Universal Terms of Service Agreement

eZWay TV UNIVERSAL TERMS OF SERVICE

  1. Overview. This Agreement between you and eZWay Broadcasting, Inc. states the terms that govern the distribution of your Applications and/or Content via the Platform. Through your eZWay.tv account, you may make certain elections regarding how each of your Applications and/or Content is distributed via eZWay Network, and those elections will determine the scope of the licenses granted to eZWay Broadcasting, Inc. via this Agreement as well as which of the Exhibits to this Agreement apply to you.
  1. Accepting this Agreement. By accepting this Agreement, you are subject to and agree to comply with this Agreement. If you are accepting this Agreement on behalf of another entity, you represent and warrant that you have the full authority to legally bind such entity to this Agreement. You may not distribute Applications or Content via the Platform if you do not agree to this Agreement. 
  1. Licensor Policies. By accepting this Agreement, you are also subject to and agree to comply with any other terms, rules and policies applicable to the Licensee Program that Licensor makes available to you from time to time (collectively the “Licensee Policies”).
  1. Term of AgreementLicensor will help guide Licensee to develop their content and Platform as needed. This includes start-up costs of branding Licensee and/or consulting in brand and content development.  This Agreement is binding and in effect as of the date of commencing of services and will remain in effect for 365 days, at which time, this agreement shall renew on an annual basis at the then current rate, unless otherwise negotiated or cancelled in a separate written agreement.
  1. Definitions.

See Exhibit A

  1. License Grants; Reservation of Rights.

6.1. License to Licensor. You grant to Licensor and its Affiliates a non-exclusive and royalty-free license during the Term to:

  1. a) Distribute, use, reproduce, and display your Application via the Platform;
  2. b) Enable users to access, view and display your Content via the Platform;
  3. c) Distribute, use, reproduce and display Your Marks and Product Information in connection with the distribution of your Application and Content including: (i) in Stores; (ii) on websites and mobile apps; (iii) in search, discovery and recommendation features that include your Application or Content; and (iv) in satisfaction of any obligations under this Agreement;
  4. d) Distribute, use, reproduce and display in any and all formats, your Marketing Materials, Product Information and Your Marks (subject to any reasonable and customary branding guidelines you furnish to Licensor in writing) to market and promote the availability of your Application and Content, including on and off Platform, on Device packaging and related inserts, and in satisfaction of any obligations under this Agreement;
  5. e) To distribute, use, reproduce and display in any and all formats Your Marks and Product Information as they appear “in use” and authorize our Platform Licensees and retailers to do the same; and
  6. f) Engage in activities reasonably necessary to fully exploit the rights set forth in this Agreement, including the reproduction, caching, encoding, encryption, hosting, storing and optimization of the Applications, Product Information, and Content.

6.2. License to You.

  1. a) Licensor grants to you a limited, fully-revocable, non-exclusive, non-sub-licensable, non-transferable, royalty-free license during the Term to use, reproduce and display the Licensor Marks in the Territory on your marketing and advertising materials solely for the purpose of promoting the availability of your Applications and Content that are made available via the Platform and only in accordance with the

7.  Licensor Trademark Guidelines.

  1. b) If Licensor determines that your use of the Licensor Marks (i) is inconsistent with the Licensor Trademark Guidelines, (ii) harms, tarnishes, blurs, or dilutes the quality associated with the Licensor Marks, or their associated goodwill, or (iii) may otherwise adversely affect Licensor, then Licensor may terminate the foregoing license and you must immediately discontinue use of the Licensor Marks.
  2. Ownership/Reservation of RightsAs between the parties, (a) Licensor owns, and will continue at all times to own, all right, title and interest in and to the Platform, the Licensor Marks, and the Platform Data, and (b) you own and will continue at all times to own, all right, title and interest in and to your Applications (other than any Licensee Tools contained therein), Licensee Services, Content, Product Information and Your Marks. Each party reserves all rights not expressly granted to the other party in this Agreement. Neither party grants the other party any other licenses or rights, expressly or by implication, estoppel, exhaustion or otherwise.

 

  1. Licensee Program.

8.1. You are solely responsible for: (a) maintaining the confidentiality of your Licensee Program credentials, and (b) all Applications and Content developed or published in association with your privileges in the Licensee Program. You agree that all information provided by you in connection with the Licensee Program will at all times be true, complete and accurate, including any billing account details, payment methods, Licensee Email Addresses, contact information for End User Support, Technical Contact(s) and Administrative Contact(s), and any other required information.  Failure to maintain complete and accurate contact and payment information in the Licensee Program may result in delayed payments by Licensor under this Agreement.  Licensor shall not be responsible for any losses associated with such delays.

8.2. In your capacity as a Root Account Holder hereunder, you may assign Roles to one or more other Licensee Program account holders (including third party contractors) in connection with your Applications and/or Content, but any such Applications and/or Content must be owned by you, submitted and published under your own Licensee Program account, and distributed as Applications and/or Content in compliance with this Agreement.  If you wish to assign a Role under your Licensee Program account (e.g., if you engage a third party contractor to build a Licensor channel for you and you wish for them to manage Application submission and certification on your behalf), the individual or entity to whom you wish to assign such Role must have and maintain their own Licensee Program account. Submitting an Application under a Licensee Program account where the Root Account Holder does not own or control all necessary rights and licenses to such Application (including those set forth in the “Representations and Warranties; Rights Clearances” Section of this Agreement) may result in the forfeiture of such Application and/or its reassignment to whatever entity does own or control such rights and licenses, and you hereby release Licensor from any claims, demands or other actions arising out of such forfeiture and/or reassignment. You are responsible to Licensor for all activities undertaken under your Licensee account, including all activities undertaken by anyone to whom you’ve assigned a Role, and for ensuring that all such activities comply with this Agreement. All such activities shall be deemed to have been undertaken by you, and you shall be responsible to Licensor for all such actions.

9.  Licensor Search, Discovery and Recommendation Features; Promotion.

9.1 Upon Licensor’s request, you will provide Product Information reasonably required for Licensor to include your Application and/or Content in any search, discovery and recommendation features available via the Platform (e.g., metadata, content IDs and title information), including any metadata regarding custom voice commands and/or other interactions you wish to support through your Application.

9.2  Upon Licensor’s request, you will provide Licensor with one or more pre-approved promotional evergreen display banners, in accordance with Licensor’s then-current delivery specifications, that Licensor may use to promote your Application in Platform end user interfaces.

 

10.  Support and Maintenance Requirements.

10.1. Licensor undertakes no obligation to test your Application or Content for functionality, reliability, compatibility with Devices, or for any other purpose.

10.2. You will be solely responsible (and Licensor and its Affiliates have no responsibility to you or any third party) for your Application and Content, including (a) the development, support, maintenance and security of your Application and Content, and (b) all obligations, expenses, royalties, losses and liabilities resulting from the distribution of Your Properties.

10.3. You will be solely responsible (and Licensor has no responsibility to you or any third party) for customer support for your Application. Licensor and its Affiliates may direct customer support inquires to you, including via your Licensee Email Address. If your Application becomes unusable by end users (for instance, if your server goes down) you must promptly publish a message on the end user interface of your Application informing end users that your Application is unavailable. For your Paid Applications (as defined in Exhibit A of this Agreement), the message must also provide instructions enabling end users to contact your customer support. You must respond to customer support inquiries promptly, and no later than the next business day.

10.4. You will provide legally adequate closed captions for all materials that are required by Law to be captioned, including with respect to any Off-Channel Content. If any materials delivered to Licensor in connection with this Agreement are not closed captioned, you will provide to Licensor, via email to info@ezway.tv, a written certification that closed captioning is not required for such materials, which certification shall include a clear and concise explanation of why closed captioning is not required. You agree that the provisions of this Section will be the mechanism by which you inform Licensor of materials that are required by Law to carry closed captions.

 11.  Commercial Terms.If you are publishing an Application under this Agreement, the commercial terms applicable to such publication are set forth in Exhibit A of this Agreement. If your Application is a Show or Channel, or if you’ve otherwise designated your Content (e.g., through your Licensee Program account) as being available for Off-Channel Distribution (e.g., through The Licensor Channel), then you are also subject to the terms set forth in Exhibit B of this Agreement.

 12.  Data Collection and Use.

12.1. You may collect, use or disclose Platform Data only (a) to operate your Application, (b) deliver your Content to end users on the Platform, and/or (c) to serve and measure advertisements on the Platform, all in accordance with this Agreement (including Section 15 below). Licensor may provide and/or authorize Platform Licensees to use, collect and disclose Platform Data with respect to such Platform Licensees’ stores, platforms, services and devices to the same extent as Licensor may use, collect and disclose any such data.

12.2. With respect to any Application handling data that identifies an end user (such as phone number or email) or a Device (such as serial number), you must provide, and require end users to affirmatively acknowledge, a privacy policy for such Application. Additionally, if your Application collects and transmits data that identifies an end user and such identification is unrelated to the functionality of the Application then, prior to collection and transmission, the Application must prominently highlight how the end user data will be used and have the end user provide affirmative consent for such use. These data collection requirements apply to all functions of the Platform.

13Content and Application Metadata Requirements.

13.1. You will not provide or use materials in connection with this Agreement, including within Your Properties, that Licensor determines: (a) incite violence, hate speech, or racism,  nor place individuals or groups in imminent harm, or are otherwise unlawful or encouraging of illegal activity; (b) infringe or violate third party rights, including any person’s privacy rights or right of publicity; (c) facilitate gambling; (d) contain false, irrelevant or misleading information; or (e) are inconsistent with Licensor’s other applicable terms and conditions, and Licensor reserves the right to deny and/or suspend the distribution of any Application or Content that violates the foregoing.

14.  AGE RESTRICTIONS. With respect to Product Information that will or may appear outside of your Application (e.g., in search results, in the Platform user interface, or on Licensor’s websites), you will only use Product Information that is appropriate for all audiences.

 

15.  Representations and Warranties; Rights Clearances.

15.1. You represent, warrant and covenant that: (a) you have the ability, capacity and authority to enter into this Agreement; (b) you have obtained any and all necessary rights, licenses and approvals to perform your covenants and agreements set forth in this Agreement; (c) in connection with your obligations under this Agreement, you will not act in any manner that conflicts or interferes with any existing commitment or obligation you may have; and (d) no agreement previously entered into by you will interfere with your performance of your obligations under this Agreement.

15.2. You represent, warrant and covenant that (a) you have (and will continue to have at all times during the Term) all intellectual property rights, including all necessary rights and licenses under patent, trademark, trade secret and copyright, in and to all materials provided or used by you in connection with this Agreement, including Your Properties, (b) such materials will be free and clear of all liens, claims and encumbrances, (c) you have obtained all music rights and music clearances which are required with respect to any music contained in any of the foregoing materials (including music synchronization, mechanical and music performance rights through to the viewer, and dramatic and non-dramatic music rights), (d) no supplemental or additional use payments by Licensor will be required with respect to the exploitation of any of the foregoing materials by Licensor under this Agreement, and (e) you will provide appropriate notice and obtain any required consents to allow Licensor and others to collect, use, and disclose the information Licensor will collect from users of your Application in connection with any serving of Advertising by Licensor therein (as set forth in Exhibit A below), including IP address, Device identifier, and any other data that is passed to Licensor as part of the ad request, Licensor-provided pixels or a “Real Time Bidding” bid request.

15.3. Without limiting the foregoing, you are responsible for and will pay all required royalties, public performance license fees, mechanical rights royalty or license fees, music synchronization and master license fees, guild fees, residuals and similar amounts arising from any exercise by Licensor of any rights granted to it under this Agreement or from any other activity contemplated under this Agreement.

 

16.  Compliance with Law

16.1. You will comply with all Laws in connection with the performance of your obligations and activities under this Agreement and you will not use the Platform for any illegal activities.

16.2. You and your employees, consultants, officers, directors, members, or representatives, (each and any of said individuals described above shall be referred to collectively as “Your Representatives“), shall act in accordance with this Agreement, in compliance with the U.S. Foreign Corrupt Practices Act (US FCPA), the UK Bribery Act, Brazil’s Clean Company Act, and any other applicable law on anti-corruption and bribery matters. Your Representatives, may not participate directly or indirectly in the payment, offer, giving, promise or authorization to pay any portion of the consideration received in connection with the subject matter of this Agreement or any other resource or thing of value in connection with the activities under their control under this Agreement to any party, including a Government Official, as defined hereafter, to obtain or maintain a business or ensure any inappropriate competitive advantage or allow such actions by any third party in connection with  this Agreement. For purposes of this clause, the term “Government Official” shall have the following meaning: (i) the official or employee of any government or any department, agency, or entity, including entities owned or commercially-controlled by the government; (ii) an officer or employee of an international organization; (iii) any person acting with official authority for or on behalf of any government, department, agency or international public organization, or entity; (iv) any political party or official belonging to said parties; (v) any candidate for an official position; or, (vi) any other person, individual, or entity under the direction or acting for the benefit of any person or entity described in the above sections.

16.3. Notwithstanding anything to the contrary in the Agreement, you agree to comply fully with all applicable economic sanctions, export control, and anti-boycott laws and regulations of the United States and all other applicable jurisdictions, including but not limited to the U.S. Department of Commerce Bureau of Industry and Security’s (“BIS”) Export Administration Regulations, as set forth in 15 C.F.R. 730-774, and the economic sanctions programs administered by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”), as set forth in 31 C.F.R. 500-598 and certain executive orders (collectively, “Trade Control Laws”).

You hereby acknowledge and confirm that, unless specifically authorized by Licensor under applicable Trade Control Laws, you will not provide or enter into an agreement to use Licensor Marks on any goods or materials provided, directly or indirectly through third parties or otherwise, to any Restricted Party or Sanctioned Country. Notwithstanding any other provision of the Agreement, you shall not cause Licensor to be in violation of Trade Control Laws, and neither party shall be required to take, or to refrain from taking, any action where to do so would be inconsistent with or penalized under the laws of the United States or any foreign jurisdiction, including the anti-boycott laws administered by the U.S. Commerce and Treasury Departments. You understand that under the Agreement (including, for clarity, the Licensee Tools License Agreement) Licensor may provide you or your employees access to certain materials, including software and technology. You will not export, re-export or transfer Licensor software or technology without the prior written consent of Licensor, including after the completion of the Agreement, and except as authorized under applicable Trade Control Laws. You will not disclose Licensor software or technology to any third party, except as authorized by the Agreement.

 17.  Suspension.

17.1. Licensor may suspend, restrict or cease the distribution and/or operation of your Application and/or Content (including removal from all or any portion of the Platform) and Licensor may restrict or revoke your participation in the Licensee Program if Licensor reasonably believes that such action is prudent or necessary, including in order to prevent harm to the Platform or to avoid liability for Licensor, its Affiliates, or its or their licensees, contractors or agents; provided that the suspension shall only continue for as long as the foregoing circumstances continue.

17.4. Licensor may, at any time, in its sole discretion, suspend all or any portion of the Platform, including all or any portion of any Show or Channel. In such an event, the distribution of your Content may be suspended to the extent that Licensor deems necessary.

17.5. In the event of any suspension or cessation of distribution of your Application or Off-Channel as a result of a claimed copyright infringement, Licensor may provide notice thereof to end users in Licensor’s sole discretion.

 

18.  Changes to this AgreementLicensor may make changes to this Agreement (including the Licensee Policies) from time to time in its sole discretion. Licensor will notify you of changes to this Agreement. If you first enroll in the Licensee Program following the publication of any such changes, the modified version of this Agreement will apply to you immediately upon enrollment. If you were already enrolled in the Licensee Program prior to such changes, the modified version of this Agreement will become effective upon the date indicated in the email notice, regardless of whether or not you affirmatively acknowledge and agree to such changes; provided, however, that in the event you do not affirmatively acknowledge and agree to such changes within the timeframe indicated in the notice, Licensor reserves the right to suspend your Licensee Program account and/or the distribution of your Application until you affirmatively acknowledge and agree to the updated version of this Agreement. Each new version of this Agreement will supersede all prior versions. You agree to regularly monitor your Licensee Email Address and Licensee Program account for notices regarding such changes.  You agree that your continued use of the products and services made available to you via this Agreement constitutes your agreement to such modified terms.

 19.  Terminating this Agreement.

19.1  You may terminate this Agreement in your sole discretion after a one-year development period (a) providing Licensor with 10 business days’ prior written notice, (b) ceasing the distribution and operation of all of your Applications, and (c) ceasing any further use of the Licensor Logos onyour credentials thereto.

19.2. Licensor may terminate this Agreement at any time upon written notice with immediate effect.

19.3. Upon the expiration or termination of this Agreement:

  1. a) All rights and licenses granted under this Agreement will immediately terminate.
  2. b) Licensor may retain archival copies of Your Properties, which will be maintained in accordance with Licensor’s standard business practices or as required to be maintained by Law (but Licensor will not have the right to use, display, exhibit or exploit such archival copies or any portions thereof).

c)You will discontinue generating and distributing marketing and other materials containing or exhibiting the Licensor Marks in connection with this Agreement, and Licensor will do the same with Your Marks, as soon as is commercially practicable. For clarity, the expiration or termination of this Agreement will be without prejudice to Licensor’s rights to use Your Marks on and pre-manufactured packaging after such expiration or termination to the extent that it would be commercially impractical for Licensor to remove Your Marks on certain Devices/ packaging based upon Licensor’s Device or packaging design, production and distribution practices.

  1. d) You will return or destroy any Licensor Confidential Information then in your possession.
  2. e) All provisions of this Agreement which expressly or by necessary implication survive the expiration or earlier termination of this Agreement, or that can be given proper effect only if they survive the termination or expiration of this Agreement, will do so (including those concerning indemnification, confidentiality, limitation of liability and choice of law and venue), regardless of the reason for such expiration or termination.

19.4. Termination of this Agreement will be without prejudice to any other right or remedy Licensor or its Affiliates may have, now or in the future. No termination or expiration of this Agreement will relieve either party of payment obligations or any liability for breach of, or liability accruing under, this Agreement prior to termination or expiration.

20.   Indemnification.

20.1. To the fullest extent permitted by Law, you agree to defend and/or settle any demand, action, suit or proceeding brought by a third party or governmental or regulatory entity (“Action”) against Licensor and/or its Affiliates, each of its or their respective successors and assigns, and the past and present directors, officers, employees, contractors and agents of each of the foregoing (each a “Licensor Indemnified Party”), and to indemnify and hold harmless the Licensor Indemnified Parties from and against any and all losses, liabilities, damages, fines, expenses and costs (including attorneys’ fees, disbursements and court and administrative costs) resulting from such Action to the extent that such Action is based on a claim: (a) arising from your alleged breach of this Agreement or of any certification, covenant, representation or warranty made by you pursuant to this Agreement; (b) alleging that Your Properties infringe, violate or misappropriate any third party rights; (c) alleging that you and/or any of Your Properties violates any Law; and/or (d) arising from your receipt, collection, storage, use or disclosure of end user information.

20.2. If any Licensor Indemnified Party is entitled to indemnification under Section 23, it will give you prompt written notice of the applicable Action (provided, however, that any delay in notification will not relieve you of your obligations under this Agreement except to the extent that the delay actually impairs your ability to defend) and cooperate reasonably with you, at your expense, in connection with the defense and settlement of the Action. You will, at your own expense, have sole control of the defense or settlement of the Action; provided, however, that in settling any Action, you will not make any admission on behalf of any Licensor Indemnified Party or agree to any terms or conditions that do or reasonably could result in any admission by or the imposition of any obligation upon a Licensor Indemnified Party without the prior written approval from the Licensor Indemnified Party. The Licensor Indemnified Party will have the right to participate fully, at its own expense and with counsel of its own choosing, in the defense of any Action.

 

21.  LICENSOR’S DISCLAIMER OF WARRANTIESTHE PLATFORM, LICENSEE PROGRAM AND LICENSEE TOOLS ARE PROVIDED “AS IS” AND “AS AVAILABLE”, AND WITHOUT WARRANTY OF ANY KIND. YOUR USE OF THE PLATFORM, LICENSEE PROGRAM AND LICENSEE TOOLS, AND ANY MATERIAL OR DATA OBTAINED THROUGH USE OF THE PLATFORM, LICENSEE PROGRAM AND LICENSEE TOOLS, IS AT YOUR SOLE RISK AND EXPENSE, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGES OR LOSSES THAT RESULT FROM SUCH USE, INCLUDING DAMAGE TO COMPUTER SYSTEMS OR OTHER DEVICES, OR LOSS OF DATA. LICENSOR AND ITS AFFILIATES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, TIMELINESS, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR OR ITS AUTHORIZED REPRESENTATIVE OR AFFILIATE(S) WILL CREATE A WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. THIS DISCLAIMER APPLIES EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

 

22.  LICENSOR’S EXCLUSION OF DAMAGES AND LIMITATION OF LIABILITYLICENSOR AND ITS AFFILIATES WILL NOT BE LIABLE UNDER ANY THEORY OF LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY DAMAGES WHATSOEVER (INCLUDING DIRECT DAMAGES, INCIDENTAL DAMAGES, SPECIAL DAMAGES, PUNITIVE DAMAGES, AND INDIRECT OR CONSEQUENTIAL DAMAGES (SUCH AS DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS DISRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES)), NO MATTER HOW SUCH DAMAGES MAY HAVE BEEN CAUSED, AND EVEN IF LICENSOR OR ITS AFFILIATES (OR ITS OR THEIR SUBCONTRACTORS OR REPRESENTATIVES) HAVE BEEN MADE AWARE OF THE POSSIBILITY OF ANY SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY.

 

23.  General Legal Terms.

23.1. Relationship of Parties. This Agreement will not be construed as creating any agency relationship, partnership, joint venture, fiduciary duty, or any other form of legal association between you and Licensor or its Affiliates, and neither you nor Licensor and its Affiliates will make any representation to the contrary, whether expressly, by implication, appearance or otherwise. This Agreement is not for the benefit of any third parties, other than with respect to Licensor Indemnified Parties.

23.2. Setoff; Remedies Cumulative. In addition to any rights of setoff or other similar rights that Licensor may have at common law or otherwise, Licensor shall have the right to withhold and deduct any sum that is owed to Licensor and is past due, whether liquidated or unliquidated and regardless of the presence or absence of any final judgment or decree entered in Licensor’s favor, from any amount payable to you under this Agreement or otherwise. All rights and remedies provided in this Agreement are cumulative and not exclusive of any other rights or remedies that may be available to the parties, whether provided by law, equity, statute, in any other agreement between the parties, or otherwise.

23.3. Notices. All notices relating to this Agreement will be in writing. In addition:

  1. a) Licensor may provide notices relating to this Agreement to you through your Licensee Email Address, and/or by posting notices accessible via your Licensee Program account. You consent to receive notices relating to this Agreement as set forth in the preceding sentence, and agree that such notices satisfy any legal communication requirements. Notices provided via email will be deemed given to you by Licensor upon sending. Notices provided by posting through the Licensee Program will be deemed given to you by Licensor upon posting.
  2. b) Licensor may also send notices to you relating to this Agreement via personal delivery, overnight carrier or mail. Such notices will be deemed given: (i) when delivered personally; (ii) 3 business days after having been sent by commercial overnight carrier with written proof of delivery; and (iii) 5 business days after having been sent by first class, certified or US Priority mail, with proof of mailing, postage prepaid, to you at the address associated with your enrollment in the Licensee Program.
  3. c) All notices to Licensor relating to this Agreement must be sent to Licensor at the address specified in Licensor’s contract. Such notices will be deemed given: (i) when delivered personally; (ii) 3 business days after having been sent by commercial overnight carrier with written proof of delivery; and (iii) 5 business days after having been sent by first class, certified or US Priority mail, with proof of mailing, postage prepaid.

23.4. Severability. If a court of competent jurisdiction finds any clause of this Agreement to be unenforceable for any reason, that clause of this Agreement will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.

23.5. Waiver and Construction. Failure by Licensor or its Affiliates to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Any Law that provides that the language of a contract will be construed against the drafter will not apply to this Agreement. Section headings are for convenience only and may not be used in interpreting this Agreement. All references in this Agreement to “including” shall be deemed to mean “including, without limitation,” whether or not followed by such additional words.

23.6. Dispute Resolution; Governing Law. Any litigation or other dispute resolution between you and Licensor or its Affiliates arising out of or relating to this Agreement, or your relationship with Licensor or its Affiliates arising under this Agreement, will take place in a state or federal court located in Santa Clara County, California, and you and Licensor and its Affiliates hereby consent to the personal jurisdiction of, and exclusive venue in, the state and federal courts within that county with respect any such litigation or dispute resolution. This Agreement will be governed by and construed in accordance with the laws of the United States and the State of California, except that body of California law concerning conflicts of law. The United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded, will not govern this Agreement.

23.7. Entire Agreement. This Agreement and its exhibits constitute the entire agreement between you and Licensor and its Affiliates with respect to the subject matter covered by this Agreement. This Agreement supersedes all other agreements between you and Licensor and its Affiliates concerning the same subject matter. Except as expressly permitted by this Agreement, no amendment or modification to this Agreement will be binding unless both parties sign it. In the event of a conflict between, on the one hand, this Agreement and its exhibits, and on the other hand, the Licensee Policies, this Agreement and its exhibits will control.

23.8. Language. The parties acknowledge that they have expressly required that this Agreement and all related documents be drafted in the English language

24. Confidentiality. You agree that you and your employees and agents will maintain in confidence, and will not disclose to any third party without Licensor’s prior written consent in each case, the terms of your relationship with Licensor, all Platform Data and all other technology, data, summaries, reports or information of all kinds, whether oral or written, acquired or devised or developed in any manner from your relationship with Licensor or its Affiliates (“Confidential Information”), except to the extent you can reasonably demonstrate that such information (a) was publicly known and made generally available in the public domain prior to the time of disclosure by Licensor; (b) becomes publicly known and made generally available after disclosure by Licensor to you through no action or inaction by you; (c) is already in your possession at the time of disclosure by Licensor as shown by documents and other competent evidence in your possession immediately prior to the time of disclosure; (d) is obtained by you from a third party without a breach of such third party’s obligations of confidentiality; (e) is independently developed by you without use of or reference to Confidential Information, as shown by documents and other competent evidence in your possession; or (f) is required to be disclosed by you by a subpoena, court order or similar legal action, in which case you will (i) provide Licensor with prior written notice of such disclosure (along with a specific description of the information requested), (ii) provide Licensor with the opportunity to object to such disclosure if possible, and (iii) limit the disclosure to the scope of the legal request.

25.  Subcontractors.  You may engage consultants, subcontractors, third party service providers or agents in connection with the exercise of your rights and obligations under this Agreement; provided that you will be liable for any noncompliance with the terms of this Agreement by any of such consultants, subcontractors, third party service providers or agents.

25.1  Version Notes. From time to time, Licensor may need to create, modify or stop using certain defined terms and/or URLs in this Agreement. Please note that in this latest version of the Agreement we have (a) changed the name of the Licensor Audience Network to the Licensor Sales Representation Program (the terms of which have also changed as more fully set forth in Exhibit A below) and (b) clarified that “Licensor Billing Services” may also be referred to as “Licensor Pay”. To the extent you have separate agreements with Licensor that refer to these deprecated defined terms, those agreements should be read as though they referred to the corresponding successor defined terms described in this Agreement. Similarly, to the extent you have separate agreements with Licensor that reference a deprecated URL, those references should be construed to refer to the corresponding successor URLs referenced in this Agreement.

EXHIBIT A

COMMERCIAL TERMS

The following terms apply to the monetization of your Application and Content.

  1. Definitions.

Ad-Supported Application: an Application that includes any advertising, regardless of the commercial basis on which the Application is made available to users (e.g., purely ad-supported, subscription-based, authenticated through a TV provider, etc.).

Advertising: any advertising inserted dynamically into the playback of Content or within the Application.

Advertising Inventory: the total amount of Advertising impressions in your Application (including Content therein) within each Territory. With respect to Off-Channel Distribution, Advertising Inventory shall consist solely of Advertising impressions in the playback of the Content.

Gross Advertising Revenue:  the gross amount of revenue recorded by a party to this Agreement from its sale of Advertising Inventory, exclusive of any Taxes and bad debt.

Licensor Billing Services: the billing services provided by Licensor to Application Licensees, from time to time, to collect payment from end users.  Licensor Billing Services may also be referred to as “Licensor Pay”.

Subscription Application: an Application for which an end user must pay a subscription fee to access the Content, services or functionality thereof.

Taxes: any applicable taxes and duties, including, without limitation, use, excise, consumption, sales, value-added, transaction and/or gross receipt taxes.

2.  Revenue ShareFor Licensees that use Licensor Billing Services, Licensor will pay you 50% of all product placement, advertisement, pay to play sales transactions actually received by Licensor from your end users through the Licensor Billing Services, after deducting any applicable Taxes, credits, refunds and chargebacks, and Licensor will retain the remaining 50%.For subscriptions that are equal to or shorter than one month, Licensor will pay you your share of revenue no later than 60 days after the end of each month in which Licensor receives payments through the Licensor Billing Services. For subscriptions that are longer than one month, Licensor will pay you on a pro-rata monthly basis (e.g., 1/12 of the revenues per month for an annual subscription) no later than 60 days after the end of each month in which Licensor receives payments through the Licensor Billing Services. Licensor will make standard reporting available to you through the Licensee Program.

3.  Refunds. With respect to payments processed using Licensor Billing Services: (a) Licensor, in its sole discretion, may issue refunds upon an end user’s request; and (b) Licensor will issue refunds on your behalf upon your request, subject to the availability of sufficient funds in your Licensor Billing Services account. Licensor will offset refunds, plus Taxes and Licensor’s actual payment processing costs, against amounts owed to you on a rolling basis. Upon termination of the Agreement, the final payment to you will be withheld until the expiration of any statutory refund period, to allow for refund offsets. Licensor may invoice you for any shortfalls arising from the issuance of refunds paid by Licensor in respect of your Application (to the extent that the amounts refunded exceed the amounts withheld from you by Licensor in accordance with this Section), in which case the amounts billed will be due and payable by you to Licensor within 30 days of the invoice date.

  1. LATE FEES. Licensor has the option to charge interest at the rate of .05% percent due per month as well as a $29.99 late fee on any invoice that is outstanding beyond the terms stated herein by 30 Days. This Service Agreement warranties that work performed shall meet all established good workmanship.

Licensee agrees to pay all costs of collection and reasonable attorney’s fees incurred by Licensor in the collection of sums due hereunder.  Any disputes related to or arising out of this agreement shall be resolved by professional mediation.

The parties hereby confirm that each is an Authorized Representative in his/her capacity of the entities represented hereunder, respectively.

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