IMAVEX Master Service Agreement TERMS AND CONDITIONS
A. Imavex is in the business of providing web-based video/media streaming delivery services and Services (the "Services").
B. User desires to license Imavex Software and to engage the Services of Imavex in connection with the terms and conditions provided herein.
NOW, THEREFORE, the parties hereto, in consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, hereby agree as set forth herein and in the Exhibits attached hereto and such other addenda, attachments and amendments executed by the parties:
Section 1. DEFINITIONS.
1. “Company” means the provider of the services and the subsidiaries and affiliates, thereof.
2. “User” or “Customer” means an entity that has the legal authority to accept the terms and conditions of this Agreement and that such acceptance shall be binding on the User.
3. “Affiliate” means, with respect to either party hereto, any entity, whether incorporated or not, that controls, is controlled by, or under common control with such party or its corporate parent, where “control” (or variants of it) shall mean the ability (whether directly or indirectly) to direct the affairs of another by means of ownership, contract or otherwise.
4. “Services” means website design, video production including the videos produced, content management functionalities that are built into the Software, the provision of electronic access to Company’s video/media streaming software over a computer network and related technical support services provided by Company.
5. “Software” means the code, in HTML or any other format of programming, all updates and enhancements, new releases thereof (and all ideas embodied therein or derived or derivable there from, and all documentation thereof, together with all related instructions, manuals, materials, forms and other documentation) that Company provides from time to time in connection with the Services, along with any updates thereto provided by Company from time to time.
6. "Content" means all videos, photos, audio, information and other materials provided by Customer, its affiliates, agents or other third parties on its behalf to Company or through the Software or in connection with the Services.
7. "Confidential Information" means (i) business or technical information of either party, including, without limitation, information relating to a party's product plans, designs, costs, prices, finances, marketing plans, business opportunities, personnel, research, development, know-how, or the pricing information available to its customers; and (ii) any information designated "confidential" or "proprietary"; (iii) Transaction Data; (iv) Software and (v) the terms and conditions of this Agreement and any communication.
Section 2: User Capacity. You represent and warrant that:
(a) You are 18 years of age or older;
(b) All information You have provided to Company is true and correct in all respects;
(c) You will provide Company with any changes to information previously supplied;
(d) You further represent and warrant that You have the legal authority to accept the terms and conditions of this Agreement on behalf of User and that such acceptance will be binding on User; and
(e) User is engaged in a lawful business that includes the sale of products and/or services, and is duly licensed to conduct such business under the laws of all jurisdictions in which User conducts business.
Section 3. Company is Independent Contractor. Company shall perform its obligations under this Agreement solely as an independent contractor and shall not serve as or be deemed an employee of User under any circumstances. Nothing contained in this Agreement shall be construed to place the parties in a relationship of partners, joint ventures, employer/employee or principal/agent. Any employees, agents or subcontractors of Company shall not be considered employees of User for any purpose whatsoever.
Section 4. PRICING, Billing and Payment. The Software and Services will be provided, by Company to User in exchange for the Fees based on the prices and percentages set forth on Exhibit A. Company will bill User on or before the first day of each month for estimated services and fees to be rendered and User agrees to pay these charges by the tenth of each month, except that any payments Company must make on User’s behalf must be collected from User no later than the earliest date on which Company must make such payment on User’s behalf. Billing adjustments will be made monthly for differences between estimated charges previously billed and charges actually incurred. Company shall have the right to require reasonable assurance of the availability of User’s funds in advance of undertaking commitments on User’s behalf. If payment is not received on a timely basis, services will be suspended and Company will have the right to assess a finance charge up to 1.5 percent per month, or the highest rate allowed by applicable law, on the unpaid balance. Company may suspend software licenses and Services without notice if payments are late. Monthly subscription payments begin at the turn-up (go live) date or 2 months after the date of the signed agreement.
Section 5. TAXES. User is solely responsible for calculation, payment and resolution of any and all taxes and duties (including sales or use taxes, transfer taxes, excise taxes, intangible taxes, property taxes, and similar taxes, customs charges or fees, and duties) resulting from User’s acceptance of the Software license and Services granted hereunder, use of the Software, excluding, however, any taxes payable by Imavex as a result of Imavex's income earned hereunder. Unless User is obligated to remit such taxes to the appropriate authorities, User shall pay any such taxes as they fall due to Imavex for remittance to the appropriate authority.
Section 6. Company not Responsible for Defaults of Others. Company will use reasonable efforts to guard against any loss to User through failure of third parties to perform in accordance with their commitments, but Company shall not be liable to User for loss, damage, destruction, or unauthorized use by others of User’s property.
Section 7. Term of Agreement; Termination. The term of this Agreement shall begin on the signed Date defined in Exhibit A and shall continue for the total months set forth thereon after the start date of the Campaign and/or Go Live Date of the Software. After the initial term of the Agreement, the Agreement shall be renewed for an additional year unless Company receives a written notice within 30 days of the anniversary date of this Agreement. Subject to Section 8, this Agreement may be terminated by Company at any time. Subject to Section 8, We request our ability to terminate the contract be limited to 3 months (90 days) with a 15-day advance written notice of termination. (A) terminates or suspends its business; (B) becomes subject to any bankruptcy or insolvency proceeding under federal or state law; or (C) becomes insolvent or subject to direct control of a trustee, receiver, or similar authority. Termination of the Agreement prior to fulfilling the first six (6) months (180 Days) of the Agreement will result in an early termination fee of $2,000 in addition to the final payment.
Section 8. Rights on Termination. All services performed, materials prepared and costs incurred by Company prior to termination of this Agreement shall be billed to User as provided in Section 4, except that final bills shall be rendered by Company within forty-five (45) days after termination, and shall be due and payable by User within fifteen (15) days of receipt of such final bill. If final payment is not received by Company within fifteen (15) days, User will be subject to late fees of $1,000.00, in addition to the final bill amount. If final payment is not received by Company within four (4) months (120 days) after termination of this Agreement notification, User will be turned over to a collections company for late fees and final payment.
Upon termination of this Agreement, User shall assume any and all liability for any agreements and/or obligations made by the Company on User’s behalf before the termination date to the extent such agreements or obligations cannot be cancelled on or before the termination date of the Agreement. Any reservation, contract or arrangement made by Company for User prior to the termination date that is not cancelable and therefore continues beyond the termination date will be carried to completion by Company and paid for by User in accordance with this Agreement, unless User directs Company to transfer such reservation, contract, or arrangement to another entity and User releases and indemnifies Company, in which event Company will attempt to make such transfer, subject to obtaining any necessary consent of third parties. Company will be entitled to its commissions, fees, and payments for services performed prior to accomplishing the transfer. During and after the term of this Agreement, User hereby agrees to indemnify and hold Company, its employees and representatives harmless from and against any and all claims, demands, regulatory proceedings, and all damages, costs (including settlement costs), and expenses (including attorneys' fees) of any kind whatsoever, arising from or relating to any activities undertaken by Company on User’s behalf or as a result of User’s products or services.
Section 9. Ownership of Ideas, Software and Services.
(a) Ideas and Services. Subject to requirements of all applicable laws, User shall continue to own all of the content the User makes available to be utilized by the Software. User owns custom website designs created by the Company on the User’s behalf. Service fees, at then current market rates, shall apply for the application of website designs to technology environments outside of Company Software. The Company shall own all right, title, and interest to the Services and any modifications, enhancements, or derivative works arising from the provision of the Services.
(b) Software. Company shall retain all title, copyright, and other proprietary rights in the Software and any derivative works thereof. User does not acquire any rights, express or implied, in the Software and derivative works other than those specified herein. Company also retains title to all media used to supply the Software to User. User shall not, and shall not authorize any other party to (i) remove any of the copyright or other Company proprietary notices from the Software; (ii) alter, modify, or copy the Software or create derivative works from the Software; (iii) reverse engineer, decompile, disassemble, or otherwise attempt to derive source code from the Software; (iv) license, sell, transfer, lease, or disclose the Software, in whole or in part.
(c) Assignment of Ownership Rights. If and to the extent that User may be entitled to claim any ownership interest in the Services or any ideas or concepts or materials developed by Company pursuant to this Agreement, User hereby irrevocably transfers, grants, conveys, assigns, and relinquishes exclusively to Company, without further consideration, all of User’s right, title, and interest in and to such ideas, concepts or materials, under patent, copyright, and/or trade secret law, as such exist from and after the moment of inception. User agrees to perform any reasonable acts at Company's expense, that Company may reasonably request to evidence more fully the transfer of ownership of such ideas, concepts, or materials to the fullest extent possible, including without limitation making written assignments in such form as may be requested by Company.
Section 10. LIMITATION OF WARRANTIES; LIMITATION OF LIABILITY
(a) Limitation of Warranties. THE USE OF THE SERVICES AND SOFTWARE IS SOLELY AT USER'S OWN RISK. THE SERVICES AND SOFTWARE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE SERVICES AND SOFTWARE, WHETHER EXPRESS OR IMPLIED INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. COMPANY MAKES NO WARRANTY THAT THE SERVICES OR SOFTWARE WILL MEET USER'S REQUIREMENTS, OR WILL BE UNINTERRUPTED, TIMELY, SECURE, CURRENT, ACCURATE, COMPLETE OR ERROR-FREE OR THAT THE RESULTS THAT MAY BE OBTAINED BY USE OF THE SERVICES AND SOFTWARE WILL BE ACCURATE OR RELIABLE. USER UNDERSTANDS AND ACKNOWLEDGES THAT USER'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY DEFECT IN OR DISSATISFACTION WITH THE SERVICES AND SOFTWARE IS TO CEASE TO USE THE SERVICES OR SOFTWARE.
(b) Limitation of Liability. USER EXPRESSLY UNDERSTANDS AND AGREES THAT COMPANY SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA LOSS, OR CORRUPTION, STOLEN OR MISUSED PASSWORDS, OR BREACHES IN SYSTEM SECURITY, OR OTHER LOSSES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (I) THE USE OF, OR INABILITY TO USE, THE SERVICES OR SOFTWARE, (II) THE COST OF PROCUREMENT OF ANY SUBSTITUTE PRODUCTS AND/OR SERVICES AND/OR SOFTWARE RESULTING FROM ANY PRODUCTS, DATA, INFORMATION OR SERVICES OBTAINED OR WHICH USER WAS UNABLE TO OBTAIN OR TRANSACTIONS EFFECTED OR FAILED TO BE EFFECTED, (III) ANY LINK PROVIDED IN CONNECTION WITH THE SERVICES OR SOFTWARE, (IV) ANY UNAUTHORIZED ACCESS TO TRANSACTION DATA, OR (V) ANY MATTER OTHERWISE RELATED TO USER'S USE OF THE Digtal Payment Site OR THE SERVICES OR SOFTWARE. USER AGREES THAT ITS SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THE SERVICES AND SOFTWARE IS TO CEASE TO USE THE SERVICES OR SOFTWARE. IMAVEX’S MAXIMUM LIABILITY HEREUNDER FOR ANY CLAIMS WHATSOVER IS EXPRESSELY LIMITED TO THE AMOUNT PAID UNDER THIS AGREEMENT BY THE USER TO IMAVEX DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE CAUSE OF THE GIVEN CLAIM, IF ANY. NO CLAIM MAY BE BROUGHT BY THE USER OR ANY OF ITS AFFILIATES UNDER THIS AGREEMENT MORE THAN ONE YEAR AFTER THE ACCRUAL OF THE CLAIM.
Section 11. Indemnification
Each of the parties agrees to indemnify, hold harmless, and defend the other party, its affiliates and their respective officers, directors, shareholders, employees, and agents against any third-party claim or action brought against such other party or any of its affiliates, and its respective officers, directors, shareholders, employees, and agents, relating to or arising out of (a) any action for intellectual property infringement relating to acts and/or materials supplied or approved by the other party, (b) any claim of fraudulent, misleading or deceptive advertising based upon advertising materials or content supplied or approved by the other party with respect to such party's products or services and (c) any breach of any representation and warranty. THESE INDEMNIFICATION PROVISIONS set forth the sole and exclusive remedy of the indemnitees, and the entire obligation and liability of the indemnitor, as to any infringement claims in connection with this agreement.
Section 12. General. All notices required or permitted under this Agreement shall be made in writing and shall be deemed to have been duly given on the date such notice is delivered, if delivered personally, sent by registered or certified U.S. mail (postage prepaid), or via facsimile or email to the parties at the address set forth in Exhibit A of this Agreement. Notwithstanding the foregoing, this Agreement shall not be modified or amended except by a writing signed by all parties hereto. This Agreement shall be governed by, construed, and interpreted in accordance with the laws of the state of Indiana, and any controversy between the parties hereto or relating to the subject matter of this Agreement shall be venued in Hamilton or Marion County, Indiana. This Agreement contains the entire agreement between the parties and supersedes all previous agreements, whether oral or written.
If any provision of this Agreement is invalid or unenforceable under any applicable statute or rule of law, this Agreement shall be enforced to the maximum extent possible. The waiver or failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any right hereunder.
Section 13. Non-Disclosure of Confidential Information. In the course of performing services pursuant to this Agreement, User may have access to information about Company's business, products, processes and services, that is not commonly known outside of Company’s business (collectively, "Confidential Information"). All Confidential Information shall at all times remain the property of Company and User will not, during the term of this Agreement or thereafter, directly or indirectly use or disclose any Confidential Information without having first obtained written permission from Company to do so. Upon termination of this Agreement, for whatever reason, or upon request by Company, User will deliver to Company all notes, documents, records and similar repositories of Confidential Information, including all copies thereof, then in User’s possession or under User’s control.
Section 14. NON-EXECLUSIVE TRADEMARK License to Company.
User hereby grants to Company a non-exclusive, non-transferable right and license to use User's trademarks, service marks, copyrights, logos, materials, video, and other content for display on the User’s website, in User’s online advertising, or in Company’s marketing materials. Company agrees that no other public use will be made of the User's trademarks, service marks, copyrights, or logos unless written authorization is received from User. For purposes of enabling Company to deliver Services hereunder to User, User hereby grants to Company the right to use, copy, distribute, display and create derivative works of all materials, video, and other content provide by User to Company.
STREAMOTOR Streaming Video Addendum TERMS AND CONDITIONS
Section 1. Customer Responsibilities.
Customer shall not, and shall assure that its employees, agents, and other personnel shall not:
1. Use the Services in any manner in violation of any applicable local, national, and international laws, regulations or rules.
2. Use the Services in connection with any Content for which you do not exclusively own or otherwise have all releases, consents, licenses, permissions and other rights necessary to display, perform, distribute, copy or otherwise exploit such Content.
3. Use the Services in violation of Company policies and procedures as may be provided from time to time or posted on Company's website at www.IMAVEX.com/policies and procedures.html.
4. Use the Services to threaten, defame, harass, offend or otherwise provoke any third party(ies).
5. Use the Services to provide any Content that: contains pornography, material that is obscene, offensive, profane, threatening, abusive or otherwise objectionable, fraudulent, defamatory, is excessive in duration, is directed to persons under thirteen (13) years of age, encourages or constitutes a criminal offense, gives rise to civil liability or otherwise violates any local, state, national or foreign law, including without limitation the U.S. export control laws and regulations; may comprise a chain letter, pyramid scheme, or other similar deceptive, misleading and/or fraudulent activity; or contains any robots, spiders, virus, Trojan horse, worm, or other harmful or component or functionality that surreptitiously captures information.
Customer acknowledges and agrees that Company reserves the right to determine in its sole discretion when a violation of one or more of the above prohibitions has occurred, to decide, in its sole discretion, whether to remove any Content it deems to be in violation of these prohibitions or suspend access to Customer or the provision of Services hereunder.
1. Acquire for all Content all necessary releases, consents, licenses, permissions and other rights necessary to enable Company to display, perform, distribute, copy or otherwise exploit such Content.
2. Use the Services in strict conformity with all Company policies and procedures as may be provided from time to time or posted on Company's website at www.IMAVEX.com/policies and procedures.html.
Solely to enable Company to provide the Services to Customer,Customer hereby grants to Company a worldwide, non-exclusive, royalty-free, fully paid-up right and license to all Content and its related intellectual property made available through the Service by Customer, its employees, agents or other personnel, to use such Content in the provision of Services hereunder, including without limitation the right to reproduce, distribute, display, broadcast, create derivative works, and perform such Content.The license rights granted in this paragraph shall expire upon cessation of Services.
Section 2. DMCA Takedown Procedures.
Customer acknowledges and agrees to the following DMCA Procedure of Company:
If a third party is a copyright owner or an agent of a copyright owner, and believes that any Content infringes upon his/her copyrights, such a party may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing Company's Copyright Agent with the following information in writing pursuant to 17 U.S.C § 512(c)(3):
• A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
• Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
• Identification of the Content or other material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit Company to locate the material;
• Information reasonably sufficient to permit the service provider to contact such authorized person, such as an address, telephone number, and, if available, an electronic mail;
• A statement that such authorized person has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
• A statement that the information in the notification is accurate, and under penalty of perjury, that the authorized person is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Company's designated Copyright Agent to receive notifications of claimed infringement is Mr. Dustin Dubois of Ice Miller, LLP, located at One American Square, Suite 2900, Indianapolis, Indiana 46282-0200 with an e-mail address of [email protected], fax: (317) 592-4782.
You acknowledge that if you fail to comply with all of the requirements of this Section, your DMCA notice may not be valid.
Upon receipt of such notification, Company shall promptly investigate the matter, and, if appropriate, remove or disable access to the allegedly infringing material. After Company removes or disables access to such material, Company will notify the party who posted the allegedly infringing material of its action. The party may then provide the Company Copyright Agent proper “counter-notification” stating his or her authority to post the allegedly infringing material, which Company will forward to the alleged copyright owner. An effective counter-notification must be sent via surface mail, courier, or fax to the Copyright Agent designated above. The counter-notification must be in writing and include the following information:
1. The party’s name, address, and telephone number;
2. The party’s physical signature;
3. Identification of the material that has been removed or disabled and the location where the material was before its removal or disablement;
4. A statement, under penalty of perjury, that the party has a good faith belief that the material was removed or disabled as a result of mistake or misidentification; and
5. A statement that the party consents to the jurisdiction of the United States District Court in his or her district, or if the party resides in a foreign country, that he or she consents to jurisdiction in any United States District Court where Company is subject to jurisdiction, and that the party will accept service if process originates from the alleged copyright owner who provided Company with notification, or from an agent of such a person.
Section 3. CONFIDENTIALITY.
a. Customer Obligations. Customer acknowledges that the Services, any software used to provide the Services, and any other information provided to Customer by Company incorporate confidential and proprietary information developed by, acquired by, or licensed to Company (“Company Confidential Information”). Customer and its Affiliates will take all reasonable precautions necessary to safeguard the confidentiality of the Company Confidential Information. Neither Customer nor its Affiliates will make any unauthorized use of the Company Confidential Information or disclose, in whole or in part, any part of the Company Confidential Information to any individual or entity, except to those of Customer’s employees or consultants who require access for Customer’s authorized use of the Company Confidential Information and agree to comply with the use and nondisclosure restrictions applicable to the Company Confidential Information under these Terms. Customer acknowledges that any unauthorized use or disclosure by it or its Affiliates of the Company Confidential Information may cause irreparable damage to Company. If Company becomes aware of Customer’s breach or threatened breach of this Section 3(a), Company may suspend any and all rights granted to Customer under these Terms and shall be entitled to injunctive relief, without the need of posting a bond, in addition to all legal or equitable relief that may be available to Company.
b. Exceptions. The confidentiality obligations set forth in Section 3(a) shall not apply, or shall cease to apply, to information which (i) was publicly available at the time of disclosure to the other party, (ii) becomes generally known to the public after disclosure to the other party, through no fault of the other party, or (iii) is required to be disclosed under force of law, governmental regulation or court order so long as (x) the owner of the relevant information is given prompt notice of any requested disclosure, and (y) the party making the disclosure cooperates with the owner’s lawful efforts to obtain confidential treatment for such information and/or minimize required disclosure.
Section 4. CUSTOMER CERTIFICATION & ACKNOWLEDGEMENTS. Customer certifies that it understands and acknowledges that:
a. Company has no obligation to review Content or related information provided by Customer to ensure that such comply with applicable laws and Customer accepts full responsibility for compliance with such laws.
b. Customer is solely responsible for the creation, initiation and distribution of its Content.
Section 5. Company OUTAGE POLICY. CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT EXCEPT AS OTHERWISE PROVIDED IN THESE TERMS, Company DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE AND THAT Company MAY OCCASIONALLY EXPERIENCE “HARD OUTAGES” DUE TO INTERNET DISRUPTIONS THAT ARE NOT WITHIN Company’S CONTROL. ANY SUCH HARD OUTAGE SHALL NOT BE CONSIDERED A BREACH OF THESE TERMS BY Company.
Section 6.Transfer Information
a. Ownership of Channel Developer and Roku Source Video Assets Transfer Information:
Our Roku channels are offered as SaaS (Software as a Service). Because of this, your channel's source code is not transferrable in the event you wish to cancel your services with Imavex. That being said, your source video assets are your property and are always available for download through Streamotor.com's web interface. Also, Imavex will facilitate transferring your channel to another Roku developers account. In this process, your channel will be replaced by a simple version with a "offline for maintenance" type message displayed to your viewers. We will then send a request into Roku asking them to transfer the account to the developer account of your choice. After the transfer has been approved by Roku, your new developer would be responsible for publishing an update to the channel to remove the "maintenance" message and restore your channel's functionality.