PBJ LIVE PLATFORM USER AGREEMENT

______________________________________________________________

PBJ PROVIDES THE PBJ LIVE PLATFORM SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT YOU ACCEPT AND COMPLY WITH THEM. BY ACCESSING THE PBJ LIVE PLATFORM, YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF YOU REPRESENT A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE ENTITY AND BIND IT TO ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, PBJ WILL NOT AND DOES NOT LICENSE THE PBJ LIVE PLATFORM TO YOU AND YOU MUST NOT DOWNLOAD THE PBJ LIVE PLATFORM OR DOCUMENTATION.

  1. Definitions.
    1. “Aggregated Statistics” means data and information derived from or related to your use of the PBJ Live Platform that is used by PBJ in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the PBJ Live Platform.
    2.  “Content” means, other than Aggregated Statistics, information, data, text, images, graphics, photos, video, audio, and other content, in any form or medium, that is submitted, posted, derived from, acccesible via,  or otherwise transmitted by or on behalf of you through the PBJ Live Platform. 
    3. “Documentation” means PBJ’s user manuals, handbooks, and guides relating to the PBJ Live Platform provided by PBJ to you either electronically or in hard copy form.
    4. “PBJ” means PBJ Apps, LLC, a Delaware limited liability company. 
    5. “PBJ IP” means the PBJ Live Platform, the Documentation, and any and all intellectual property embodied in the foregoing or otherwise provided to you in connection with the foregoing. For the avoidance of doubt, PBJ IP includes Aggregated Statistics and any information, data, or other content derived from PBJ’s monitoring of access to or use of the PBJ Live Platform, but does not include Content.
    6. “PBJ Live Platform” means PBJ’s platform offering that is referred generally by PBJ as “PBJ Live.” For the avoidance of doubt, the PBJ Live Platform includes such platform as may be modified or updated by PBJ.
    7.  “Third-Party Products” means any third-party products or materials provided with or incorporated into the PBJ Live Platform.
  2. Access and Use of the PBJ Live Platform. 
    1. Provision of Access. Subject to and conditioned on your payment of fees and compliance with the terms and conditions of this Agreement, PBJ hereby grants you a non-exclusive, non-transferable license (except in compliance with Section 10(g)) to access and use the PBJ Live Platform to stream Content to end users during the Term, solely in accordance with the terms and conditions herein. 
    2. Documentation License. Subject to the terms and conditions contained in this Agreement, PBJ hereby grants you a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 10(g)) license to use the Documentation during the Term solely in connection with your authorized use of the PBJ Live Platform.
    3. Use Restrictions. You shall not use the PBJ Live Platform for any purposes beyond the scope of the access granted in this Agreement. You shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the PBJ Live Platform or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the PBJ Live Platform or Documentation, except as expressly authorized in this Agreement; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software or code component of the PBJ Live Platform, in whole or in part, except as expressly authorized in this Agreement; (iv) bypass or breach any security device or protection included within the PBJ Live Platform; (v) input, upload, transmit, or otherwise provide to or through the PBJ Live Platform any information or materials that are injurious, infringing, libelous, pornographic, offensive or otherwise unlawful or tortious material or data or in violation of privacy rights or contain, transmit or activate any malicious code, viruses, time bombs, Trojan horses, or similar mechanisms, scripts, agents, bots or programs; (vi) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the PBJ Live Platform; (vii) remove any proprietary notices from the PBJ Live Platform or Documentation; or (viii) use the PBJ Live Platform or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law. 
    4. Reservation of Rights. PBJ reserves all rights not expressly granted to you in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to you or any third party any intellectual property rights or other right, title, or interest in or to the PBJ IP. Without limiting the foregoing, PBJ reserves the right, in its sole discretion, to make any changes to the PBJ IP that it deems necessary or useful to maintain or enhance the quality or delivery of the PBJ IP to its clients, the competitive strength of or market for PBJ’s products and services or the PBJ IP’s cost efficiency or performance, or to comply with applicable law. 
    5. Suspension. Notwithstanding anything to the contrary in this Agreement, PBJ may temporarily suspend your access to any portion or all of the PBJ IP if: (i) PBJ reasonably determines that (A) there is a threat or attack on any of the PBJ IP; (B) your use of the PBJ IP disrupts or poses a security risk to the PBJ IP or to any other customer or vendor of PBJ; (C) you are using the PBJ IP for fraudulent or illegal activities; (D) subject to applicable law, and if you are an entity, you have ceased to continue your business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or have become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) PBJ’s provision of the PBJ Live Platform to you is prohibited by applicable law; or (ii) any vendor of PBJ has suspended or terminated PBJ’s access to or use of any third-party services or products required to enable you to access the PBJ Live Platform (any such suspension described in subclause (i) or (ii), a “Service Suspension”). PBJ shall use commercially reasonable efforts to provide written notice of any Service Suspension to you and to provide updates regarding resumption of access to the PBJ IP following any Service Suspension. PBJ shall use commercially reasonable efforts to resume providing access to the PBJ IP as soon as reasonably possible after the event giving rise to the Service Suspension is cured. PBJ will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that you may incur as a result of a Service Suspension. 
    6. Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, PBJ may monitor use of the PBJ Live Platform and collect and compile Aggregated Statistics. As between PBJ and you, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by PBJ. You acknowledge that PBJ may compile Aggregated Statistics based on Content input into the PBJ Live Platform. You agree that PBJ may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law. 
  3. Your Responsibilities.
    1. Responsibility of Content. All Content is the sole responsibility of the user from which such Content originated. PBJ has no responsibility or liability for the deletion or failure to store any Content or user data. You are responsible for backing up all Content. PBJ may preserve and disclose Content if required to do so by law or judicial or governmental mandate or as reasonably necessary to protect the rights, property or safety of PBJ, users and/or the public. In the event that you elect not to comply with a request from PBJ to remove certain Content, PBJ may disable the PBJ Live Platform until compliance is secured. PBJ reserves the right to disable the PBJ Live Platform in response to a violation or suspected violation of this Agreement.
    2. Use of Content. You bear all risks associated with the use of any Content, including any reliance on the quality, integrity, accuracy, completeness, or usefulness of such Content. PBJ may refuse or delete any Content, including Content of which PBJ becomes aware that fails to fulfill the purpose of the PBJ Live Platform, is in breach of this Agreement, is otherwise contrary to law, or is otherwise inappropriate in PBJ’s discretion. PBJ does not guarantee the accuracy, integrity or quality of any Content. Under no circumstances is PBJ liable in any way for any Content, including, but not limited to, liability for any errors, inaccuracies, or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content. PBJ has no obligation or liability to maintain, store, or license Content, protect and maintain Content owners’ intellectual property rights, or to enforce this Agreement. You hereby waive and release any claims you may have against PBJ arising or resulting from use or misuse of Content or your inability to effectively use Content, your failure to comply with this Agreement, or for any act, omission, or conduct of any PBJ Live Platform user.
    3. Propriety of Content. You will not, and you will ensure that a user resulting from access provided by you will not, transmit Content or otherwise conduct or participate in any activities on or via the PBJ Live Platform which is likely to be prohibited by law, or is violative or in breach of third party rights in any applicable jurisdiction, including without limitation laws governing privacy, publicity, libel and defamation, encryption of software, the export of technology, the transmission of obscenity or the permissible uses of intellectual property. You will not and you will ensure that a user resuting from access provided by you will not upload, download, display, perform, transmit, or otherwise distribute any Content, or otherwise engage in any activity in connection with the PBJ Live Platform, that (a) is hateful, offensive, racist, bigoted, libelous, defamatory, obscene, abusive, pornographic, lewd, erroneous, stalking, or threatening; (b) advocates or encourages conduct that could constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or foreign law or regulation; (c) constitutes infringement of the intellectual property rights of any party, including rights to the use of name and likeness, or violation of a right of privacy; (d) creates an impression that is incorrect, misleading, or deceptive, including without limitation by impersonating others or by otherwise misrepresenting identity or affiliation with a person or entity; or (e) divulges other people’s private or personally identifiable information without their express authorization and permission. You represent and warrant that you have all necessary rights and licenses to transmit Content. PBJ may, in its sole discretion, terminate the PBJ Live Platform as to any Content that it believes in its sole judgment is not in compliance with this Agreement.
    4. Third-Party Products. PBJ may from time to time make Third-Party Products available to you. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions. If you do not agree to abide by the applicable terms for any such Third-Party Products, then you should not install or use such Third-Party Products.
  4. Fees and Payment. All fees are payable in the manner set forth on the subscription page and are non-refundable, except as may be expressly set forth herein. 
  5. Intellectual Property Ownership. 
    1. PBJ IP. You acknowledge that, as between you and PBJ, PBJ owns all right, title, and interest, including all intellectual property rights, in and to the PBJ IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products. 
    2. Content. PBJ acknowledges that, as between PBJ and you, you own all right, title, and interest, including all intellectual property rights, in and to the Content. You hereby grant to PBJ a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Content and perform all acts with respect to the Content as may be necessary for PBJ to provide the PBJ Live Platform to you, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Content incorporated within the Aggregated Statistics.
  6. Warranty Disclaimer. 
    1. THE PBJ IP IS PROVIDED “AS IS” AND PBJ HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PBJ SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PBJ MAKES NO WARRANTY OF ANY KIND THAT THE PBJ IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. 
    2. PBJ STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
  7. Indemnification. 
    1. PBJ Indemnification. 
      1. PBJ shall indemnify, defend, and hold you harmless from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by you resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the PBJ Live Platform infringes or misappropriates such third party’s United States intellectual property rights, provided that you promptly notify PBJ in writing of the claim, cooperate with PBJ, and allow PBJ sole authority to control the defense and settlement of such claim. 
      2. If such a claim is made or appears possible, you agree to permit PBJ, at PBJ’s sole discretion, to (A) modify or replace the PBJ Live Platform, or component or part thereof, to make it non-infringing, or (B) obtain the right for you to continue use. If PBJ determines that neither alternative is reasonably available, PBJ may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to you. 
      3. This Section 7(a) will not apply to the extent that the alleged infringement arises from: (A) use of the PBJ Live Platform in combination with data, software, hardware, equipment, or technology not provided by PBJ or authorized by PBJ in writing; (B) modifications to the PBJ Live Platform not made by PBJ; (C) Content; or (D) Third-Party Products. 
    2. Your Indemnification. You shall indemnify, hold harmless, and, at PBJ’s option, defend PBJ from and against any Losses resulting from any Third-Party Claim that the Content, or any use of the Content in accordance with this Agreement, infringes or misappropriates such third party’s United States intellectual property rights and any Third-Party Claims based on your (i) Content or negligence or willful misconduct; (ii) use of the PBJ Live Platform in a manner not authorized by this Agreement; (iii) use of the PBJ Live Platform in combination with data, software, hardware, equipment, or technology not provided by PBJ or authorized by PBJ in writing; or (iv) modifications to the PBJ Live Platform not made by PBJ, provided that you may not settle any Third-Party Claim against PBJ unless PBJ consents to such settlement, and further provided that PBJ will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice. 
    3. Sole Remedy. THIS SECTION 7 SETS FORTH YOUR SOLE REMEDY AND PBJ’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE PBJ LIVE PLATFORM INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. 
  8. Limitations of Liability. IN NO EVENT WILL PBJ BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PBJ WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PBJ’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PBJ UNDER THIS AGREEMENT IN THE THREE-MONTH PERIOD PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM. 
  9. Term and Termination. 
    1. Term. This Agreement and the license granted hereunder shall remain in effect for the term set forth on the subscription page or until earlier terminated as set forth herein (the “Term”).
    2. Termination. In addition to any other express termination right set forth in this Agreement:
      1. PBJ may terminate this Agreement, effective on written notice to you, if you breach any of your obligations under Section 2(c) or Section 3(c);
      2. either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; or
      3. either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
    3. Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, you shall immediately discontinue use of the PBJ IP and you shall delete, destroy, or return all copies of the PBJ IP. No expiration or termination will affect your obligation to pay all fees that may have become due before such expiration or termination.
    4. Survival. This Section 9(d) and Sections 1, 2(c), 2(d), 2(f), 3, 4, 5, 6, 7, 8, and 10 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
  10. Miscellaneous. 
    1. Entire Agreement. This Agreement, together with the subscription page and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the subscription page, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement; (ii) second, the subscription page; and (iii) third, any other documents incorporated herein by reference.
    2. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and sent to the respective parties at the addresses set forth on the subscription page (or to such other address that may be designated by the party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only if the party giving the Notice has complied with the requirements of this Section.
    3. Force Majeure. PBJ will not be responsible or liable to you, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning, or your equipment, loss and destruction of property, or any other circumstances or causes beyond PBJ’s reasonable control.
    4. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by each party hereto. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
    5. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
    6. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of New York. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of New York in each case located in the city of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
    7. Assignment. You may not assign any of your rights or delegate any of your obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of PBJ. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the parties and their respective permitted successors and assigns. 
    8. Export Regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the PBJ Live Platform or any Content outside the US. 
    9. Equitable Relief. You acknowledge and agree that a breach or threatened breach by you of any of your obligations under Section 2(c) or Section 3(c) would cause PBJ irreparable harm for which monetary damages would not be an adequate remedy and you agree that, in the event of such breach or threatened breach, PBJ will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.