Subscription Terms and conditions

These Subscription Terms and Conditions sets forth the terms pursuant to which Customer will be permitted to use the Licensor Products as described in an applicable Order Form (together with the Subscription Terms and Conditions, the “Agreement”). By entering into such Order Form, Customer hereby agrees to the terms of this Agreement. The terms of this Agreement are effective as of the applicable Order Form Effective Date. 

In the event of any inconsistency or conflict between the provisions of the Subscription Terms and Conditions and the terms of any Order Form, the terms of the Order Form shall control. 

1. Definitions

1.1 “User” means a user that is a subscriber of Customer’s services who is actively accessing the Licensed Software at any given time. The number of Users shall be determined on a monthly basis through Licensor’s internal reporting system. The maximum number of Users shall be specified in the Order Form, if applicable.

1.2 “Documentation” means such manuals, documentation and any other supporting materials relating to the Licensor Products as are currently maintained by Licensor and generally provided to its licensees.

1.3 “Internal Purposes” means Customer’s internal business uses in the Territory, including in connection with providing commercial applications or uses in connection with or for the benefit of its IPTV subscribers. 

1.4 “Licensor Products” means products made available by the Licensor to the Customer, the proprietary rights to which are owned by Licensor, including but not limited to the Licensed Software. 

1.5 “Licensed Software” means the object code versions of the computer software obtained by Customer under this Agreement, any extracts from such software, derivative works of such software or collective works constituting such software (such as subsequent releases) to the extent offered to Customer under this Agreement, and the related Documentation. All such Licensed Software shall be specified in a Order Form.

1.6 “Order Form” means the document that specifies the products to be licensed and support services to be purchased by Customer under this Agreement and that incorporates these Subscription Terms and Conditions by reference. 

1.7 “Products” shall collectively refer to the appliance / solutions / system purchased by Customer from Licensor under this Agreement, and shall include the Licensor Products and Third Party Products. 

1.8 “Support Services” means the support services obtained by Customer under this Agreement and described on Addendum A and the Order Form. 

1.9 “Technology” means the hardware, firmware, software, systems, data, ideas, know-how, copyright, trademark and similar technology which the Products are comprised of and are proprietary to the Licensor and the respective third party providers of Third Party Products. 

1.10 “Territory” means the territory set forth in the Order Form.

1.11 “Third Party Products” shall mean the Products purchased by Licensor from a third party and resold to Customer under this Agreement. 

1.12 “Warranty Period” means the ninety (90) day period beginning on the Effective Date of this Agreement.

2. License

2.1 License. Subject to the terms and conditions of this Agreement, Licensor grants to Customer a nonexclusive and nontransferable, perpetual license to use the Licensed Software in the Territory, subject to the following limitations:

(a) The Licensed Software is licensed, not sold to Customer; Customer shall use the Licensed Software for its Internal Purposes only. 

(b) Except as expressly permitted in this Agreement, in no event shall the Licensed Software be disclosed, made available or distributed to or used for the benefit of any third party; sold, assigned, sublicensed, leased or otherwise disposed of, or provided for commercial time-sharing, rental, or service bureau use; or commercially exploited or marketed in any way, with or without charge, by Customer or any of Customer’s employees or agents. 

(c) The license granted hereunder shall be limited to the number of authorized servers and Users as specified in the Order Form, and for which the appropriate license fees have been paid. The total number of users accessing the Licensed Software at any given time may not exceed the total number of Users licensed for the applicable Licensed Software. 

(d) Customer shall not copy the Licensed Software, except for archival or backup purposes or as required by normal installation procedures specified by Licensor. Customer shall affix any proprietary markings or legends placed upon or contained within the Licensed Software to any copies of the Licensed Software permitted hereunder.

(e) Except to the extent permitted by applicable law notwithstanding this restriction, Customer shall not copy, modify, translate, decompile, disassemble or otherwise reverse engineer, or otherwise determine or attempt to determine source code or protocols from, the executable code of the Licensed Software, or create any derivative works based upon the Licensed Software or Documentation, and Customer shall not permit or authorize anyone else to do so. Customer also agrees that any works created in violation of this subsection are derivative works and, as such, Customer assigns all right, title and interest therein to Licensor.

2.2 Technology License. Subject to the terms and conditions of this Agreement, Licensor grants to Customer a license to use the Technology comprising the Products. The use of certain Products may be governed by specific license terms from applicable third parties that shall be provided in writing to Customer in advance of Customer’s purchase or use of such Products. Except as otherwise provided in license agreements included with specific Products, Customer is hereby granted a perpetual nonexclusive, royalty free license to use the Technology only in conjunction with the applicable Products purchased by Customer from Licensor.

2.3 Documentation License. Subject to the prior written authorization of Licensor and to any conditions contained in such authorization, Customer may, at its own expense, make copies of the Documentation, whereupon any and all such copies shall become and remain Documentation, subject to the terms and conditions of this Agreement. Customer shall not remove, and shall affix to the media upon which it is copied, any proprietary markings or legends placed upon or contained within the Products or Documentation.

2.4 Ownership. Licensor and respective third party retain all right, title and interest, including, without limitation, all patent rights, copyrights, trademarks and trade secrets, in and to Technology and any portion thereof, including, without limitation, any copy or derivative work of the Technology (or any portion thereof) and any update thereto. Customer agrees to take any action reasonably requested by Licensor to evidence, maintain, enforce or defend the foregoing. Customer shall not take any action to jeopardize, limit or interfere in any manner with Licensor and respective third party’s ownership of and rights with respect to the Technology, or any derivative work thereof or update thereto. Customer shall have only those rights in or to the Technology and any derivative work thereof or update thereto granted to it pursuant to this Agreement. 

2.5 Verification. Licensor may, at any time during the term of this Agreement and with reasonable prior notice, request and gain access to Customer’s premises for the limited purpose of conducting an inspection to determine and verify that Customer is in compliance with the terms and conditions hereof. Customer shall promptly grant such access and cooperate with Licensor in the inspection; provided, however, the inspection shall be conducted in a manner not intended to disrupt unreasonably Customer’s business and shall be restricted in scope, manner and duration to that reasonably necessary to achieve its purpose.

3. Fees and Payments

3.1 Orders. During the term of this Agreement, Customer may make subsequent orders pursuant to additional Order Form addenda duly executed by each party (“Subsequent Orders”). The Order Form and Subsequent Orders may be referred to collectively as “Orders.” Notwithstanding anything herein to the contrary, the terms and conditions of this Agreement, including any Orders, shall prevail regardless of any conflicting terms on a purchase order or other correspondence, and regardless of any and all verbal communication.

3.2 Fees. The License Fees are set forth in the Order Form. The License Fees commence on the Effective date, regardless of installation or use. License Fees are subject to a 3% increase annually at the start of each Renewal Term.

3.3 Payments. The total, non-refundable license fees for the subscription level selected pursuant to the Order Form shall be payable net thirty (30) days following date of invoice. Any sums not paid when due shall automatically accrue interest from the date when due until actually paid at rate of 1.5% per month or the highest rate allowed by law, whichever is less. 

3.4 Delivery. Licensor shall deliver the Products to the shipping address specified in the applicable Order. For each license granted hereunder, Licensor shall provide one set of Documentation for the appropriate Products. Customer shall be responsible for all freight, handling and insurance charges; all shipments shall be made FOB origin. Unless given written instructions by Customer, Licensor shall select the carrier. 

3.5 Taxes and Other Charges. In addition to all applicable license and administrative fees, Customer shall pay all sales, use, personal property and other taxes resulting from this Agreement or any activities under this Agreement, excluding taxes based on Licensor’s net income, unless Customer furnishes proof of exemption from payment of such taxes in a form reasonably acceptable to Licensor.

4. Support and Services

4.1 Support Services. Licensor shall provide the Support Services for the Products as specified in Addendum A to these Subscription Terms and Conditions, which is hereby incorporated by this reference, at the level of support specified in the applicable Order for the duration of the Term.

4.2 Professional Services. Except for the Support Services, all other professional services provided by Licensor in connection with the Products, including, without limitation, installation, provisioning, configuration, development, and training, shall be provided pursuant to a separate professional services agreement between the parties and described on a statement of work, and shall be subject to the terms, conditions, and additional fees and costs provided therein.

5. Limited Warranty

5.1 Warranty. Licensor warrants that during the Warranty Period the Licensor Products shall conform in all material respects to the specifications specified in Licensor’s Documentation therefor. In the event of a breach of the foregoing warranty, Licensor’s sole obligation, and Customer’s sole and exclusive remedy for such breach, shall be that Licensor shall make all commercially reasonable efforts to promptly correct the non-conforming Licensor Products without charge. Third Party Products shall carry only the warranty extended and permitted to be passed-through by the original manufacturer to Customer. Customer agrees that Licensor has no direct warranty liability for Third Party Products. 

5.2 Disclaimer. THE FOREGOING WARRANTY SET FORTH IN SECTION 5.1 IS IN LIEU OF ALL OTHER WARRANTIES, AND LICENSOR EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY AND NONINFRINGEMENT, AND ALL WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. LICENSOR DOES NOT WARRANT THAT CUSTOMER’S USE OF THE PRODUCTS WILL BE UNINTERRUPTED, THAT THE OPERATION OF THE PRODUCTS WILL BE ERROR FREE, OR THAT THE PRODUCTS OR SUPPORT SERVICES WILL ACHIEVE THE RESULTS INTENDED BY CUSTOMER. 

6. Indemnification

Licensor shall defend, indemnify and hold Customer harmless from and against any third party claim of United States copyright or trade secret infringement relating to the Licensed Products, provided that Customer promptly notifies Licensor in writing of any such claim and allows Licensor to control, and fully cooperates with Licensor in, the defense of any such claim and all related settlement negotiations. In the event an injunction is sought or obtained against Customer’s use of the Licensed Products as a result of any such infringement claim, Licensor may, at its sole option and expense, (a) procure for Customer the right to continue using the affected Licensed Products or (b) replace or modify the affected Licensed Products so that it does not infringe. Licensor shall have no liability for and Customer shall indemnify and hold Licensor harmless from and against any claim based upon (i) use of other than the then-current, unaltered version of the applicable Licensed Products, unless the infringing portion is also in the then-current, unaltered release; (ii) use, modification, operation or combination of the applicable Licensed Products with non-Licensor programs, data, equipment or documentation if such infringement would have been avoided but for such use, modification, operation or combination; (iii) compliance with Customer’s designs, specifications or instructions; or (iv) any third party software or (v) any infringement of intellectual property rights protecting the Poster Art. THE FOREGOING CONSTITUTES THE ENTIRE LIABILITY OF LICENSOR, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIMS OF INFRINGEMENT OF THIRD-PARTY RIGHTS. 

7. Term and Termination

7.1 Term. The Term of this Agreement commences on the Effective Date and continues for the period set forth in the Order Form. Thereafter, the Term shall automatically renew for successive one (1) year periods (each a “Renewal Term”) unless either party gives written notice of its intent not to renew at least thirty (30) days prior to the expiration of the then current term. The Initial Term and each Renewal Term are collectively, the “Term.” 

7.2 Termination. Either party may terminate this Agreement immediately upon written notice to the other party if the other party fails to perform any of its duties or obligations hereunder and fails to cure substantially such default within thirty (30) days after receipt of written notice from the non-defaulting party specifying the occurrence or existence of the default. If Customer is in default, Licensor reserves the right, in addition to all other rights and remedies it may have, to withhold further performance of its obligations under this Agreement and to repossess the Licensed Products and Documentation. Upon termination of this Agreement, Customer shall pay Licensor for Products and Services already delivered to Customer, performed and all third party cancellation charges. 

7.3 Effect of Termination. Upon expiration or termination of this Agreement for any reason, or of any licenses granted hereunder, the provisions of Sections 2.1(e), 2.3, 3.2, 3.4, 5.2, 7.3, and Articles 8, 9, 10, 11 shall survive. 

8. Confidential Information

Customer shall treat and hold the Licensed Software and the terms of this Agreement in strict confidence and shall restrict access to the Licensed Software to Customer’s employees. To the extent the performance of its obligations under this Agreement requires Licensor to be exposed to any information that is identified prior to disclosure by Customer as being confidential or proprietary, Licensor shall not disclose such information to any third parties and shall use such information only to the extent necessary to perform the Support Services under this Agreement; provided, however, no such obligations shall apply to information in the public domain, received from third parties under no obligation of confidentiality or previously known by Customer. Licensor shall hold the terms of this Agreement in confidence, but may reasonably use the name of Customer, and a description of Customer’s use of the Licensed Software, in advertising and promotional literature. 

9. Limitation of Liability

Licensor’s entire liability to Customer for damages concerning performance or nonperformance by Licensor or in any way related to the subject matter of this Agreement, regardless of whether the claim for such damages is based in contract, tort, strict liability, or otherwise, shall not exceed the amounts received by Licensor under this Agreement. 

10. Consequential Damages Waiver

IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, DAMAGES FOR LOST PROFITS, LOST DATA OR LOST BUSINESS, OR ANY OTHER INDIRECT DAMAGES, EVEN IF LICENSOR HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. Licensor shall have no liability with respect to claims relating to or arising from the use of non-Licensor products and services, even if Licensor has recommended, referred or introduced Customer to such products and services.

11. General

11.1 Force Majeure. Except with respect to Customer’s obligation to make timely payments, neither party shall be responsible for any delay or failure in performance to the extent that such delay or failure is caused by fires, strikes, embargoes, explosion, earthquakes, floods, wars, labor disputes, government requirements, civil or military authorities, acts of God or by the public enemy, inability to secure raw materials or transportation facilities, acts or omissions of carriers or suppliers, or other causes beyond its reasonable control.

11.2 Severability. If any provision of this Agreement is declared or found to be illegal, unenforceable or void, then each provision not so affected shall remain in full force and effect. 

11.3 Assignment. Customer may not assign this Agreement or any of its rights or obligations under this Agreement, by operation of law or otherwise, without the prior written consent of Licensor. Licensor may assign this Agreement and any of its rights and obligations under this Agreement. This Agreement shall bind each party and its successors and assigns. 

11.4 Disputes. This Agreement is to be construed in accordance with and governed by the internal laws of the State of California without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of California to the rights and duties of the parties. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be commenced in the state or federal courts located in Santa Clara County, California, and each party hereto irrevocably submits to the exclusive jurisdiction and venue of any such court in any such suit, action or proceeding. 

11.5 No Waiver. No course of dealing, course of performance or failure of either party strictly to enforce any term, right or condition of this Agreement shall be construed as a waiver of any other term, right or condition. No waiver or breach of any provision of this Agreement shall be construed to be a waiver of any subsequent breach of the same or any other provision. 

11.6 Relationship of the Parties. This Agreement shall not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between the parties, and the parties shall at all times be and remain independent contractors. Except as expressly agreed by the parties in writing, neither party shall have any right or authority, express or implied, to assume or create any obligation of any kind, or to make any representation or warranty, on behalf of the other party or to bind the other party in any respect whatsoever.

11.7 Notices. Licensor shall deliver all notices and communications concerning technical, maintenance and administrative matters, and all shipments of software, hardware and documentation, to the attention of the individual or group designated by Customer in writing as Customer’s Technical Contact at the address indicated on the signature page of this Agreement. Any other notice, request, demand, or other communication required or permitted hereunder shall be in writing, shall reference this Agreement and shall be deemed to be properly given: (a) when delivered personally; (b) when sent by facsimile, with written confirmation of receipt by the sending facsimile machine; (c) five (5) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (d) two (2) business days after deposit with an express courier, with written confirmation of receipt. All notices shall be sent to the address specified on the signature page of this Agreement (or to such other address as may be designated by a party by giving written notice to the other party pursuant to this Section).

11.8 Compliance with Laws. Customer agrees not to export the Products and Technology, directly or indirectly, separately or as part of a system, without first obtaining proper authority to do so from the appropriate governmental agencies or entities, as may be required by law, including without limitation any import and export control laws, regulations, orders and requirements applicable. 

11.9 Complete Agreement. This Agreement, any exhibits and schedules attached to it, and any other terms and conditions incorporated by reference herein, contain the entire understanding of the parties with respect to the subject matter hereof, and supersede any and all related prior understandings, agreements, representations, negotiations and discussions, whether oral or written. This Agreement cannot be modified or amended except in a writing signed by both parties.

Addendum A

To the Subscription Terms and Conditions

Support Services

1. Error Corrections

Licensor shall use commercially reasonable efforts to provide an Error Correction designed to solve or bypass a reported Error. If such Error has been corrected in a Maintenance Release, it shall be necessary for Customer to install and implement the applicable Maintenance Release; otherwise, the Error Correction may be provided in the form of a temporary fix, to be used until a Maintenance Release containing the permanent Error Correction is available. Licensor shall determine reasonably the priority level of Errors using the following protocols: 

Priority A Errors: Licensor promptly initiates the following procedures: (1) assigns Licensor specialists to correct the Error on an expedited basis; (2) provides ongoing communication on the status of an Error Correction; and (3) commences to provide a temporary workaround or fix. 

Priority B Errors: Licensor assigns a Licensor specialist to commence an Error Correction, and provides additional, escalated procedures as reasonably determined necessary by Licensor support staff. Licensor uses commercially reasonable efforts to include a fix for the Priority B Errors in the next Maintenance Release. 

Priority C Errors: Licensor shall use commercially reasonable efforts to include an Error Correction in the next Maintenance Release.

2. Maintenance Update and Upgrade Releases

During the Support Services Term, Licensor shall provide Customer with Maintenance Releases if, as and when Licensor makes any such Maintenance Releases generally available to its customers. 

3. Conditions for Providing Support

Licensor’s obligation to provide Support Services is conditioned upon the following:

(a) Customer makes reasonable efforts to solve the reported problem after consulting with Licensor;

(b) Customer provides Licensor with sufficient information and resources to correct the reported problem either at Licensor’s customer support center or via dial-up access at Customer’s site, as well as access to the personnel, hardware and any additional software involved in discovering the problem;

(c) Customer promptly installs all Maintenance Releases; and

(d) Customer procures, installs and maintains all equipment, telephone lines, communication interfaces and other hardware necessary to operate the Licensed Software.

4. Exclusions from Licensor’s Support Services

Licensor is not obligated to provide Support Services in the following situations:

(a) the Licensed Software has been changed, modified or damaged (excluding modifications made under the direct supervision of Licensor);

(b) the problem is caused by Customer’s negligence, hardware malfunction or other causes beyond the reasonable control of Licensor;

(c) the problem is with third-party software not licensed through Licensor;

(d) Customer has not installed and implemented Maintenance Release(s); or

(e) Customer has not paid any fees when due. 

5. Hosting Services

If designated in the Order Form, the Support Services shall include hosting services for the Licensed Software under this paragraph 5. During the Support Services Term, Licensor shall host and maintain the Licensed Software, and provide access thereto, subject to the terms and conditions of this Agreement. Hosting shall include hardware maintenance and installation of Licensed Software and configuration of the hosting environment, as well as installation of all Maintenance Releases. Customer hereby grants to Licensor a worldwide, royalty-free, non-exclusive, limited, nontransferable (except pursuant to Section 11.3 of the Agreement) right and license, during the Support Services Term, to use, reproduce, distribute, transmit, perform (publicly, digitally, or otherwise), display (publicly or otherwise), and make derivative works of any and all data, information, content, and other materials prepared by Customer through the use of, stored by Customer in connection with, or transmitted by Customer by or through, the Licensed Software and/or the hosting environment (the “Customer Materials”) for purposes of making the Licensed Software available to Customer and for analytic, statistical, security, quality control, and similar purposes. Customer represents and warrants to Licensor that it has the right to grant the foregoing licenses in the Customer Materials.

6. Definitions 

For purposes of this Agreement, the following terms shall be defined as follows: 

(a) “Error” means a failure of the Licensed Software to conform to the specifications therefor as specified in the Documentation that results in an inability to use the Licensed Software or a considerable restriction in use of the Licensed Software. Any condition resulting from Customer’s misuse or improper use of the Licensed Software, or merging or combining the Licensed Software with any hardware or software not authorized by Licensor to be so merged or combined, shall not be considered an Error. Errors are classed as Priority A, B or C, as follows:

“Priority A Error” means an Error that renders the Licensed Software inoperative or causes it to fail catastrophically. 

“Priority B Error” means an Error that materially affects the performance of the Licensed Software, but does not prohibit Customer’s use of the Licensed Software. 

“Priority C Error” means an Error that causes only minor impact on the use of the Licensed Software. 

(b) “Error Correction” means either (i) a software modification or addition that, when made or added to the Licensed Software, corrects an Error, or (ii) a procedure or routine that, when observed in the regular operation of the Licensed Software, eliminates the practical adverse effect of an Error on Customer.

(c) “Support Services Term” means the annual period during the term of this Agreement for which the fees for Support Services have been pre-paid. 

(d) “Maintenance Release” means a subsequent version of the Licensed Software that includes Updates and/or Upgrades. 

(e) “Update” means an Error Correction.

(f) “Upgrade” means a revision of the Licensed Software released by Licensor during the Support Services Term to its end user customers generally, to add new and different functions or to increase the capacity of the Licensed Software to process information. Upgrades also include the release of added features that are part of a general release of the Licensed Software, but not new products for which separate fees apply. Any custom developed features or new products requested by Customer shall be subject to additional fees mutually agreed by the parties pursuant to a separate Order.