co/terms.html or any other applicable agreement between you and Pluot. Pluot may also bill you through an invoice, at its election. All invoices must be paid within thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service.
4.2 In order to enjoy the full functionality of the Service and enable a device associated with your account to access the hosted (SaaS) components of Pluot’s video applications and related technologies (each such device, an “Active device”), your account must have an active license from Pluot in place for each Active device and all licenses under a single domain must be of the same type of Basic or Premium. If the number of Active devices exceeds the number of active licenses on your account or all licenses are not of the same type, Pluot will use reasonable efforts to notify you (either through the Service user interface, in an email notification, or other means), and Pluot may limit your access to or the functionality of the Service until you have purchased the additional licenses required to cover the excess Active devices. Pluot reserves the right to bill your payment instrument for any additional licenses required to cover the excess Active devices, and you hereby authorize Pluot to do so, and you further agree to pay any charge so incurred.
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business, which may include personally identifying information of individuals (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Pluot includes non-public information regarding features, functionality and performance of the Service. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except as expressly permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required by law.
6 Representations and Warranties; Disclaimer.
6.1 You represent and warrant to Pluot that (i) you have full power and authority to enter into this Agreement; (ii) you own all Your Content or have obtained all permissions, releases, rights or licenses required to engage in your transmitting and other activities (and allow Pluot to perform its obligations) in connection with the Service without obtaining any further releases or consents; (iii) Your Content and other activities in connection with the Service, and Pluot’s exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does Your Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing; (iv) you are eighteen (18) years of age or older; and (v) you will use the Service only in compliance with all applicable laws and regulations.
6.2 Pluot warrants that the devices, when provided to you by Pluot, will conform in all material respects to the applicable specifications provided by Pluot to you. Such warranty does not apply to units that have been damaged, mishandled, mistreated or used or maintained or stored other than in conformity with such specifications and Pluot’s instructions. EXCEPT FOR BODILY INJURY, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THE FOREGOING WARRANTY SHALL BE THE REPAIR OR REPLACEMENT OF OR (AT Pluot’S OPTION OR IF REPAIR OR REPLACEMENT IS IMPRACTICAL) REFUND FOR RETURNED NON-CONFORMING UNITS FOR WHICH FULL DOCUMENTATION AND PROOF OF NON-CONFORMITY IS PROVIDED TO Pluot WITHIN ONE YEAR IN THE CASE OF HARDWARE COMPONENT, OR THIRTY DAYS IN THE CASE OF SOFTWARE (WHETHER OR NOT EMBEDDED), AFTER THE ORIGINAL NON-CONFORMING UNITS (BUT NOT REPLACEMENTS) ARE SHIPPED BY Pluot.
6.3 Pluot warrants that it shall use reasonable efforts consistent with prevailing industry standards to maintain the Service in a manner which minimizes errors and interruptions in the Service. The Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Pluot or by third-party providers, or because of other causes beyond Pluot’s reasonable control, but Pluot shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, Pluot DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE devices OR THE SERVICE.
6.4 DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICE, INCLUDING THE devices, SITE AND CONTENT, AND ANY SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND Pluot EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT Pluot DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM Pluot OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
7 Term; Termination.
7.1 Subject to earlier termination as provided below, the term of this Agreement will commence on the Start Date and continue for the length of your purchased term, and unless Pluot provides you with at least thirty (30) days’ advance notice of non-renewal ahead of the termination of the then-Current Term (as defined below), you may renew this Agreement in a writing signed by both parties hereto, for additional, successive terms of one, three, or five (1, 3, or 5)-years (each such period, a “Renewal Term”, and the then-current term, the “Current Term”). Should you elect not to renew this Agreement as provided above, Pluot may limit your access to or the functionality of the Service until you elect to renew this Agreement for an additional one, three, or five (1, 3, or 5)-year period. Pluot reserves the right to (i) modify or discontinue, temporarily or permanently, the Service (or any part thereof) and (ii) refuse any and all current and future use of the Service, suspend or terminate your account (any part thereof) or use of the Service and remove and discard any of Your Content in the Service if Pluot reasonably believes that you have violated this Agreement. Pluot shall not be liable to you or any third party for any modification, suspension or discontinuation of the Service. Pluot will use good faith efforts to contact you to warn you prior to suspension or termination of your account by Pluot. All of Your Content on the Service (if any) may be permanently deleted by Pluot upon any termination of your account in its sole discretion.
You reserve the right to (i) modify or discontinue, temporarily or permanently, Your use of or access to the Service (or any part thereof) and (ii) refuse any and all of Your current and future use of the Service, suspend or terminate Your account (or any part thereof) or use of the Service and remove and discard any of Your Content in the Service, in each case (of (i) and (ii)) if Pluot has violated this Agreement. You shall not be liable to Pluot or any third party for any modification, suspension or discontinuation of the Service. You will use good faith efforts to contact Pluot to warn Pluot prior to suspension or termination of your account with Pluot.
All accrued rights to payment and the terms of Section 4-15 shall survive termination of this Agreement.
8 LIMITATION OF LIABILITY.
8.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL Pluot BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA OR BUSINESS INTERRUPTION, (B) ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE to YOUR CLAIM; (C) ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; (D) ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES; OR (E) ANY MATTER BEYOND ITS REASONABLE CONTROL. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
8.2 Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE STATES, Pluot’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
9.1 Pluot will defend you, at its expense, against any third-party claim, suit or proceeding (“Claim”) alleging that the Service infringes any third party intellectual property right; provided that you (a) promptly give written notice of the Claim to Pluot; (b) give Pluot sole control of the defense and settlement of the Claim (provided that Pluot may not settle any Claim unless it releases you of all liability); and (c) provide to Pluot, at Pluot’s cost, all reasonable assistance. Notwithstanding the foregoing, Pluot will have no obligation under this section or otherwise with respect to any infringement claim to the extent based upon (i) any unauthorized use, reproduction, or distribution of the Service or any breach of this Agreement by you, (ii) any combination of the Service with other products, equipment, software or data not supplied, authorized or recommended by Pluot, (iii) any modification of the Services by any person other than Pluot or its authorized agents or contractors or (iv) any activity after Pluot has provided you with a work around or modification that would have avoided such issue without materially adversely affecting the functionality or availability of the Service. If Pluot reasonably believes that all or any portion of the Services, or the use thereof, is likely to become the subject of any infringement claim, suit or proceeding, Pluot may, at Pluot’s option and expense, procure for Customer the right to continue using the Services in accordance with the terms hereof, replace or modify the allegedly infringing Service to make it non-infringing, or, in the event the preceding is infeasible or not commercially practicable, Pluot may, in its sole discretion, terminate this Agreement upon written notice to Customer and refund to Customer any prepaid amounts for unused Services.
9.2 You shall defend, indemnify, and hold harmless Pluot from and against any Claims arising or resulting from your breach of this Agreement, any of Your Content, or your other access, contribution to, use or misuse of the Service. Pluot shall provide notice to you of any such claim, suit or demand. Pluot reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting Pluot’s defense of such matter.
10 Government Matters.
You may not remove or export from the United States or allow the export or re-export of the devices, Service, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
You may not assign this Agreement without the prior written consent of Pluot, but Pluot may assign or transfer this Agreement, in whole or in part, without restriction.
12 Governing Law.
This Agreement shall be governed by the laws of the State of California without regard to the principles of conflicts of law. Unless otherwise elected by Pluot in a particular instance, you hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of California for the purpose of resolving any dispute relating to your access to or use of the Service.
Please visit https://www.daily.co/privacy to understand how Pluot collects and uses personal information.
Pluot may use your name and/or company name as a reference for marketing or promotional purposes on Pluot’s website and in other communication with existing or potential Pluot customers, subject to any reasonable trademark guidelines you may provide.
From time to time, you and Pluot may enter into Order Forms pursuant to which you will purchase rights to use the Service. These Business Agreement Terms and Conditions apply to any attached Order Form and all subsequent Order Forms, to the exclusion of any other terms or conditions that either party seeks to impose or incorporate (except as expressly set forth in any applicable Order Form) or that are implied by course of dealing. If any provision of this Agreement is found to be unenforceable or invalid, 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. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Pluot in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. The failure of Pluot to exercise or enforce any right or provision of this Agreement shall not be a waiver of that right.