Please read this License Agreement carefully before using, accessing, downloading, installing or otherwise operating any of the Products. By using, accessing, downloading or otherwise operating any of the products, Licensee constitutes an unconditional agreement to be bound by this License Agreement. IF YOU DO NOT ACCEPT THE TERMS OF THIS LICENSE AGREEMENT, YOU ARE PROHIBITED FROM USING ANY OF THE PRODUCTS. The Products are available in different Editions. Unless otherwise stated, terms apply to all Editions.
In consideration of timely payment by the Licensee to the Licensor of the License Fee, the Licensor grants to the Licensee, and the Licensee accepts from the Licensor, on and subject to the terms of this Agreement, a non-exclusive, non-transferable, worldwide and non-assignable right and License to use the Products in connection with the Purpose. This License is expressly limited to (i) the List of Authorized Domains which must be registered with and approved by Licensor (ii) the Term of this Agreement as mentioned and (iii) the Purpose. Save for the right of the Licensee to integrate the Products for the Purpose, the Licensee may not disclose, rent out, hire, lease, sell or otherwise redistribute, transfer or make available Products to third parties For the avoidance of doubt, the Licenses granted under clause titled "License" shall not include any modifications or upgrades of any kind to Products made by the Licensor after the Effective Date except for the upgrades that have been made publicly available. The Licenses granted hereunder shall be solely for Licensee's own Use and shall not exceed the applicable number of Authorized Domains or Impressions for the relevant Edition or Price Tier set forth at www.theoplayer.com/pricing or on a separate agreement between Licensee and Licensor.
Except as specifically set forth herein, Licensee shall not distribute, relicense, sell, lease, transfer, encumber, assign or make available for public use the Products. Any attempt to take any such actions is void, and will automatically terminate Licensee's rights under this Agreement.
Unless enforcement of this provision is prohibited by applicable law, the Licensee may not decompile, disassemble, reverse engineer, decipher, decrypt or otherwise attempt to discover the source code or any other parts of the mechanisms and algorithms used by the Products nor create derivative works of the Products or of any part of the Products. The Licensee may not alter, modify, adapt, port or merge the Products or any part thereof.
The Licensee recognizes that all Intellectual Property Rights and Know-How related to the Products shall remain the Licensor’s property. Unless otherwise agreed upon between the Parties, the Licensor shall own any Intellectual Property Rights in any enhancements or modifications made to the Products, including all derivative works of the Products, if any. All rights not expressly granted by this Agreement are expressly reserved by Licensor.
The Licensee must timely pay to the Licensor the recurring license fee (License Fee) as set out below and as set out on www.theoplayer.com/pricing. The Licensee is prohibited from using the Products if the fees due have not been paid. Periodic fees are billed in advance. The License Fee will be subject to a yearly evaluation and can unilaterally be adapted for the new Term by the Licensor by giving notice thereof to the Licensee two (2) months prior to the End Date. All fees are non-refundable except as otherwise provided in this Agreement.
Licensee shall be responsible to pay all Taxes or levies due in connection with the License Fee and Licensee's use of the Products. In order to Use any paid Edition, Licensee must provide Licensor with accurate and complete Billing Information. Invoices related to the License will be sent to the billing address listed in the Billing Information. Licensee authorizes the Licensor to charge all License Fees incurred to the designated card and acknowledges that periodic License Fees may be charged automatically and without separate authorization unless otherwise agreed upon between the Parties.
In case of (partial) non-payment of an invoice at its expiration date:
This Agreement shall commence on the Effective Date and shall, subject to the provisions of the clause titled "TERMINATION", continue in effect for a definite duration of one (1) year (and each such one year period a Term and the expiry date of each such Term, the End Date). This Agreement will be tacitly renewed for consecutive Terms, unless one of the Parties terminates the Agreement in accordance with the clause titled "TERMINATION".
Either Party may terminate this Agreement at the yearly End Date by giving three (3) months prior written notice to the other Party. Without prejudice to any other rights to which it may be entitled, either Party may give notice in writing to the other Party terminating this Agreement with immediate effect and without court authorization:
In the event of any termination by the Licensor pursuant to the rules set above, Licensor is under no obligation to provide a refund for the License Fees received from Licensee or apply such fees to future services. In the event of the Licensor's cancellation for convenience, Licensee shall be entitled to request a pro-rata refund of unused pre-paid Fees.
All rights granted to the Licensee under this Agreement shall forthwith terminate and immediately revert to the Licensor. All use of Products shall immediately be discontinued by Licensee and uninstall, delete and destroy any copies of the Products.
Termination of this Agreement for any reason shall not release any Party hereto from any obligation which, at the time of such termination, has already accrued and become due to the other Party or which is attributable to a period prior to such termination nor preclude either Party from pursuing any rights and remedies it may have hereunder or at law or in equity with respect to any breach of this Agreement.
In case of termination of this Agreement, for any reason whatsoever, all unpaid License Fees shall become immediately collectible and the Licensor shall be entitled, in addition to any other remedies available to it, to take all necessary steps to collect such amounts, together with all costs, indemnities, compensations, damages, fees and expenses incurred by the Licensor.
Before Using Product, Licensee must create a username and password as well as provide an accurate email address, telephone number and name. Licensee is strictly prohibited from: (i) using false sign-in information, name, or contact information, (ii) using a name, email address or contact information owned or controlled by another person with the intent to impersonate that person, or (iii) providing an email address subject to any rights of a person other than Licensee without appropriate authorization. Licensor reserves the right to refuse registration or cancel any account that it reasonably believes is in violation of the foregoing. Licensee shall be responsible for maintaining the confidentiality of its password and is liable for all activities that occur on its account. Licensee agrees to immediately notify the Licensor of any unauthorized use of Licensee's username, password or other breach of security.
Products can be provided in multiple different editions, such as Trial editions, Professional editions and Enterprise editions. The limitations of these editions are listed on the Product website. Additional limitations are found below:
Trial editions can be used only for non-commercial purposes.
Professional and Enterprise editions can be used for both commercial and non-commercial purposes.
Editions can contain the Product logo and copyright notice. It is prohibited to remove or modify the copyright notice and Product logo.
The granting of Free and Trial licenses is free of charge.
Trial Editions have a limitation of 5,000 Impressions per month. Licensor reserves the right to immediately suspend, terminate, block and/or blacklist Trial accounts that exceed this.
Professional Editions have a limitation of 100,000 Impressions per month. The Licensee must timely pay to the Licensor and overage fee as set out on www.theoplayer.com/pricing for Professional accounts that exceed this. The Licensee is prohibited from using the Products if the overage fees due have not been paid. Licensor will reserves the right to immediately suspend, terminate, block and/or blacklist when the overage fees due are not timely paid.
Professional and Trial Editions are limited to five Authorized Domains. Enterprise editions have no limitation on the number of Authorized Domains.
The Licensor has no obligation under this Agreement to provide any maintenance, support or training to Licensee. General documentation regarding the minimal technical requirements, the suitability, the integration, the features and compatibility of the Products will be made available on the Product website (www.theoplayer.com).
The Licensor has no obligation whatsoever under this Agreement to update, upgrade, modify or release new versions of the Products. The Licensee shall only be entitled to updates and upgrades of the Products that have been made publicly available by the Licensor.
The Licensor will have at all times the right to track the Use and Impressions on the Products. Licensor may use the gathered information to deliver the Products, manage the Licensee's account, provide customer support, perform research and analysis about Licensee's Use, enforce the Agreement and perform functions otherwise described to Licensee at the time of collection. The Licensee may not prevent the Licensor from tracking Impressions or cause that the information resulting from the tracking of the Impressions is incorrect or invalid.
Licensor shall not share personally identifiable information gathered from the tracking and reporting functionality to any third party without Licensee's express written consent, provided nothing herein shall limit the Licensor's right to use and share aggregated, non-personally identifiable data. Licensee grants Licensor a limited, royalty-free license to use the information collected by the tracking and reporting functionality to facilitate the operation of Products, ensure compliance and for its internal business purposes.
The Licensor may refer to the Licensee’s name, trademarks, service marks, logos, and/or branding as well as the existence of the License in (i) marketing and publicity materials as an indication of its experience, and (ii) internal data systems.
The Licensee may not use the Licensor’s trademarks, service marks, logos, and/or branding in any external publicity material without the Licensor’s prior written consent.
Products are provided "AS IS" and, except as specified in this clause, Products are provided without warranty of any kind, express or implied, including, but not limited to the warranties of merchantability or fitness for a particular purpose other than the Purpose. Licensor does not warrant an error-free or uninterrupted operation of THEOplayer.
The Licensor will not indemnify nor hold harmless the Licensee against any infringements of any rights of third parties. The Licensee will be exclusively responsible for payment of royalties to third parties in connection with the use of Products by the customers / clients / viewers / listeners of the Licensee for playing media content.
Unless permitted by local law, the Licensor's total aggregate liability to the Licensee or to any third party, whether in contract (including under any indemnity or warranty), in tort (including negligence) under a warranty, under statute or otherwise, under or in connection with this Agreement shall be limited to the amount of the yearly License Fee of the preceding Term, except for the first Term of the Agreement, in which case the Licensor’s aggregate liability shall be limited to the Base Fee.
Notwithstanding any other provision of this Agreement, the Licensor shall not be liable vis-à-vis the Licensee or to any third party, whether in contract (including under any indemnity or warranty), in tort (including negligence) under a warranty, under statute or otherwise, under or in connection with this Agreement for any lost revenue, lost profit, lost data or corrupted data, or indirect or consequential damages, however caused, arising out of the use of or inability to use the Products even if the Licensor has been advised of the possibility of such damages.
The Licensee agrees and undertakes that for the duration of this Agreement as well as for ten (10) years thereafter, it will keep confidential and will not use for its own purposes nor without the prior written consent of the Licensor divulge to any third party any Confidential Information concerning the Licensor or its activity it has received or obtained in the framework of this Agreement.
The provisions of the clause titled "CONFIDENTIALITY" shall not apply to any Confidential Information of the Licensor that:
The clause titled "CONFIDENTIALITY" shall remain in full force and effect notwithstanding any termination of this Agreement.
Both Parties are independent contractors under this Agreement. Consequently, nothing in this Agreement is intended or may be construed so as to establish a partnership or joint venture between the Parties and neither Party shall have the authority (actual or apparent) to bind the other Party.
Other than expressly provided for in this Agreement, nothing in this Agreement grants or shall be construed to grant to any Party any right and/or any license to any Intellectual Property right or application therefore (including but not limited to patent applications or patents) which are held by and/or in the name of the other Party and/or which are controlled by the other Party, or to any Confidential Information received from the other Party.
With the exception of payment obligations, neither Party shall be held in breach of its obligations hereunder to the extent only that due performance or observance of such obligation is prevented or delayed by war and other hostilities, civil commotion, accident, trade disputes, acts or restraints of government imposition or restrictions of imports or exports or any other cause not within the control of the Party concerned.
The Party concerned shall forthwith notify the other Party of the nature and effect of such event and both Parties shall, where the same is practicable, use every reasonable endeavor to minimize such effect and to comply with the respective obligation herein contained as nearly as may be in their original form.
All notices or other communication required or permitted to be given in writing under this Agreement must be given in the English language by email, to the addresses provided by Licensee or such other addresses as the Parties may have designated to each other.
This Agreement and any agreement entered into pursuant to this Agreement constitutes the entire agreement between the Parties and supersedes and replaces any and all prior negotiations, arrangements and understandings, whether or not in writing, between the Parties with respect to the subject matter of the Agreement. No variation of this Agreement is valid unless it is in writing and signed by or on behalf of each Party.
This Agreement is binding upon and inures for the benefit of the successors of the Parties but may not be assigned, except with the prior written consent of the other Party.
No failure or delay by any Party in exercising any right or remedy provided by law or pursuant to this Agreement will impair such right or remedy or be construed as a waiver of it and will not preclude its exercise at any subsequent time and no single or partial exercise of any such right or remedy will preclude any further exercise of it or the exercise of any other remedy.
If any provision of this Agreement or of any of the documents contemplated in it is held to be invalid or unenforceable, then such provision will (so far as it is invalid or unenforceable) have no effect and will be deemed not to be included in this Agreement or the relevant document, but without invalidating any of the remaining provisions of this Agreement or that document. The Parties must then use all reasonable endeavors to replace the invalid or unenforceable provision by a valid and enforceable substitute provision the effect of which is as close as possible to the intended effect of the invalid or unenforceable provision.
THEOplayer contains open source software which shall be notified to you. This open source software is licensed to you by the open source software publisher and therefore, governed by the terms and conditions of the applicable open source license terms and conditions. Licensee understands to be bound by and to comply with these open source license terms and conditions in connection with the use of THEOplayer. Licensor provides all opens source software “AS IS” without any warranties or representations, express or implied. Licensor is under no obligation, to indemnify Licensee against any third party infringement claim. Licensor will also have no liability for any damages caused by the open source software. Licensee shall not modify or create any derivative work of the open source software.
The Licensor may modify the terms of this Agreement in its sole discretion and such modifications shall take effect and be binding on Licensee on the earliest date which they are posted to the Licensor's publicly available website or delivered to Licensee via electronic or physical delivery. No one other than the Licensor has the right to modify this Agreement.
This Agreement is governed by and must be construed and interpreted in accordance with the laws of Belgium. The courts of Leuven have exclusive jurisdiction over any dispute arising out of or related to this Agreement, including its termination.