License Agreement - Starter / Professional Package
Please read this License Agreement carefully before using, accessing, downloading, installing or otherwise operating any of the Products and Services.
By using, accessing, downloading or otherwise operating any of the products, Purchaser 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 AND SERVICES.
- Agreement means this License Agreement and all schedules, appendices and related documentations provided to the Purchaser.
- Authorized Domain(s) means one or more Domains for which the Products are registered by Purchaser via the THEOportal for the Use in accordance with this Agreement.
- Billing Information means the information required for billing the usage of the Products and Services. This includes, but is not limited to the Purchaser’s name, address, e-mail address, telephone number and in case Purchaser transacts business with Provider, financial information such as a valid credit or debit card or other payment details.
- Confidential Information means any information of a non-public, confidential or proprietary nature, whether of commercial, financial or technical nature, customer-, supplier-, product- or production-related or otherwise, including samples, information relating to, specifications, the Product and Services, patent applications, process designs, process models, materials and ideas, disclosed by the Provider to the Purchaser. Such information may be disclosed in any form, provided that it is disclosed reasonably in connection with the Agreement.
- Control means the power, factual or by law, to exercise a decisive influence on the designation of the majority of the directors of a company, or on its management. Notably, there is legal control when it results from the possession of the majority of the voting rights linked to the shares of the controlled company.
- Domain(s) means a unique name that identifies an internet resource such as a website, as well as all the subdomains that are part of this domain.
- Effective Date means the commencement date of the Agreement and is set to the date of the registration on the THEOportal for the Use of any of the Products and the Services.
- End Date means the expiration date of each Term starting from the Effective Date.
- Fees shall mean the payments that Purchaser has to pay for provision of the Product and Services as defined and in connection with this Agreement.
- Impression means playing a given video or audio source without exchanging such video or audio source with another video or audio source. For the avoidance of doubt, pausing and playing, or seeking in the same video or audio source is considered as the same Impression.
- Intellectual Property Rights means any intellectual property and proprietary rights, including , but not limited to, copyrights, moral rights, works of authorship, trade and service marks, trade names, rights in logos and get-up, inventions and discoveries, Confidential Information, trade secrets and Know-How, registered designs, design rights, patents, utility models, all rights of whatsoever nature in computer software and data, source code, database rights all intangible rights and privileges of nature similar or allied to any of the foregoing, in every case in any part of the world and whether or not registered; and including all granted registrations and all applications for registration, all renewals, reversions or extensions, the right to sue for damages for past infringement and all forms of protection of a similar nature which may subsist anywhere in the world.
- Know-How means any information relating to commercial, scientific and technical matters, inventions and trade secrets, including but not limited to any patentable technical or other information which is not in the public domain including information comprising or relating to concepts, discoveries, data, designs, formulae, ideas, reports and data analyses.
- License is the right to use the Product in accordance with this Agreement.
- License Agreement has the same meaning as Agreement.
- Purchaser means you and any entity on whose behalf you Use the Products and Services.
- Provider means THEO Technologies NV and its successors and assigns.
- Parties means both Purchaser and Provider.
- Party means Purchaser or Provider individually.
- Payment Provider means a third-party payment platform made available to Purchaser. Currently, Provider is using Stripe Payments Pty Ltd ACN 160 180 343 as a third-party service provider for Payment Services via https://stripe.com/docs/connect/updating-accounts#tos-acceptance.
- Stripe Account means an online payment profile created and registered with the Payment Provider for and on behalf of Purchaser in order for Purchaser to provide the Payment Services.
- Payment Services means the internet-based payment processing services provided by the Payment Provider, acting as a payment facilitator and/or escrow agent for the collection and payment of the Fees under this Agreement.
- Products means THEOplayer including all software components and related services and documentation offered by Provider.
- Purpose means integrating the Product as an audio/video player on a website, in an audio/video platform or any similar environment.
- SDK means a software development kit which is a set of software development tools that allows the creation of applications for a certain software package, video service platforms, software framework, or similar development platform.
- Services shall mean any service offering as purchased and paid by Purchaser and to be provided by Provider pursuant to this Agreement, including but not limited to, consulting and integration services, professional services, maintenance services, related deliverables and documentation.
- Taxes means any value added tax (VAT), sales tax, income tax, consumption tax or any other similar tax, duty, fee, levy or other governmental charge, customs duties and other levies.
- Term means the period of subscription in accordance with this Agreement.
- THEOplayer means a set of SDKs for various platforms written and developed by the Provider that provides support for playback and related functionalities for HTTP Live streaming (HLS) or MPEG-DASH streams including any related software, source and object code, deliverables, technology and related resources and relevant documentation provided and/or created, made available or developed by Provider to Purchaser in connection with this Agreement.
- Use means using, accessing, downloading, installing or otherwise operating the Product subject to clause titled "LICENSE" and the provided Services in connection with the Purpose of this Agreement and its terms and conditions.
- Updates means all updates, modifications and releases of new versions of Product containing improvements, corrections, minor modifications, bug fixes, patches, or the like that have been publicly announced by the Provider on its website.
- Upgrades shall mean all modifications, new features, enhancements, releases of new versions of Product and similar developments of it which have not been announced already as Updates by Provider on its website. Such Upgrades may be subject to additional charge and require a separate agreement by the Parties and/or are specifically designed for or requested by Purchaser.
GRANT OF LICENSE
In consideration of timely payment by the Purchaser to the Provider of the Fees, the Provider grants to the Purchaser, and the Purchaser accepts from the Provider, 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 Authorized Domains which must be registered by Purchaser via the THEOportal (ii) the Term of this Agreement as mentioned and (iii) the Purpose.
For the avoidance of doubt, the number of Authorized Domains and Impressions is unlimited, but Provider reserves the right to reject one or more Authorized Domains on reasonable grounds.
The Licenses granted hereunder shall be solely for Purchaser's own Use. Save for the right of the Purchaser to integrate the Products for the Purpose, the Purchaser 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 Provider after the Effective Date except for the Updates that have been made publicly available.
Except as specifically set forth herein or as agreed by the Provider in writing, Purchaser 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 Purchaser's rights under this Agreement.
Reverse Engineering and Modifications
Unless agreed by Parties in writing or if the enforcement of this provision is prohibited by applicable law, Purchaser shall not under any circumstances attempt, or knowingly cause or permit others to attempt to modify, adapt, port, merge, decompile, disassemble, reverse engineer, decipher, decrypt or otherwise discover the source code or any other parts of the mechanisms and algorithms used by Product nor remove restrictions or create derivative works of Product or of any part of Product. The Purchaser may not alter, modify, adapt, port or merge Product or any part thereof.
The Purchaser recognizes that all rights, title and interests in and to any and all worldwide Intellectual Property Rights related to the Product shall remain the property of Provider or its suppliers. Unless otherwise agreed upon between the Parties, any Intellectual Property Rights in any Updates, Upgrades, enhancements, customization, modifications, inventions, developments, improvements thereof of any kind to, in, or that otherwise relate to the Product, including any derivative work or results of services during, before or after the Term of this Agreement, either specific to Purchaser, its customer or in general in connection with this Agreement or arising out of the business relationship between the Parties shall solely and exclusively belong to or be transferred to Provider through assignment, entitlement or otherwise, including the entire right, title and interest. For this purpose, Provider shall also have the right to file and prosecute at its own expenses any patent application on the same above, in any country, region or jurisdiction in the world in its own name or on behalf of Purchaser, as the case may be. Purchaser shall not have the right to claim and will not undertake or try to obtain, register or apply for any Intellectual Property Rights or other rights in or to the Product anywhere in the world. Purchaser shall not do anything that might misrepresent, change or otherwise compromise the ownership or proprietary rights of Provider or its suppliers under this Agreement. Purchaser shall not take any actions that would amount to an exhaustion of Provider’s or its suppliers Intellectual Property Rights. The Product may contain the Product logo and copyright notice. It is prohibited to remove or modify the copyright notice and Product logo.
PACKAGES AND IMPRESSIONS
Provider provides for various predefined packages at https://www.theoplayer.com/pricing that can be purchased by Purchaser after having consulted our sales professionals (“Packages”).
A Package consists of a License for the Use of the Product and a maximum amount of Impressions that are included for the Use of the Product in the respective Package. All Impressions will be metered on an aggregated basis for all Authorized Domains as registered by Purchaser via the THEOportal.
Currently Provider provides for a Trial Account, Starter Package, Professional Package and Business Package.
The Trial Account, the Starter Package and Professional Package will be subject to the terms and conditions of this Agreement. The Business Package is subject to the terms and conditions as defined on https://www.theoplayer.com/terms. The terms and conditions of this Agreement will not apply to the Business Package.
The Trial account does not include any support Services.
The paid Packages may include predefined Services to the extent as stated at https://www.theoplayer.com/pricing and with reference to https://www.theoplayer.com/supportplans.
Notwithstanding the Services that are included in the paid Packages as defined as stipulated in this section the Provider has no further obligation under this Agreement to provide any maintenance, support or training to Purchaser. Such additional Services may be purchased by Purchaser separately and subject to additional service fees.
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.
- Fees: Upon purchase, Purchaser shall pay all applicable recurring Fees as defined on www.theoplayer.com/pricing. Depending on the chosen Package, the Fees include a License Fee, Overage Charge and Services Fees.
- Trial Account: If Purchaser has subscribed to test the Product under a Trial Account, the Use of the Product is free of charge for a period of 30 Days, provided the Purchaser does not exceed the maximum amount of ten (10) thousand Impressions during such period.
- License Fee: If Purchaser has opted to purchase a paid Package, the Purchaser must pay for each month to the Provider the then currently applicable recurring License Fee as set out below and as provided by Provider at www.theoplayer.com/pricing during the Term of this Agreement.
- Overage Fee: In case, Purchaser exceeds the maximum amount of limited Impressions included in respective Package for the Use of the Product, Purchaser shall pay the applicable Overage Fee as indicated on www.theoplayer.com/pricing on a monthly basis after the overage has been occured.
- Service Fee: If the Purchaser has chosen to purchase a paid Package that includes support Services as defined in this Agreement, the Fee will also include a recurring Service Fee.
Licensee may select and purchase one or more Add-Ons to customize the Product. Add-Ons may be subject to an additional License Fee as provided by Licensor.
During the Term the Fee may be subject to change by Provider provided Provider has given to Purchaser a prior written notice. In case of an increase of the Fee by more than ten (10) percent, Purchaser may terminate this Agreement with the effective date of such change.
All Fees paid for the Use of the Product and Services are non-refundable except as otherwise provided in this Agreement.
Purchaser shall prepay the Products and Services on a monthly or yearly basis, always on the 3rd day of the respective month in advance of the agreed Term for using the Product and Services. If Customer has chosen to have a yearly subscription the total yearly prepaid Fee shall be subject to a 10% discount.
All payments in connection with the Agreement will be automatically deducted from Purchaser’s credit card as defined under Section “PAYMENT TRANSACTION DETAILS”.
Purchaser shall be responsible to pay all Taxes or levies due in connection with the Fee and Purchaser's Use of the Products and Services.
In order to Use the Product and Services, Purchaser must provide Provider with accurate and complete Billing Information through the THEOportal. Invoices will be sent to the billing address listed in the Billing Information. Provider will issue each Invoice in accordance with the agreed payment term chosen by the Purchaser, either after each successful payment transaction or when the payment for the applicable payment transaction has become due.
For the purpose of billing and invoicing, Purchaser shall provide to Provider its payment details through the THEOportal in accordance with clause titled “PAYMENT TRANSACTION DETAILS” under this Agreement, either during the first registration or at the latest when the usage of the Product and Services becomes chargeable under this Agreement. In the latter case, the Purchaser shall provide its payment details promptly. Provider may also issue a notice to Provider accordingly.
The Purchaser is prohibited from using the Products and Services if the Fee due has not been paid.
In case of (partial) non-payment of an invoice at its expiration date:
- any other non-expired debt of the Purchaser will become due automatically without prior notice;
- the Provider is, without prior notice, entitled to a) immediately suspend, terminate, block and/or blacklist the Use of the Product under this Agreement, or b) immediately suspend or terminate the License and/or this Agreement ;
- the amount due will automatically and without prior notice be increased with ten (10) % interest per year; and
- a lump-sum compensation in the amount of ten (10) % of the unpaid or overdue paid invoice amounts will be due, as well as other applicable legal and extra-legal recovery expenses, protest and legal costs.
All payments due under this Agreement will be executed by using a Payment Provider. Provider assists in processing payment of the Fees by using a Payment Provider for payments under this Agreement. For such purpose, THEOportal may contain links to third-party websites, terms and conditions, resources which may be subject to different terms and conditions and privacy practices. Such links are not an endorsement by the Provider of such Payment Services.
Additionally, Purchaser is also solely responsible to the Payment Provider for all transactions and charges, disputes, refunds, claims, fines, or use of the Payment Services and any penalties or fines imposed by any bank, money services business, payment network, or other financial intermediary resulting from Purchaser’s use of Payment Services in a manner not permitted by this Agreement and the terms and conditions of the Payment provider.
By registering on the THEOportal, Purchaser consents and authorizes Provider and the Payment Provider to: (a) share and disclose with one another any information, payment details and payments instructions that Purchaser provides on the THEOportal for the purpose of the Payment Services; (b) connect Purchaser’s account on the THEOportal with the Payment Provider’s Stripe Account or any other account created by or for Purchaser and, to the extent required to complete Purchaser’s transactions, with any third party service provider for the purpose of the Payment Services.
Additionally for the purpose of the Payment Services, by registering on the THEOportal, Purchaser authorizes, and agrees to allow Provider and the Payment Provider to collect, use, retain, and disclose any information that Purchaser provides to Provider or the Service Provider, including information that Provider or the Payment Provider may collect directly using cookies or other similar means.
Purchaser acknowledges that it is solely responsible for any information or data provided by Purchaser directly to Provider or the Payment Provider or as part of the standard onboarding process on the THEOportal or otherwise for the purpose of the Payment Services.
Provider is not responsible or liable for the availability or accuracy of such Payment Services, or the content, products, or services available from such Payment Provider, or any fraud or other crime facilitated thereby.
In no event shall Provider be liable to Purchaser for any actions, claims, demands, losses, liabilities, damages, recoveries, settlements and/or costs (including attorney, accountant, and expert witness fees and costs), known or unknown, contingent or otherwise of any kind whatsoever, arising out or relating to their respective use of, or in ability to use, the Payment Services, regardless of the legal theory under which such losses are sought.
Provider takes no responsibility and assumes no liability for any action, inaction, omission or negligence of the Payment Provider in connection with the Payment Services.
Due to the nature of the internet, user verification on the internet is difficult. Provider does not assume any responsibility for the confirmation of Purchaser’s identity, qualification and/or experience. Notwithstanding the above, for transparency and fraud prevention purposes to the extent as permitted by applicable laws, Provider may request Purchaser to provide proof of its identity or obtain information about Purchaser from third party databases in Purchaser’s jurisdiction.
Payment Transaction Details
The Purchaser may choose to pay by credit card or SEPA direct debit, or as otherwise agreed by the Parties in writing. Provider advises to use credit card payment for all current and future payments under this Agreement in order to guarantee an uninterrupted Use of the Product, the THEOportal and Services. However, SEPA direct debit option is available in all EU Member States, Norway, Iceland, Liechtenstein, Switzerland, Monaco, San Marino, and Andorra. Purchaser chooses to pay by SEPA direct debit through providing its IBAN account number via THEOportal or otherwise.
By providing the credit card details, IBAN account number or any other payment details, Purchaser is authorizing Payment Provider, to send instructions to Purchaser’s bank and/or credit card provider to debit or credit Purchaser’s bank account in accordance with those instructions.
The Purchaser may provide such payment details for all current and future payments either during the registration process at the THEOportal or at any time later when using the account. In this case, Purchaser acknowledges that all amounts due under this Agreement will be deducted automatically from its credit card and/or bank account in accordance with the Provider’s PAYG model without any further action and separate authorization of Purchaser, unless otherwise agreed upon between the Parties.
In case the Purchaser decides not to provide its payment details for all current and future payments due under this Agreement, the Provider will provide an email with a payment request by credit card each month when a payment is due under this Agreement. Purchaser shall execute each credit card payment within fifteen (15) days after receipt of Provider’s payment request. In such a case, the credit card details are not used for any future payments under the Agreement.
For the avoidance of doubt, Purchaser’s payment details are provided directly to the Payment Provider via the THEOportal and will be linked to Purchaser’s Stripe Account. At no time will such payment details be saved, stored at the THEOportal or used otherwise by the Provider.
COMMENCEMENT AND TERM
This Agreement shall commence on the Effective Date and shall, subject to the provisions of the clause titled "TERMINATION".
This Agreement shall continue to be in effect for one (1) month, unless Purchaser has chosen a twelve months subscription period or any other longer individual term (together “Initial Term”).
After this Initial Term, this Agreement will be tacitly renewed for consecutive one (1) month Terms (Renewal Term), unless one of the Parties terminates the Agreement in accordance with the clause titled "TERMINATION".
At any time, either Party may terminate this Agreement at the end of each Term by giving a 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 for cause with immediate effect and without court authorization:
- if the other Party commits any material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within fifteen (15) calendar days of that Party being notified in writing of the breach; in any case, the following (non-exhaustive) list of events will be considered as a material breach:
- the Purchaser fails to pay the Fee within the agreed payment terms or fails to provide a valid payment details for such payment;
- the Purchaser prevents the Provider from tracking Impressions or causes the information resulting from the tracking of the Impressions to be incorrect or invalid;
- the Purchaser uses the License for Domains other than the Authorized Domains or in contravention with the Purpose;
- the Purchaser Uses the Product for streaming illegal content or in violation of any third-party rights;
- if the Purchaser violates any material term of this Agreement;
- if the Provider has reasonable basis to believe that Purchaser is not abiding by the spirit and the conditions of this Agreement;
- if the Provider has a reasonable basis to believe that Purchaser is impairing the Provider's business;
- if an order is made or a resolution is passed for the winding up of the other Party or if an order is made for the appointment of an administrator to manage the affairs, business and property of the other Party or if a receiver is appointed of any of the other Party’s assets or undertaking or if circumstances arise which entitle the Court or a creditor to appoint a receiver or manager or which entitle the Court to make a winding-up order or if the other Party takes or suffers any similar or analogous action in consequence of debt;
- in case of a change of Control of the Purchaser;
- extraordinary circumstances, unforeseen by the Parties, which would make this Agreement resulting in an illegal action of a Party; or which substantially affect and disturb the cost structure or the initial economic value of the Agreement in an unreasonable manner so that an adherence to the contract would be unreasonable or unfair.
In the event of any termination for cause by the Provider pursuant to the rules set above, Provider is under no obligation to provide a refund for the Fees received from Purchaser or apply such fees to future services.
The Provider may also terminate this Agreement in writing at any time with a thirty (30) days notice period in case the Product and Services reach end of life. In such an event, prepaid Fees shall be refunded on a prorated basis for the remaining period the Product and Services cannot be used.
Effects of Termination
All rights granted to the Purchaser under this Agreement shall forthwith terminate and immediately revert to the Provider. All Use of Products and Services shall immediately be discontinued by Purchaser 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 due Fees shall become immediately collectible and the Provider 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 Provider.
Before Using the Product and Services, Purchaser must create a username and password as well as provide accurate contact and other information, such as email address, telephone number and name, credit card or other payment details (together, “Account Information”). Purchaser is strictly prohibited from: (i) using false Account Information, , (ii) using such information owned or controlled by another person with the intent to impersonate that person, or (iii) providing such information subject to any rights of a person other than Purchaser without appropriate authorization. Provider reserves the right to refuse registration or cancel any account that it reasonably believes is in violation of the foregoing. Purchaser shall be responsible for maintaining the confidentiality of its password and is liable for all activities that occur on its account. Purchaser agrees to immediately notify the Provider of any unauthorized use of Purchaser's Account Information or other breach of security. To the extent required under this Agreement, Purchaser authorizes Provider to save and use such Account Information as provided by Purchaser through the THEOportal.
UPGRADES AND UPDATES
The Provider has no obligation whatsoever under this Agreement to Upgrade, modify or release new versions of the Products.
The Purchaser shall only be entitled to Updates of the Products that have been made publicly available by the Provider.
For statistics and invoicing purposes, Provider will have at all times the right to track the Use and Impressions on the Products. The Provider may use the gathered information to deliver the Products, manage the Purchaser's account, provide customer support, perform research and analysis about Purchaser's Use, enforce the Agreement and perform functions otherwise described to Purchaser at the time of collection. The Purchaser may not prevent the Provider from tracking Impressions or cause that the information resulting from the tracking of the Impressions is incorrect or invalid.
Unless otherwise agreed in this Agreement, Provider will not collect, store or share with a third party any personal data in order to identify an individual user when using the tracking and reporting functionality without Purchaser's express written consent, provided nothing herein shall limit the Provider's right to use and share aggregated, non-personally identifiable data. Purchaser grants Provider a limited, royalty-free, worldwide 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.
MARKETING AND USE OF NAME
The Provider may refer to the Purchaser’s name, trademarks, service marks, logos, and/or branding as well as the existence of this Agreement in (i) marketing and publicity materials as an indication of its experience, and (ii) internal data systems.
The Purchaser may not use the Provider’s trademarks, service marks, logos, and/or branding in any external publicity material without the Provider’s prior written consent.
Purchaser guarantees and warrants to have all rights, permission by third parties and licenses with regards to uploading and streaming of media content when using the Product.
The Provider warrants that paid Use of the Products are in accordance with the minimum technical requirements provided by the Provider to the Purchaser.
THE PROVIDER DOES NOT PROVIDE ANY GUARANTEE, EXPRESS OR IMPLIED, AS TO QUALITY, SUITABILITY, FEATURES, COMPATIBILITY OF THE PRODUCTS AND SERVICES OTHER THAN AS MENTIONED IN THE GENERAL DOCUMENTATION. IN THE EVENT A CLAIM OF THE PURCHASER IS CONSIDERED VALID BY THE PROVIDER, THE SOLE RECOURSE CONSISTS OF A REPAIR OR A REPLACEMENT OF THE RELEVANT SOFTWARE ELEMENT, LIBRARY OR SDK.
EXCEPT TO THE EXTENT AS SPECIFIED IN THE PRECEDING CLAUSE TITLED “SPECIFICATIONS”, ANY PRODUCT AND SERVICE (BE IT FREE OF CHARGE OR PAID) AND ITS USE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO THE PRODUCT’S ACCURACY, TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. PROVIDER DOES NOT WARRANT THE CORRECTION OF ALL DEFECTS OR ANY ERROR-FREE OR UNINTERRUPTED OPERATION OF THE PRODUCT AND SERVICES. THE PROVIDER DOES NOT PROVIDE ANY WARRANTY AS TO QUALITY, SUITABILITY, FEATURES, COMPATIBILITY OF THE PRODUCT AND SERVICES OTHER THAN AS MENTIONED IN SUCH GENERAL PRODUCT DOCUMENTATION AND SERVICE DOCUMENTATION MADE AVAILABLE TO PROVIDER. THIS AGREEMENT DOES NOT PROVIDE ANY REPRESENTATION OR WARRANTY OR LIABILITY AS TO ANY THIRD-PARTY SOFTWARE.
The Provider will not indemnify nor hold harmless the Purchaser against any infringements of any rights of third parties.
Provider shall have no obligation for payment of royalties or any other compensation to Purchaser or third parties, if any, with respect to the Use of the Product and Services by Purchaser or its customers, clients, viewers, listeners for playing media content or in connection with third party products and software. The Purchaser will be exclusively responsible for payment of royalties to third parties.
LIMITATION OF LIABILITY
THE PROVIDER'S TOTAL AGGREGATE LIABILITY TO THE PURCHASER 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 FEE PAID OR PAYABLE FOR THE TERM OF THIS AGREEMENT.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE PROVIDER SHALL NOT BE LIABLE VIS-À-VIS THE PURCHASER OR TO ANY THIRD PARTY, WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE) UNDER A WARRANTY OR INDEMNITY, 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, COSTS OF PROCUREMENT FOR SUBSTITUTION OF PRODUCTS OR SERVICES, THIRD PARTY SOFTWARE AND CLAIMS, PROVIDED INFORMATION, WASTED MANAGEMENT TIME, LOSS OF USE OF COMPUTER SYSTEMS AND RELATED EQUIPMENT, COMPUTER FAILURE AND MALFUNCTIONS, DOWNTIME COSTS, HOWEVER CAUSED, ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCTS AND SERVICES EVEN IF (A) THE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) THE DAMAGES WERE FORESEEABLE.
THE PROVISIONS OF THIS CLAUSE TITLED “LIMITATION OF LIABILITY” SHALL NOT APPLY TO THE EXTENT RESTRICTED OR PREVENTED BY MANDATORY APPLICABLE LAW THAT CANNOT BE AMENDED OR EXCLUDED BY CONTRACTUAL WAIVER SUCH AS DELIBERATE ACTS AND FRAUD.
Treatment of Confidential Information
The Purchaser 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 Provider divulge to any third party any Confidential Information concerning the Provider or its activity it has received or obtained in the framework of this Agreement.
Release from Restrictions
The provisions of the clause titled "CONFIDENTIALITY" shall not apply to any Confidential Information of the Provider that:
- at the time the Purchaser discloses it to a third party or uses it, is generally known to the public through no fault of the Purchaser; or
- at the time the Purchaser uses it or discloses it to a third party, has been made available to the Purchaser by a third party having the lawful rights to do so without breaching any such obligation of non-use or confidentiality; or
- is proven by the Purchaser to have been independently developed by the Purchaser without making use of the Confidential Information; or
- the Purchaser is required to disclose to comply with applicable laws, or to comply with governmental regulations, provided that the Purchaser provides prior written notice of such disclosure to the Provider and takes reasonable and lawful actions to avoid and/or minimize the degree of such disclosure and affords the Provider as much notice as possible of such disclosure to allow the Provider to do likewise.
The clause titled "CONFIDENTIALITY" shall remain in full force and effect notwithstanding any termination of this Agreement.
By accepting this Agreement, Purchaser represents and warrants to have the legal capacity and authority to enter into legally binding contracts and 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.
No Implied Rights
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 endeavour to minimize such effect and to comply with the respective obligation herein contained as nearly as may be in their original form.
Purchaser agrees to release, defend, at Provider’s option, indemnify, and hold Provider and its affiliates and subsidiaries, and their officers, directors, employees, contractors and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) Purchaser’s breach of these Agreement (ii) Purchaser’s negligent or improper use or misuse of the THEOportal or any of Provider’s services, (iii) Purchaser’s breach of any laws, regulations or third party rights; or (iv) Purchaser’s breach of any Payment Service related terms and conditions; or (v) Purchaser’s negligence, misconduct or intentional omission in connection with or during the course of Purchaser’s use of the THEOportal or Payments Service.
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 Purchaser or such other addresses as the Parties may have designated to each other.
Other Agreements and Amendments
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 Purchaser but may not be assigned by Purchaser, except with the prior written consent of the Provider.
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 endeavours 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.
Open Source Software
The Purchaser agrees that the Provider may use open source software for its Product which shall be notified to Purchaser upon its prior written request. This open source software is licensed to Purchaser by the open source software publisher and therefore, governed by the terms and conditions of the applicable open source license terms and conditions which shall apply directly between the Purchaser and the open source software publisher. Purchaser understands to be bound by and to comply with these open source license terms and conditions in connection with the use of the Product. Provider provides all open source software “AS IS” without any warranties or representations, express or implied. Provider is under no obligation to indemnify Purchaser against any third-party infringement claim. The Provider will also have no liability for any damages caused by the open source software. Purchaser shall not modify or create any derivative work of the open source software.
The Provider may modify the terms of this Agreement in its sole discretion and such modifications shall take effect and be binding on Purchaser on the earliest date which they are posted to the Provider's publicly available website or delivered to Purchaser via electronic or physical delivery. No one other than the Provider has the right to modify this Agreement.
GOVERNING LAW AND JURISDICTION
The Agreement is governed by and must be construed, interpreted in accordance with the laws of Belgium without giving effect to the conflict of law principles thereof. The courts of Leuven have exclusive jurisdiction over any dispute, legal action and proceedings arising out of or related to the Agreement, including its termination, which shall be binding and enforceable upon the Parties worldwide. In the event of any proceeding or litigation arising out of this Agreement, the prevailing Party shall be entitled to recover from the non-prevailing Party its legal fees, court fees and related costs to the extent and in ratio of its success. Notwithstanding the foregoing, Provider may bring legal actions against Purchaser in the country where Purchaser has its seat, if it deems necessary for the enforceability of its rights regarding payments by Purchaser under the Agreement.