SQUEEZE STREAM™ SERVICE AGREEMENT
1.1 “Agreement” means this Squeeze Stream Service Agreement, and any amendments or statements of work that may be agreed upon in writing by the authorized representatives of the parties.
1.2 “Content” means any and all audio and video materials including, without limitation, text, logos, artwork, graphics, pictures, advertisements, sound and other related intellectual property contained in materials uploaded or provided to Sorenson by Customer and/or provided by Customer into the Services.
1.3 “Customer” means __________________________.
1.4 “Effective Date” means the date this Agreement is signed by Customer.
1.5 “Fees” means all fees payable to Sorenson for the use of the Services including, without limitation, the Usage Fee and all Overage Fees.
1.6 “Overage Fee” means all overage fees (calculated in accordance with Annex A) incurred by Customer.
1.7 “Services” means Sorenson Stream™ video delivery network and associated products, offerings and support set forth on Annex A.
1.8 “Sorenson” means Sorenson Media, Inc.
1.9 “Usage Fee” means the usage fee set forth on Annex A.
2. RIGHTS, RESTRICTIONS AND
2.2 Customer Content. Customer hereby grants to Sorenson, throughout the term of this Agreement, the necessary rights or license to perform such acts with respect to the Content as are necessary to provide the selected Services including, without limitation, the right to: (a) deliver the Content in accordance with Customer’s preferences set forth in the Account (i.e. via websites selected or otherwise permitted by Customer); (b) secure, encode, reproduce, host, cache, route, reformat, analyze and create algorithms and reports based on the use of the Content; (c) exhibit, broadcast, publicly display, publicly perform, distribute, copy, store, and/or reproduce the Content (in any form) on or through the Services via platforms supported by Sorenson; and (d) use the Content for the purpose of testing Sorenson’s internal technologies and processes. Customer retains all right, title and interest to all Content.
2.3 Restrictions on Use of Services. Except as expressly authorized herein, Customer shall not: (a) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services; (b) modify, translate, or create derivative works based on the Services; (c) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (d) engage in any action that could reasonably interfere with the functionality or integrity of the Services; or (e) remove any proprietary notices or labels from the Services or any portion thereof. Customer shall not transfer or export the Service or any portion thereof, any related technology, or any direct product of either except in full compliance with export controls administered by the United States and other countries and any applicable import and use restrictions. Sorenson may, at its sole discretion, immediately suspend or terminate Services if the Content is Prohibited Content (defined below) or in the event of any legal restriction imposed on Customer or Sorenson with respect to the provision of the Services. Sorenson’s right to suspend or terminate Services with respect to Content shall not absolve Customer of payment or indemnification obligations described herein.
2.4 Recovery. Sorenson may, at its own discretion, copy and store Content uploaded onto Sorenson servers for the sole purpose of disaster recovery.
2.5 Account. Customer, or Sorenson on behalf of Customer, shall use Squeeze Stream to establish an account to access and use the Services (“Account”). When the Account of Customer is established, it will be prompted to make selections about which Services Customer desires Sorenson to provide with respect to the presentation, management, syndication, distribution and end user access to the Content. Customer may use Squeeze Stream to edit this information; provided, however, that the last preferences reflected in the Account shall be conclusive with respect to Sorenson’s provision of the Services hereunder. Customer is responsible for all activity occurring under its Account including, without limitation, the confidentiality and use of its user identification and passwords.
2.6 Responsibility for Content. Customer is solely responsible for all matters arising out of or in connection with the Content including, without limitation, obtaining all third party and other rights, approvals, licenses, waivers, consents and other permissions necessary for Sorenson to perform the Services hereunder. Customer will use the Services only in compliance with the rights granted hereunder and in accordance with all applicable laws, including, but not limited to, laws related to privacy (whether applicable within the United States, the European Union, or otherwise), intellectual property, consumer and child protection, obscenity, and defamation. Customer is solely responsible for maintaining any copies of its Content and shall take precautionary measures to backup and protect it. Sorenson has no obligation to provide Customer with backup or archival copies of any Content uploaded or distributed via the Services, or to audit or edit Content. Sorenson may, without prior notice, remove Content which, in its sole discretion, is Prohibited Content.
2.7 Prohibited Content. Customer shall not use the Services to upload, download, post, e-mail, transmit, transfer, distribute, display or link to Content that: (a) promotes illegal activity, or provides instructions for illegal activity; (b) exploits images or discloses personally identifiable information of children under eighteen (18) years of age or otherwise harms minors in any way; (c) it does not have the right to use for the purposes of the Agreement; (d) is unlawful, harmful, threatening, abusive, violent, harassing, tortious, defamatory, vulgar, obscene, pornographic, libelous, invasive of privacy or publicity rights, hateful or racially, sexually, ethnically or otherwise objectionable; (e) infringes the intellectual property or proprietary rights or other rights of any third party; (f) is in any way related to any raffle, sweepstakes, contest or game requiring a fee by participants; (g) directly or indirectly is used for “junk mail”, “spam”, “chain letters”, “pyramid schemes”, or any other like form of solicitation; (h) contains any malicious or invasive software, or that could diminish the quality of, interfere with the performance of, or impair the functionality of the Services; or (i) violates the privacy of a third party (collectively, the “Prohibited Content”).
3. OWNERSHIP RIGHTS
Customer acknowledges that Sorenson owns all copyrights, trademarks, patents, trade secrets and other intellectual property rights (collectively “Proprietary Materials”) and all other right, title and interest in, to, and associated with the Services. Sorenson acknowledges that it does not own copyrights, trademarks, patents and other intellectual property rights in and to the Content provided to Sorenson. Under no circumstances does Customer’s possession, access to or use of the Service or Proprietary Materials transfer any ownership rights or any intellectual property rights in the Service or Proprietary Materials to Customer.
Unless otherwise set forth on Annex A, the initial term of this Agreement shall be one (1) year (the “Initial Term”). At the end of the Initial Term or any subsequent Renewal Term, the Customer’s Service will renew automatically for each consecutive successive one (1) year period (a “Renewal Term”), unless either party requests termination in writing at least ninety (90) days prior to the end of the then-current term. Sorenson may, at its sole discretion, suspend or terminate the Agreement if Customer breaches the Agreement, and such breach has not been cured within thirty (30) days of written notice of such breach. Customer will be subject to the return policy attached as Annex B. Upon the expiration or termination of the Agreement for any reason, all licenses granted herein shall terminate and Customer shall immediately discontinue all use of the Services.
5. PAYMENT OF FEES
Each month, in consideration of its rights in and to the Services, Customer agrees to pay Sorenson the Fees. All Fees are in United States dollars and exclude any applicable taxes. If Customer is paying the Fees on a monthly basis (as provided in Annex A), Customer shall submit to Sorenson valid credit card information and Customer hereby authorizes Sorenson to charge such credit card, at any time during each calendar month, the amount of Fees due for such calendar month. If Customer is paying the Fees on an annual basis (as provided in Annex A), Customer shall submit to Sorenson valid credit card information and Customer hereby authorizes Sorenson to charge such credit card, at the end of each calendar month, the amount of Overage Fees due for such calendar month. Customer will be solely responsible for all costs associated with exceeding the limits of Customer’s Service plan, as set forth on Annex A. Sorenson reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term or then-current Renewal Term, upon thirty (30) days prior written notice to Customer (which may be sent by email). With respect to the first month of the Initial Term, the Fees shall be paid on the Effective Date. Unpaid invoices are subject to a finance charge of 1.5% per month or the maximum permitted by law, whichever is lower, plus all expenses of collection. Sorenson may, at its option and without notice, suspend or terminate access to the Services if Customer is more than fifteen (15) days delinquent in paying any portion of the Fees. Fees shall continue to accrue during any period of suspension and must be paid as a condition precedent to reactivation of the Account. If Customer believes that Sorenson has billed Customer incorrectly, Customer must notify Sorenson thereof (in writing) no later than sixty (60) days after the date of the invoice, otherwise the amount invoiced shall be conclusively deemed correct by the parties. Nothing herein limits any other rights available to Sorenson by law to collect sums due and owing.
All Fees payable under this Agreement are net amounts and are payable in full, without any deduction for taxes or duties of any kind. Customer 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, Customer. If Customer pays any withholding taxes based on the payments made by Customer to Sorenson, Customer 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.
7.1 Warranties. Each party represents and warrants that it has full authority to enter into the Agreement, grant the rights and licenses herein and perform its obligations and exercise its rights hereunder. With respect to the Content, Customer represents and warrants that: (a) it has obtained all necessary consents, permissions, licenses and waivers from copyright owners, artist(s), actors, directors, performers, writers, producers, or any other individuals who appear in the Content or the results and proceeds of whose services are utilized in the Content; (b) it has obtained any required synchronization and master use licenses from the owners of the musical compositions and sound recordings embodied in the Content (or their designated representatives); (c) it has made all applicable payments to any labor unions and guilds, to the extent required under applicable collective bargaining agreements or otherwise (e.g., residuals, re-use, rerun and other similar fees); (d) it has obtained public performance licenses from public performance rights collection organizations (e.g., ASCAP, BMI or SESAC); (e) all Content does and will comply with all applicable federal, state and local laws, rules and regulations; (f) the Content does not include any Prohibited Content; or (g) 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 Effective Date) to which Customer is a party or by which it may be bound, or constitute a default thereunder.
7.2 DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 7, THE SERVICES 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. SORENSON does not warrant that the SERVICES will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the SERVICES.
Customer shall indemnify Sorenson (including without limitation Sorenson’s officers, directors, employees, agents, parents, subsidiaries, affiliates, licensors business partners and suppliers, and any successors in interest) from claims by a third party (including reasonable outside attorneys’ fees, reasonable expenses, liability, and settlements) to the extent arising out of or resulting from any claim, action, suit or proceeding alleging that the Content constitutes Prohibited Content or that the Content infringes, misappropriates or violates the intellectual property or proprietary rights or other rights of any third party; provided Customer 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. Customer shall not enter into any settlement or compromise that results in anything other than the payment of monies by Customer without Sorenson’s prior written approval.
9. LIMITATION OF LIABILITY
EXCEPT FOR CUSTOMER’S INDEMNIFICATION OBLIGATIONS AND CUSTOMER’S BREACH OF ANY OF THE LICENSE OR USE RESTRICTIONS CONTAINED HEREIN, NEITHER PARTY (NOR THEIR SUPPLIERS OR LICENSORS), SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY, FOR ANY: (A) INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; (B) COST OR PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES; OR (C) AMOUNTS IN THE AGGREGATE THAT EXCEED THE FEES PAID (PLUS, IN CUSTOMER’S CASE, PAYABLE) BY CUSTOMER TO SORENSON UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION ACCRUES.
10. MARKETING DISCLOSURE
Sorenson shall have the right to use Customer’s company name and logo in marketing literature such as press releases, websites and product promotional materials pertaining to use of the Services by Customer.
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.
25 East Scenic Pointe Drive
Draper, Utah 84020
ATTN: Sales/Business Manager
Fax: (801) 501-8651
With a copy to: Legal Department
12. MISCELLANEOUS PROVISIONS
The parties are independent contractors and no joint venture, partnership, employment, agency or exclusive relationship between the parties is established under the Agreement. The Agreement shall be governed by the laws of the State of Utah, without regard to conflict of law provisions. 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. The Agreement may only be modified by written amendment signed by authorized representatives of each party. All waivers must be made in writing. The failure of either party to enforce any right or provision in the Agreement shall not constitute a waiver of such right or provision. Customer may not transfer or assign the Agreement or any rights or obligations hereunder, directly or indirectly, by operation of law or otherwise, without the prior written consent of Sorenson, and any such assignment without consent shall be null and void from the beginning. The Agreement shall inure to the benefit of and be binding upon a party’s permitted successors and assigns. If any part of the Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of the Agreement shall remain in full force and effect. Customer hereby grants Sorenson an exclusive, worldwide, perpetual, irrevocable, royalty-free license to make, use, copy, modify and create derivative works resulting from any feedback provided to Sorenson by Customer with respect to the Services. Except for any non disclosure agreement between the parities, the Agreement and all annexes hereto, comprises the entire agreement of the parties with respect to the Services and, except where expressly otherwise stated, supersedes all prior and contemporaneous agreements, understandings, and communications, whether oral, written, or through digital online methods of contracting (such as click-through agreements), whether for demonstration purposes or otherwise. 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 email; 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.
There is no return policy associated with Squeeze Stream.
Customers may terminate their annual Service Agreement at any time by contacting sales. Upon such termination, customers shall be subject to an early termination fee totaling 80% of the remaining Fees due for the applicable Term.