SQUEEZE® SERVER™ ON-PREMISE
SOFTWARE LICENSE AGREEMENT
1.2 Upgrades. In connection with the Software license, Sorenson shall provide to Licensee all upgrades, enhancements, improvements and bug fixes to the Software (“Software Upgrades”), so long as Licensee has paid the Annual Maintenance Fee (as defined in Exhibit A).
1.3 Business Contacts. Sorenson has provided business and technical contacts as listed in Exhibit C.
2. OWNERSHIP; GRANT OF RIGHTS
2.1 Ownership. Except for the licenses expressly granted in this Section 2, Sorenson retains all right, title, and interest in and to the Software, products, works and other intellectual property created, used or provided by Sorenson for the purposes of this Agreement. Licensee hereby makes all assignments necessary to provide Sorenson the ownership rights set forth in the preceding sentence.
2.2 License Grant.
(a) For purposes of this Section 2, “Licensee Products” shall mean products of Licensee embodying the Software such as a server owned, possessed and controlled by Licensee and any follow-on products, upgrades and other Licensee products identified as such in writing by Licensee which are to be governed under this Agreement.
(b) Subject to Licensee’s compliance with the terms and conditions of this Agreement, Sorenson hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable license to use, during the term of this Agreement, the Software, solely in accordance with all Sorenson-provided documentation and only as provided herein. Notwithstanding the foregoing, if Licensee is an authorized reseller or distributor (as authorized by Sorenson), Licensee may resell or transfer Licensee’s rights under this Agreement to a third party (an “Authorized Transferee”); provided however, such Authorized Transferee shall become party to this Agreement by signing the Adoption Agreement attached hereto as Exhibit D.
2.3 Modification/Reverse Engineering by Licensee. Licensee shall not (and will not allow any third party to): (a) modify, disassemble, reverse engineer, “unlock,” decompile, decipher, create derivative works from or otherwise attempt to discover the source code, object code, or underlying structure, ideas or algorithms of the Software or (b) remove any proprietary notices or labels from the Software. Licensee shall not use any component of the Software as a stand alone application or other than as integrated into the Software.
2.4 Single-License for Single-Server. For each License Fee (as defined in Exhibit A), the license granted to Licensee under this Agreement is strictly limited to use of a single copy of the Software on a single server owned, possessed and controlled by Licensee; such single copy of the Software shall not be used on more than one (1) server. The sole and exclusive server on which the Software is licensed for use for any given License Fee is the server of Licensee on which the Software is initially installed.
3. LICENSE FEES ANNUAL MAINTENANCE FEES; PAYMENT; TAXES
3.1 License Fees; Annual Maintenance Fees. Subject to the terms and conditions of this Agreement, Licensee shall pay Sorenson the License Fees and Annual Maintenance Fees as specified in Exhibit A.
3.2 License Fee Payment Terms. Any License Fees required to be made by Licensee hereunder shall be made in accordance with the terms set forth in this Agreement and in Exhibit A. Payment of all License Fees owed under this Agreement shall be made upon the effectiveness of this Agreement.
3.3 Annual Maintenance Payment Terms. The Annual Maintenance Fee shall be payable on each anniversary of the effective date of this Agreement; provided, however, the initial Annual Maintenance Fee shall be payable upon the effectiveness of this Agreement.
3.4 Termination of Annual Maintenance Fee. The Annual Maintenance Fee shall be automatically renewed for additional one (1) year periods after the effectiveness of this Agreement, unless Licensee requests termination of the Annual Maintenance Fee in writing at least ninety (90) days prior to the end of the then-current term. In the event Licensee terminates payment of the Annual Maintenance Fee in accordance with this Section 3/4, Licensee shall no longer be entitled to receive any Software Upgrades, and will only be entitled to the technical support set forth in Sections 3(b)(iii) and 3(b)(iv) of Exhibit A.
3.5 Taxes. All amounts payable under this Agreement are net amounts and are payable in full, without any deduction for taxes or duties of any kind. Licensee shall pay any and all national, state, or local excise, sales, use, value-added, withholding or other taxes or duties imposed in respect of the rights granted under this Agreement. If any such taxes are imposed at a later time, such taxes will be billed to, and payable by, Licensee. If Licensee pays any withholding taxes based on the payments made by Licensee to Sorenson, Licensee will furnish Sorenson with written documentation of all such tax payments, including receipts and other documentation. This section does not apply to taxes based on the net income of Sorenson.
4. DELIVERY OF SOFTWARE AND SOFTWARE UPGRADES
Sorenson will make the Software and Software Upgrades available to Licensee by download, at no additional charge to Licensee and in a format reasonably acceptable to both parties.
Sorenson shall provide support under this Agreement to solely to Licensee and shall make commercially reasonable efforts to fix bugs and issues with the Software as identified by Licensee to Sorenson in writing. Licensee shall be responsible for all end-user product support. The Software is network-enabled, enabling the Licensee’s local copy/instance of the Software to establish communication with Sorenson servers; accordingly Sorenson shall bear no responsibility for on-premise support except as agreed in writing by the parties for on-site support at and subject to negotiated rates and other provisions. In addition, Sorenson shall have the ability, in its sole discretion, to disable the Software remotely or otherwise in the event of Licensee’s material breach of this Agreement.
6. REPRESENTATIONS AND WARRANTIES
6.1 Representations and Warranties of Sorenson. Sorenson hereby represents and warrants to Licensee as follows:
(a) Any services provided by Sorenson hereunder will be performed in a good and workmanlike, professional manner.
(b) The Software shall not contain any code, programming instruction, or set of instructions that are intentionally designed to damage, disable, impair, interfere with, or otherwise adversely affect computer programs, data files, or hardware of Licensee without the consent and intent of Licensee.
(c) For a period of ninety (90) days from delivery to Licensee, the Software will (i) perform in accordance with the applicable specifications, updated from time to time by Sorenson in its sole discretion, and related documentation provided by Sorenson (and will substantially achieve any function described therein). Sorenson’s entire liability and Licensee’s exclusive remedy for breach of this Section 6.1(d) shall be, at Sorenson’s option, either: (A) repair or replacement of the Software such that it meet the warranty, or (B) if (A) is not practicable, to terminate this Agreement and refund to Licensee a pro-rata portion of the amounts paid in advance for the Annual Maintenance Fee. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 6, THE SOFTWARE AND ALL OTHER TECHNOLOGIES, INFORMATION AND MATERIALS PROVIDED BY SORENSON HEREUNDER ARE PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND AND SORENSON DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
6.2 Representations and Warranties of Licensee. Licensee hereby warrants and represents to Sorenson that:
(a) Licensee has the full power to enter into and carry out its obligations under this Agreement and neither this Agreement nor the performance of or exercise of rights under this Agreement will violate, conflict with, or result in the breach of any term, condition, or provision of any agreement or legal obligation (whether or not existing at the time this Agreement is made effective) to which Licensee is a party or by which it may be bound, or constitute a default thereunder.
(b) Licensee shall not directly or indirectly utilize the Software to facilitate, download, view, upload, search, analyze, access, store or otherwise in any respect process or deal in content that, in the sole judgment of Sorenson, is or may be considered to be unlawful including, but without limitation, content susceptible to copyright protection.
(c) Licensee shall not use the Software on more than one (1) server for each License Fee, and Licensee shall ensure that the sole and exclusive server on which the Software for a given License Fee shall be used is the server owned by Licensee on which such copy of Software is initially installed. Licensee shall prohibit the use of the Software by any third party and shall only use the Software in accordance with this Agreement.
(d) Licensee’s use of the Software does and will comply with all applicable federal, state, and local laws and regulations, including, without limitation, all applicable consumer, regulatory and other laws.
7.1 Sorenson Indemnification. Sorenson shall indemnify Licensee and its officers, directors, agents and employees from claims by a third party (including reasonable outside attorneys’ fees, reasonable expenses, liability, and settlements) to the extent arising from a claim of infringement by the Software of any U.S. patent (issued sixty (60) days or more before first delivery to the Licensee hereunder) or any copyright, or for misappropriation of any third party trade secrets; provided Sorenson is promptly notified in writing of any and all threats, claims, and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over the defense and all negotiations for a settlement or compromise. Sorenson will not be responsible for any settlement it does not approve in writing. Notwithstanding the foregoing, Sorenson shall have no liability for any claim to the extent it is based on (a) Licensee’s written specifications or direction (but excluding where the claim results from the method or manner chosen by Sorenson to implement such specifications or direction), or (b) Licensee’s modification of the deliverables or any portion of the Software. Licensee reserves the right to retain counsel at its own expense to participate in the defense and settlement of any claim. In the event that the Software is held to or believed by Sorenson to infringe, Sorenson will have the option to: (i) replace or modify the Software to be non-infringing, provided that such modification or replacement contains substantially similar features and functionality; (ii) obtain for Licensee the right to continue using the Software; or (iii) if both (i) and (ii) are not reasonably practicable, terminate this Agreement. THIS SECTION 7.1 SETS FORTH SORENSON’S SOLE OBLIGATION AND LICENSEE’S SOLE REMEDY IN THE EVENT OF VIOLATION OF THIRD PARTY RIGHTS.
7.2 Licensee Indemnification. Licensee will defend, indemnify and hold Sorenson harmless from claims by a third party (including reasonable outside attorneys’ fees, reasonable expenses, liability, and settlements) (a) excluded from Sorenson’s indemnity obligations or (b) arising from Licensee’s breach of Section 6.2.
8.1 Confidential Information. Subject to paragraph 8.2, the parties shall treat the terms and conditions of this Agreement as Confidential Information, and each party shall obtain the other’s consent prior to any publication, presentation, public announcement or press release concerning the terms and conditions of this Agreement or other “Confidential Information.” “Confidential Information” shall also include any and all information provided by Sorenson to Licensee that is identified as confidential or proprietary or the like, or it is or was of such a nature (or is or was disclosed in such a manner) as would lead a reasonable person to conclude that the Sorenson considers it confidential. Licensee agrees (a) to hold the Confidential Information in confidence and to take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions Licensee employs with respect to its own confidential materials), (b) not to divulge any such Confidential Information or any information derived therefrom to any third person, (c) not to make any use whatsoever at any time of such Confidential Information except to evaluate internally its relationship with Sorenson, (d) not to copy or reverse engineer any such Confidential Information and (e) not to export or reexport (within the meaning of U.S. or other export control laws or regulations) any such Confidential Information or product thereof. If Licensee is an organization, then Licensee also agrees that, even within the Licensee, Confidential Information will be disseminated only to those employees, officers and directors with a clear and well-defined “need to know” for purposes of the business relationship between the parties. Without granting any right or license, Sorenson agrees that the foregoing shall not apply with respect to any information that Licensee can document (i) is or becomes (through no improper action or inaction by the Licensee any affiliate, agent, consultant or employee of the Licensee) generally available to the public, or (ii) was in its possession or known by it without restriction prior to receipt from Sorenson, or (iii) was rightfully disclosed to it by a third party without restriction, or (iv) was independently developed without use of any Confidential Information by employees of the Licensee who have had no access to any such Confidential Information. Licensee may make disclosures required by law or court order provided Licensee uses diligent reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order and allows Sorenson to participate in the proceeding. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. SORENSON MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE.
8.2 Marketing Disclosure. Sorenson shall have the right to use Licensee’s company name and logo in marketing literature such as press releases, websites and product promotional materials pertaining to use of the Software to indicate that Sorenson has granted to Licensee a license to use the Software. Such use shall be in a manner consistent with reasonable guidelines from Licensee and at a time mutually agreed upon by the parties (but no later than two (2) weeks after the public use of the Software by Licensee).
9. LIMITATION OF LIABILITY
EXCEPT FOR EITHER PARTY’S OBLIAGIONS UNDER SECTION 7 (LIABILITIES), EITHER PARTY’S BREACH OF SECTION 8 (CONFIDENTIALITY), AND LICENSEE’S BREACH OF ANYOF THE LICENSE OR USE RESTRICTIONS CONTAINED HEREIN, UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER ANY CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOST PROFITS OR OTHER SUCH NON-DIRECT DAMAGES IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT. IN NO EVENT SHALL SORENSON BE LIABLE TO LICENSEE FOR ANY AMOUNTS IN THE AGGREGATE THAT EXCEED THE LICENSE FEES PAID BY LICENSEE TO SORENSON UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION ACCRUES.
10. RETURN POLICY
10.1 Return of Defective Software. Licensee may submit a request (a “Return Request”) to return the Software if the Software does not provide the functions generally described in the documentation that accompanies the Software. Upon full investigation by Sorenson of the reported defect and confirmation by Sorenson’s technical support department that a defect in the Software does exist and there is no immediate fix or commercially reasonable workaround available, Sorenson will provide Licensee with a full refund. In order to be eligible for the refund, Licensee must submit the Return Request, together with a copy of Licensee’s order confirmation, invoice or other proof of purchase, within thirty (30) days of purchasing the Software from Sorenson.
10.2 Products Not Eligible for Return. The following products are not eligible for a refund:
(a) Any Sorenson product purchased from any seller other than Sorenson. Such products may only be returned to the seller, in accordance with such seller’s return policy, if any;
(b) Not-for-resale (NFR), pirated, OEM bundled, trial or free-of-charge products;
(c) Products purchased from individuals, resellers or online auction sites (such as eBay or Amazon Marketplace); or
(d) Products, or versions of products, that Sorenson no longer distributes or supports.
11.1 Force Majeure. Neither party shall be liable to the other for delays or failures in performance resulting from causes beyond the reasonable control of that party, including, but not limited to, acts of God, terrorism, labor disputes or disturbances, material shortages or rationing, riots, acts of war, governmental regulations, communication or utility failures, or casualties.
11.2 Compliance with Laws. Each party agrees to comply in all material respects with all applicable laws, rules, and regulations in connection with its activities under this Agreement. Licensee shall not export or re-export the Software, technical data or anything acquired from Sorenson under this Agreement, or the direct product thereof, to any country or third party in any country in contravention of U.S. law or other applicable law, and nothing in this Agreement shall be construed as requiring either party to do so.
11.3 Attorneys’ Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover reasonable out-of-pocket costs and reasonable outside attorneys’ fees.
11.4 Notices. Any notice required or permitted to be given by either party under this Agreement shall be in writing and shall be personally delivered or sent by a reputable overnight mail service, or by first class mail, or by facsimile or email, to the Sales/Business Manager of the other party. A copy of any notice shall be sent to the following:
Sorenson Media, Inc.
ATTN: Sales/Business Manager
25 East Scenic Pointe Drive
Draper, Utah 84020
Fax: (801) 501-8651
With a copy to: Legal Department
11.5 Severability. If any provision of this Agreement is found to be unenforceable or invalid, 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.
11.6 Controlling Law and Jurisdiction. This Agreement and any action related thereto shall be governed, controlled, interpreted and defined by and under the laws of the State of Utah, without regard to the conflicts of laws provisions thereof. All disputes arising under this Agreement shall be finally settled in accordance with the rules and procedures or the Judicial Arbitration and Mediation Service, Inc. by one (1) arbitrator appointed in accordance with such rules. The arbitration shall be final and take place in Salt Lake City, Utah, in the English language, and the arbitral decision may be enforced in any court. Notwithstanding the foregoing, claims for injunctive or other equitable relief may be brought by either party, at any time, before any court of competent jurisdiction.
11.7 Headings. Headings used in this Agreement are for ease of reference only and shall not be used to interpret any aspect of this Agreement.
11.8 Entire Agreement. This Agreement, including all exhibits which are incorporated herein by reference, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous understandings, communications or agreements, written or oral, regarding such subject matter.
11.9 Counterparts. This Agreement may be executed in two counterparts, each of which shall be an original and together which shall constitute one and the same instrument.
11.10 Assignment. Licensee shall not assign this Agreement or any right or interest under this Agreement without the prior written consent of Sorenson, which consent shall not unreasonably be withheld. Any attempted assignment in contravention of this provision will be void and ineffective. Notwithstanding the foregoing, either party may transfer and assign its rights and obligations under this Agreement without consent to a successor to all or substantially all if its assets or business to which this Agreement relates.
11.11 Survival; Support After Termination. Sections 8 and 9 shall survive the termination of this Agreement or the cessation of payment of the Annual Maintenance Fee.
11.12 Nature of Relationship. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Licensee does not have any authority of any kind to bind Sorenson in any respect whatsoever.
11.13 Return or Destruction of Materials Upon Termination. Within ten (10) days of the termination of this Agreement, Licensee shall deliver to Sorenson all Sorenson Confidential Information and Sorenson property in Licensee’s possession, or a certificate certifying destruction thereof.
SOFTWARE, LICENSE FEE AND ANNUAL MAINTENANCE FEE
1. Software. Squeeze® compression software as further defined in Exhibit B.
2. License Fee. For each server onto which Squeeze® Server™ is installed, Licensee shall pay a software license fee as negotiated with your Sorenson Sales Representative per server (the “License Fee”).
3. Annual Maintenance Fee.
(a) Licensee shall pay an annual maintenance fee in the amount of 18% of the aggregate License Fee(s) in advance for one (1) year of maintenance (the “Annual Maintenance Fee”). The Annual Maintenance Fee shall be payable in accordance Section 3 of the Agreement.
(b) The Annual Maintenance Fee provides Licensee with the following:
(i)Software Upgrades, so long as Licensee has paid the Annual Maintenance Fee for such year.
(ii)Priority Phone Support, normal business hours (9 a.m. – 5 p.m. MTN), so long as Licensee has paid the Annual Maintenance fee for such year.
(iii)Priority Email Support, firstname.lastname@example.org
(iv)Live Chat Support, http://support.sorensonmedia.com/
4. Payment Terms. All payments made by Licensee to Sorenson hereunder shall be net thirty (30) days from the date of Sorenson’s invoice. License may made such payments (a) by Licensee’s company check made payable to Sorenson drawn on a U.S. bank, or (b) by wire transfer to the following Sorenson account:
SORENSON MEDIA, INC.
JP Morgan Chase Bank
Account # 476071092
ABA/Routing # 124001545
Sort Code/Swift #: Chasus33
Sorenson Media Federal ID # 76-0793370
THE LICENSED SOFTWARE AND SPECIFICATIONS
Squeeze® Server™ (“Software”), provides the following functionality/features:
- Encoding Job Processing Across Supported Formats: http://www.sorensonmedia.com/squeeze/squeeze-server/formats/
- Ability to automatically process volumes of encoding jobs either in “Batch” or via Watch Folders
- Administrative Console for Scheduling, Routing and Monitoring of Jobs
- Ingest of Jobs from Local, HTTP, Cloud (S3), FTP or sFTP locations
- Output of Jobs to Local, HTTP, Cloud (S3), FTP or Sorenson 360 destinations
- Professional-Quality Video Decoding and Encoding
- Simultaneous File Transcoding
- Advanced Video Filters and Pre-Processing
- REST-based API
Sorenson Media, Inc.
Priority Contact #: (801) 501-8670
Mailing Address: 25 East Scenic Pointe Drive Suite 100, Draper, Utah 84020
Email Address: email@example.com
Live Chat Support: http://support.sorensonmedia.com/
Mailing Address: 25 East Scenic Pointe Drive Suite 100, Draper, Utah 84020
Telephone Number: (801) 501-8650
Website Address: www.sorensonmedia.com
This Adoption Agreement (“Adoption Agreement”) is executed by the undersigned (the “Approved Transferee”) pursuant to the terms of that certain Squeeze Server On-Premises Software License Agreement dated as of _________________________, 20___ (the “Agreement”) by and among Sorenson and Licensee. Capitalized terms used but not defined herein shall have the respective meanings ascribed to such terms in the Agreement. By the execution of this Adoption Agreement, the Approved Transferee agrees as follows:
1. Agreement. The Approved Transferee (a) agrees that it shall be bound by and subject to the terms of the Agreement, and (b) hereby adopts the Agreement with the same force and effect as if the Approved Transferee were originally a party thereto.
2. Notice. Any notice required or permitted by the Agreement shall be given to the Approved Transferee at the address listed beside the Approved Transferee’s signature below.
EXECUTED AND DATED this ______ day of _________________, 20___.
Accepted and Agreed: