THESE TERMS OF SERVICE (“TERMS”) CONSTITUTE A CONTRACT BETWEEN YOU AND MY STUDIO ENGINE AND GOVERN USE OF AND ACCESS TO THE SERVICE AND SITE BY YOU, AGENTS AND END-USERS WHETHER IN CONNECTION WITH A PAID SUBSCRIPTION TO THE SERVICE OR A FREE TRIAL OF THE SERVICE.

By accepting these Terms, or by accessing or using the Service or Site, or authorizing or permitting any Agent or End-User to access or use the Service, You agree to be bound by these Terms. If You are entering into these Terms on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to these Terms for that Entity and representing to My Studio Engine that You have the authority to bind such Entity and its affiliates to these Terms, in which case the terms “Subscriber,” “You,” “Your” or related capitalized terms herein shall refer to such Entity and its affiliates. If You do not have such authority, or if You do not agree with these Terms, You must not accept these Terms and may not use the Service.

1. DEFINITIONS

When used in these Terms with the initial letters capitalized, in addition to terms defined elsewhere in these Terms, the following terms have the following meanings:

Account: means all My Studio Engine accounts or instances created by or on behalf of Subscriber or its Agents within the Service.

Agent: means an individual authorized to use the Service through Your Account as an agent and/or administrator as identified through a unique login.

Confidential Information: means all information disclosed by You to My Studio Engine or by My Studio Engine to You which is in tangible form and labeled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. For purposes of these Terms, Your Data shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving party at the time of disclosure by the disclosing party; (b) was or is obtained by the receiving party by a third party not known by the receiving party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of these Terms; or (d) was or is independently developed by the receiving party without use of the disclosing party’s Confidential Information.

DMCA: mean the Digital Millennium Copyright Act (DMCA) a United States digital rights management ( DRM ) law enacted October 28, 1998. Broadly, the aim of DMCA is to protect the rights of both copyright owners and consumers.

Documentation: means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Service provided or made available by My Studio Engine to You, Agents or End-Users through the Site or otherwise.

End-User: means any person or entity other than Subscriber or Agents with whom Subscriber or its Agents interact using the Service.

Excessive: means exceeding what is usual, proper, necessary, or normal, defined by our experience with similarly situated customers.

Fair Use Policy: means a policy set out by our hosting partners that apply certain limitations on the allocation of Server resources, aiming to allocate all our customers fair and adequate use of the shared hosting Service.

Form: means any My Studio Engine generated service order form executed or approved by You with respect to Your subscription to the Service, which form may detail, among other things, the number of Agents authorized to use the Service under Your subscription to the Service and the Service Plan applicable to Your subscription to the Service.

Other Services: means third party products, applications, services, software, products, networks, systems, directories, websites, databases and information which the Service links to, or which You may connect to or enable in conjunction with the Service, including, without limitation, certain Other Services which may be integrated directly into Your My Studio Engine Service.

Service: means the Site designed by My Studio Engine including, individually and collectively, the Software and any Documentation. Any new or modified features added to or augmenting the Service or updates or enhancements to the Service (“Updates”) are also subject to these Terms and We reserve the right to deploy Updates at any time.

Service Plan: means the service plan and the functionality and services associated therewith (as detailed on the Site) for which You subscribe with respect to each Agent.

Site: means mystudioengine.com and all other websites designed, owned or operated by My Studio Engine.

Software: means software provided by My Studio Engine (either by download or access through the internet) that allows an Agent or End User to use any functionality in connection with the Service.

Subscription Term: means the period during which You have agreed to subscribe to the Service with respect to any individual Agent.

Viral: relating to or involving an image, video, piece of information, etc., that is circulated rapidly and widely from one Internet user to another.

Your Data: means all electronic data, text, messages or other materials submitted to the Service by You, Agents and End-Users in connection with Your use of the Service.

My Studio Engine: means The Pottery Factory LLC, d/b/a My Studio Engine. In these Terms, My Studio Engine may also be referred to through the use of “We” or “Our.”

 

2. GENERAL CONDITIONS; ACCESS TO AND USE OF THE SERVICE

2.1 During the Subscription Term and subject to compliance by You, Agents and End Users with these Terms, You have the limited right to access and use the Service consistent with the Service Plan You subscribe to for Your internal business purposes.

2.2 If you create a Site on our Service, you are responsible for maintaining the security of your account and Site, and you are fully responsible for all activities that occur under the account and any other actions taken in connection with the Site. You must not describe or assign keywords to your site in a misleading or unlawful manner, including in a manner intended to trade on the name or reputation of others, and My Studio Engine may change or remove any description or keyword that it considers inappropriate or unlawful, or otherwise likely to cause My Studio Engine liability. You must immediately notify My Studio Engine s of any unauthorized uses of your site, your account or any other breaches of security. My Studio Engine will not be liable for any acts or omissions by You, including any damages of any kind incurred as a result of such acts or omissions.

2.3 You are responsible for procuring and maintaining the network connections that connect Your network to the Service, including, but not limited to, “browser” software that supports protocols used by My Studio Engine, including Secure Socket Layer (SSL) protocol or other protocols accepted by My Studio Engine, and to follow procedures for accessing services that support such protocols. We are not responsible for notifying You, Agents or End Users of any upgrades, fixes or enhancements to any such software or for any compromise of data, including Your Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by My Studio Engine. We assume no responsibility for the reliability or performance of any connections as described in this section.

2.4 You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than authorized Agents and End Users in furtherance of Your internal business purposes as

expressly permitted by these Terms; (b) use the Service to process data on behalf of any third party other than Agents or End Users; (c) modify, adapt, or hack the Service or otherwise attempt to gain unauthorized access to the Service or related systems or networks; (d) falsely imply any sponsorship or association with My Studio Engine, (e) use the Service in any unlawful manner, including but not limited to violation of any person’s privacy rights; (f) use the Service to send unsolicited or unauthorized text messages, junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages; (g) use the Service to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person’s intellectual property rights; (h) use the Service in any manner that interferes with or disrupts the integrity or performance of the Service and its components; (i) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any software making up the Service; (j) use the Service to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (k) use the Service to store or transmit any “protected health information” as that term is defined in 45 C.F.R. 160.103; (l) use the Service to knowingly post transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software (“Malicious Software”); or (m) try to use, or use the Service in violation of these Terms.

2.5 You are responsible for compliance with the provisions of these Terms by Agents and End Users and for any and all activities that occur under Your Account, as well as for all Your Data. Without limiting the foregoing, You are solely responsible for ensuring that use of the Service to store and transmit Your Data is compliant with all applicable laws and regulations. You also maintain all responsibility for determining whether the Service or the information generated thereby is accurate or sufficient for Your purposes. Subject to any limitation on the number of individual Agents available under the Service Plan for which You subscribed, access to and use of the Service is restricted to the specified number of individual Agents permitted under Your subscription to the Service. You agree and acknowledge that each Agent will be identified by a unique username and password (“Login”) and that an Agent Login may only be used by one (1) individual. You will not share an Agent Login among multiple individuals. You and Your Agents are responsible for maintaining the confidentiality of all Login information for Your Account.

2.6 When using the Service, you will ensure that neither you nor any of your Agents or End-users make Excessive use of the Site’s resources to My Studio Engine’s detriment or that of our other customers and that you act in accordance to our Fair Use Policy. Your Site is metered continuously for the resources associated with your Service. These statistics are the sole and exclusive method to determine whether your account has exceeded its allocated resources.

Bandwidth applies to your Sites traffic. While we do not meter traffic, the maximum availability at any time will depend on current traffic usage. If in any calendar month your use of bandwidth exceeds that basic allocation, the Service will be limited and an overage fee may be charged if you wish to restore it. This would not be expected during normal day-to-day operations of your Site and would be more appropriate of something that has gone Viral.

Since We are bound by these policies from our hosting partners you agree that we have the sole right to decide what constitutes a violation of the Fair Use Policy and what is the appropriate severity of any corrective action to be applied. You understand and agree that in the event of

violation of the Fair Use Policy, we may provide you with a certain period of time to correct the issue. If you take no action during this period, we may apply corrective actions at our sole discretion.

2.7 In addition to Our rights as set forth in Section 7.4, My Studio Engine reserves the right, in My Studio Engine’s reasonable discretion, to temporarily suspend Your access to and use of the Service: (a) during planned downtime for upgrades and maintenance to the Service (of which My Studio Engine will use commercially reasonable efforts to notify You in advance) (“Planned Downtime”); (b) during any unavailability caused by circumstances beyond Our reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, technical failures beyond Our reasonable control (including, without limitation, inability to access the Internet), or acts undertaken by third parties, including without limitation, distributed denial of service attacks; or (c) if We suspect or detect any Malicious Software connected to Your Account or use of the Service by You, Agents or End Users. We will use reasonable efforts to schedule Planned Downtime for off-peak hours.

 

3. DATA PRIVACY AND SECURITY; CONFIDENTIALITY

3.1 Subject to the express permissions of these Terms, You and My Studio Engine will protect each other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to these Terms, each of us may use each other’s Confidential Information solely to exercise our respective rights and perform our respective obligations under these Terms and shall disclose such Confidential Information solely to those of our respective employees, representatives and agents who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information.

3.2 My Studio Engine will maintain commercially reasonable administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Your Data. These safeguards include encryption of Your Data in transmission (using SSL or similar technologies), except for certain Other Services that do not support encryption, which You may link to through Service at Your election. Our compliance with the provisions of this Section 3.2 shall be deemed compliance with Our obligations to protect Your Data as set forth in Section 3.1.

3.3 You agree that My Studio Engine and the service providers We use to assist in providing the Service to You shall have the right to access Your Account and to use, modify, reproduce, distribute, display and disclose Your Data solely to the extent necessary to provide the Service, including, without limitation, in response to Your support requests. Any third party service

providers We utilize will only be given access to Your Account and Your Data as is reasonably necessary to provide the Service and will be subject to confidentiality obligations.

My Studio Engine may also access or disclose information about You, Your Account, Agents or End Users, including Your Data, in order to (a) comply with the law or respond to lawful requests or legal process; (b) protect My Studio Engine’s or its customers’ or partners’ rights or property, including enforcement of these Terms or other policies associated with the Service; (c) act on a good faith belief that such disclosure is necessary to protect personal safety or avoid violation of applicable law or regulation.

4. INTELLECTUAL PROPERTY RIGHTS

4.1 Each of us shall maintain all rights, title and interest in and to all our respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). The rights granted to You, Agents and End Users to use the Service under these Terms do not convey any additional rights in the Service, or in any Intellectual Property Rights associated therewith. Subject only to limited rights to access and use the Service as expressly herein, all rights, title and interest in and to the Service and all hardware, software, design, layout, text, headlines, pictures, video and other components of or used to provide the Service, including all related intellectual property rights, will remain with and belong exclusively to My Studio Engine. My Studio Engine shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Service or otherwise use any suggestions, enhancement requests, recommendations or other feedback We receive from You, Agents or End Users.

By submitting Content to My Studio Engine for inclusion on your Site, you grant My Studio Engine a world-wide, royalty-free, and non-exclusive license to reproduce, modify, adapt and publish the Content solely for the purpose of displaying, distributing and promoting your Site. If you delete Content, My Studio Engine will use reasonable efforts to remove it from the Site, but you acknowledge that caching or references to the Content may not be made immediately unavailable.

4.2 If any End Users believe that material located on or linked to by your Site or My Studio Engine violates copyright, they are encouraged to notify My Studio Engine in accordance with the Digital Millennium Copyright Act (“DMCA”) guidelines. My Studio Engine will respond to all such notices, including as required or appropriate by removing the infringing material or disabling all links to the infringing material. My Studio Engine will terminate Your access to and use of the Service if, under appropriate circumstances, you are determined to be a repeat infringer of the copyrights or other intellectual property rights of My Studio Engine or others. In the case of such termination, My Studio Engine will have no obligation to provide a refund of any amounts previously paid to My Studio Engine.

5. THIRD PARTY SERVICES

If You decide to enable, access or use Other Services, be advised that Your access and use of such Other Services is governed solely by the terms and conditions of such Other Services, and We do not endorse, are not responsible or liable for, and make no representations as to any aspect of such Other Services, including, without limitation, their content or the manner in which they handle data (including Your Data) or any interaction between You and the provider of such Other Services. You irrevocably waive any claim against My Studio Engine with respect to such Other Services. My Studio Engine is not liable for any damage or loss caused or alleged to be caused by or in connection with Your Site, access or use of any such Other Services, or Your reliance on the privacy practices, data security processes or other policies of such Other Services. You may be required to register for or log into such Other Services on their respective websites. By enabling any Other Services, You are expressly permitting My Studio Engine to disclose Your Login as well as Your Data as necessary to facilitate the use or website of such Other Service.

6. BILLING, PLAN MODIFICATIONS AND PAYMENTS

6.1 Unless otherwise indicated on a Form referencing these Terms and subject to Section 6.2, all charges associated with Your access to and use of the Service (“Subscription Charges”) are due in full upon commencement of Your Subscription Term. If You fail to pay Your Subscription Charges or charges for other services indicated on any Form referencing these Terms within five (5) business days of Our notice to You that payment is due or delinquent, or if You do not update payment information upon Our request, in addition to Our other remedies, We may suspend or terminate access to and use of the Service by You, Agents and End Users.

6.2 If You choose to upgrade Your Service Plan during Your Subscription Term (a “Subscription Upgrade”), any incremental Subscription Charges associated with such Subscription Upgrade will be prorated over the remaining period of Your then current Subscription Term, charged to Your Account and due and payable upon implementation of such Subscription Upgrade. In any future Subscription Term, Your Subscription Charges will reflect any such Subscription Upgrades.

6.3 No refunds or credits for Subscription Charges or other fees or payments will be provided to You if You elect to downgrade Your Service Plan. Downgrading Your Service Plan may cause loss of content, features, or capacity of the Service as available to You under Your Account, and My Studio Engine does not accept any liability for such loss. My Studio Engine reserves the right to contact You about special pricing if You maintain an exceptionally high number of End Users, an unusually high monthly ticket ratio per Agent, an unusually high level of open tickets or other Excessive stress on the Service.

6.4 Unless otherwise stated, Our charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are responsible for paying Taxes except those assessable against My Studio Engine based on its income. We will invoice You for such Taxes if We believe We have a legal obligation to do so and You agree to pay such Taxes if so invoiced.

6.5 If You pay by credit card, the Service provides an interface for the account owner to change credit card information (e.g. upon card renewal). The Account owner will receive a receipt upon each receipt of payment by My Studio Engine, or they may obtain a receipt from within the Service to track subscription status. My Studio Engine uses a third-party intermediary to manage credit card processing and this intermediary is not permitted to store, retain or use Your billing information except to process Your credit card information for My Studio Engine.

7. CANCELLATION AND TERMINATION

7.1 Either You or My Studio Engine may elect to terminate Your Account and subscription to the Service as of the end of your then current Subscription Term by providing notice, in accordance with these Terms, on or prior to the date thirty (30) days preceding the end of such Subscription Term. Unless Your Account and subscription to the Service is so terminated, Your subscription to the Service will renew for a Subscription Term equivalent in length to the then expiring Subscription Term. Unless otherwise provided for in any Form, the Subscription Charges applicable to Your subscription to the Service for any such subsequent Subscription Term shall be Our standard Subscription Charges for the Service Plan to which You have subscribed as of the time such subsequent Subscription Term commences.

7.2 No refunds or credits for Subscription Charges or other fees or payments will be provided to You if You elect to terminate Your subscription to the Service or cancel Your Account prior to the end of Your then effective Subscription Term. Following the termination or cancellation of Your subscription to the Service and/or Account, We reserve the right to delete all Your Data in the normal course of operation. Your Data cannot be recovered once Your Account is cancelled.

7.3 If You terminate Your subscription to the Service or cancel Your Account prior to the end of Your then effective Subscription Term or We effect such termination or cancellation pursuant to Section 2.5, 2.6(c) or 7.4, in addition to other amounts You may owe My Studio Engine, You must immediately pay any then unpaid Subscription Charges associated with the remainder of such Subscription Term. This amount will not be payable by You in the event You terminate Your subscription to the Service or cancel Your Account as a result of a material breach of these Terms by My Studio Engine, provided that You provide advance notice of such breach to My Studio Engine and afford My Studio Engine not less than thirty (30) days to reasonably cure such breach.

7.4 My Studio Engine reserves the right to modify, suspend or terminate the Service (or any part thereof), Your Account or Your and/or Agents’ or End Users’ rights to access and use the Service, and remove, disable and discard any of Your Data if We believe that You, Agents or End Users have violated these Terms. Unless legally prohibited from doing so, My Studio Engine will use commercially reasonable efforts to contact You directly via email to notify You when taking any of the foregoing actions. My Studio Engine shall not be liable to You, Agents, End Users or any other third party for any such modification, suspension or discontinuation of Your rights to access and use the Service. Any suspected fraudulent, abusive, or illegal activity by You, Agents or End Users may be referred to law enforcement authorities at Our sole discretion. You acknowledge that we can immediately suspend and/or terminate each account that violates the Fair Use Policy and will not be responsible for any data loss resulting from such termination of Services.

8. DISCLAIMER OF WARRANTIES

THE SITE AND THE SERVICE, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND MY STUDIO ENGINE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT MY STUDIO ENGINE DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES, MALWARE OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM MY STUDIO ENGINE OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.

9. LIMITATION OF LIABILITY

9.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THESE TERMS, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY SUCH PARTY OR THIRD PARTY IN CONNECTION WITH THESE TERMS OR THE SERVICE, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.

9.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, MY STUDIO ENGINE’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF THESE TERMS OR OTHERWISE IN CONNECTION WITH ANY SUBSCRIPTION TO, OR USE OR EMPLOYMENT OF THE SERVICE, SHALL IN NO EVENT EXCEED THE SUBSCRIPTION CHARGES PAID BY YOU DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 9.2 IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF MY STUDIO ENGINE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. MY STUDIO ENGINE HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU THE RIGHTS TO ACCESS AND USE THE SERVICE PROVIDED FOR IN THESE TERMS.

9.3 Some jurisdictions 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 JURISDICTIONS, MY STUDIO ENGINE’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

10. INDEMNIFICATION

10.1 My Studio Engine will indemnify and hold You harmless, from and against any claim against You by reason of Your use of the Service as permitted hereunder, brought by a third party alleging that the Service infringes or misappropriates a third party’s valid patent, copyright, trademark or trade secret (an “IP Claim”). My Studio Engine shall, at its expense, defend such IP Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys engaged by My Studio Engine for such defense, provided that (a) You promptly notify My Studio Engine of the threat or notice of such IP Claim, (b) My Studio Engine will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such IP Claim, and (c) You fully cooperate with My Studio Engine in connection therewith. If use of the Service by You, Agents or End Users has become, or in My Studio Engine’s opinion is likely to become, the subject of any such IP Claim, My Studio Engine may at its option and expense (a) procure for You the right to continue using the Service as set forth hereunder; (b) replace or modify the Service to make it non-infringing; or (c) if options (a) or (b) are not commercially and reasonably practicable as determined by My Studio Engine, terminate Your subscription to the Service and repay You, on a pro-rated basis, any Subscription Charges previously paid to My Studio Engine for the corresponding unused portion of Your Subscription Term. My Studio Engine will have no liability or obligation under this Section 10.1 with respect to any IP Claim if such claim is caused in whole or in part by (i) compliance with designs, data, instructions or specifications provided by You; (ii) modification of the Service by anyone other than My Studio Engine; or (iii) the combination, operation or use of the Service with other hardware or software where the Service would not by itself be infringing.

The provisions of this Section 10.1 state the sole, exclusive and entire liability of My Studio Engine to You and constitute Your sole remedy with respect to an IP Claim brought by reason of access to or use of the Service by You, Agents or End Users.

10.2 You will indemnify and hold My Studio Engine harmless against any claim brought by a third party against My Studio Engine arising from or related to use of the Service by You, Agents or End Users in breach of these Terms or matters which You have expressly agreed to be responsible pursuant to these Terms; provided that My Studio Engine promptly notifies You of the threat or notice of such a claim.

11. ASSIGNMENT; ENTIRE AGREEMENT; REVISIONS

11.1 You may not, directly or indirectly, by operation of law or otherwise, assign all or any part of these Terms or Your rights under these Terms or delegate performance of Your duties under these Terms without My Studio Engine’s prior consent, which consent will not be unreasonably withheld. We may, without Your consent, assign Our agreement with You to any affiliate or in connection with any merger or change of control of My Studio Engine or the sale of all or substantially all of Our assets provided that any such successor agrees to fulfill its obligations pursuant to these Terms. Subject to the foregoing restrictions, these Terms will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.

11.2 These Terms, together with any Form(s), constitute the entire agreement, and supersede any and all prior agreements between You and My Studio Engine with regard to the subject matter hereof. We may amend these Terms from time to time, in which case the new Terms will supersede prior versions. We will notify You not less than ten (10) days prior to the effective date of any such amendment and Your continued use of the Service following the effective date of any such amendment may be relied upon by My Studio Engine as Your consent to any such amendment. My Studio Engine’s failure to enforce at any time any provision of these Terms does not constitute a waiver of that provision or of any other provision of the Terms.

12. SEVERABILITY

If any provision in these Terms is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect.

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