Fabric Terms & Conditions for Xytech Product
Fabric Terms & Conditions for Xytech Product
Introduction
These Terms and Conditions (the “Agreement”) apply to all Software as a Service (SaaS) agreements executed by Fabric Data, Inc (“Fabric”)., and all affiliated or owned entities (collectively, “Fabric”), and the customer identified in such agreements (“Customer”). This Agreement governs the use of Fabric’s software products and services.
1. Definitions
a. “Aggregated Statistics” means data and information related to Customer’s use of the Managed Services that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Managed Services.
b. “Authorized User” means Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Managed Services under the rights granted to Customer pursuant to these Terms and Conditions and (ii) for whom access to the Managed Services has been purchased hereunder.
c. “Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Managed Services.
d. “Documentation” means Provider’s manuals, handbooks, and guides relating to the Managed Services provided or made accessible by Provider to Customer either electronically or in hard copy form including materials available at URL.
e. “Effective Date” has the meaning set forth in the Agreement.
f. “Fees” means the fees as listed in the Agreement.
g. “Managed Services” has the meaning set forth in the Agreement.
h. “Provider IP” means the Managed Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP includes Aggregated Statistics and any information, data, or other content derived from Provider’s monitoring of Customer’s access to or use of the Managed Services but does not include Customer Data.
i. “Support Services” means the support services described in the Agreement.
j. “Term” has the meaning set forth in the Agreement.
k. “Third-Party Products” means any third-party products listed in the Agreement.
2. Access and Use.
a. Provision of Access and Document License. Subject to Customer’s payment of Fees and compliance with all the Terms and Conditions and the Agreement, Provider shall (i) host the Managed Services and hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 12(g)) right to access and use the Managed Services during the Term and (ii) grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 12(g)) license to use the Documentation during the Term, each solely for the Customer’s internal business purposes and accessed and used solely by total number of Authorized Users set forth in the Agreement.
b. Use Restrictions. Customer shall not use the Managed Services for any purposes beyond the scope of the access granted in these Terms and Conditions. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Managed Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Managed Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Managed Services, in whole or in part; (iv) remove any proprietary notices from the Managed Services or Documentation; or (v) use the Managed Services 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.
c. Reservation of Rights. Provider reserves all rights not expressly granted to Customer in the Agreement or these Terms and Conditions.
d. Suspension. Notwithstanding anything to the contrary in these Terms and Conditions, Provider may temporarily suspend Customer’s or any specific Authorized User’s access to any portion or all of the Managed Services if: (i) Provider reasonably determines that for any reason (A) Customer’s use of the Services poses a security, legal or operational risk to Provider or any of its other customers; (B) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (ii) any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable Customer to access the Managed Services; or (iii) in accordance with Section 5(a)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Provider shall use reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Managed Services and shall use commercially reasonable efforts to resume providing access to the Managed Services as soon as reasonably possible. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
e. Aggregated Statistics. Notwithstanding anything to the contrary in these Terms and Conditions, Provider may monitor Customer’s use of the Managed Services and collect and compile Aggregated Statistics. All right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. Customer acknowledges that Provider may compile Aggregated Statistics based on Customer Data input into the Managed Services. Customer agrees that Provider 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; provided that in the case of both subsections (i) and (ii), such Aggregated Statistics do not identify Customer or Customer’s Confidential Information.
3. Compliance Responsibilities
a. General. Customer is responsible and liable for all uses of the Managed Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of the Agreement or these Terms and Conditions. Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of the Agreement or these Terms and Conditions if taken by Customer will be deemed a breach of the Agreement or these Terms and Conditions by Customer. Customer shall cause Authorized Users to comply with all provisions of the Agreement and these Terms and Conditions.
b. Third-Party Products. Provider may make Third-Party Products available to Customer. Such Third-Party Products are subject to their own terms and conditions and applicable flow-through provisions. By executing the Agreement, Customer agrees to any third-party terms and conditions applicable to Customer.
4. Service Levels and Support
Fabric will provide commercially reasonable technical support and service availability in accordance with its standard support policy or as outlined in the executed agreement. Fabric does not guarantee uninterrupted or error-free service but will use reasonable efforts to ensure performance and uptime.
5. Fees and Payments
a. Fees. Customer shall pay Provider the Fees as set forth in the Agreement without offset or deduction. Unless agreed to otherwise by Provider in writing, Customer shall make all payments hereunder in US dollars on the schedule set forth in the Agreement. If Customer fails to make any payment when due, without limiting Provider’s other rights and remedies: (i) Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Provider for all reasonable costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for five (5) days or more, Provider may suspend Customer’s and its Authorized Users’ access to any portion or all of the Managed Services until such amounts are paid in full.
b. Taxes. All Fees and other amounts payable by Customer under the Agreement and these Terms and Conditions are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income.
c. Auditing Rights and Required Records. Customer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two (2) years after the Term of the Agreement with respect to matters necessary for accurately determining amounts due hereunder. Provider may, at its own expense, on reasonable prior notice, periodically inspect and audit Customer’s records with respect to matters covered by the Agreement. If such inspection and audit reveals that Customer has underpaid Provider, Customer shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 5(a). Customer shall pay for the costs of the audit if the audit determines that Customer’s underpayment equals or exceeds five percent (5%) for any quarter. Such inspection and auditing rights will extend throughout the Term of the Agreement and for a period of two (2) years after the Term of the Agreement.
6. Confidential Information
Customer acknowledges and agrees that Provider IP is confidential to Provider (“Provider Confidential Information”). Customer shall not disclose Provider Confidential Information to any person or entity, except to the Customer’s employees who have a need to know the Confidential Information to exercise its rights or perform its obligations under the Agreement and these Terms and Conditions. On the expiration or termination of the Agreement, Customer shall promptly return to Provider all copies of Provider Confidential Information, whether in written, electronic, or other form or media or destroy all such copies and certify in writing to Provider that such copies have been destroyed. Obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed. An other confidentiality obligations must be provided under a separate confidentiality agreement between the Parties.
7. Intellectual Property Ownership; Feedback
a. Provider IP. Customer acknowledges that Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP. 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.
b. Customer Data. Provider acknowledges that Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Provider to provide the Managed Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty- free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.
c. Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Provider suggesting or recommending changes to the Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Provider on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Provider is free to use, without any attribution or compensation to any party, the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback.
8. Limited Warranty and Warranty Disclaimer
a. Provider warrants that the Managed Services will conform in all material respects to the service levels set forth in the Agreement when accessed and used in accordance with the Documentation. Provider does not make any representations or guarantees regarding uptime or availability of the Managed Services unless specifically identified in the Agreement.
THE FOREGOING WARRANTY DOES NOT APPLY, AND PROVIDER STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
b. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8(a),THE PROVIDER IP IS PROVIDED “AS IS” AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER 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. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8(a), PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE PROVIDER IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S 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.
9. Indemnification.
a. Provider Indemnification.
1. Provider shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that (i) the Managed Services, or any use of the Managed Services in accordance with the Agreement and these Terms and Conditions, infringes or misappropriates such third party’s intellectual property rights or (ii) is based on negligence or willful misconduct of Provider, provided, in each instance, that Customer promptly notifies Provider in writing of such Third-Party Claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such Third-Party Claim.
2. If a Third Party-Claim is made or appears possible, Customer agrees to permit Provider, at Provider’s sole discretion, to (A) modify or replace the Managed Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Provider determines that neither alternative is reasonably available, Provider may terminate the Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer and shall refund any prepaid Fees.
3. This Section 9(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Managed Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (B) modifications to the Managed Services not made by Provider; or (C) Customer Data.
b. Customer Indemnification.
1. Customer shall indemnify, hold harmless, and, at Provider’s option, defend Provider from and against any Losses resulting from any Third-Party Claim based on Customer’s or any Authorized User’s negligence or willful misconduct, provided that Customer may not settle any Third-Party Claim against Provider unless such settlement completely and forever releases Provider from all liability with respect to such Third-Party Claim or unless Provider consents to such settlement, and further provided that Provider 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.
c. Sole Remedy. THIS 9 SETS FORTH CUSTOMER’S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE MANAGED SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
10. Limitations of Liability.
IN NO EVENT WILL A PARTY BE LIABLE UNDER OR IN CONNECTION WITH THE 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 THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. OTHER THAN THE PROVIDER’S INDEMNIFICATION OBLIGATIONS FOR INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION AND EACH PARTY’S CONFIDENTIALITY OBLIGATIONS HEREUNDER, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO PROVIDER UNDER THE AGREEMENT IN THE TWENTY-FOUR (24) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
11. Termination.
In addition to any other express termination right set forth in these Terms and Conditions, (i) Provider may terminate the Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than fifteen (15) days after Provider’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(c) or 6; (ii) either Party may terminate the Agreement, effective on written notice to the other Party, if the other Party materially breaches the Agreement or these Terms and Conditions, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured for thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; (iii) either Party may terminate the 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; or (iv) either Party may terminate the Agreement with thirty (30) days advance notice of the end of the Initial Term or any Renewal Term.
a. Effect of Expiration or Termination. Upon expiration or earlier termination of the Agreement, Customer shall immediately discontinue use of the Provider IP and, without limiting Customer’s obligations under 6, Customer shall delete, destroy, or return all copies of the Provider IP and certify in writing to the Provider that the Provider IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
b. Survival. This Section 11(b) and 1, 5, 6, 7, 8(b), 9, 10, and 12 survive any termination or expiration of the Agreement. No other provisions of the Agreement or these Terms and Conditions survive the expiration or earlier termination of this Agreement.
12. Miscellaneous.
a. Entire Agreement. The Agreement, together with the Terms and Conditions and any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of the Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
b. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of the Agreement.
c. Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached the Agreement or these Terms and Conditions, for any failure or delay in performing its obligations under the Agreement or these Terms and Conditions, if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, epidemic, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
d. Amendment and Modification; Waiver. No amendment to or modification to the Agreement or these Terms and Conditions is effective unless it is in writing and signed by an authorized representative of each Party.
e. Severability. If any provision of the Agreement or these Terms and Conditions is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of the Agreement or these Terms and Conditions.
f. Governing Law; Submission to Jurisdiction. The Agreement is governed by and construed in accordance with the internal laws of the State of California 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 California. Any legal suit, action, or proceeding arising out of or related to the 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 California in each case located in the city of Chatsworth, California and County of Los Angeles, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
g. Assignment. Customer may not assign any of its rights or delegate any of its obligations under the Agreement or these Terms and Conditions, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider, which consent shall not be xunreasonably withheld, conditioned, or delayed. 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. The Agreement and these Terms and Conditions are binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
h. Export Regulation. Customer 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 Managed Services or any Customer Data outside the United States.
i. United States Government Rights. Each of the Documentation and the software components that constitute the Managed Services is a “commercial product” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the United States Government or any contractor therefor, Customer only receives those rights with respect to the Managed Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other United States Government users and their contractors.
j. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under 6 or, in the case of Customer, Section 2(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party 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.
ANY QUESTIONS?
For any questions you may have regarding any of the information provided here please contact Fabric on:
Email: ask@fabricdata.com
Phone: +44-203-637-9467
This Entertainment Data Solutions Customer Agreement (“Agreement”) governs your use of the Data Solution as defined below and is an agreement between Fabric Origin, Inc. (“Company”) and you or the entity you represent (“Affiliate”). This Agreement takes effect when you access the Data Solution. You represent that you have the legal authority to bind the entity you represent or to otherwise enter into this agreement.
(A) DEFINITIONS
“API” is an application program interface. The Company provides a set of APIs to access and manage the Data Solution and enable the Affiliate to link to, download, update and match Company data, images and video.
“API Calls” are requests made to Company API endpoints in order to request data, images and/or video. Company will provide an access key (“Key”) to Affiliate which shall be subject to query rate limits of 5 requests per second. Each individual Data Solution comes with 5 requests per second.
“Authorized Sites” are the only sites and/or applications where Affiliate may offer the Data Solution.
“Authorized Video Usage Method” is the only way Affiliate is permitted to access and deliver Company video content contained in the Data Solution. The two methods are linking to Company CDN for delivery to end users and self-hosting for delivery to end users via Affiliate platform.
“Credentials” are usernames, passwords and other identification protocols provided by Company to enable and control access to the Data Solution. Company will provide a unique token to Affiliate which will allow Affiliate to access direct links to the video for on demand playback over internet protocol to Users.
“Custom Development” Affiliate may order programming and customization work to utilize the Data Solution.
“Data Solution” includes Company's IDs, promotional information data (such as title, actors and release date) and videos provided via the Company's systems, tools and network access for the solutions described in the Private Pricing Addendum.
“Documentation” Company will provide instructions to enable Affiliate to link to Company video via Company's API. These instructions may be found at https://developer.iva-api.com/. Company reserves the right to modify these instructions as needed.
“Images” include screen grab images from the promotional video content or images marked as “official” in the API and are considered part of the Data Solution. Other, third party promotional images are provided as a courtesy.
“Matching Tables” are a collection of tables of Company's IDs matched to third party providers.
“Promotional / Informational Use” is the use of an item of Company's promotional descriptive information, promotional images and promotional videos in relation to the underlying recorded program(s) for which it is provided.
“Third Party Images”, “Third Party Data”, “Third Party Services” are provided per the terms and conditions of their respective owners and only made accessible by Company.
“Users” are any consumers who visit or subscribe to Affiliate's Authorized Sites or service.
“Image and Video Usage Fee” is for the actual utilization of images and videos and is measured by the number of gigabytes (GB's) transferred by Company. Video usage is available in Video Analytics API.
(B) RIGHTS, RESTRICTIONS, AND ACKNOWLEDGMENTS
Company owns or controls all necessary rights to the Data Solution and subject to the terms of this Agreement, grants Affiliate the limited, non-sublicensable, non-exclusive worldwide right to use The Data Solution and to offer for personal display all or part of the Data Solution defined in the Private Pricing Addendum.
Affiliate will make The Data Solution available to the public via only: Authorized Sites.
Affiliate may only access The Data Solution per the instructions and using the Affiliate Credentials provided by Company.
Affiliate will only display video marked as explicit (“yes”) in data field that is part of the Company database behind an (18+) age-gate.
Affiliate will only display video advertising (pre-roll and mid-roll) before video where advertising is allowed (“yes”) in data field that is part of the Company database.
Affiliate will not include video in any sites that contain adult (X-rated) material or promote illegal activities. Company, reserves the right to remove The Data Solution from any site(s) that violates the restrictions of this agreement at any time.
Affiliate may not alter or edit the Company provided video in any material way. For the purpose of clarity, re-encoding for self-hosting and delivery is not altering the video.
Affiliate may not sublicense or resell The Data Solution in any media.
Affiliate will include attribution where the Company data or video appears in a manner sufficient to enable video providers to identify Company as the source of the data or video.
Affiliate acknowledges that The Data Solution made available to Affiliate and the public for Promotional / Informational use and are cleared for that use only.
Affiliate acknowledges that between the Parties the data, images, video, APIs, Matching Tables, Media Manager and Credentials are the property of Company and that the underlying copyrighted materials are the property of its respective owner(s) and agrees to exercise good faith efforts to protect Company's ownership and the various copyrights in the Data Solution.
Affiliate acknowledges that the use of Third Party Data, Third Party Images and Third Party Services accessible via Company APIs or Matching Tables is governed by the terms and conditions and warranties of each provider.
(C) SERVICE LEVEL
Company endeavors to provide access to the Data Solution for a minimum of 99.5% of each month. Company uses third party monitoring service and makes results available at: http://status.internetvideoarchive.com/
If monitoring service shows that service level is below 99.5%, Company will deduct, upon Affiliate's request prior to the 15th of the following month, 1% of monthly access fee for each 1% below 99.5%.
(D) PAYMENT TERMS
Company may charge and Affiliate will pay applicable US state or local sales or use taxes or value added taxes that Company is legally obligated to charge (“Taxes”), provided that Company's invoices state such Taxes separately and meet the requirements for a valid tax invoice. Affiliate may provide Company with an exemption certificate or equivalent information acceptable to the relevant taxing authority, in which case, Company will not charge and or collect the Taxes covered by such certificate. Throughout the term of this Agreement, Company will provide Affiliate with any forms, documents, or certifications as may be required for Affiliate to satisfy any information reporting or withholding tax obligations with respect to any payments under this Agreement.
Affiliate may choose to pay by Credit Card or to be invoiced. Invoiced payments require advance payment of first and last month Access Fee with execution of this Agreement
Company will charge credit card or invoice Affiliate monthly. Billing will commence on the Addendum Effective Date.
Invoiced payment is due within thirty days of invoice date. Affiliate will pay an electronic transaction fee of $25.00 per payment made via electronic banking method (“EBM”) should it choose to use EBM.
Affiliate will pay a late fee of 5% per month on the unpaid portion of any invoice(s). Company may suspend service – when any payment is over thirty days late and after Company provides written notice to Affiliate of its intent to suspend service in one week. In the event that service is suspended, Affiliate will pay all back due amounts, late fees and a reactivation fee of $250.00 prior to reactivation of service. Should it become necessary to institute collection proceedings, Affiliate will also pay all collection costs, including Attorney's fees, incurred by Company.
(E) EFFECT OF TERMINATION
At the end of the Term, as defined in Addendum, Affiliate will remove all links to and caches of all elements of the Data Solution from its servers and web site. At the end of the Term, Company will remove all Affiliate data and video from its servers
(F) WARRANTIES, REPRESENTATIONS AND INDEMNIFICATION
Company represents and warrants that, (a) When used according to the terms of this Agreement, the Data Solution does not infringe the Intellectual Property Rights of any third party, does not violate any person's right of publicity, privacy or personality and does not contain any material or information that is obscene, defamatory, libelous or slanderous; (b) Company will remove any data, images and video immediately if it becomes aware of any such claims, suits, actions, or charges; (c) Company will obtain, maintain in good standing and comply with necessary and applicable licenses and permissions needed to provide data and video and will keep Affiliate timely apprised of the status and nature of all license arrangements by Company which contain restrictions with which Affiliate must comply; (d) Company will indemnify, defend and hold harmless Affiliate, its affiliates and their employees, representatives, and agents against any judgments, awards or settlements based on or arising from a claim that the Data Solution violates the warranties above, provided that Affiliate must provide Company with immediate written notice (e-mail shall suffice) of any such complaint or claim (including any back-up documentation, claim notification and/or summary of any claim to which Affiliate becomes aware), and permits Company to assume and control the response to, settlement of and/or defense of such action, with counsel mutually chosen by Company and Affiliate. Under no circumstances will Company be liable for indirect, incidental, consequential, special or exemplary damages arising from performance or failure to perform this agreement. Company and Affiliate disclaim any and all express and implied warranties other than those set forth herein. In the case of any dispute between Affiliate and Company, Affiliate's claim(s) shall be limited to money damages, with a maximum amount of damages being limited to the total amount of payments previously made by Affiliate to Company , and that the Affiliate shall not be entitled to see equitable relief.
Affiliate represents and warrants that Affiliate data and video submitted by it for management and delivery by the Company: does not infringe on the Intellectual Property Rights of any third party, does not violate any person's right of publicity, privacy or personality and does not contain any material or information that is obscene, defamatory, libelous or slanderous. Affiliate will indemnify, defend and hold harmless Company, its service providers, promotional data providers, employees, representatives, and agents against any judgments, awards or settlements based on or arising from a claim that Affiliate data or video violates the warranties above. Affiliate shall be responsible for its own data protection and required data protections warnings and disclaimers to its customers; maintaining confidential, current and secure database(s), and obtaining cyber liability insurance coverage in connection therewith, at Affiliate's sole expense.
(G) CONFIDENTIAL INFORMATION
The Parties acknowledge that this Agreement, addendums and information obtained by each of them as to the business of the other, contains confidential and proprietary information of Company and Affiliate. Accordingly, the Parties agree for a period of three years from receipt not to disclose the terms of this Agreement, or other confidential information obtained by virtue of this Agreement to any other party without the prior written consent of the other. Each of the Parties agrees to take such steps necessary to secure and protect such confidential and proprietary information of the other and to take precautions by agreement or instruction to all employees, consultants or other persons who are to have access to such confidential information or proprietary information. The obligations set forth in this section shall survive the termination of this Agreement. Confidential Information shall not include information that (i) is public knowledge at the time of disclosure, (ii) was known by the receiving Party before disclosure by the disclosing Party, or becomes public knowledge or otherwise known to the receiving Party after such disclosure, other than by breach of the confidentiality obligations of this Agreement, (iii) is independently developed by the receiving Party by persons without access to Confidential Information of the disclosing Party, or (iv) is required to be disclosed by law or applicable legal process, provided that the receiving Party has first given the disclosing Party reasonable written notice of such requirement and fully cooperates with the disclosing Party in seeking confidential treatment for any such disclosure. For the purpose of clarity, Company will notify copyrighted content suppliers of Affiliate's use of their material via the Data Solution.
(H) GENERAL
Assignment This agreement will bind and insure to the benefit of each Party's permitted successors and assigns, provided that any such assignee expressly assume in writing the performance and all terms of this Agreement. Neither Party may assign the Agreement, in whole or in part, without the other Party's written consent; provided, however, that: (a) Either Party may assign the Agreement without consent in connection with any merger, consolidation, any sale of all or substantially all of its assets, or any other transaction in which more than fifty percent of its voting securities are transferred; provided, however, that in no event may this Agreement be assigned by merger, acquisition operation of law or otherwise to a competitor of the non-assigning Party. Any attempt to assign or transfer the Agreement other than in accordance with these provisions will be null and void.
Choice of Law/ Jurisdiction. Affiliate agrees that any dispute, controversy or claim arising under or in connection with this Agreement or its performance by either Affiliate or Company shall be decided within a ten (10) mile radius of Company's headquarters in California, by binding arbitration before a single, neutral arbitrator, in accordance with the streamlined JAMS Arbitration Rules available at JAMSADR.COM, according to the laws of the United States and the State of California.
Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or otherwise unenforceable, such determination shall not affect the validity or enforceability of any remaining provisions of this Agreement. If any provision of the Agreement is invalid under any applicable statute or rule of law, it shall be enforced to the maximum extent possible so as to achieve the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.
Entire Agreement and Modification. This Agreement states the entire agreement reached between Affiliate and Company and supersedes all prior or contemporaneous agreements, understandings, representations and warranties between Affiliate and Company, and may not be amended except in writing executed by Affiliate and Company. Company reserves the right to modify this Agreement with written notice to Affiliate. If Affiliate does not wish to Accept said modifications, it may cancel the Agreement within 30 days of receipt of notification of changes.
Publicity. Neither Party may issue press releases or make other disclosures regarding the existence of this Agreement and the business relationship of the Parties including reference to the other Party's trademarks and trade names without the other Party's prior written consent, which will not be unreasonably withheld.
Independent Contractors. The Parties acknowledge that they are dealing with each other as independent contractors. Nothing in this Agreement may be construed as creating or constituting an employer-employee relationship, a partnership, a joint venture, or any agency between the parties.
Survival. The provisions of the sections entitled: Warranties, Representations and Indemnification, and General as well as any accrued payment obligations, shall survive termination or expiration of this Agreement.
Counterparts Signatures, Facsimile Signatures. Electronic Signatures. This Agreement may be executed in one or more counterparts, by facsimile, scan and/or electronically. All counterpart, facsimile or electronic signatures shall have the same validity and enforceability as those in a fully-signed original agreement.
Captions. The captions used in this Agreement are for convenience of reference only and are not to affect the construction hereof or be taken into consideration in the interpretation hereof.
Good Faith. The parties agree to perform their respective obligations under this Agreement promptly, completely, and in good faith.
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