VIDPRESSO:LIVE Terms & Service Agreement
This Vidpresso:LIVE Service Agreement (“Agreement”) is entered into between Vidpresso, Inc. (“Vidpresso”) and the Customer. The parties agree as follows:
- THE SERVICE
- General Description of Service. Vidpresso has created a proprietary, real-time platform (the “Platform”) that enables customers to create professional live stream video with integrated graphics and live social media commentary as described in more detail on Exhibit A (the “Service”).
- Provision of the Service. Subject to Customer’s timely payment of the Subscription Fees (as defined below) and compliance with the terms and conditions of this Agreement, Vidpresso will provide the Service to Customer set forth in Exhibit A (the “Subscription Package”). The Service shall begin on the Service Activation Date and continue during the Subscription Term (as defined below). “Service Activation Date” shall be as set forth in the Subscription Package. The Service permits Customer to create, upload and/or display content of its own creations, including authorized live and prerecorded audiovisual content, Social Media Content (as defined below), and any other content, including without limitation, videos, music, images, and text (collectively, “Broadcast Content”).
- FEES AND PAYMENT TERMS
- Fees and Expenses. Customer shall pay the recurring monthly subscription fee for the Service (the “Subscription Fees”) in accordance with terms set forth in the Subscription Package.
- Payment Terms. Customer will pay the Subscription Fees within 30 days after the date of the applicable invoice for the Service (“Payment Period”). All payments received by Vidpresso are non-refundable except as otherwise expressly provided in this Agreement. All payments will be made in United States dollars. In the event that Customer has a good faith dispute with an invoice, then Customer must notify Vidpresso in writing within the Payment Period. Vidpresso will remit payment of any disputed amount within 10 days after the parties resolve the dispute.
- Late Payments. If Customer’s account becomes past due, Customer will receive written notice to that effect and will have 5 business days to respond to the notification. If Customer fails to respond to the past due notification and make arrangements to bring the account current within the 5 business days of notification, Vidpresso may revoke or suspend the provision of the Service until such time as Customer brings its account completely current. Customer shall remain responsible for all Subscription Fees owed by Customer for the remainder of the Initial Term notwithstanding any such revocation or suspension.
- All fees charged for the Service are exclusive of all taxes and similar fees now in force, enacted or imposed in the future on the transaction and/or the delivery of the Service, all of which Customer will be responsible for and will pay in full, except for taxes solely based on Vidpresso’s net income.
- TERM AND TERMINATION
- Term of Agreement. The term of this Agreement will commence on the Effective Date and will continue until terminated as set forth herein. “Initial Term” means the period starting with the Service Activation Date and ending on the date minimum commitment period for which Vidpresso will provide the Service to Customer, as indicated in the Subscription Package. Following the Initial Term, the term will automatically renew (the “Renewal Term”), until terminated in accordance with this Section 3. The Initial Term and the Renewal Term are collectively referred to as the Subscription Term.
- Termination without Cause. Customer may terminate this Agreement for any reason with 30 days’ prior written notice, provided that, in the event Customer terminates the Agreement during the Initial Term for any reason other than termination for cause as set forth in Section3, Customer shall pay Vidpresso all of the Subscription Fees owed by Customer for the remainder of the Initial Term.
- Termination for Cause. A party may terminate this Agreement if the other party breaches any material term or condition of the Agreement and fails to cure such breach within 30 days after receipt of written notice of such breach; except that, in the case of Customer’s failure to pay the Subscription Fees, which must be cured within 5 days after receipt of written notice from Vidpresso.
- Effect of Termination. Upon the effective date of termination of this Agreement: (a) Vidpresso will immediately cease providing the Service; (b)any and all payment obligations of Customer will immediately become due and (c) within thirty (30) calendar days after such termination, each party will return or destroy all Confidential Information (as defined below) of the other party in its possession and will not make or retain any copies of such Confidential Information, except as required to comply with any applicable legal or accounting record keeping requirement. Sections 2, 3.4, 4, 5, 7, 8 and 9 shall survive expiration or termination of this Agreement for any reason.
- Each party (“Receiving Party”) acknowledges that it will have access to certain confidential information of the other party (“Disclosing Party”) concerning the Disclosing Party’s business, plans, vendors, employees, customers, technology, products, and other confidential information of Disclosing Party (collectively, “Confidential Information”). Confidential Information includes all information in tangible or intangible form that is marked or designated as confidential by the Disclosing Party or that, under the circumstances of its disclosure, should be considered confidential. Confidential Information of Vidpresso includes the Platform. Receiving Party agrees that it will not (a)use the Disclosing Party’s Confidential Information in any way, for its own benefit or the benefit of any third party, except as expressly permitted by, or as required to implement, this Agreement, (b) disclose to any third party (except as expressly permitted by this Agreement, required by law or to such party’s attorneys, accountants and other advisors as reasonably necessary or contractors that are bound by written agreements at least as restrictive as this Agreement) any Confidential Information of the Disclosing Party. Receiving Party will protect the confidentiality of the Confidential Information of the Disclosing Party using precautions that are at least as stringent as it takes to protect its own Confidential Information, but in no case will it use less than reasonable precautions to protect such Confidential Information.
- Receiving Party will have no obligations of confidentiality under Section4.1 for information that is proven by Receiving Party: (a) to have been known to Receiving Party prior to its receipt from Disclosing Party from a source other than one having an obligation of confidentiality to Disclosing Party; (b) to have become publicly known, except through a breach of this Agreement by Receiving Party; or (c) to have been entirely independently developed by Receiving Party without use of or reference to the Confidential Information of Disclosing Party. Receiving Party may disclose Confidential Information pursuant to the requirements of a governmental agency or applicable law, provided that it gives Disclosing Party reasonable prior written notice to the extent legally permissible sufficient to permit Disclosing Party to contest such disclosure.
- Each party acknowledges that the breach of any of the obligations relating to Confidential Information and intellectual property would result in irreparable and continuing harm for which there will be no adequate remedy at law and that the non-breaching party shall be entitled to seek injunctive relief and/or a decree for specific performance, and any other such relief as may be proper (including monetary damages, if appropriate).
- INTELLECTUAL PROPERTY
- Vidpresso Ownership. Subject to the limited rights expressly granted hereunder, Vidpresso and its licensors and suppliers reserve all right, title and interest in and to the Service, the Platform and the Embedded Player (as defined below), including, without limitation, the text, graphics, interactive features, logos, photos, music, videos, software, and all other audible, visual or downloadable materials, as well as the selection, organization, coordination, compilation and overall look and feel of the Service (collectively, the “Vidpresso Materials”). No rights in the Vidpresso Materials are granted to Customer and Vidpresso retains all rights, title and interest in the Vidpresso Materials, including all rights in patents, trademarks, trade names, copyrights, trade secrets, know-how, data (including all applications therefor), and all proprietary rights under the laws of the United States, any other jurisdiction or any treaty (“IP Rights”). All rights in and to the Vidpresso Materials not expressly granted to Customer in this Agreement are reserved by Vidpresso and its licensors and suppliers.
- Customer Ownership. Customer and its licensors retain all ownership rights in its Broadcast Content, including without limitation, the text, graphics, logos, photos, music, videos, software, and all other audible or visual materials provided by Customer, as well as the selection, organization, coordination, compilation and overall look and feel of the Broadcast Content. Subject to the limited rights expressly granted hereunder, no rights in the Broadcast Content are granted to Customer and Customer retains all rights, title and interest in the Broadcast Content, including all IP Rights. Customer grants Vidpresso a worldwide, non-exclusive, royalty-free, fully paid-up license under all rights necessary to host, transmit, display, edit, and otherwise exploit the Broadcast Content solely in connection with the Service.
- General Skills and Knowledge. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement prohibits Vidpresso from utilizing any skills or knowledge of a general nature gained or created by Vidpresso during the course of providing the Service, including, information publicly known or available or that could reasonably be acquired in similar work performed for another customer of Vidpresso.
- Usage Data. Vidpresso may publish, share or otherwise distribute, to any party, analytics, statistics or other data related to Customer’s use of the Service (“Usage Data”), provided that such Usage Data are aggregated with the data from other Vidpresso customers or users in a manner that does not allow usage data about Customer to be separated from the aggregate data and identified as relating to Customer.
- The parties agree that Vidpresso shall have the right to market and promote the Broadcast Content and related Customer Marks in connection with the Service; as used herein, “Customer Marks” shall mean trademarks, trade names, service marks, and logos used by Customer and uploaded as part of the Broadcast Content. In accordance with the grant of such rights and subject to this Agreement, Customer hereby grants Vidpresso a royalty-free, non-exclusive, worldwide right and license to use, reproduce and display the Customer Marks solely in connection with the marketing and promotional considerations contemplated by this Agreement. Vidpresso, in using the Customer Marks, will comply with any trademark usage guidelines that you may provide to Customer in writing from time to time. Customer reserves all other rights in and to the Customer Marks, and all goodwill associated with any use by Vidpresso of the Customer Marks will inure solely to your benefit.
- Embedded Player. Vidpresso may make available to Customer via the Service a feature whereby Customer can incorporate an embedded player on Customer’s own website to stream the Broadcast Content (the “Embedded Player”). Subject to Customer’s timely payment of the Subscription Fees and compliance with the terms and conditions of this Agreement, Vidpresso hereby grants Customer a limited, non-exclusive, license to incorporate the Embedded Player into Customer’s websites, provided that Customer include a prominent link back to the Service on the pages containing the Embedded Player. Customer hereby represents and warrants that it shall not circumvent, disable or otherwise interfere with any security related features of the Embedded Player or features that prevent or restrict use or copying of the Broadcast Content or any Vidpresso Materials or enforce limitations on use of the Embedded Player or the Broadcast Content or any Vidpresso Materials therein.
- Advertising. Vidpresso may make available to Customer via the Service a feature whereby Customer can incorporate Customer’s own advertising into the Broadcast Content (“Advertising”). Vidpresso represents and warrants that no Advertising will violate any of the restrictions set forth in Section 6.6. All such Advertising must comply with any specific advertising policies or guidelines that may be provided by Vidpresso from time to time in writing to Customer, and must comply with any advertising policies or guidelines of any Social Media Network to the extent Customer’s Broadcast Content is made available through such Social Media Network. In the event that Vidpresso offers a future advertising module whereby Vidpresso offers services as an advertising broker or network, Customer acknowledges that it shall be subject to additional terms and conditions in order to access such feature.
- Restrictions. Except as expressly provided for in the documentation or by the terms of this Agreement, Customer shall not: (a)directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code, trade secrets or know-how in or underlying the Platform or any portion of the Vidpresso Materials; (b) use the Platform or the Service for any illegal, unauthorized or otherwise improper purposes; (c) modify or make derivative works of any part of the Platform or Vidpresso Materials; (d) access the Platform in order to build a similar or competitive product or service; or (e) use the Service in a manner that exceeds reasonable request volume, constitutes excessive or abusive usage, or otherwise fails to comply or is inconsistent with any part of Vidpresso’s documentation or this Agreement.
- REPRESENTATIONS AND WARRANTIES
- Mutual Representations and Warranties. Each party represents and warrants that it has full right, power, and authority to enter into this Agreement and to perform its obligations and duties under this Agreement, and that the performance of such obligations and duties does not and will not conflict with or result in a breach of any other agreement of such party or any judgment, order, or decree by which such party is bound.
- Service Level Commitment. Vidpresso shall use reasonable efforts to ensure that the Service is available 24 hours a day, 7 days a week. However, there will be occasions when the Service may be interrupted for maintenance, upgrades and emergency repairs or due to failure of telecommunications links and equipment that are beyond the control of Vidpresso. Vidpresso will use reasonable commercial efforts to minimize such disruption where it is within the reasonable control of Vidpresso. Vidpresso will use reasonable commercial to provide the support features set forth in the Subscription Package. Vidpresso provision of the Service is dependent on the uptime of its third party providers. Vidpresso is not responsible for outages from these parties. In the event Vidpresso fails to meet the Service levels in this Section6, Customer’s sole remedy shall be termination of this Agreement pursuant to Section 3, provided that Section 3 shall not apply to such termination.
- Social Media Content. The Service provides a feature whereby Customer can incorporate social media content such as tweets, comments, or reactions (collectively, “Social Media Content”) from third party social media platforms, such as Twitter or Facebook (“Social Media Networks”). Vidpresso makes no warranty with regard to any Social Media Content or the products, services or web sites of any Social Media Network. Vidpresso has no control over the content or availability of the Social Media Content of any third-party, Social Media Network, or any other content or website. In particular, (a)Vidpresso makes no warranty regarding, and is not responsible for, any Social Media Content made available through the Broadcast Content. It is Customer’s responsibility to become familiar with any SMN Agreement (defined below) terms, including any privacy terms and other policies, and to contact the Social Media Network with any concerns. Subject to compliance with all applicable guidelines (“SMN Guidelines”) of the relevant Social Media Network, including without limitation Twitter’s “Guidelines for using Tweets in Broadcast” (https://support.twitter.com/articles/114233-guidelines-for-using-tweets-in-broadcast) and the Facebook Broadcast Brand Guidelines (https://www.facebookbrand.com/), Vidpresso represents and warrants that it has all necessary permissions and licenses for the use of Social Media Content from Facebook (including Instagram) and Twitter within the Service. Vidpresso and Customer covenant and agree to comply with all SMN Guidelines during the Term.
- Representations and Warranties by Customer. Customer understands and acknowledges that all of Customer’s rights to access a Social Media Network and receive Social Media Content through the Service arise from the Social Media Networks’ agreements to which Customer must agree in order to access and use the Social Media Content (“SMN Agreements”). Accordingly, Customer represents and warrants that: (a)that it shall comply with and shall not violate any SMN Agreement; and (b) that it will not violate any applicable law or regulation, or cause a breach of any agreement with any third party, in connection with the performance of its obligations and use of the Service. In the event of any breach of any of the foregoing warranties, in addition to any other remedies available at law or in equity, Vidpresso shall have the right to immediately suspend any portion of the Service in order to prevent harm to Vidpresso or its business and to limit any potential liability. If practicable, Vidpresso will provide notice and opportunity to cure. Once cured, in Vidpresso’s discretion, Vidpresso will use reasonable efforts promptly restore the Service.
- Broadcast Content. Customer is solely responsible for all of the Broadcast Content and hereby acknowledges that the Service is merely providing Customer the means to produce and distribute the Broadcast Content. Customer shall be solely responsible for the Broadcast Content and the consequences of posting or publishing it. Customer hereby represents and warrants that: (i) Customer is the creator and owner of or has the necessary licenses, rights, consents, and permissions to use and to authorize Vidpresso to use and distribute the Broadcast Content as necessary to exercise the rights and licenses granted by Customer in this Agreement and in the manner contemplated by Vidpresso and this Agreement; (ii) the Broadcast Content does not and will not infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (iii) the Broadcast Content does not and will not slander, defame, libel, or invade the right of privacy, publicity or other rights of any person or entity; (iv) the Broadcast Content is not unlawful, obscene, pornographic, vulgar, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or, in Vidpresso’s sole discretion, is otherwise inappropriate; and (v) the Broadcast Content does not contain any viruses, adware, spyware, worms, or other malicious code or any content or file that provides a method to access to potentially infringing content outside of the Service. In the event of any violation of any of the foregoing restrictions, in addition to any other remedies available at law or in equity, Vidpresso shall have the right to immediately suspend any portion of the Service in order to prevent harm to Vidpresso or its business and to limit any potential liability. If practicable, Vidpresso will provide notice and opportunity to cure. Once cured, in Vidpresso’s discretion, Vidpresso will use reasonable efforts promptly restore the Service.
- EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION6, THE SERVICE IS PROVIDED SOLELY ON AN “AS IS” BASIS, AND CUSTOMER’S USE OF THE SERVICE IS AT ITS SOLE RISK. VIDPRESSO DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE, IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE. VIDPRESSO DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST REVENUE, LOST PROFITS, COST OF REPLACEMENT OF GOODS OR SERVICES, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF DATA OR INTERRUPTION OR LOSS OF USE OF SERVICE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, Vidpresso’s TOTAL LIABILITY TO Customer FOR ANY REASON (WHETHER BASED IN CONTRACT, TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY) IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE SHALL IN NO EVENT EXCEED THE AMOUNT PAID OR OWED BY CUSTOMER TO VIDPRESSO FOR THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
- Claims Against Customer. Vidpresso will defend, at its own expense, any claim, suit or action brought against Customer by a third party to the extent that such claim, suit or action is based upon an allegation that the Platform, when used in accordance with the terms and conditions of this Agreement, infringes the copyright, trademark or trade secret of such third party (“Customer Claim”), and Vidpresso will indemnify and hold Customer harmless from and against liability incurred by Customer that is specifically attributable to such Customer Claim or those costs and damages agreed to in a monetary settlement of such Customer Claim. The foregoing obligations are conditioned on Customer: (a)promptly notifying Vidpresso in writing of such Customer Claim; (b) giving Vidpresso sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at Vidpresso’s request and expense, assisting in such defense. Notwithstanding the foregoing, Vidpresso will have no obligation under this Section 1 or otherwise with respect to any infringement claim based upon: (1) any use of the Platform not in accordance with this Agreement; (2) any use of the Platform in combination with products, equipment, software, or data not made available by Vidpresso if such infringement would have been avoided without the combination with such other products, equipment, software or data; or (3) any modification of the Platform by any person other than Vidpresso or its authorized agents or subcontractors. Vidpresso will have no obligation under this Section 8.1 or otherwise with respect to any claim based upon the Broadcast Content or the use by Customer of any Social Media Content accessed through the Service to the extent such claim is not based on the Service itself: This Section 8.1 states Vidpresso’s entire liability and Customer’s sole and exclusive remedy for infringement claims or actions.
- Claims Against Vidpresso. Customer will defend, at its own expense, any claim, suit or action against Vidpresso brought by a third party to the extent that such claim, suit or action, in connection with the performance of Customer’s obligations and use of the Service, is based on, (i)Customer’s failure to comply with or violation of any Third Party Agreements (ii) Customer’s failure to comply with or violation of any applicable law or regulation, (iii) Customer’s infringement any of third party’s IP Right or Customer’s violation of any other third party right, including without limitation any copyright, property, or privacy right, and (v) the misuse by Customer of any Social Media Content accessed through the Service (each, a “Vidpresso Claim”), and Customer will indemnify and hold Vidpresso harmless from and against liability incurred by Vidpresso that is specifically attributable to such Vidpresso Claim or those costs and damages agreed to in a monetary settlement of such Vidpresso Claim. The foregoing obligations are conditioned on Vidpresso: (a) promptly notifying Customer in writing of such Vidpresso Claim; (b) giving Customer sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at Customer’s request and expense, assisting in such defense.
- MISCELLANEOUS PROVISIONS
- Force Majeure. Except for Customer’s obligation to make payments to Vidpresso, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war, acts of God, terrorism, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet, provided that the delayed party: (a)gives the other party prompt notice of such cause, and (b) uses its reasonable commercial efforts to promptly correct such failure or delay in performance. If Vidpresso is unable to provide the Service for a period of sixty (60) consecutive calendar days as a result of a continuing force majeure event, Customer may cancel the Service without further obligation.
- Government Regulations. Customer will not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information in violation of export control laws or regulations of the U.S. Government or of any country within whose jurisdiction Customer operates or does business.
- No Third Party Beneficiaries. Vidpresso and Customer agree that, except as otherwise expressly provided in this Agreement, there shall be no third party beneficiaries to this Agreement, including but not limited to the insurance providers for either party or the customers of Customer.
- Governing Law; Dispute Resolution. This Agreement shall be governed by and construed solely and exclusively in accordance with the laws of the State of Delaware, USA without giving effect to any law that would result in the application of a different body of law. The United Nations Convention on the International Sale of Goods is excluded.
- Severability; Waiver. If any provision of this Agreement is held invalid by a court or judicial body, then the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach in this Agreement will not constitute a waiver of any subsequent breach or default, and will not negate the rights of the waiving party.
- Neither party may assign or transfer this Agreement nor any of its rights under this Agreement without the other party’s prior written consent which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, either party shall have the right to assign or transfer this Agreement to a successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any assignment or transfer or attempted assignment or transfer in violation of the foregoing will be null and void. This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.
- Any notice required or permitted to be given under this Agreement shall be delivered by hand, deposited with an overnight courier, sent by email, confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party as listed on the Subscription Package or at such other address as may hereafter be furnished in writing by either party to the other party. Such notice will be deemed to have been given as of the date it is delivered, mailed, emailed, faxed or sent, whichever is earlier.
- Relationship of Parties. Vidpresso’s and Customer’s relationship is solely that of independent contractors, and this Agreement will not establish any partnership, joint venture, employment, franchise or agency between Vidpresso and Customer. Neither Vidpresso nor Customer will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
- Entire Agreement; Counterparts; Originals. This Agreement, including the Subscription Package, addenda, exhibits and attachments, constitutes the sole, final and entire agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior or contemporaneous understandings, written and oral, regarding such subject matter. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile or other electronic transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. This Agreement may only be amended by a written document signed by authorized representatives of Vidpresso and Customer.
The duly authorized representatives of Customer and Vidpresso have read the foregoing and agree and accept such terms effective as of the Effective Date.
The duly authorized representatives of Customer and Vidpresso have read the foregoing and agree and accept such terms effective as of the Effective Date.