Implicit Media — Terms of Service
Version: 1.0 Effective Date: The date you first accept these Terms. Last Updated: 2026-05-11
These Terms of Service (the "Terms") form a binding agreement between Implicit Media LLC ("Implicit Media," "we," "us," or "our") and the entity or organization on whose behalf you are accessing or using our services (the "Customer" or "you"). By clicking "I Agree," creating an account, or accessing or using the Services in any manner, you acknowledge that you have read, understood, and agree to be bound by these Terms. If you do not agree, you may not access or use the Services.
If you are accepting these Terms on behalf of a company or other legal entity, you represent and warrant that you have full authority to bind that entity to these Terms.
These Terms contain a binding arbitration agreement and class-action waiver in Section 23. Please read them carefully. You have a thirty (30) day right to opt out of arbitration, as described in Section 23.6.
1. Definitions
1.1 "Account" means the credentialed access to the Services associated with the Customer.
1.2 "Affiliate" means, with respect to any party, any entity that directly or indirectly controls, is controlled by, or is under common control with that party.
1.3 "Authorized User" means a natural person who is employed by, or under contract with, the Customer and who has been granted credentialed access to the Services under the Customer's Account.
1.4 "Customer Inputs" means any text, prompts, images, video, audio, brand guidelines, configuration data, or other materials that the Customer or its Authorized Users submit to the Services.
1.5 "Generated Content" means the video, image, audio, or other media output produced by the Services in response to Customer Inputs.
1.6 "Implicit Player" means the software, hardware integrations, and embedded playback components made available by Implicit Media that enable rendering and display of Generated Content.
1.7 "Order Form" means any written or electronic ordering document, online subscription confirmation, or invoice describing the Services subscribed to by the Customer and the fees payable.
1.8 "Services" means the Implicit Media platform, including the web application, APIs, the Implicit Player, supporting infrastructure, and any related software, documentation, and ancillary services made available by Implicit Media.
1.9 "Subscription Term" means the period during which the Customer is entitled to access the Services as specified in the applicable Order Form or selected subscription plan.
1.10 "Tenant" means the legal entity that has established an Account and entered into these Terms.
2. Eligibility and Acceptance
2.1 Business Use Only. The Services are intended for business use. You must be at least eighteen (18) years of age and capable of forming a legally binding contract to use the Services. The Services are not intended for personal, family, or household use, and Implicit Media disclaims any obligations applicable to consumer transactions to the maximum extent permitted by law.
2.2 Authority. The individual accepting these Terms represents and warrants that (a) they are an Authorized User of the Tenant, (b) they have the authority to bind the Tenant to these Terms, and (c) all information provided to Implicit Media is accurate, current, and complete.
2.3 Acceptance Required. Access to the Services is conditioned on acceptance of the then-current version of these Terms. The Customer's continued access to and use of the Services after a material modification constitutes acceptance of the modified Terms.
3. Account Registration and Security
3.1 Account Information. The Customer must provide accurate and complete information when registering an Account and must keep that information current.
3.2 Credentials. The Customer is responsible for maintaining the confidentiality of all Account credentials and is solely responsible for all activity that occurs under its Account, whether or not authorized.
3.3 Notification. The Customer must notify Implicit Media immediately at security@implicitmedia.com of any suspected unauthorized access to or use of the Account.
3.4 Authorized Users. The Customer is responsible for the acts and omissions of its Authorized Users as if they were the acts and omissions of the Customer itself. The Customer shall ensure that each Authorized User complies with these Terms.
4. Subscription, Fees, and Renewal
4.1 Subscription Plans. Access to the Services is provided on a subscription basis as described in the applicable Order Form or in the plan the Customer selects through the Services interface.
4.2 Fees and Payment. The Customer shall pay all fees specified in the applicable Order Form or selected plan. Unless otherwise stated, all fees are quoted and payable in United States dollars and are exclusive of taxes. The Customer is responsible for all applicable sales, use, value-added, and similar taxes, other than taxes based on Implicit Media's net income.
4.3 Auto-Renewal. Subscription Terms automatically renew for successive periods of the same duration unless the Customer cancels prior to the end of the then-current Subscription Term. Cancellation takes effect at the end of the then-current Subscription Term; the Customer retains access through that date.
4.4 Non-Refundable. Except where required by applicable law or expressly stated in these Terms, all fees are non-refundable and are payable in full regardless of actual usage.
4.5 Late Payment. Past-due amounts accrue interest at the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by law. Implicit Media may suspend the Services or terminate the Account for non-payment, in addition to any other remedies available to it.
4.6 Metered Usage and Credits. Where the Customer's plan includes metered usage, Generated Content production may consume credits or trigger metered charges as specified in the plan. Implicit Media may, from time to time, modify its credit costs and metered rates, with reasonable advance notice via email or in-product notification.
4.7 Price Changes. Implicit Media may change subscription fees for future Subscription Terms, with notice provided at least thirty (30) days before the renewal date. Continued use after a price change becomes effective constitutes acceptance of the new price.
5. Customer Inputs
5.1 Ownership of Inputs. As between the parties, the Customer retains all right, title, and interest in and to its Customer Inputs.
5.2 License to Implicit Media. The Customer hereby grants Implicit Media a worldwide, royalty-free, non-exclusive license to host, store, reproduce, transmit, modify, create derivative works of, and otherwise use Customer Inputs solely as necessary to (a) operate, maintain, and improve the Services, (b) produce Generated Content for the Customer, (c) provide support, troubleshoot issues, and detect abuse, and (d) comply with applicable law.
5.3 Customer Representations. The Customer represents and warrants that (a) it has all rights, licenses, consents, and permissions necessary to submit its Customer Inputs to the Services and to grant the license in Section 5.2, and (b) Customer Inputs do not infringe, misappropriate, or violate any third-party intellectual property, privacy, publicity, or other right.
5.4 No Training on Customer Inputs. Implicit Media does not use Customer Inputs to train general-purpose machine-learning models offered to other customers. Implicit Media may use Customer Inputs to fine-tune models or generate outputs solely for that Customer's Account, and may use aggregated or de-identified data derived from operation of the Services in a manner that does not identify the Customer.
6. Generated Content and Hosted-Access License
6.1 Hosted by Implicit Media. All Generated Content is hosted, stored, and controlled by Implicit Media. The Customer acknowledges and agrees that Generated Content is made available solely as a hosted service.
6.2 License Grant. Subject to the Customer's continuing compliance with these Terms and timely payment of all fees, Implicit Media grants the Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and play back Generated Content solely through the Implicit Player during the active Subscription Term, and solely for the Customer's internal business purposes and the public display or distribution contexts authorized in the applicable Order Form or plan.
6.3 Nature of the License. The license granted in Section 6.2 is a contractual right of access, not a transfer of intellectual property rights. Generated Content may incorporate or be derived from outputs of third-party machine-learning models whose copyright status is unsettled under applicable law; the Customer acknowledges that Implicit Media makes no representation regarding the copyrightability of Generated Content and grants no rights beyond those expressly stated in this Section 6.
6.4 No Implied Rights. No rights are granted by implication, estoppel, or otherwise. All rights not expressly granted to the Customer in these Terms are reserved by Implicit Media.
7. Restrictions
The Customer shall not, and shall not permit any Authorized User or third party to:
7.1 download, save, export, copy, redistribute, sublicense, sell, lease, lend, or otherwise transfer Generated Content outside the Implicit Player, except for transient buffering or caching strictly required by the Implicit Player to perform playback;
7.2 capture, screen-record, screen-scrape, or otherwise extract Generated Content for redistribution or use outside the Implicit Player;
7.3 circumvent, disable, or interfere with any access control, authentication, watermark, identifier, or security feature of the Services or the Implicit Player;
7.4 reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, algorithms, model weights, or non-public components of the Services, except to the limited extent applicable law expressly permits despite this restriction;
7.5 use the Services, Customer Inputs, or Generated Content to train, develop, evaluate, or improve any artificial-intelligence model or service that competes with the Services;
7.6 access the Services through automated means, including bots, scrapers, or headless browsers, other than through APIs explicitly made available by Implicit Media and used in accordance with their documentation;
7.7 rent, resell, or otherwise commercially redistribute access to the Services to any party that is not an Authorized User;
7.8 use the Services in any manner that exceeds the volumes, rate limits, or scopes set forth in the applicable Order Form or plan; or
7.9 use the Services to develop or operate a service substantially similar to the Services for commercial release.
8. Tenant Scope and Authorized Users
8.1 Tenant Boundary. The license to access Generated Content runs to the Tenant and may not be transferred, assigned, or extended to any other legal entity, including any Affiliate, successor, or acquirer, except as expressly permitted in Section 26.4 (Assignment).
8.2 Tenant Acceptance. These Terms are accepted on behalf of the Tenant by an individual designated by the Tenant and provisioned by Implicit Media as the Tenant's primary administrative contact. The individual who accepts these Terms represents and warrants that they have the authority to bind the Tenant. Acceptance binds the Tenant entity and all of its Authorized Users with respect to use of the Services.
8.3 Authorized User Acknowledgment. As a condition of access, each Authorized User must, at first login, accept a short End User Acknowledgment by which the Authorized User personally agrees to be bound by these Terms as flowed through to them by the Tenant, to keep their credentials secure, and to refrain from misuse of the Services. The End User Acknowledgment is a click-through acknowledgment and does not replace these Terms.
8.4 Multi-Tenant Authorized Users. Implicit Media permits Authorized Users (including contractors) to hold credentialed access across multiple Tenants. An Authorized User's acceptance of the End User Acknowledgment under Section 8.3 covers their use of the Services across all Tenants for which they are credentialed. The license to access any particular Tenant's Generated Content is bound to that Tenant and does not flow to the Authorized User personally or to any other Tenant.
8.5 Cross-Tenant Use Prohibited. Generated Content produced for one Tenant may not be used in any context attributed to or for the benefit of another Tenant.
9. Acceptable Use and Prohibited Content
9.1 Prohibited Conduct. The Customer shall not use the Services, and shall not permit its Authorized Users to use the Services, to:
(a) violate any applicable law, regulation, or third-party right;
(b) generate, transmit, store, or display child sexual abuse material or any content that sexually exploits or endangers minors;
(c) generate or distribute non-consensual intimate imagery, or sexually explicit depictions of any identifiable real person without that person's documented prior written consent;
(d) generate deepfakes, voice clones, or other synthetic media depicting an identifiable real person without that person's documented prior written consent, except for clearly labeled satire or commentary protected under applicable law;
(e) generate content intended to harass, threaten, defame, defraud, or deceive a specific individual or organization;
(f) generate content that promotes, glorifies, or incites violence, terrorism, or self-harm, or that constitutes hate speech under applicable law;
(g) infringe, misappropriate, or violate any intellectual-property, privacy, publicity, or contractual right of any third party;
(h) introduce malware, viruses, or harmful code into the Services or into any system accessed through the Services;
(i) probe, scan, or test the vulnerability of the Services without prior written authorization from Implicit Media's security team;
(j) misrepresent affiliation with any person or organization, including Implicit Media; or
(k) use the Services in any environment, application, or context where failure or malfunction of the Services could reasonably be expected to result in death, personal injury, severe environmental damage, or critical infrastructure failure.
9.2 No Pre-Screening Obligation. Implicit Media has no obligation to monitor, pre-screen, or review Customer Inputs or Generated Content, but reserves the right to do so. Implicit Media may, at its sole discretion, refuse to produce, remove, suspend access to, or delete any Customer Input or Generated Content that it believes in good faith violates these Terms or applicable law.
10. Customer Responsibility for Content Suitability
10.1 Customer's Sole Responsibility. The Customer is solely responsible for determining whether Generated Content is suitable for the audiences, venues, jurisdictions, and contexts in which the Customer chooses to display, distribute, or otherwise use it. This includes, without limitation, responsibility for:
(a) compliance with all applicable laws, regulations, and industry codes;
(b) compliance with all applicable venue, platform, broadcaster, or distributor policies;
(c) age-appropriateness, NSFW classification, and audience-rating standards;
(d) brand-safety, brand-guideline, and trademark considerations;
(e) accessibility requirements, including captioning, photosensitivity warnings, and seizure-risk mitigation;
(f) advertising, disclosure, and labeling requirements, including any requirement to disclose the use of artificial intelligence in the production of media; and
(g) data-protection and consent requirements applicable to any person depicted, named, or referenced in Generated Content.
10.2 No Reliance on Implicit Media Review. Any safety classifications, content tags, or moderation signals provided by the Services are advisory and provided for the Customer's convenience only. The Customer shall independently verify the suitability of Generated Content prior to public display, distribution, or commercial use.
10.3 Implicit Media Disclaims Suitability Determinations. Implicit Media makes no representation or warranty that any Generated Content is appropriate, lawful, accurate, original, non-infringing, or fit for any particular purpose, audience, or context.
11. Nature of AI Outputs
11.1 Non-Deterministic. Generated Content is produced by machine-learning models that are probabilistic and non-deterministic. Identical or similar Customer Inputs may produce different outputs across requests and across users.
11.2 No Uniqueness or Originality Guarantee. Implicit Media does not represent or warrant that Generated Content is unique, original, or free of resemblance to existing works, real persons, trademarks, or other protected matter. Different users may receive substantially similar Generated Content in response to similar Customer Inputs.
11.3 Quality and Accuracy. Generated Content may contain factual errors, visual artifacts, distortions, or other imperfections. The Customer should not rely on Generated Content for any purpose where accuracy is material without independent verification.
12. Reservation of Rights
12.1 Watermarking and Identifiers. Implicit Media reserves the right to embed visible or invisible watermarks, content provenance signals (including C2PA-style credentials), or other identifiers in or alongside Generated Content for purposes including provenance, abuse detection, license enforcement, and forensic identification. The Customer shall not remove, obscure, or alter any such watermark or identifier.
12.2 Telemetry and Playback Auditing. Implicit Media may collect telemetry from the Implicit Player relating to playback events, integrity checks, license validation, and aggregate usage metrics, and may use such telemetry to enforce these Terms, support the Customer, and improve the Services.
12.3 Content Moderation. Implicit Media may, at its sole discretion and without prior notice, remove, restrict access to, or refuse to produce any Customer Input or Generated Content that it believes in good faith violates these Terms, applicable law, or the rights of any third party.
13. Service Availability
13.1 Commercially Reasonable Efforts. Implicit Media will use commercially reasonable efforts to make the Services available, subject to scheduled maintenance, emergency maintenance, and conditions beyond its reasonable control.
13.2 No SLA on Standard Plans. Unless an Order Form expressly incorporates a Service Level Agreement, the Services are provided without any guarantee of uptime, latency, throughput, or response time. Where an SLA applies, the remedies stated in the SLA are the Customer's sole and exclusive remedy for any failure to meet the service levels described therein.
13.3 Maintenance and Updates. Implicit Media may update, modify, suspend, or discontinue any feature of the Services at any time, with reasonable notice where practicable.
14. Beta and Early-Access Features
From time to time, Implicit Media may make features, products, or services available to the Customer on a beta, preview, alpha, early-access, or experimental basis ("Beta Features"). Beta Features are provided "as is" without any warranty, may be modified or discontinued at any time without notice, and are not subject to any SLA. The Customer's use of Beta Features is voluntary.
15. Term and Termination
15.1 Term. These Terms commence on the date the Customer first accepts them and continue until terminated as set forth in this Section 15.
15.2 Termination for Convenience by the Customer. The Customer may cancel its subscription through the Services interface or by written notice to Implicit Media. Cancellation takes effect at the end of the then-current Subscription Term; pre-paid fees are not refundable.
15.3 Termination for Cause. Either party may terminate these Terms for cause upon written notice if the other party (a) materially breaches these Terms and fails to cure the breach within thirty (30) days after receipt of written notice describing the breach in reasonable detail, or (b) becomes the subject of any bankruptcy, insolvency, receivership, or similar proceeding.
15.4 Suspension and Immediate Termination. Notwithstanding Section 15.3, Implicit Media may suspend access to or immediately terminate the Services or the Account, without prior notice, if Implicit Media reasonably determines that (a) the Customer has materially breached Section 7 (Restrictions) or Section 9 (Acceptable Use), (b) continued provision of the Services would expose Implicit Media to legal liability, security risk, or material reputational harm, or (c) the Customer's payment for the Services is more than thirty (30) days past due.
15.5 Effect of Termination. Upon termination or expiration of these Terms for any reason:
(a) the license granted in Section 6.2 (Hosted-Access License) terminates immediately and the Customer's right to access Generated Content via the Implicit Player ceases;
(b) the Customer shall immediately discontinue all use of the Services;
(c) Implicit Media shall handle Generated Content as set forth in Section 16 (Data Retention After Termination); and
(d) all provisions of these Terms that by their nature should survive termination (including Sections 1, 5.2, 5.3, 6.3, 6.4, 7, 9, 10, 11, 12, 17, 18, 19, 20, 21, 22, 23, 24, 25, and 26) shall so survive.
16. Data Retention After Termination
16.1 Retention Window. For ninety (90) days following the effective date of termination or expiration of these Terms (the "Retention Window"), Implicit Media will retain Generated Content associated with the Account in an inaccessible state. The Customer may, during the Retention Window, reinstate its subscription, in which case the playback license under Section 6.2 will be restored without further action.
16.2 Permanent Deletion. Upon expiration of the Retention Window, Implicit Media will permanently delete Generated Content associated with the Account, subject to any retention required by applicable law or by Implicit Media's reasonable backup and disaster-recovery practices, which deletions will be completed in the ordinary course.
16.3 Customer Inputs. Customer Inputs will be deleted on the same schedule as Generated Content, except that Implicit Media may retain de-identified or aggregated data derived from operation of the Services.
16.4 Customer Export Requests. The Customer acknowledges that no facility is provided to export Generated Content outside the Implicit Player. Reinstatement of the subscription within the Retention Window is the exclusive mechanism for restoring access.
17. Third-Party Components and Services
17.1 Third-Party Models. The Services use, integrate with, or are built upon third-party machine-learning models, libraries, and infrastructure. The Customer's use of the Services may be subject to the upstream terms applicable to such third-party components, including but not limited to terms relating to permitted use, attribution, and restrictions on output handling. Implicit Media will use commercially reasonable efforts to ensure its provision of the Services complies with such upstream terms but makes no warranty regarding their availability or continued licensing.
17.2 Third-Party Sites and Services. The Services may link to or interoperate with third-party websites, applications, or services. Implicit Media is not responsible for, and disclaims all liability arising from, the content, policies, or practices of any third party.
17.3 Payment Processing. Payments are processed by third-party payment processors, including Stripe, Inc. The Customer's payment information is subject to the privacy policies and terms of the applicable processor.
18. Copyright Infringement and DMCA
18.1 Designated Agent. Implicit Media respects the intellectual-property rights of others. Notices of claimed copyright infringement should be directed to Implicit Media's designated agent at dmca@implicitmedia.com and must include the information required by 17 U.S.C. § 512(c)(3).
18.2 Counter-Notices. Counter-notices may be submitted in accordance with 17 U.S.C. § 512(g).
18.3 Repeat Infringers. Implicit Media will, in appropriate circumstances and at its sole discretion, terminate the Accounts of users who are repeat infringers.
19. Confidentiality
19.1 Confidential Information. "Confidential Information" means any non-public information disclosed by one party (the "Discloser") to the other (the "Recipient") in connection with these Terms that is identified as confidential or that the Recipient should reasonably understand to be confidential given the nature of the information and circumstances of disclosure. Confidential Information includes, without limitation, technical, business, financial, customer, and product information.
19.2 Obligations. The Recipient shall (a) use Confidential Information only as necessary to exercise its rights and perform its obligations under these Terms, (b) protect Confidential Information using at least the same degree of care it uses to protect its own confidential information of like importance, and in no event less than a reasonable degree of care, and (c) not disclose Confidential Information to any third party except to its employees, contractors, advisors, and Affiliates who have a need to know and who are bound by obligations of confidentiality no less protective than those in this Section 19.
19.3 Exclusions. Confidential Information does not include information that (a) is or becomes publicly available without breach of these Terms, (b) was rightfully known to the Recipient without obligation of confidentiality prior to disclosure, (c) is rightfully received from a third party without obligation of confidentiality, or (d) is independently developed by the Recipient without use of or reference to the Discloser's Confidential Information.
19.4 Compelled Disclosure. The Recipient may disclose Confidential Information to the extent required by law, regulation, or court order, provided that, where legally permissible, it gives the Discloser prompt notice and reasonable cooperation in seeking a protective order.
20. Indemnification
20.1 Customer Indemnification. The Customer shall defend, indemnify, and hold harmless Implicit Media, its Affiliates, and their respective officers, directors, employees, and agents from and against any and all third-party claims, demands, actions, losses, liabilities, damages, costs, and expenses (including reasonable attorneys' fees) arising out of or relating to:
(a) Customer Inputs, including any allegation that Customer Inputs infringe, misappropriate, or violate any third-party right;
(b) the Customer's or any Authorized User's use of Generated Content, including any allegation that Generated Content is unsuitable, unlawful, or harmful in the context, audience, or venue in which the Customer used it;
(c) the Customer's breach of Section 5.3 (Input Representations), Section 7 (Restrictions), Section 9 (Acceptable Use), or Section 10 (Suitability);
(d) any deepfake, synthetic-likeness, or voice-clone claim arising from Customer Inputs submitted by, or Generated Content used by, the Customer or its Authorized Users; and
(e) any violation of applicable law by the Customer or any Authorized User.
20.2 Procedure. Implicit Media shall (a) promptly notify the Customer of any claim subject to indemnification, (b) give the Customer sole control of the defense and settlement of the claim (provided that no settlement requiring an admission of liability by Implicit Media or imposing any obligation on Implicit Media beyond payment by the Customer may be made without Implicit Media's prior written consent, not unreasonably withheld), and (c) provide reasonable cooperation, at the Customer's expense, in the defense of the claim. Implicit Media may participate in the defense at its own expense with counsel of its choice.
21. Disclaimer of Warranties
21.1 "AS IS" Basis. THE SERVICES, INCLUDING ALL GENERATED CONTENT, ARE PROVIDED "AS IS" AND "AS AVAILABLE," WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND.
21.2 Disclaimers. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IMPLICIT MEDIA AND ITS AFFILIATES DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, ACCURACY, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
21.3 No Guarantee of Outputs. IMPLICIT MEDIA DOES NOT WARRANT THAT (A) THE SERVICES WILL BE UNINTERRUPTED, SECURE, OR ERROR-FREE; (B) GENERATED CONTENT WILL BE ACCURATE, ORIGINAL, NON-INFRINGING, OR FIT FOR ANY PARTICULAR PURPOSE; OR (C) ANY DEFECTS OR ERRORS WILL BE CORRECTED.
21.4 Customer Acknowledgement. THE CUSTOMER ACKNOWLEDGES THAT GENERATIVE AI IS A RAPIDLY EVOLVING FIELD AND THAT THE SERVICES MAY PRODUCE OUTPUTS THAT ARE UNEXPECTED, INACCURATE, INAPPROPRIATE, OR OFFENSIVE. THE CUSTOMER ASSUMES ALL RISK ASSOCIATED WITH ITS USE OF GENERATED CONTENT.
22. Limitation of Liability
22.1 Exclusion of Indirect Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL IMPLICIT MEDIA OR ITS AFFILIATES BE LIABLE TO THE CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, LOST REVENUES, LOST DATA, LOST GOODWILL, OR BUSINESS INTERRUPTION, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT IMPLICIT MEDIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
22.2 Liability Cap. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF IMPLICIT MEDIA AND ITS AFFILIATES UNDER OR IN CONNECTION WITH THESE TERMS, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, SHALL NOT EXCEED THE GREATER OF (A) THE TOTAL FEES PAID BY THE CUSTOMER TO IMPLICIT MEDIA UNDER THESE TERMS IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY, OR (B) ONE HUNDRED UNITED STATES DOLLARS ($100).
22.3 Exceptions. The exclusions and limitations in Sections 22.1 and 22.2 do not apply to (a) the Customer's payment obligations under Section 4 (Subscription, Fees, and Renewal), (b) the Customer's indemnification obligations under Section 20, (c) a party's breach of its confidentiality obligations under Section 19, or (d) liability that cannot be excluded or limited under applicable law (including liability for fraud, gross negligence, or willful misconduct).
22.4 Essential Basis. The parties acknowledge that the disclaimers, exclusions, and limitations in Sections 21 and 22 form an essential basis of the bargain between them and that, absent these provisions, the financial terms of the Services would be substantially different.
23. Governing Law and Dispute Resolution
23.1 Governing Law. These Terms are governed by, and shall be construed in accordance with, the laws of the State of Texas, without regard to its conflict-of-laws provisions. The United Nations Convention on Contracts for the International Sale of Goods does not apply.
23.2 Informal Resolution. Before initiating arbitration, the parties shall attempt in good faith to resolve any dispute through informal negotiation. Either party may initiate informal negotiation by sending written notice describing the dispute in reasonable detail to legal@implicitmedia.com (in the case of a notice to Implicit Media) or to the Account's primary administrative contact (in the case of a notice to the Customer). The parties shall negotiate in good faith for at least forty-five (45) days following such notice before proceeding to arbitration.
23.3 Binding Arbitration. Any dispute, claim, or controversy arising out of or relating to these Terms or the Services that is not resolved through informal negotiation shall be finally resolved by binding arbitration administered by the American Arbitration Association ("AAA") under its Commercial Arbitration Rules, except as modified by this Section 23. The arbitration shall be conducted by a single arbitrator. The seat of arbitration shall be Austin, Texas. The arbitration shall be conducted in English. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
23.4 Class-Action Waiver. THE PARTIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE THE CLAIMS OF MULTIPLE CUSTOMERS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF CLASS, COLLECTIVE, OR REPRESENTATIVE PROCEEDING.
23.5 Exceptions to Arbitration. Notwithstanding Section 23.3, either party may (a) bring an individual action in small-claims court in a court of competent jurisdiction in Travis County, Texas, for any claim within the jurisdiction of that court, and (b) seek injunctive or other equitable relief in any court of competent jurisdiction to prevent or stop infringement, misappropriation, or violation of intellectual-property rights or breach of confidentiality obligations.
23.6 Right to Opt Out. The Customer may opt out of the arbitration agreement and class-action waiver in this Section 23 by sending written notice to legal@implicitmedia.com within thirty (30) days after first accepting these Terms. The notice must include the Customer's Tenant name, Account email address, and a clear statement that the Customer wishes to opt out of arbitration. Opting out does not affect any other provision of these Terms. If the Customer opts out, any dispute that would otherwise be subject to arbitration shall be resolved in the state or federal courts located in Travis County, Texas, and the parties consent to the exclusive jurisdiction and venue of such courts.
23.7 Severability. If any provision of this Section 23 is found to be unenforceable, that provision shall be severed and the remainder of this Section 23 shall remain in effect, except that if the class-action waiver in Section 23.4 is found to be unenforceable with respect to any particular claim, that claim shall be severed from the arbitration and brought in the courts identified in Section 23.6, while all other claims shall proceed in arbitration.
24. Export Controls and Sanctions
The Customer represents and warrants that (a) it is not located in, organized under the laws of, or ordinarily resident in any country or region subject to comprehensive U.S. sanctions, (b) it is not identified on any U.S. government list of restricted or prohibited persons, and (c) it will not use, export, re-export, or transfer the Services in violation of any applicable U.S. or foreign export-control or sanctions law.
25. Modifications to These Terms
25.1 Updates. Implicit Media may modify these Terms from time to time. The "Last Updated" date at the top of these Terms reflects the date of the most recent modification.
25.2 Notice. Implicit Media will provide notice of material modifications by email to the Account's primary administrative contact and by in-product notification at least thirty (30) days before the modifications take effect, except where the modifications are required by law or to address a security or fraud risk, in which case the notice period may be shorter.
25.3 Re-Acceptance. Material modifications require the Customer to affirmatively accept the modified Terms before continuing to access the Services. If the Customer does not accept the modified Terms, the Customer's access to the Services may be suspended and the Customer's exclusive remedy is to terminate its subscription in accordance with Section 15.2, with a pro-rata refund of any unused portion of pre-paid fees attributable to the period after the modified Terms take effect.
26. Miscellaneous
26.1 Notices. Notices to Implicit Media under these Terms must be sent to legal@implicitmedia.com. Notices to the Customer may be sent to the email address associated with the Account's primary administrative contact or delivered through in-product notification. Notices are deemed given on the date sent, if sent by email, or on the date posted, if delivered through the Services.
26.2 Entire Agreement. These Terms, together with any applicable Order Form, any Service Level Agreement expressly incorporated by reference, and any Data Processing Addendum executed between the parties, constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior or contemporaneous agreements, communications, and proposals, whether oral or written.
26.3 Order of Precedence. In the event of a conflict between these Terms and any Order Form, these Terms control unless the Order Form expressly identifies the specific provision of these Terms that it modifies.
26.4 Assignment. The Customer may not assign or transfer these Terms or any of its rights or obligations hereunder, in whole or in part, by operation of law or otherwise, without Implicit Media's prior written consent, except that the Customer may assign these Terms in their entirety to a successor in interest in connection with a merger, acquisition, or sale of all or substantially all of its assets, provided that (a) the Customer gives Implicit Media prompt written notice and (b) the successor is not a competitor of Implicit Media. Implicit Media may assign these Terms freely. Any purported assignment in violation of this Section 26.4 is void.
26.5 Severability. If any provision of these Terms is held invalid or unenforceable by a court of competent jurisdiction or arbitrator, the remaining provisions shall remain in full force and effect, and the invalid or unenforceable provision shall be replaced with a valid and enforceable provision that comes closest to the parties' original intent.
26.6 No Waiver. No failure or delay by a party in exercising any right under these Terms constitutes a waiver of that right. A waiver is effective only if in writing and signed by an authorized representative of the waiving party.
26.7 Independent Contractors. The parties are independent contractors. These Terms do not create any partnership, joint venture, agency, fiduciary, or employment relationship between the parties.
26.8 Force Majeure. Neither party shall be liable for any failure or delay in the performance of its obligations under these Terms (other than payment obligations) to the extent caused by circumstances beyond its reasonable control, including acts of God, natural disasters, fire, flood, war, terrorism, civil disturbance, government action, labor disputes, internet or telecommunications failures, supplier or third-party failures, or pandemics.
26.9 No Third-Party Beneficiaries. Except as expressly set forth in these Terms, there are no third-party beneficiaries to these Terms.
26.10 U.S. Government End Users. The Services are "commercial items" as defined at 48 C.F.R. § 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as used at 48 C.F.R. § 12.212 and 48 C.F.R. § 227.7202, as applicable. U.S. government end users acquire the Services with only those rights set forth in these Terms.
26.11 Headings. Section headings are for convenience only and shall not affect the interpretation of these Terms.
26.12 Contact. Questions about these Terms may be directed to legal@implicitmedia.com.
Implicit Media LLC