DOTSTUDIOPRO TERMS OF SERVICE
These Terms of Service (this “Agreement”) is entered into by and between Dotstudioz Inc. (encompassing dotstudioPRO and My Spotlight TV), (“Company”) and the person or entity named in the Registration Form under “Customer Name” (such person or entity, the “Customer”) and is effective upon the day the Registration Form is submitted to the Company by the Customer (the “Effective Date”). IF THE CUSTOMER IS AN ENTITY, THEN BY CLICKING ON “AGREE”, THE INDIVIDUAL DOING SO HEREBY REPRESENTS AND WARRANTS THAT HE/SHE IS AUTHORIZED BY CUSTOMER TO BIND CUSTOMER TO THIS AGREEMENT. PLEASE READ THIS AGREEMENT CAREFULLY AND ONLY CLICK ON “AGREE” IF YOU AGREE THAT CUSTOMER SHALL BE BOUND BY ALL OF ITS TERMS AND CONDITIONS.
1.1 “Ad Slots” means advertising inventory within the Content and/or VOD Interface(s) created by Customer through use of the Platform.
1.2 “Add-On” means any Company-provided Plug-In or feature for which payment of a separate fee is required for Customer’s access and/or use thereof.
1.3 “Add-On Fee” means each fee payable for access to and/or use of an Add-On.
1.4 “Advertisements” means audio-visual, rich media and other digital advertisements that are procured for insertion within the Ad Slots.
1.5 “API” means the Platform application programming interface.
1.6 “API Documentation” means the documentation and any sample code that Company provides to its customers that pay for access to the API.
1.7 “Content” means the digital video content stored and managed by Customer on and through the Platform for display and streaming through the VOD Service Channels.
1.8 “End Users” means individual end users of the VOD Service Channels.
1.9 “Intellectual Property Rights” means all forms of proprietary rights, titles, interests, and ownership relating to patents, copyrights, trademarks, trade dresses, trade secrets, know-how, mask works, droit moral (moral rights), and all similar rights of every type that may exist now or in the future in any jurisdiction, including all applications and registrations therefore and rights to apply for any of the foregoing.
1.10 “Net Revenue” means the gross revenue actually collected by Company for insertion of Advertisements within the Ad Slots, less deductions for: (i) any refunds to advertisers; (ii) expenses related to discounts, campaign referral fees, payment transaction fees, cost-of-money/bad-debt fees and other write-offs, taxes and currency exchange fees; and (iii) any amounts payable to providers of targeting, reporting, verification or other data, technology or services used in connection with a given Advertisement campaign.
1.11 “Paywall” means any feature of the Platform through which Customer can require End Users to pay for access to Content (whether on a subscription, single rental or other basis).
1.12 “Paywall Transaction Fee” means the transaction fee payable by Customer to Company for each End User payment made pursuant to a Paywall in accordance with the amount and structure described within the Platform user interface, provided that the transaction fee amount and/or structure may be changed by Company from time to time with at least thirty (30) days prior notice (which may be provided to the e-mail address associated with Customer’s account)
1.13 “Platform” means the software-as-a-service hosted and made available by Company through which Company’s customers can enable and manage online streaming digital video on-demand services on websites, mobile applications and/or other online services where end users of such services can rent and view movies and other digital video content provided by such customers.
1.14 “Plug-In” means software that interacts with the Platform through an API and enables certain interoperability of the Platform with a third party software, service or technology.
1.15 “Usage Limitations” means the Content storage limits, monthly bandwidth caps and other limits and restrictions applicable to Customer’s use of the Platform.
1.16 “VOD Interface” means each user interface of each VOD Service Channel hosted by the Platform.
1.17 “VOD Service Channel” means an online streaming digital video on-demand service operated by Customer that is enabled by, hosted and managed through the Platform.
2.1 Provision of Platform. Subject to all terms and conditions of this Agreement, Company shall make the Platform available for Customer’s use during the Term to enable and manage each VOD Service Channel, solely in the manner enabled by Company and in accordance with all applicable Usage Limitations and documentation. Company reserves the right to modify and update the features and functionality of the Platform from time to time. Except for as expressly set forth herein, Customer is solely responsible for purchasing and configuring all hardware, software and services that may be necessary or desirable for Customer’s use of the Platform. Customer agrees to use the Platform in compliance with all applicable laws, rules and regulations and all agreements with third parties to which Customer is bound. In particular, Customer agrees to use the geoblocking functionality of the Platform to comply with any geographical restrictions applicable to the Content, provided that Customer acknowledges that Company is not liable for any “spoofing” or other techniques that may be used to circumvent such geoblocking. Upon request by Company, Customer agrees to provide Company with a written, good-faith forecast of its estimated usage of the Platform for the six (6) month period following the date of the request. Company may suspend Customer’s access to the Platform if such forecast is not provided within seven (7) days of Company’s request.
2.2 API Access. To the extent Customer requests API access and pays any applicable Add-On Fees, Company shall provide Customer with the API Documentation for Customer’s use in connection with Plug-Ins created and used by or on behalf of Customer subject to Section 4 below and this Section 2.2. No Plug-In may be used in connection with the API until it has been provided to Company for testing purposes and Company has notified Customer of its approval of such Plug-In. The API is provided on an “AS-IS, AS-AVAILABLE” basis and is subject to suspension and Usage Limitations that may be put in place from time to time. Company may limit or block API access by any Plug-In which is using the API in a manner or at a rate that may impair accessibility, operation or availability of the API or that is not compliant with any applicable documentation and guidelines. Customer will not permit or encourage any third party to access or use the API, including by providing any Plug-Ins created by or on behalf of Customer to such third party.
2.3 Restrictions. Customer acknowledges that use of the Platform is provided for Customer’s benefit only. Customer agrees not to, not to attempt to or allow any third party to: (i) copy, distribute, rent, lease, lend, sublicense, transfer or make the Platform available to any third party or use the Platform on a service bureau basis, (ii) decompile, reverse engineer, or disassemble the Platform, (iii) create derivative works based on the Platform; or (iv) modify, remove, or obscure any copyright, trademark, patent or other notices or legends that appear on the Platform or during the use and operation thereof.
2.4 Suspension/Termination. Company may terminate Customer’s access to or use of the Platform and/or terminate this Agreement at any time if: (i) in the sole discretion of Company, such action is necessary to prevent errors or harm to any system or network, or to limit Company’s liability; or (ii) Customer attempts to access or use the Platform in an unauthorized manner, including any attempt to gain access to data or information relating to other Company customers or use in connection with Content or other materials that infringe third party Intellectual Property Rights or any applicable law, rule or regulation.
2.5 VOD Interface. The Platform allows for certain customizations of the VOD Interface, including selection from pre-set templates created by Company. Customer acknowledges that neither Company nor any other customer of Company shall be prevented from using, creating or making available a user interface that is similar to any VOD Interface created or customized by Customer, provided that the foregoing does not constitute a license under Customer’s trademarks.
2.6 End User Terms. Customer may make the VOD Service Channel available to End Users pursuant to terms and conditions of Customer’s choosing (“End User Terms”) provided that the End User Terms: (i) will not purport to make any representations, warranties, or covenants on behalf of Company; (ii) will contain at least terms and conditions substantially similar to those set forth in Exhibit A; (iii) are not in conflict with any terms and conditions of this Agreement; and (iv) must be presented to and affirmatively accepted by each End User prior to use of the VOD Service Channel in a manner sufficient to create a binding agreement between Customer and End User under applicable law.
2.7 Monetization; Advertisements.
(a) Customer must enable either a Paywall or Ad Slots for each individual item of Content, subject to any minimums which may be set by the Company from time to time (e.g., a minimum number of Ad Slots per item or a minimum Paywall charge).
(b) To the extent Customer creates Ad Slots, Customer hereby appoints Company as its exclusive agent to sell and have sold the Ad Slots and to insert Advertisements within such inventory during the Term, including the right to list such inventory in pitch materials to prospective Advertisers. In addition, Customer hereby grants Company a nonexclusive license during the Term to use Customer’s trademarks and logos and screenshots and other images relating to the Content and VOD Service Channel(s) in connection with exercising the foregoing right. Company is solely responsible for, and has final authority on, decisions related on how to sell the Ad Slots, including packaging, pricing, promotional offers, and all other related deal terms and conditions. Company makes no representations or warranties regarding the quantity, quality or pricing of Advertisements which it may be able to procure. Company shall not knowingly insert Advertisements within the Ad Slots that contain or promote illegal activities, hate speech, racial supremacy, discrimination against any person or group, pornography, obscenity or sexually explicit material. Customer acknowledges that the following practices may limit the quantity or price of Advertisements that are displayed in Ad Slots: placement of web-based Content below-the-fold, video Content that automatically starts to play upon page load or otherwise without direct user request, Content that plays without the audio turned on, or End User-generated or -provided Content.
(c) Customer may not, and may not authorize or encourage any third party to: (i) generate fraudulent impressions of or fraudulent clicks on any Advertisements, including through repeated manual clicks, the use of robots or other automated tools or any other method that may lead to artificially high numbers of impressions, downloads, or clicks; (iii) edit, modify, remove, obscure or minimize any Advertisement in any way; or (iv) redirect an end user away from any web page accessed by an end user after clicking on any part of an Advertisement (“Advertiser Page”), provide a version of the Advertiser Page different from the page an end user would access by going directly to the Advertiser Page, or intersperse any content between the Advertisement and the Advertiser Page.
2.8 Third Party Services. The Platform may include features or functionality that interoperate with online services operated by third parties, such as YouTube, Facebook and Twitter (such services, “Third Party Services”), pursuant to agreements between Company and the operators of such Third Party Services (such agreements, “Third Party Agreements”) or through application programming interfaces or other means of interoperability made generally available by such operators (“Third Party APIs”) which Company does not control. Third Party Agreements and Third Party APIs (and the policies, terms and rules applicable to Third Party APIs) may be modified, suspended or terminated at any time. Any such modification, suspension or termination shall not affect any payment obligations under this Agreement and Company shall have no liability with respect thereto. Without limiting the foregoing, Customer is responsible for ensuring the Customer’s use of the Platform in connection with Third Party Services complies with all policies, terms and rules applicable thereto.
2.9 Support. Provided that Customer timely makes all payments due under this Agreement, Company shall provide commercially reasonable technical support to Customer regarding use of the Platform and any errors within the Platform during Company’s normal business hours. Customer may submit requests for technical support through e-mail to the support e-mail address provided by Company. Company will use commercially reasonable efforts to respond to each case within forty eight (48) hours and will use commercially reasonable efforts to promptly resolve each case. Actual resolution time will depend on the nature of the case and the resolution. A resolution may consist of a fix, workaround or other solution in Company’s reasonable determination.
2.10 Control. Customer acknowledges and agrees that, with the sole exception of Advertisement content to the extent provided for in Section 2.7(b) above, Company has no obligation to monitor or edit the VOD Service Channels, Content, or any content or materials contained within or made available from any of the foregoing, and that Customer is solely responsible therefor. Customer will not use the Platform in connection with any Content promoting illegal activities, hate speech, racial supremacy, discrimination against any person or group or containing pornography, obscenity or sexually explicit material. Company reserves the right to remove any Content which Company becomes aware may violate the terms of this Agreement or infringe, misappropriate or violate any third party Intellectual Property Right, including pursuant to the copyright “safe harbors” provided for under 17 U.S.C. § 512. Customer is solely responsible for any and all residual and other additional or supplemental payments payable to any union, guild or other entity (e.g., SAG, AFTRA, DGA, WGA, IATSE, PGA) required to be made by reason of the licensing, distribution, or other exploitation of any Content as set forth herein (including with respect to Advertisements).
2.12 Children’s Services. Customer shall not use the Platform in connection with any Content or VOD Service Channel which is directed at children under the age of 13 or in connection with which Customer receives personal information from children under the age of 13 without the prior written consent of Company.
3. COMPANY DISTRIBUTION
The Platform may allow Customer to authorize the Company to distribute Content through certain distribution channels controlled by Company, such as (by way of example and not limitation) Company applications made available on Smart TVs or “over-the-top” set-top boxes (collectively, the “Company Channels”). If Customer provides such authorization for any Content (the “Authorized Content”), Customer hereby grants to Company a non-exclusive, worldwide, royalty-free right and license to reproduce, distribute, display, perform, sell, have sold and otherwise use the Authorized Content and any associated materials provided by Customer (such as, by way of example and not limitation, plot synopsis, promotional materials, cast/crew lists) for purposes of making the Authorized Content available through the Company Channels and promoting the availability thereof, including the right to grant sublicenses. The foregoing includes the right for Company to itself set Ad Slot and Paywall settings for the Authorized Content applicable to distribution through the Company Channels to the extent Customer has not already set such settings, as well as the right to create, distribute, display and perform screenshots, trailers and “teasers” from and for the Content. Customer may revoke any such authorization at any time through the Platform user interface; in such event, the foregoing license shall expire with respect to the applicable Content within fifteen (15) days of such election, provided that such license shall continue in full force and effect to the extent necessary for Company to fulfill any existing commitments relating thereto (e.g., providing an End User the full rental period paid for by such End User). Customer acknowledges that whether and the extent to which Company elects to make available any Authorized Content through the Company Channels is within the sole discretion of the Company. Customer represents and warrants that it has all necessary rights, titles, licenses and consents necessary to allow Company to exercise the foregoing license without incurring any royalty or other payment obligations to any third party (other than such royalties or other payments as shall be paid by Customer).
4.1 API. Subject to all terms and conditions of this Agreement and timely payment of any applicable Add-On Fees, Company hereby grants to Customer a limited, non-exclusive, non-transferable license to internally reproduce and use the API Documentation solely for purposes of creating and using Plug-Ins for Customer’s own use that interact with the Platform through the API and in accordance with all applicable documentation and other instructions and requirements provided by Company, solely where such Plug-Ins have been tested and approved of in writing by Company prior to use.
4.2 Add-Ons. To the extent Company makes available any Add-On to Customer, then, subject to all terms and conditions of this Agreement and timely payment of any applicable Add-On Fees, Company hereby grants to Customer during the applicable subscription period paid for by Customer (if applicable), a limited, non-exclusive, non-transferable license to: (i) access and use such Add-On solely for purposes of using the intended functionality of such Add-On in connection with the Platform and in accordance with all applicable documentation and other instructions and requirements provided by Company; and (ii) reproduce and internally distribute such documentation for the sole purpose of exercising the license.
4.3 Restrictions. Customer has no rights or licenses with respect to any Add-Ons, API Documentation or other documentation provided by the Company except as expressly provided in this Agreement. Without limiting the generality of the foregoing, Customer may not: (i) copy, modify, distribute, rent, lease, lend, sublicense, transfer or make the Add-Ons, API Documentation or any such other documentation available to any third party, including to any of its customers, (ii) decompile, reverse engineer, or disassemble the Add-Ons, API Documentation or any such other documentation, (iii) create derivative works based on the Add-Ons, API Documentation or any such other documentation; or (iv) modify, remove, or obscure any copyright, trademark, patent or other notices or legends that appear on the Add-Ons, API Documentation or any such other documentation or during the use and operation thereof.
5.1 Paywall Transaction Fee. To the extent Customer implements a Paywall, Customer hereby appoints Company as its agent to collect payments from End Users. Notwithstanding such appointment, Customer remains fully responsible for its relationship with its End Users, including for managing any disputes and refund requests. Company’s sole responsibility is to charge the Paypal account specified by the End User through the Paywall for the applicable amount specified by Customer through the Platform. Company shall have the right to deduct the Paywall Transaction Fee from all Paywall payments collected by Company from End Users. Company shall remit to Customer all Paywall payments (less the Paywall Transaction Fee) to the Paypal account specified by Customer on a quarterly basis, with each payment made within thirty (30) days of the last day of the quarter and covering amounts received during such quarter. The Paywall Transaction Fee is earned and payable to the Company for each Paywall charge made by an End User, regardless of any refunds which may be provided by Customer or the reasons for any such refunds. Customer is required to have its own Paypal account in the event that it uses the Paywall. Customer is responsible for its relationship with Paypal, Inc., including compliance with all applicable Paypal terms and conditions and payment of any applicable fees. Company shall have no responsibility with respect to any disputes between Customer and Paypal Inc.
5.2 Advertising Revenue Share. Subject to the terms and conditions of this Agreement, Company shall pay to Customer the percentage of Net Revenue specified within the Platform user interface (the “Ad Revenue Share”), provided that such percentage may be changed by Company from time to time with at least thirty (30) days prior notice (which may be provided to the e-mail address associated with Customer’s account). Customer acknowledges that all payments hereunder shall be based on the impression counts used by the applicable advertisers to pay Company, and that such counts may vary from any reporting provided by the Platform. All amounts associated with activities Company deems to be fraudulent may be refunded to Advertisers in Company’s sole discretion. Company agrees to pay the Ad Revenue Share on a quarterly basis within 30 days after the last day of the quarter in which Company received the applicable Net Revenue, provided that no payment will be issued for any amount less than $50 U.S. All unpaid earnings will rollover to the next pay period. All Ad Revenue Share Payments will be made to Customer’s designated Paypal account.
5.3 Add-On Fees. The Platform may allow Customer to purchase access to Add-Ons providing additional capacity, features or functionality, such as (by way of example only) additional storage capacity, use of custom UI templates or the ability to operate multiple VOD Service Channels. The Add-On Fee shall be as displayed to Customer at the time of Add-On purchase. Any recurring Add-On Fees for any subscription-based Add-Ons shall be charged automatically unless and until cancelled by Customer, and shall be subject to change at any time in the company’s discretion upon thirty (30) days prior notice (which may be provided to the e-mail address associated with Customer’s account). All Add-On Fees shall be charged to the credit card or Paypal account provided by Customer on the due date. All payments will be made in United States dollars. If Company is unable to charge Customer’s provided payment instrument for any reason, Company may, in its discretion, (i) disable the applicable Add-On and/or (ii) require payment of a late fee of 1.5% per month, or the maximum charge permitted by law, whichever is less.
5.4 Taxes. Customer is responsible for paying any and all withholding, sales, value added or other taxes, duties or charges applicable to this Agreement, other than taxes based on Company’s income.
6.1 Company. As between the parties, Company owns all right, title and interest (including all Intellectual Property Rights) in and to the Platform, API, API Documentation, any Add-Ons and any software, technology, materials and information owned by Company prior to the Effective Date or created, authored, developed, conceived or reduced to practice by Company after the Effective Date. Nothing herein shall be construed to transfer any rights, title or ownership of the Platform, API, API Documentation, Add-Ons or any Company software, technology, materials, information or Intellectual Property Rights to Customer. Customer is not required to provide any ideas, feedback or suggestions regarding any of Company’s products or services (“Feedback”) to Company. To the extent Customer does provide any Feedback to Company, Customer agrees to assign and hereby does assign all right, title and interest in and to such Feedback to Company and acknowledges that Company may freely use, reproduce, modify, distribute, make, have made, sell, offer for sale, import and otherwise exploit in any manner such Feedback without payment of any royalties or other consideration to Customer.
6.2 Customer. As between the parties, Customer owns all right, title and interest (including all Intellectual Property Rights) in and to the Content and any software, technology, materials and information owned by Customer prior to the Effective Date or created, authored, developed, conceived or reduced to practice by Customer after the Effective Date. Nothing herein shall be construed to transfer any rights, title or ownership of the Content or any Customer software, technology, materials, information or Intellectual Property Rights to Company.
7. TERM; TERMINATION
7.1 Term. This Agreement shall be effective as of the Effective Date, and shall continue in full force and effect until the twelve (12) month anniversary thereof (the “Initial Term”). At the end of the Initial Term, this Agreement shall automatically renew for successive periods of twelve (12) months each unless either party gives the other party written notice of non-renewal at least sixty (60) days prior to the renewal date (such renewal periods and the Initial Term, collectively the “Term”).
(a) Either party may terminate this Agreement effective immediately if the other party is in material breach of any obligation, representation or warranty hereunder and fails to cure such material breach (if capable of cure) within thirty (30) days (or ten (10) days in the event of breach of payment obligations) after receiving written notice of the breach from the non-breaching party.
(b) The Company may terminate this Agreement, for any reason or for no reason: (i) upon written notice within ten (10) days of the Effective Date; or (ii) upon fifteen (15) days prior written notice at any time following the ten (10) day anniversary of the Effective Date.
(c) Either party may terminate this Agreement immediately upon written notice at any time if: (i) the other party files a petition for bankruptcy or is adjudicated as bankrupt; (ii) a petition in bankruptcy is filed against the other party and such petition is not removed or resolved within sixty (60) calendar days; (iii) the other party makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to bankruptcy law; (iv) the other party discontinues its business; (v) a receiver is appointed over all or substantially all of the other party’s assets or business; or (vi) the other party is dissolved or liquidated.
7.3 Effect of Termination. All rights and obligations of the parties hereunder shall terminate upon expiration or termination of this Agreement, provided that Sections 1, 2.3, 2.4, 2.5, 2.7(c), 2.7(d), 2.8, 2.10, 2.11, 2.12, 4.3, 5 (with respect to accrued but unpaid obligations), 6, 7.3, 8, 9, 10, 11 and 12 shall survive expiration or termination of this Agreement. Without limiting the foregoing, Customer shall destroy all copies of the Add-Ons, API Documentation and any other software, technology or materials provided by Company in its possession or control upon any expiration of termination of this Agreement.
8. REPRESENTATIONS AND WARRANTIES; INDEMNITY
8.1 Mutual. Each party represents, warrants and covenants to the other party that: (i) it has the full power and authority to enter into this Agreement; (ii) the execution of this Agreement, the rights and licenses granted by it hereunder, and performance of its obligations under this Agreement does not and will not violate any other agreement to which it is a party; and (iii) this Agreement constitutes a legal, valid and binding obligation when executed and delivered.
8.3 Customer Indemnity. Customer agrees to, at its own expense, defend and/or settle any claim, action or suit brought by a third party against Company or its affiliates, or their directors, officers or employees (“Company Indemnitees”) arising out of or relating to any alleged breach by Customer of any covenant, representation or warranty of this Agreement (a “Claim”), provided that Company: (i) promptly notifies Customer in writing of the Claim, except that any failure to provide this notice promptly only relieves Customer of its responsibility pursuant to this Section 8.3 to the extent its defense is materially prejudiced by the delay; (ii) grants Customer sole control of the defense and/or settlement of the Claim, provided that Customer may not admit fault by Company or agree to any settlement that purports to bind Company without Company’s prior written consent; and (iii) provides Customer, at Customer’s expense, with all assistance, information and authority reasonably required for the defense and/or settlement of the Claim. Customer will pay those amounts finally awarded by a court of competent jurisdiction against the Company Indemnitees or payable pursuant to a settlement agreement agreed to by Customer with respect to the Claim.
8.4 Company Indemnity. Company agrees to, at its own expense, defend and/or settle any claim, action or suit brought by a third party against Customer or its directors, officers and employees (“Customer Indemnitees”), alleging that the Company technology underlying the Platform or any Add-Ons infringes such third party’s Intellectual Property Rights (an “IP Claim”), provided that Customer provides Company with: (i) prompt written notice of the IP Claim, except that any failure to provide this notice promptly only relieves Company of its responsibility pursuant to this Section 8.4 to the extent its defense is materially prejudiced by the delay; (ii) sole control over the defense and settlement of the IP Claim; and (iii) all assistance, information and authority reasonably required for the defense and/or settlement of the IP Claim. Company will pay those amounts finally awarded by a court of competent jurisdiction against the Customer Indemnitees or payable pursuant to a settlement agreement agreed to by Company with respect to the IP Claim. If Company, in its sole discretion, believes an IP Claim or an adverse judgment in connection with an IP Claim is likely, then Company may, at its option, (a) obtain a license from such third party claimant that allows Customer to continue the use of the Platform or Add-On, (b) modify the Platform or Add-On so as to be non-infringing, or (c) if neither (a) nor (b) is available to Company on commercially reasonable terms, terminate this Agreement upon written notice to Customer. Company will have no obligation or liability relating to any IP Claim that: (x) is based on modification or customization of the Platform or Add-On at the direction of Customer; (y) is based on the combination or use of the Platform or Add-On (or any component of either) with any software, hardware, system, method, device or materials not provided by Company; or (z) results from Customer’s use of the Platform or Add-On in a manner that is inconsistent with its intended use or is in breach of this Agreement. This Section 8.4 sets forth the entire liability of Company and the sole and exclusive remedy of Customer in the event of any claim that the Platform or Add-On infringes any third party Intellectual Property Right.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, AND EACH PARTY EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. COMPANY AND ITS SUPPLIERS, LICENSORS, PARTNERS AND SERVICE PROVIDERS DO NOT WARRANT THAT THE FUNCTIONALITY PROVIDED BY THE PLATFORM, API OR ADD-ONS WILL BE CORRECT, UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED. COMPANY DOES NOT WARRANT THE RESULTS OF USE OF THE PLATFORM, API OR ADD-ONS.
Customer shall keep confidential all information and materials provided or made available by Company that is marked as confidential or proprietary or that Customer should reasonably understand to be confidential or proprietary given its content and/or the circumstances surrounding its disclosure (“Confidential Information”). The features and functionality of the Platform, API and Add-Ons, and any information regarding planned modifications or updates to any of the foregoing or relating to other Company products and services constitutes Confidential Information. Customer shall keep and instruct its employees and agents to keep Confidential Information confidential by using at least the same care and discretion as used with Customer’s own confidential information, but in no case less than a prudent and reasonable standard of care. Customer shall not use Confidential Information other than for purposes of performing its obligations hereunder or as authorized by Company in writing. Information or materials shall not constitute Confidential Information if it is: (i) in the public domain through no fault of Customer, (ii) known to the Customer free of confidentiality requirements prior to the time of disclosure by Company, (iii) lawfully and rightfully disclosed to the Customer by a third party on a non-confidential basis or (iv) developed by the Customer without reference to Confidential Information. In addition, Customer may disclose Confidential Information to the extent required by law or legal process, provided that Customer promptly provides notice to Company of such request or requirement so that Company may seek appropriate protective orders. If Customer, its employees or agents breaches or threatens to breach the obligations of this Section 10, Company may seek injunctive relief from any court of competent jurisdiction, in addition to its other remedies, as the inadequacy of monetary damages and irreparable harm are acknowledged.
11. LIMITATION OF LIABILITY
COMPANY AND ITS AFFILIATES, AND EACH OF THEIR OFFICERS, DIRECTORS AND EMPLOYEES, SHALL NOT BE LIABLE IN CONNECTION WITH THIS AGREEMENT FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST BUSINESS, REVENUE, OR PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT THE COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. IN NO EVENT WILL THE LIABILITY OF COMPANY OR ITS AFFILIATES, OR ANY OF THEIR OFFICERS, DIRECTORS OR EMPLOYEES, IN CONNECTION WITH THIS AGREEMENT EXCEED THE SUM OF (1) THE TOTAL ADD-ON FEES PAYABLE TO COMPANY UNDER THIS AGREEMENT AND (2) THE TOTAL AMOUNTS PAYABLE BY COMPANY TO CUSTOMER UNDER SECTION 5, IN EACH CASE DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. THE PARTIES AGREE THAT THE LIMITATIONS AND DISCLAIMERS OF LIABILITY SET FORTH IN THIS SECTION 11 WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE AND REGARDLESS OF THE THEORY OF LIABILITY.
12.1 Relationship of the Parties. The parties are independent contractors with respect to each other. This Agreement does not constitute and shall not be construed as constituting a partnership or joint venture among the parties hereto, or an employee-employer relationship.
12.2 Assignment. Customer may not assign any of its rights or obligations under this Agreement without the prior written consent of the Company, such consent not to be unreasonably withheld. Any merger (by operation of law or otherwise), consolidation, reorganization or change in control of Customer, or any sale of all or substantially all of Customer’s assets related to this Agreement or similar transaction, shall be deemed an attempted assignment of this Agreement for which such consent is required. Subject to the foregoing, this Agreement inures to the benefit of and shall be binding on the parties’ permitted assignees, transferees and successors.
12.3 Force Majeure. Except for payment obligations, neither party will be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, internet or telecommunications failures, shortages of or inability to obtain labor, energy, or supplies, war, terrorism, riot, acts of God or governmental action, acts by hackers or other malicious third parties and problems with the Internet generally, and such performance shall be excused to the extent that it is prevented or delayed by reason of any of the foregoing.
12.4 Notices. All notices under the terms of this Agreement shall be given in writing and sent by internationally recognized overnight carrier with delivery confirmation or shall be delivered by hand to: (i) the Company at [#304-1949 Comox St., Vancouver, BC V6G 1R7] and (ii) Customer at the address provided by Customer in the Registration Form. Notices shall be sent to the attention of “Legal Department” of the party being noticed. All notices shall be presumed to have been received when they are hand delivered, or on the business day following the day of delivery by overnight carrier.
12.5 Amendments. An amendment of this Agreement shall be binding upon the parties so long as it is in writing and executed by both parties or is electronically presented by Company through the Platform user interface and is accepted (such as through a “click-to-agree” mechanism) by Customer. No regular practice or method of dealing between the parties shall modify, interpret, supplement or alter in any manner the express terms of this Agreement.
12.6 Construction. This Agreement shall be fairly interpreted and construed in accordance with its terms and without strict interpretation or construction in favor of or against either party. Each party has had the opportunity to consult with counsel in the negotiation of this Agreement. Section headings are for reference purposes only, and should not be used in the interpretation hereof. Instances of the words “includes” and “including” shall be deemed to be followed by the phase “without limitation".
12.7 Severability; Waiver; Counterparts. If any provision, or portion thereof, of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination will not impair or affect the validity, legality, or enforceability of the remaining provisions of this Agreement, and each provision, or portion thereof, is hereby declared to be separate, severable, and distinct. A waiver of any provision of this Agreement will only be valid if provided in writing and will only be applicable to the specific incident and occurrence so waived. The failure by either party to insist upon the strict performance of this Agreement, or to exercise any term hereof, will not act as a waiver of any right, promise or term, which will continue in full force and effect. This Agreement may be signed in counterparts. Each of them is an original, and all of them constitute one agreement.
12.8 Governing Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, without reference to conflicts of laws principles. The parties agree that the state and federal courts in the Central District of California will have exclusive jurisdiction and venue under this Agreement, and the parties hereby agree to submit to such jurisdiction exclusively.
12.9 Entire Agreement. This Agreement constitutes the complete, final and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior or contemporaneous oral or written representations, understandings, agreements or communications between them concerning the subject matter hereof. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein.
EXHIBIT A - Minimum End User Terms
You agree not to attempt to access or use the VOD Service Channel in any manner not intentionally enabled by [Customer], and agree not to access or use the VOD Service Channel using automated means or in any manner that may overburden, damage or impair it. You further agree not to attempt to copy, modify, reverse engineer, disassemble or decompile the VOD Service Channel or otherwise attempt to discover the source code underlying the VOD Service Channel. [Customer] and its suppliers, licensors, partners and service providers retain all of their copyrights and other rights in and to the VOD Service Channel. Your access to and use of the VOD Service Channel may be suspended or terminated at any time if [Customer] reasonably believes you have breached any term or condition hereof. YOU ACKNOWLEDGE AND AGREE THAT [CUSTOMER]’S SUPPLIERS, LICENSORS, PARTNERS AND SERVICE PROVIDERS HAVE NO WARRANTY OBLIGATIONS OR OTHER LIABILITIES TO YOU. [CUSTOMER], ON BEHALF OF ITSELF AND ITS SUPPLIERS, LICENSORS, PARTNERS AND SERVICE PROVIDERS, HEREBY DISCLAIMS ALL LIABILITY FOR ANY LIABILITIES, LOSSES, DAMAGES, COSTS OR EXPENSES (WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) THAT YOU MAY SUFFER OR INCUR IN CONNECTION WITH ANY ACTS OR OMISSIONS BY [CUSTOMER] OR SUCH THIRD PARTIES OR IN CONNECTION WITH YOUR USE OF THE VOD SERVICE CHANNEL, OTHER THAN ANY LIABILITY WHICH MAY NOT BE DISCLAIMED UNDER APPLICABLE LAW. [Customer]’s supplier, licensors, partners and service providers with respect to the VOD Service Channel are intended third party beneficiaries of these terms and conditions.