MediaMerx Platform License Agreement
CLICKING THE “I ACCEPT” BUTTON THROUGH THE REGISTRATION PROCESS, BY INSTALLING,
ACCESSING OR OTHERWISE USING THE SERVICE (EACH AN "ACCEPTANCE" OF
THIS AGREEMENT), YOU OR THE ORGANIZATION YOU REPRESENT
This MediaMerx Platform License Agreement (the “Agreement”), effective as of the date of Acceptance (“Effective Date”), is between you (“Customer”), and MediaMerx, Inc., a Delaware corporation with a place of business at 118 East 28th Street, New York City, New York 10016 (“MediaMerx”). The parties agree as follows:
1.1 Services. MediaMerx will provide Customer with MediaMerx’s digital content platform and online video publication services, as described in Order Forms executed by the parties from time-to-time (each, a “Service”). The Service may include a selection of television shows, movies, clips and other content (collectively, “Content”). Subject to the terms of this Agreement, MediaMerx grants to Customer a limited, personal, non-exclusive, non-transferable, non-sublicensable right to use the Service identified in an Order Form executed under this Agreement during the applicable Term of Service (as defined in section 9.2). This Agreement consists of all of the terms and conditions set forth in this Agreement and the related order forms, including any online order forms available on MediaMerx’s website (each, an “Order Form”), which define the Services to be provided hereunder and are executed by the parties from time to time, and provides the terms and conditions applicable to all Order Forms. Any modification of this Agreement within an Order Form will apply only to that Order Form in which the modification is set forth.
1.2 Users. MediaMerx acknowledges and agrees that, subject to the terms and conditions of this Agreement, Customer shall have the right to authorize users of Customer’s website (“Users”) to access and use the Service; provided, however, that Customer shall cause such Users to be bound by an enforceable written agreement that is at least as protective of MediaMerx and its rights as this Agreement. Customer shall be responsible and liable for any and all breaches of this Agreement by such Users.
1.3 Systems. Customer shall obtain and operate all modems, servers, devices, software, network and communications equipment and ancillary services (“Systems”) needed to connect to, access or otherwise use the Service, and provide all corresponding backup, recovery and maintenance services. Customer shall ensure that all Systems are compatible with the Service and comply with all configurations and specifications set forth in the documentation provided by MediaMerx (if any).
1.4 Limitations. MediaMerx will not be responsible or liable for any failure in the Service resulting from or attributable to (a) Customer’s Systems, (b) unusually high usage volumes, (c) failures outside of MediaMerx’s facilities in any telecommunications, network or other service or equipment, (d) Customer’s or any third party's products, services, negligence, acts or omissions, (e) any force majeure or cause beyond MediaMerx’s reasonable control, (f) scheduled maintenance or (g) unauthorized access, breach of firewalls or other hacking by third parties.
1.5 Branding. Customer agrees that the Service will be branded in a manner determined by MediaMerx. Customer shall not alter, obscure or remove any printed or on-screen trademark, patent legend or other proprietary or legal notice.
1.6 Customer Content and Cooperation. The Service may permit Customer to distribute its own Content in connection with the Service (“Customer Content”). Customer will furnish to MediaMerx (a) certain materials, domain names, Customer Content and other information (collectively, “Customer Materials”) as reasonably needed to perform the Services, (b) cooperation, technical assistance, resources and support and (c) access to Customer’s Systems as reasonably necessary to perform the Services. Customer represents, covenants, and warrants that Customer will use the Services only in compliance with MediaMerx’s standard usage policy then in effect, and all applicable laws (including but not limited to policies and laws related to spamming, privacy, intellectual property, consumer and child protection, obscenity or defamation).
2.1 Software. If MediaMerx provides Customer with any software (in object code form), including if applicable, any patch, update or new version thereof, to enable Customer and/or Users to take advantage of the Services (“Software”), then subject to all terms and conditions in this Agreement, MediaMerx grants to Customer a nonexclusive, nontransferable (except as expressly provided below) right and license to, as applicable, use or distribute and sublicense such Software to Users without modification solely for personal and non-commercial use in connection with the Services.
3.1 Costs and Expenses. Customer will pay MediaMerx in accordance with the Order Form. Except as specifically provided in this Agreement, each party is responsible for all costs and expenses incurred in connection with its performance hereunder.
3.2 Payment Terms. All amounts due will be payable in United States dollars, and except as otherwise set forth herein or an Order Form, all payments due hereunder will be paid monthly in advance.
5. INTELLECTUAL PROPERTY
5.1 Ownership by MediaMerx. MediaMerx and its licensors will own all right, title and interest, including all Intellectual Property Rights, in and to the Services and Software (collectively, “MediaMerx Technology”). “Intellectual Property Rights” means any and all patent rights, copyright rights, mask work rights, trade secret rights, sui generis database rights and all other intellectual and industrial property rights of any sort throughout the world (including any application therefor).
5.2 No Implied Licenses. Nothing in this Agreement is intended to grant any rights to either party under any Intellectual Property Right of the other party, nor shall this Agreement grant either party any rights in or to the Confidential Information of the other party except as expressly set forth herein.
5.3 Restrictions. Customer shall not directly or indirectly (a) use any of MediaMerx’s Confidential Information to create any service, software, documentation or data that is similar to any Service or Software, (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code of any Software, or the underlying ideas, algorithms or trade secrets therein, (c) encumber, sublicense, transfer, rent, lease, time-share or use the Service or Software in any service bureau arrangement or otherwise for the benefit of any third party, (d) copy, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify any Software, (e) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control laws or regulations of the United States or any other relevant jurisdiction or (f) permit any third party to engage in any of the foregoing proscribed acts. Customer will not redeploy or transfer any System component until all Software have been deleted and permanently erased. Customer shall be responsible for any and all breaches of this Agreement by Users.
5.4 Use of Name. Customer authorizes MediaMerx to include Customer’s name on MediaMerx’s public customer list for the Services. Customer also agrees to participate in a press release with MediaMerx with Customer’s prior approval although such approval will not be unreasonably withheld.
5.5 Trademarks. During the term of this Agreement and subject to all terms and conditions herein, Customer grants to MediaMerx a nonexclusive right and license to use Customer trademarks, service marks, trade names and logotypes in accordance with Customer’s usage instructions (as provided to MediaMerx in writing), solely in connection with provision of the Services.
6.1 Warranties. Each party represents and warrants to the other party that (a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation and has all requisite power and authority to enter into this Agreement, and (b) it has all necessary rights to grant the rights and licenses granted hereunder. In addition, Customer represents and warrants to MediaMerx that (i) Customer Materials are not infringing, misappropriated, defamatory, obscene or violative of the privacy or other rights of a third party and (ii) Content complies will all applicable federal, state and local laws and regulations.
6.2 Service. MediaMerx represents and warrants that it will use commercially reasonable efforts to maintain the Service operational at all times, subject to downtimes resulting from scheduled maintenance, repairs and upgrades. Notwithstanding the foregoing, the Service may be temporarily unavailable, when deemed reasonably necessary or prudent by MediaMerx to repair, maintain or upgrade the Service. MediaMerx will attempt to notify Customer in advance of any such unscheduled downtime.
6.4 Disclaimer. EXCEPT AS
EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES TO THE OTHER
PARTY WITH RESPECT TO ITS OBLIGATIONS RELATED TO THE MEDIAMERX TECHNOLOGY,
SERVICES, OR CONTENT THAT
7.1 By MediaMerx. MediaMerx agrees to defend, indemnify and hold harmless Customer and its officers, directors, employees and agents from and against any and all third party claims, liabilities, penalties, damages, costs and expenses (including reasonable attorneys’ fees), as well as amounts finally awarded in a settlement or by a court, arising from any claim or allegation by a third party that the Services or MediaMerx Technology infringes or misappropriates a valid patent, copyright or trade secret right of a third party. If any of the Services or MediaMerx Technology becomes or, in MediaMerx’s opinion, is likely to become the subject of an injunction, MediaMerx may, at its option, (a) procure for Customer the right to continue using such Service or MediaMerx Technology, (b) replace or modify such Service or MediaMerx Technology so that it becomes non-infringing without substantially compromising its functionality, or, if (a) and (b) are not reasonably available to MediaMerx, then (c) terminate Customer this Agreement in respect of the allegedly infringing Service or MediaMerx Technology. The foregoing states the entire liability of MediaMerx with respect to infringement of patents, copyrights, trade secrets or other intellectual property rights. The foregoing obligations shall not apply to: (i) Services or MediaMerx Technology modified by any party other than MediaMerx, if the alleged infringement relates to such modification, (ii) Services combined or bundled with any non-MediaMerx products, processes or materials, including Customer Materials, where the alleged infringement relates to such combination, (iii) Services or MediaMerx Technology created to the specifications of Customer or (iv) infringement or misappropriation of any proprietary right in which Customer has an interest.
7.2 By Customer. Customer agrees to defend, indemnify and hold harmless MediaMerx and its officers, directors, employees and agents from and against any and all third party claims, liabilities, penalties, damages, costs and expenses (including reasonable attorneys’ fees), as well as amounts finally awarded in a settlement or by a court, arising from any claim or allegation by a third party (a) arising from the Customer use of the Service or any breach or alleged breach by Customer of this Agreement or (b) that the Customer Materials is infringing, misappropriated, defamatory, obscene or violative of the publicity, privacy or any other right of a third party.
7.3 Indemnification Procedure. The indemnifying party's obligations hereunder are conditioned on (a) the party seeking indemnification providing prompt written notice thereof and reasonable cooperation, information, and assistance in connection therewith and (b) it having sole control and authority to defend, settle or compromise such claim, provided that any settlement that does not include the complete release of the indemnified party from liability will require the prior written consent of such indemnified party.
8. Limitation of Liability
9.1 Term. Unless earlier terminated as provided below, this Agreement shall commence on the Effective Date and shall continue in effect until the expiration or termination of all Order Forms executed by the parties pursuant to this Agreement.
9.2 Term of Service. The applicable Term of Service is defined in the related Order Form incorporated herein by reference. Unless otherwise stated within a related Order Form, the Term of Service will automatically renew for successive one (1) year periods (each, a “Renewal Term”), unless such Order Form is earlier terminated as provided herein or within such Order Form. Either party may terminate an Order Form prior to renewal by providing the other party with written notice at least thirty (30) days prior to the renewal date.
9.3 Termination for Breach or Bankruptcy. Either party may terminate this Agreement and/or an Order Form (a) if the other party materially breaches a provision of this Agreement or an Order Form and fails to cure such breach within thirty (30) days after receiving written notice of such breach from the non-breaching party or (b) immediately upon written notice, if the other party makes an assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party's property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within ninety (90) days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.
9.4 Effects of Termination. Upon any termination or expiration of this Agreement and/or an Order Form, all rights, obligations and licenses hereunder and/or within an Order Form shall cease, except that: (a) all obligations that accrued prior to the effective date of termination or expiration and any remedies for breach of this Agreement and/or an Order Form shall survive any termination or expiration; (b) Customer shall promptly return or destroy all Software and other tangible Confidential Information, and permanently erase all Confidential Information from any computer and storage media (with respect to the Order Form in the event that only an Order Form has terminated or expired); (c) Customer’s liability to pay for Services performed (and non-cancelable service terms and/or expenses incurred) prior to the termination or expiration date shall not be extinguished, and shall become due and payable on the termination or expiration date; (d) upon request, MediaMerx shall return to Customer all Content (including any encoded Content created as part of the Services) (with respect to the Order Form in the event that only an Order Form has terminated or expired), provided that Customer has paid in full all good faith undisputed amounts owed to MediaMerx (Customer acknowledges that MediaMerx will delete all Customer Content (with respect to the Order Form in the event that only an Order Form has terminated or expired) sixty (60) Days after termination); and (e) the provisions of Sections 1.2 (last sentence), 2.2, 3, 4, 5, 6, 7, 8, 11 and this Section 9.4 shall survive any termination or expiration of this Agreement.
9.5 No Further Liability. Each Party understands that the rights of termination hereunder are absolute and it has no rights to a continued relationship with the other after termination (except as expressly stated herein). Neither party shall incur any liability whatsoever for any damage, loss or expense of any kind suffered or incurred by the other (or for any compensation to the other) arising from or incident to any termination of this Agreement by such party that complies with the terms of the Agreement whether or not such party is aware of any such damage, loss or expense.
All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. All notices to Customer will be sent to the email and/or address specified in Customer’s account profile. Notices to MediaMerx should be directed to:
Mail: MediaMerx, Inc.; Attention: Legal Dept;
11. General Provisions
This Agreement (including all Order Forms) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties about the subject matter of this Agreement. No waiver, consent or, except as expressly provided herein, modification of this Agreement (including all Order Forms) shall bind either party unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflicts of law provisions. The sole jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in New York, and both parties consent to the jurisdiction of such courts with respect to any such action. In any action or proceeding to enforce or interpret this Agreement, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys' fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained. This Agreement and the rights and obligations hereunder are personal to each party, and may not be subcontracted, delegated, assigned or otherwise transferred, in whole or in part, without the other party’s prior written consent; provided that either party may assign this Agreement to a successor to all or substantially all of the assets or business of such party to which this Agreement relates, whether by merger, sale of stock, sale of assets or other similar transaction. Any attempt to do otherwise shall be void and of no effect. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties. The parties hereto shall each be independent contractors in the performance of their obligations under this Agreement, and nothing contained herein shall be deemed to constitute either party as the agent or representative of the other party, or both parties as joint venturers or partners for any purpose.