Digital Convergence Technologies, Inc. General Terms and Conditions
1.1. “Acceptable Use Policy” or “AUP” shall have the meaning set forth in Section 2.2.a.
1.2. “Accepted” or “Acceptance” means a Party’s authorized execution of a document.
1.3. “Affiliate” means an entity directly or indirectly Controlled by, Controlling or under common Control with a Party, now or in the future. An entity shall “Control” another entity when it owns more than 50% of the equity or other voting interests, or otherwise has primary management or operational responsibility.
1.4. “Affiliate” means an entity directly or indirectly Controlled by, Controlling or under common Control with a Party, now or in the future. An entity shall “Control” another entity when it owns more than 50% of the equity or other voting interests, or otherwise has primary management or operational responsibility.
1.5. “Change of Control” means one or more transactions whereby (a) Control of a Party is transferred, directly or indirectly, whether by operation of law or otherwise, (b) all or substantially all of such Party’s assets or equity securities are acquired by a person, firm or entity or (c) such Party is merged or consolidated with or into another entity; provided, that, in any case, such Party’s equity owners of record immediately before such transaction(s) shall, immediately after such transaction(s), hold less than 50% of the voting power of the succeeding, acquiring or surviving entity.
1.6. “Confidential Information” means proprietary, nonpublic or trade secret information, disclosed in written, oral or visual form, that the disclosing Party, its Affiliates or agents (each, a “Disclosing Party“) provides to the receiving Party, its Affiliates or agents (each, a “Receiving Party“) and that Disclosing Party designates as being confidential or, if disclosed orally, states to be confidential at the time of initial disclosure, or if not so marked or stated should reasonably have been understood to be confidential as to Disclosing Party, either because of the circumstances of disclosure or the nature of the information itself and that (a) relates to Disclosing Party, its products, services, developments, trade secrets, know-how or personnel; and (b) is received by Receiving Party from Disclosing Party during the Term.
1.7. “Customer” means a customer that uses or purchases Services pursuant to this Agreement solely for such customer’s use. “Customer” includes a Resale Customer as defined herein.
1.8. “Customer Content” means any digital assets and data provided by Customer and/or Resale Customer to DCT for storage, delivery or other processing associated with the Services, uploaded or routed to, passed through and/or stored on or within DCT’s applicable network or otherwise provided to DCT.
1.9. “Customer Data” shall have the meaning set forth in Section 5.1.
1.10.“DCT” means Digital Convergence Technologies, Inc.
1.11. “Effective Date” means the effective date of the Agreement. Unless otherwise specified in the Service Order and/or Statement of Work, the Effective Date is the date on which the last party signs the Service Order.
1.12. “End User” means a subscriber to, member of or other visitor to an online site or service owned and/or operated by Customer or Resale Customer who uses, benefits from or accesses the Services.
1.13. “End User Data” shall have the meaning set forth in Section 5.1.
1.14. “Force Majeure Event” shall have the meaning set forth in Section 14.4.
1.15. “Intellectual Property Rights” means all rights in, to, or arising out of (a) any U.S., international or foreign patent or any application thereof and any and all reissues, divisions, continuations, renewals, extensions, continuations-in-part, utility models, and supplementary protection certificates thereof; (b) inventions (whether patentable or not in any country), invention disclosures, improvements, trade secrets, proprietary information or materials, know-how, technology and technical data; (c) copyrights, copyright registrations, mask works, mask work registrations, and applications therefor in the U.S. or any foreign country, and all other rights corresponding thereto throughout the world; (d) trademarks, service marks, trade names, domain names, logos, trade dress, and all goodwill associated therewith; and (e) any other proprietary rights of a similar nature anywhere in the world now or hereafter recognized.
1.16. “MRC” means the monthly recurring charge for Services.
1.17. “Open-Source Component” means any software component that is subject to any open-source copyright license agreement, including any GNU General Public Licensor GNU Library or Lesser Public License, or other obligation, restriction or license agreement that substantially conforms to the Open-Source Definition as prescribed by the Open Source Initiative or otherwise may require disclosure or licensing to any third Party of any source code with which such software component is used or compiled.
1.18. “Parties” means Digital Convergence Technologies, Inc. (“DCT”) or Customer; “Party“ means DCT or Customer.
1.19. “Resale Customer” means a Customer that purchases Services through a Reseller.
1.20. “Reseller” means an entity authorized by DCT to sell Services.
1.21. “Service Order” or “SO” means a specification of Services to be performed by DCT and the associated fees or charges, as agreed by the Parties.
1.22. “Services” or “OTT Platform/Services” shall have the meaning set forth in Section 1 of Exhibit A.
1.23. “Service Supplement” means any attachment to this Agreement setting forth the description, rates, service levels and other applicable terms for the Service identified.
1.24. “Statement of Work” or “SOW” means a specification of the non-standard (i.e., custom or professional) Services to be performed by DCT and the associated fees or charges, as agreed by the Parties.
1.25. “Taxes” means any applicable taxes, tax-like charges, tax-related charges and other charges or surcharges, including all excise, use, sales, value-added and other fees, surcharges and levies.
1.26. “Term” shall have the meaning set forth in Section 12.1.
2.1. Services. DCT shall provide the OTT Platform/Services to Customer as specified in a mutually Accepted SO, SOW or Service Supplement, subject to the terms and conditions herein (including any terms or conditions in the applicable SO, SOW and/or Service Supplement). All SOs and SOWs must be in writing and Accepted by an authorized representative of each Party, and refer to the Agreement by number or by title and date. Customer shall not white label or otherwise re-brand the Services for resale without advance written consent from DCT.
2.2. Acceptable Use, Technical Cooperation
b. For Services to function as intended, Customer and Resale Customer should cooperate in good faith with DCT to configure and enable Services. When Customer or Resale Customer elects to send or receive Customer Content using the Services, Customer or Resale Customer is solely responsible for modifying its content identifiers, consistent with guidance that DCT provides, to enable DCT to deliver the selected Customer Content. This may include changing the alias information in Customer’s or Resale Customer’s DNS record so that hostname addresses of page objects resolve to DCT’s servers.
c. Given the nature of the Services, Customer is solely responsible for (i) all bandwidth usage or activity occurring on Customer’s DCT account (e.g., leeching or hotlinking/direct linking to Customer Content), (ii) all resulting charges and costs and (iii) implementing any monitoring, defensive or protective tools or measures (whether offered by DCT or a third Party) related to Customer’s account. Customer is solely responsible for implementing token authentication and maintaining the security of Customer’s DCT account login credentials and any other information used to gain access to Services. Customer is solely responsible for backing up all Customer Content and Customer Data.
2.3. Use of Affiliates/Suppliers/Subcontractors. DCT may at any time, and without notice, use one or more Affiliates, suppliers or sub-contractors in connection with the performance of its obligations under this Agreement.
2.4. Service Level Agreement (“SLA”).
a. The applicable SLA for a Service shall be set forth in the Service Supplement(s). To be eligible for a Credit under an applicable SLA, Customer must be in good standing with no delinquent invoices, in addition to any other SLA requirements. If Customer is eligible to receive more than one Credit attributable to the same SLA failure, Customer shall only receive one Credit equal to the highest of all Credits then available. DCT may modify any SLA from time to time, effective upon notice to Customer or posting of the revised SLA on DCT’s website or other Service specific website as applicable. Continued use of Services 15 days after the date of such notice or posting shall constitute assent to the modified SLA.
b. SLA Exceptions. For the Services, Customer shall not be eligible to receive a Credit and DCT shall not be held responsible for a SLA failure, if a Services Outage (as defined in the applicable SLA) or other service level failure occurs due, directly or indirectly, to the following (collectively, the “SLA Exceptions”): (i) Force Majeure Events; (ii) DNS issues beyond DCT’s direct control; (iii) scheduled maintenance and emergency maintenance and upgrades; (iv) failure or unavailability of hardware that Customer or Resale Customer provides or controls, including, but not limited to, any Customer or Resale Customer origin server; (v) failure or unavailability of any third Party or public network or system, or software applications or code that Customer provides to DCT, or the interactions of these items; (vi) negligent acts or omissions, willful misconduct or breach of an applicable SO, SOW, Services Supplement or the Agreement by Customer or others engaged or authorized by Customer; or (vii) stream buffering that occurs due to, or associated with, conditions beyond DCT’s network or DCT’s immediate control.
2.5. Order of Precedence. To the extent there is any conflict between a SO or SOW, a Service Supplement and the terms and conditions of this Agreement, the order of precedence is: (a) the terms and conditions of this Agreement, (b) the SO, (c) the SOW, and (d) the Service Supplement (solely with respect to the Services being provided under that Service Supplement).
3. CHARGES AND PAYMENT.
3.1. Taxes. All charges are exclusive of Taxes, which Customer must pay. If Customer provides DCT with a valid, duly executed tax exemption certificate, DCT shall exempt Customer from Taxes in accordance with the law, effective on the date DCT receives the exemption certificate. If Customer disputes the application of any Tax, Customer must give DCT written notice of the dispute within one month of the date Data may include information such as your computer’s Internet Protocol (“IP”) address, browser type, browser version, the pages of our Service that you visit, the time and date of your visit, the time spent on those pages and other statistics. In addition, we may use third party services such as Google Analytics that collect, monitor and analyse this type of information in order to increase our Service’s functionality. These third-party service providers have their own privacy policies addressing how they use such information. of the invoice. Otherwise, such application of Taxes, as between DCT and Customer, shall be deemed correct and binding on Customer. If Customer is required by law to make any deduction or withholding from any payment due hereunder to DCT, then notwithstanding anything to the contrary in this Agreement, the gross amount payable by Customer to DCT shall be increased so that, after any such deduction or withholding for taxes, the net amount received by DCT shall not be less than DCT would have received had no such deduction or withholding been required.
a. Payment is due within 30 days of invoice date. All invoices may be provided to Customer electronically. Customer shall remit payment to DCT at its principal offices, unless DCT provides notice to Customer otherwise. All charges shall be invoiced and payable in United States dollars, unless otherwise mutually agreed in writing.
b. If an invoice is unpaid within 30 days of the invoice date (i.e., the invoice becomes delinquent), DCT may, in its sole discretion and effective upon notice to Customer, (i) suspend Services, (ii) apply a late charge on the unpaid amount equal to the lesser of 1.5% interest per month or the maximum rate allowed by law, (iii) require Customer to provide a cash deposit or other security to guarantee payment and/or (iv) pursue any other remedy available under this Agreement, at law or in equity.
c. If Customer desires to dispute in good faith an invoiced amount, Customer shall, within 30 days of the invoice date, (i) pay the invoiced amount and (ii) provide notice of the details of the dispute, together with all supporting documentation. The Parties shall work diligently to promptly resolve the dispute and upon resolution, (1) DCT shall promptly credit to Customer any amount found to be owed to Customer or (2) Customer shall promptly pay to DCT all amounts found to be owed to DCT. If Customer does not timely submit a documented dispute notice per this Section, Customer waives all rights to dispute such amounts, including any claim of set-off or reimbursement.
d. If DCT reasonably deems itself insecure with respect to Customer’s ability to pay (e.g., due to Customer’s withdrawal of credit card authorization for automatic payment), DCT may, in its sole discretion and effective upon notice to Customer, (i) modify Customer’s payment terms (e.g., by changing from monthly to quarterly invoicing of MRCs, as defined herein) and/or (ii) require Customer to provide a cash deposit or other security to guarantee payment.
4. GRANT OF RIGHTS, INTELLECTUAL PROPERTY.
4.1. DCT grants to Customer the right to access and use the Services during the Term solely for the internal business purposes of the Customer. Subject only to the foregoing, DCT retains all worldwide rights, title and interest in and to the Services, DCT equipment, network and methodologies, software and Intellectual Property Rights embodied therein or related thereto, whenever developed. Customer shall not and shall require that Resale Customers do not either directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any Services (including any related software, hardware or information.)
4.2. Customer grants to DCT, and its agents, suppliers and subcontractors, the right to access and use, ingest, reproduce, duplicate, format, store, distribute, display and perform Customer Content and associated metadata as necessary to provide the Services. Subject only to the foregoing, Customer retains all rights, title and interest in and to Customer Content and Intellectual Property Rights embodied therein or related thereto. DCT shall not, either directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from Customer Content.
5.1. The Parties acknowledge and agree that (a) DCT, its Affiliates and agents shall, by virtue of providing Services, come into possession of Customer Data and End User Data, (b) any processing of such data occurs exclusively at the direction and discretion of Customer, as exercised through workflows or other agreed means and (c) DCT, its Affiliates and agents may use, process and/or transfer Customer Data, End User Data and Customer Content (including transfers to entities in countries that do not provide statutory protections for personal data) (i) in connection with providing Services and (ii) as applicable, to incorporate Customer Data into databases controlled by DCT and its Affiliates for the purpose of administration, provisioning, invoicing and reconciliation, verification of Customer identity and solvency, maintenance, support and product development, fraud detection and prevention, sales, revenue and Customer analysis and reporting, marketing and Customer use analysis. “Customer Data” means information that identifies Customer or a Resale Customer, that is provided to DCT for purposes of account creation, billing, authentication, authorization or configuration, and may include name, contact and billing information, IP address, hostnames and other metadata required for Services configuration (e.g., delivery or ingest) of Customer or a Resale Customer. “End User Data” means information that identifies an End User and is necessary to implement and use the HTTP or HTTP/S protocol in connection with providing the Services, including IP address.
During the Term and for three years thereafter, Receiving Party shall not use, copy or disclose Confidential Information except as permitted herein. All copies of Confidential Information remain the sole property of Disclosing Party. Receiving Party shall protect Disclosing Party’s Confidential Information using at least the same procedures as it uses to protect its own Confidential Information, but no less than reasonable procedures. Receiving Party may disclose Confidential Information to its employees, consultants and contractors who have a need to know in connection herewith and who have executed a confidentiality agreement at least as stringent as that provided in this Section 6 or to attorneys or other consultants or contractors who are legally required to maintain the confidentiality of such Confidential Information. Receiving Party also may disclose Confidential Information pursuant to applicable law, regulation, subpoena or other order of a court of competent jurisdiction (collectively, “Legal Requirement”) or to establish rights or obligations under this Agreement in any proceeding; provided, that (1) reasonable prior notice, unless legally prohibited, is provided to Disclosing Party sufficient to provide Disclosing Party an opportunity to contest such disclosure, (2) Receiving Party cooperates with Disclosing Party in complying with any applicable protective order or equivalent, and (3) Receiving Party discloses Confidential Information only to the extent necessary to comply with the Legal Requirement or to establish such rights or obligations. Receiving Party shall notify Disclosing Party upon discovery of any unauthorized use or disclosure of Confidential Information and shall cooperate to help Disclosing Party prevent further unauthorized use or disclosure. DCT shall not be deemed to have received, obtained, discovered, processed, stored, maintained, been given access or required access to Customer’s Confidential Information solely because (x) Customer receives, transmits, obtains or otherwise exchanges such information by using the Services or (y) DCT’s provision of the Services may involve hosting, storage, transport or other similar handling of such information. Receiving Party acknowledges that Disclosing Party’s Confidential Information is valuable and unique, and that unauthorized use or disclosure may result in irreparable injury to Disclosing Party for which monetary damages are inadequate. If Receiving Party violates or threatens to violate this Section 6, Disclosing Party shall be entitled to seek injunctive relief without the need to post bond, in addition to any other available legal or equitable remedies.
7. REPRESENTATIONS AND WARRANTIES.
7.1. Each Party represents and warrants that: (a) it possesses the full right, power and authority to enter into and fully perform the Agreement and grant the rights granted herein; (b) it has obtained and shall comply with, and make any necessary payments due in connection with, all required authorizations, approvals, licenses or permits from all third Parties, government authorities or otherwise in order for it to enter into and perform its obligations herein; (c) it is not bound by any contractual or other legal obligation that would prevent it from entering into or performing its obligations herein; (d) the execution, delivery and performance of this Agreement has been duly authorized by all necessary corporate action; and (e) it shall comply with all applicable laws, rules and regulations in its performance hereunder.
7.2. Customer represents and warrants that it has obtained and maintains all legally required consents and permissions for the use, processing and transfer of Customer Content, Customer Data and End User Data provided to DCT.
7.3 Customer represents and warrants that none of Customer’s known End Users are (a) designated on any U.S. Government or other governmental list of restricted Parties, including the List of Specially Designated Nationals and Blocked Persons administered by the Office of Foreign Asset Controls at the U.S. Department of the Treasury; (b) located in or otherwise ordinarily resident in any country where U.S. or other governmental sanctions or embargo provisions prohibit the provision of the Services; or (c) otherwise prohibited from using, benefiting from or accessing the Services.
DCT PROVIDES THE SERVICES “AS IS” AND DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE, TO THE FULLEST EXTENT PERMITTED BY LAW.
9. LIMITATION OF LIABILITY.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING LOST REVENUES, PROFITS OR GOODWILL, LOST OR DAMAGED CUSTOMER CONTENT OR DATA, LOST CUSTOMERS, BUSINESS INTERRUPTION OR REPLACEMENT SERVICES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY, WHETHER OR NOT SUCH PARTY KNEW OR HAD REASON TO KNOW OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT THE REMEDIES PROVIDED FOR HEREIN FAIL OF THEIR ESSENTIAL PURPOSE, OR WHETHER FORESEEABLE OR NOT, ARISING FROM THE PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT, OR ANY ACTS OR OMISSIONS ASSOCIATED THEREWITH OR RELATED TO DCT SYSTEMS, NETWORKS, COMPONENTS OR PROCESSES, ANY DCT SERVICES, EQUIPMENT, SOFTWARE OR DOCUMENTATION. DCT SHALL HAVE NO LIABILITY FOR BANDWIDTH THEFT (E.G., LEECHING OR HOTLINKING/DIRECT LINKING TO CUSTOMER CONTENT), DENIAL OF SERVICE ATTACKS OR OTHER MALICIOUS ACTS BY THIRD PARTIES. DCT’S AGGREGATE LIABILITY FOR ANY AND ALL CAUSES OF ACTIONS, CLAIMS AND DAMAGES IN CONNECTION WITH THIS AGREEMENT IS LIMITED TO THE LESSER OF (1) DIRECT DAMAGES PROVEN BY CUSTOMER OR (2) THE AMOUNT OF FEES OR CHARGES PAID BY CUSTOMER TO DCT DURING THE 6-MONTH PERIOD BEFORE THE DATE ON WHICH ANY CLAIM AROSE.
10.1. Indemnification. Customer shall, at its cost, defend, indemnify and hold harmless DCT and its officers, directors, employees, agents and permitted successors and assigns (each a “DCT Indemnitee“) through final judgment or settlement, from and against any third-Party claim, action, suit, proceeding, judgments, settlements, losses, damages, expenses (including reasonable legal fees and expenses) and costs (including allocable costs of in-house counsel) (“Claim“) brought against a DCT Indemnitee arising out of or based upon (a) bodily injury, death or loss of or damage to real or tangible personal property to the extent that such Claims were alleged to have been proximately caused by any negligent act, omission or willful misconduct of Customer, its agents or employees, (b) operation or use of Customer’s or Resale Customer’s products, websites or services, (c) Customer Content, (d) unauthorized use of or access to the Services or DCT equipment by Customer, Resale Customer or End User, (e) DCT’s compliance with Customer or Resale Customer specifications, (f) a combination or modification of the Services or DCT equipment by or on behalf of Customer or Resale Customer by anyone other than DCT or its authorized agents, (g) distribution (including by sale or importation), decoding, decrypting, duplication, storage, display/playback, modification or any other use of Customer or Resale Customer information by any non-DCT entity or (h) use of other than the then-current, unaltered release of any DCT-provided software used in the Service.
10.2. Process. The DCT Indemnitee shall (a) promptly provide notice to Customer of any Claim for which indemnity is claimed (provided, that, any delay in providing notice shall not relieve Customer of its obligations hereunder, except to the extent that Customer is materially prejudiced by such delay), (b) permit Customer to control the defense of any such Claim and (c) provide reasonable assistance at Customer’s reasonable cost. Subject to the foregoing, in any Claim for which indemnification is sought, Customer may select legal counsel to represent the DCT Indemnitee (such counsel to be reasonably satisfactory to the DCT Indemnitee) and to otherwise control the defense. If Customer elects to control the defense, the DCT Indemnitee may fully participate in the defense at its own cost. If Customer, within a reasonable time after receipt of notice of Claim, fails to defend the DCT Indemnitee, the DCT Indemnitee may defend and compromise or settle the Claim at Customer’s cost. Notwithstanding the foregoing, Customer may not consent to entry of any judgment or enter into any settlement that imposes liability or obligations on the DCT Indemnitee or diminishes the DCT Indemnitee’s rights, without obtaining the DCT Indemnitee’s express prior consent, such consent not to be unreasonably withheld or delayed, other than cessation of infringing activity, confidential treatment of the settlement, and/or payment of money that is fully indemnified by Customer under this Agreement.
a. DCT shall have the right to refer to Customer as a Customer of DCT dcafe Services. Customer can use DCT/dcafe’s name, logo, trade name, service marks, trademarks or printed material in any promotional or advertising material, statement, document, press release or broadcast with DCT’s prior written consent.
b. Customer covenants and agrees that it: (i) will not use, register or otherwise assert any ownership interest in any mark that in DCT’s reasonable judgment is confusingly similar to DCT’s trademarks or any portion thereof; (ii) will not use DCT’s trademarks in any manner whatsoever which may, in DCT’s reasonable judgment, jeopardize DCT’s ownership or the significance, distinctiveness, validity or value of DCT’s trademarks; and (iii) will not contest the validity of any of DCT’s trademarks.
c. Customer agrees that any and all rights, interests and goodwill that might be acquired by its use of DCT’s trademarks shall inure to the sole benefit of DCT. Customer acknowledges and agrees that, as between itself and DCT, it neither has nor will assert any ownership rights or other interests in DCT’s trademarks other than the limited rights of use expressly provided herein.
d. Customer agrees to comply with rules set forth from time to time by DCT with respect to the appearance and manner of use of DCT’s trademarks.
e. Customer shall comply with all laws and regulations pertaining to the proper use and designation of marks and shall in advertising and printed materials identify DCT’s trademarks with such notice as may be specified by DCT in writing.
f. Unless otherwise set forth in this Agreement or as otherwise expressly agreed by the Parties in writing, upon the effective date of expiration or any termination of this Agreement, all licenses and rights granted pursuant to this Section 11 shall cease and terminate forthwith and immediately revert to DCT, and Customer shall discontinue all use of DCT’s trademarks and shall destroy or return all materials bearing DCT’s trademarks.
12. TERM AND TERMINATION.
12.1. Term. The Agreement shall begin on the Effective Date and shall continue until the earlier of (a) its termination pursuant to the terms of the Agreement, or (b) the expiration or termination of all SOWs and SOs between the Parties (the “Term”).
12.2. Termination for Cause.
a. By Customer. Customer may terminate this Agreement for cause, upon notice to DCT if: (i) a receiver or administrator is appointed for DCT or its property; (ii) DCT makes a general assignment for the benefit of its creditors; (iii) DCT commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law which are not dismissed within 60 days; (iv) DCT is liquidated or dissolved; (v) DCT ceases to do business or otherwise terminates its business operations or (vi) DCT materially breaches this Agreement and such breach continues unremedied for 30 days after receipt of notice from Customer. For clarity and subject to Section 14.5 (Force Majeure), a Services Outage as defined in the applicable SLA is not grounds to terminate this Agreement for cause; Customer’s sole remedy for a Services Outage is set forth in the applicable SLA.
b. By DCT. DCT may terminate this Agreement for cause and/or suspend Services upon notice to Customer if (i) a receiver or administrator is appointed for Customer or its property; (ii) Customer makes a general assignment for the benefit of its creditors; (iii) Customer commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law which are not dismissed within 60 days; (iv) Customer is liquidated or dissolved; (v) Customer ceases to do business or otherwise terminates its business operations; (vi) Customer fails to pay all invoiced fees or charges within 30 days from the invoice date, in accordance with this Agreement; (vii) Customer breaches this Agreement and such breach continues unremedied for 30 days after receipt of notice from DCT. DCT may terminate, interrupt or suspend Service without prior notice if necessary to (1) prevent or protect against fraud, (2) protect DCT’s customers, personnel, facilities, equipment, network or services, (3) prevent violation of Section 7 (Representations and Warranties) or infringement upon the rights of others or (4) prevent potential material liability.
12.3. Termination by DCT for Change of Control. In the event of Customer undergoes a Change of Control, DCT may terminate the Agreement upon 30 days’ notice to Customer’s successor/transferee; provided, that, DCT has determined in its sole discretion that Customer’s successor/transferee is either (a) unable to meet DCT’s standards for creditworthiness, (b) is unable to assume and fulfill Customer’s obligations under the Agreement, (c) otherwise presents an undue financial or credit risk, or (d) is a competitor of DCT.
12.4. Effect of Termination.
a. Upon expiration or termination of the Agreement and/or applicable SO, SOW or Service Supplement for any reason, (i) all Customer rights to access or use Services and any other DCT Intellectual Property Rights shall terminate and DCT shall cease providing same, (ii) Customer shall pay to DCT all fees or charges accrued but unpaid, (iii) all liabilities accrued before the date of expiration or termination shall survive and (iv) as directed by each Disclosing Party, each Receiving Party shall return or destroy, and certify in writing to the Disclosing Party such destruction of, all copies of Disclosing Party’s Confidential Information.
b. If Customer terminates the Agreement, a SO, SOW or Service Supplement early without cause or if DCT terminates the Agreement, a SO, SOW or Service Supplement for cause, Customer shall be invoiced and pay to DCT an early termination charge in such amount as set forth in the applicable SO, SOW or Service Supplement. Such early termination charge is agreed by the Parties to be liquidated damages and is not a penalty.
During the Term, except as otherwise set forth herein, the Parties may not issue press releases or other public communications regarding the Parties’ relationship created by this Agreement or the Services without express prior consent. Customer shall not use DCT’s name, logo, trademarks and/or service marks, trade names, trade dress or other proprietary identifying symbols or otherwise identify or refer to DCT, except as specifically permitted under this Agreement or otherwise with DCT’s express prior consent. Customer grants DCT permission to use Customer’s logo and/or name on the DCT website, in DCT sales presentations, for marketing purposes and promotional materials, and to identify Customer as a customer of the Services in response to requests for information and responses to proposals. All other uses of Customer’s name, logo, trademarks and/or service marks, trade names, trade dress or other proprietary identifying symbols shall be subject to Customer’s consent, which shall not be unreasonably withheld.
14.1. Non-Solicitation. During and for one year after the Term, Customer shall not, and shall ensure that its Affiliates do not, directly or indirectly solicit for employment any person employed by DCT to provide Services. Notwithstanding the foregoing, employment that is initiated by indirect solicitation (such as general newspaper advertisements or general online job postings not targeted at DCT’s employees) shall not be considered a recruitment or solicitation hereunder.
14.2. No Third-Party Beneficiaries. Except as may be set forth in a Service Supplement, there are no third-Party beneficiaries to this Agreement, including any insurance providers or Resale Customers.
14.3. Notices. Any notices to be given hereunder to any other Party, including any notice of a change of address, shall be in writing and shall be deemed validly given if (a) delivered personally, (b) sent by overnight or second day express delivery service, (c) sent by registered or certified mail, postage prepaid, return receipt requested, or (d) sent by confirmed facsimile, as follows:
If to DCT:
Digital Convergence Technologies, Inc.
320, South Broad Street,
Ridgewood, NJ 07450, USA
If to Customer:
Either Party may change its contact information upon notice to the other Party. For clarity, if a notice is not received because the receiving Party has failed to notify the other Party per the preceding sentence or because receipt is refused, such notice nonetheless shall be deemed to have been conclusively made seven days after delivery was reasonably initiated.
14.4. Force Majeure. Neither Party shall be liable by reason of any failure or delay in the performance of its obligations herein due to acts of God, civil disorders, acts of terrorism, rebellion, fires, explosions, accidents, floods, vandalism, sabotage, unavailability of equipment, software or parts from vendors, work stoppages or other labor activity, labor conditions, shortages, fire, flood, storm, earthquake or other natural disaster, explosion, embargoes, strikes, labor disputes, riots, insurrection, war or unrest, military action, governmental restrictions or action, terrorism or threat of terrorism, computer viruses or worms, computer sabotage, ‘Denial of Service’ attacks, DNS spoofing attacks or other malicious online attacks (provided, that the Party claiming such cause has taken commercially reasonable steps to prevent such attacks) or other cause beyond such Party’s reasonable control (each, a “Force Majeure Event“). Customer’s obligation to pay for Services or products provided by DCT before a Force Majeure Event may be delayed during, but shall not be excused by, the Force Majeure Event. DCT may limit use of Services due to a Force Majeure Event. A Party whose performance is affected by a Force Majeure Event shall promptly provide notice with relevant details to the other Party and the obligations of the Party giving such notice shall be suspended to the extent caused by such Force Majeure Event for as long as the Force Majeure Event continues; and the time for performance of the affected obligation shall be extended by the delay caused by the Force Majeure Event. If the affected Party is prevented by the Force Majeure Event from performing its obligations with regard to a Service for 30 days, then it may in its sole discretion immediately terminate the affected Service by giving notice of termination to the other Party; provided, that, in the case of termination by Customer, Customer first provides DCT a reasonable opportunity to replace the affected Service with a comparable Service. Upon such termination, DCT is entitled to payment of all accrued but unpaid fees or charges incurred through the date of such termination. The Parties shall otherwise bear their own costs and DCT shall be under no further liability to perform the Services affected by the Force Majeure Event.
14.5. Choice of Law, Forum. This Agreement shall be construed and enforced in accordance with the laws of the State of New Jersey, without regard to conflict of laws principles. Each Party agrees that any action, suit or other proceeding arising from or based upon this Agreement (each, a “Dispute“) will be brought and maintained only in a Federal or State court of competent jurisdiction located in New Jersey. Each Party consents to the jurisdiction of such courts and waives any right to object to such jurisdiction. The prevailing Party in any Dispute shall be entitled to recovery of its reasonable attorneys’ fees and costs. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
14.6. Relationship of Parties. The Parties are independent contractors and agree that this Agreement does not establish a partnership, association, joint venture or agency relationship or other co-operative entity between the Parties.
14.7. Waiver, Amendments. No failure or delay by either Party to exercise or enforce any right herein shall operate as a waiver of any such right. This Agreement may be amended only by a writing signed by an authorized representative of DCT and an authorized representative of Customer.
14.8. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable or contrary to law, such holding shall not render the Agreement unenforceable or contrary to law as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such provisions within the limits of applicable law.
14.9. Assignment. Neither Party may assign this Agreement without the other Party’s express prior consent except that DCT may freely assign its rights and obligations under this Agreement, in whole or in part, (a) to a parent or Affiliate or (b) in connection with a Change of Control. This Agreement shall be binding upon and inure to the benefit of all permitted successors and assigns. Any assignment in contravention of this Section 14.10 is null and void.
14.10. Export Controls. Each Party acknowledges that the Services, Confidential Information, hardware, software, technology, devices or other materials or information obtained from or provided by DCT under this Agreement may be protected under, and subject to, the United States (“US“) Government import and export control laws, including the Export Administration Regulations (15 C.F.R. Parts 730 et seq.), as well as those of a non-US equivalent; accordingly, their use, import, export and re-export, may be restricted, prohibited or necessitate securing licenses which either Customer or DCT, as applicable, shall obtain or provide information for the securing of such licenses, depending on who is designated as the importer and exporter in the transaction. Each Party agrees not to directly or indirectly export, re-export or cause to be exported or re-exported, any such Confidential Information, Services, hardware, software, technology, device or other such materials or information to any destination or entity prohibited or restricted under US law, unless it shall have first obtained express prior consent of the disclosing Party and obtained all required licenses, approvals or authorizations of the US Government or any other non-US government that may have jurisdiction over the import or export of such Confidential Information, Services, hardware, software, technology, device or other such materials or information.
14.11. Survival. The Parties’ rights and obligations set forth in Sections 3.2(c) (Invoice Disputes), 4 (Intellectual Property), 6 (Confidentiality), 8 (Disclaimer), 9 (Limitation of Liability), 10 (Indemnification) and 14 (Miscellaneous) shall survive termination or expiration of this Agreement.
14.12. Entire Agreement.This Agreement, the AUP(s), the Service Supplements (including any SLAs), the Exhibit(s), and all SOs, SOWs or Addenda between the Parties are incorporated herein by reference, constitute the entire agreement between the Parties with respect to its subject matter and supersede all other prior or contemporaneous representations, understandings or agreements; and there are no other representations, understandings or agreements between the Parties relative to such subject matter. Except as otherwise expressly stated herein, no amendment to this Agreement is valid unless in writing and signed by both Parties.
14.13. Remedies. Unless otherwise provided for in this Agreement, to the extent permitted by applicable law, the Parties’ rights and remedies provided herein are cumulative and in addition to any other rights and remedies at law or equity.
14.14. Construction. Descriptive headings in this Agreement are for convenience only and shall not affect the construction of this Agreement. The terms “include,” “including” or “g.” mean “include, without limitation”. The term “day” means calendar day unless otherwise indicated. Terms with well-known technical or industry meanings are so construed. Each Party and its counsel have fully reviewed and contributed to this Agreement. Any rule of construction that ambiguities are resolved against the drafting Party shall not apply in interpreting this Agreement.
dcafe' OTT Platform/Services
1. dcafe' OTT Platform/Services - Description.
DCT shall provide to Customer the following Services and products in connection with live, linear and video on-demand streaming of Customer Content (collectively, the “OTT Platform/Services”):
a. Platforms: A limited, non-exclusive, non-sublicensable, non-transferable right to access and use dcafe’ Proprietary CMS and Screens. “dcafe’ OTT Platform” means DCT’s Platform including related know-how, which may be used for Web and Devices, Analytics, Billing, CMS, CRM/Customer Support, Devices, End User Authentication, Engagement, Performance, Video Player, Recommendations, Search, Technical Ops and distributing audio and video content via the Internet.
b. Encryption.The use of standard encryption for Customer’s key consumer data.
c. Storage. Server storage for Customer’s consumer data.
d. Support. Technical support to resolve issues with the OTT Platform/Services, both via telephone and email.
e. Reporting and Analytics. High level usage, subscription, asset playback, live, vod, linear playback, ads, revenue data and other metrics on a daily and monthly basis, as well as access to low level usage logs that Customer may optionally use for custom analytics and reporting.
2. Customer Conditions.
a. Restrictions. DCT provides the OTT Platform/Services as a tightly integrated package of products and services that combine to provide a single, end-to-end platform for delivery of linear, live and on-demand Customer Content through various screens. All Customer Content encoded and/or stored using the OTT Platform/Services shall be delivered using the OTT Platform/Services. In addition to any restrictions set forth in the Agreement, Customer shall not (and shall not allow any third party to): (i) modify, translate, or create derivative works based on all or any part of the OTT Platform/Services ; (ii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to all or any part of the OTT Platform/Services ; (iii) use of all or any part of the OTT Platform/Services for timesharing or service bureau purposes or otherwise for the benefit of a third party other than its consumers; or (iv) remove any proprietary notices or labels from all or any part of the OTT Platform/Services . Any use of OTT Platform/Services shall be in compliance with the rights granted hereunder and in accordance with all applicable laws. Customer shall not allow any lien to attach to any portion of the OTT Platform/Services.
b. Equipment. Customer shall be responsible for the maintenance, security and operation of any equipment or hardware, including, but not limited to, modems, hardware, server, software, operation system, networking and web servers (collectively “Equipment”) owned or operated by Customer, its Affiliates, partners and/or sub-contractors. Customer shall be responsible for the maintenance, security and operation of any Equipment it uses in connection the OTT Platform/Services. Customer shall be responsible for all uses of Customer account or the Equipment, with or without Customer’s knowledge or consent.
c. Forecasts.Each quarter, Customer shall participate in a quarterly cadence call to review the service performance and volume forecast of its projected use of the OTT Platform/Services for the following 90-day period, including any uses that may reasonably be expected to require additional resources, with DCT.
3. Charges and Payment.
Any Credit granted under the applicable SLA shall be applied to the next applicable invoice against any charges for usage.
4. Early Termination Fee.
For the purpose of the OTT Platform/Services, the Early Termination Fee will be an amount equal to the sum of (a) 100% of the monthly recurring charges remaining in the Service Commitment set forth in the applicable Service Order or SOW plus (b) Customer’s average monthly usage charges multiplied by the number of months remaining in the Service Commitment set forth in the applicable Service Order or SOW.
5. Service Level Agreement.
1. SLA Application. The applicable SLA for the Services shall be set forth in the Service Supplements(s). To be eligible for a Credit under an applicable SLA, Customer must be in good standing with no delinquent invoices, in addition to meeting any other SLA requirements. If Customer is eligible to receive more than one Credit attributable to the same SLA failure, Customer shall only receive one Credit equal to the highest of all Credits then available.
2. SLA Exceptions. Customer shall not be eligible to receive a Credit and DCT shall not be held responsible for a SLA failure, if a Services Outage (as defined in the applicable SLA) or other service level failure occurs, directly or indirectly, due to an SLA Exception.
In addition to the definitions in the Master Terms and Conditions, the following Service-specific definitions apply:
Content Delivery Network
Means any third-party claim, action, suit, proceeding, judgments, settlements, losses, damages, expenses (including reasonable legal fees and expenses) and costs (including allocable costs of in-house counsel).
Means a credit under in applicable SLA as defined in that SLA
Means content, software, data, video, information and equipment of Customer and/or Customer’s customers, including third-party content, software, data and equipment, provided or made available to DCT for storage, delivery or otherwise in connection with the Services.
Means Internet Content Provider
Means any federated CDN operators used to provide the China CDN Services
Means (a) force majeure events, including acts of God, computer viruses or worms, computer sabotage, ‘Denial of Service’ attacks, domain name system (“DNS”) spoofing attacks or other malicious online attacks (provided, that the Party claiming such cause has taken commercially reasonable steps to prevent such attacks) or other cause beyond such Party’s reasonable control; (b) DNS issues beyond DCT’s direct control; (c) scheduled maintenance and emergency maintenance and upgrades; (d) failure or unavailability of hardware that Customer or Customer provides or controls, including, but not limited to, any Customer or Customer origin server; (e) failure or unavailability of any third Party or public network or system, or software applications or code that Customer provides to DCT, or the interactions of these items; (f) negligent acts or omissions, willful misconduct, or breach of the Agreement by Customer or others engaged or authorized by Customer; (g) stream buffering that occurs due to, or associated with conditions beyond DCT Facilities or DCT’s immediate control; or (h) failure of the DCT control center, DCT reporting system or any DCT measurement system.
DCT dcafe' OTT PLATFORM/SERVICES
SERVICE LEVEL AGREEMENT
This Service Level Agreement (“OTT Platform/Services SLA”) only applies to the OTT Platform/Services.
a. “Base Charge” consists solely of the committed base monthly charge paid by Customer for the applicable OTT Platform/Services and excludes all other fees that might be paid by Customer including, but not limited to, setup fees, charges for additional services, incremental bandwidth usage, professional services and any other type of optional additional services.
b. “Customer Content” means for purposes of this Video Streaming SLA, a video file or images delivered from a Delivery Server.
c. “Delivery Server” means servers for delivering OTT Services (each, a “POP”).
d. “Services Outage” means an instance in which a Service covered by the 99% uptime guarantee is completely unavailable for more than 15 consecutive minutes.
e. “Origin Server” means either DCT’s or Customer’s Internet web server, where Customer Content is stored for retrieval by Delivery Servers.
1. Guarantee of 99% Uptime.
Subject to the SLA Exceptions set forth in the Agreement, DCT provides an uptime guarantee of 99% to Customer covering uptime of DCT OTT Platform uptime and availability. Subject to the terms and conditions of this OTT Platform/Services SLA, DCT shall issue to Customer a credit for a Services Outage in an amount equal to one day’s worth of the Base Fee paid by Customer (“Credit”), multiplied by each 24-hour period in which Customer experiences a Services Outage during a particular month. Periodically (i.e., every 15 minutes or more often)’ DCT shall measure OTT Platform availability by requesting representative Screens.
All Credits are calculated on the basis of a 30-days month. Notwithstanding anything in this OTT Platform/Services SLA to the contrary, total Credits issued to Customer in connection with any calendar month shall not exceed the Base Charge paid by Customer for such month for the OTT Platform/Services. To be eligible for Credit, Customer must follow DCT’s published instructions for use of the Services; improper use shall result in ineligibility. To receive Credit under this Delivery Services SLA, Customer must submit a request in writing via email to firstname.lastname@example.org. The request must include Customer’s (a) company name, (b) contact name, (c) email address and (d) phone number, as well as (e) the date of the suspected Services Outage and (f) a reasonably detailed description of the reason for the Credit request. DCT must receive the Credit request within 30 days after the suspected Services Outage has occurred.
DCT reserves the right to periodically change the measurement points and methodologies it uses without notice. This SLA sets forth Customer’s sole and exclusive remedy for a Services Outage and other issues related to the OTT Platform/Services provided to Customer.
Support and Maintenance
a) “Error” means a failure of the DCT Solution to function in accordance with the applicable documentation provided here: https://app.swaggerhub.com/apis/DCafe1/Dcafe/2.0
b)“Excluded Problem” means any failure or problem that is the result of: (i) misuse of the DCT Solution, or use of the DCT Solution other than in accordance with the documentation or in a manner not permitted under the Agreement, or Customer’s negligence or misconduct, (ii) any problems caused by or arising out of the operation of Customer Content, systems or other resources that are provided by Customer, (iii) any failure or problem that is the result of treatment beyond the reasonable limits of normal use for the DCT Solution, (iv) a Force Majeure Event, (v) Customer’s use of a major release (1.0, 2.0, 3.0, etc.) of the DCT Solution older than the immediately two prior major releases, or (vi) failure, interruption, outage or other problem with any software, hardware, system, network, facility or other matter not supplied by DCT under the Agreement, or (vi) malicious intrusions by third parties or virus attacks.
c) “Business Hours” means 9:00 am – 5:00 pm UK time except weekends and holidays. Customer can obtain a copy of holiday calendar from DCT’s account manager.
d) “Initial Response Time” means the window of time for DCT to intake and acknowledge any Error notifications it receives from Reseller is measured for each Severity Error Level from the time at which Reseller gives notice to DCT with sufficient detail (e.g. a summary with logs and screenshots as available/applicable) of the specific Error.
e) Workaround” means DCT: (i) enables Customer or Reseller to use the DCT Solution, or (ii) provides Customer or Reseller with a commercially reasonable workaround or fix that solves or mitigates a reported Error until DCT provides a final fix to the reported Error.
2. Business Support:
The following technical support terms and conditions shall apply to the DCT Solution (collectively “Business Support”):
a) DCT will provide Customer or Reseller with configuration support and technical support via e-mail and/or telephone during Business Hours.
b) DCT will make all minor releases and new releases that it generally makes available to its customers available for Customer’s or Reseller’s use under the Agreement.
c) Available Documentation and API Documentation:
-Help Center: https://helpcenter.dcafe.io/
-API documentation: https://app.swaggerhub.com/apis/DCafe1/Dcafe/2.0
Product updates and new releases included with self-service installation in accordance with DCT’s release timeline.
3. Support Ticket Process:
Customer or Reseller shall submit via phone or email a technical support ticket (“Support Ticket”) with contact details to DCT for any Error that Customer or Reseller experiences with OTT Platform/Services. DCT will provide Customer or Reseller with dedicated Jira Support Ticket tracking. If DCT’s first-line technical support team member (“First Line Support”) is unable to resolve a Support Ticket issue, then first line Support will escalate the applicable Support Ticket to second-line support, and the process will continue up through DCT’s support chain of command based on its urgency and complexity.
If Customer or Reseller suspects an issue with dcafe’, they will open a ticket via email@example.com
Details to be provided along with the Support Ticket are:
-Domain information [Stage / Pre-prod / Prod]
-Error information [along with screenshot if applicable] / Steps taken to replicate the error.
DCT will talk directly to Customer’s or Reseller’s contact after the ticket has been submitted, and will provide updates to the Network Operations Center (‘NOC’) until resolution, at which time the Customer’s or Reseller’s contact will provide the NOC with confirmation that the issue is resolved to its satisfaction, and then the NOC will close the Service Now ticket(s).
Customer can obtain a copy by requesting same by email from DCT’s account manager.
Official Incident Report and Root Cause Analysis
DCT: When Customer or Reseller impacting incidents occur on DCT, within 48 hours of the incident, an Official Incident Report (OIR) will be provided to Customer or Reseller upon request, which briefly describes the cause of the service impacting incident.
DCT will then follow internal procedures for postmortem analysis of the incident. Utilizing the output of the incident, investigation, and learning review, a formal Root Cause Analysis (RCA) document will be created and provided to Customer or Reseller within 5 business days.
4. Support Procedure:
The support parameters for DCT’s intake and initial response for particular support issues listed below shall apply.
Severity Error Level
Description of Severity Errors
Initial Response Time During Business Hours
Initial Response Time During Business Hours
Initial Response Time During Business Hours
Initial Response Time During Business Hours
High Severity Error
Errors resulting in 100% loss of functionality of the Services. No reasonable Workaround is available. High Severity Errors will be escalated immediately to senior engineering staff.
Medium Severity Error
The Error impacts critical features and functionality resulting in the DCT Solution being significantly restricted in use. To be a Medium Severity Error there must be no Workaround or alternative workflows that can be implemented to resolve the problem.
Low Severity Error
Error may be circumvented by implementation of a Workaround without major difficulties or if the Error concerns minor functionality issues of the DCT Solution.
8 hours during Business Hours
Minor Features and Cosmetic Issues
Errors related to minor features or cosmetic issues relating to non-urgent questions.
24 hours during Business Hours
For avoidance of doubt, Errors related to the user interface or visual defects will be considered Medium Severity Errors unless they result in 100% loss of functionality of the DCT Solution.
Excluded Problem. DCT will have no responsibility to provide support and maintenance services for Excluded Problems.
Resources. DCT will provide Reseller with: (i) access to the DCT’s offshore on-call support team during Business Hours via email and a direct phone number, (ii) a dedicated Jira Support Ticket tracking, and (iii) a dedicated Slack Channel in order for Reseller to communicate with the DCT Engineering support team.
Integration and Upgrade Support. DCT will provide commercially reasonable support and maintenance services to Reseller for: (i) architectural design and scaling guidance, and (ii) during Customer’s planned events, product launches and migrations; provided that Reseller provides DCT with reasonable prior written notice of such events.
Reseller Assistance. Reseller will make available all reasonably required technical resources required to assist and cooperate with DCT in troubleshooting and seeking to resolve any Support Ticket. The Parties acknowledge and agree that for DCT to troubleshoot a Support Ticket, DCT may require specific access to certain of the Customer’s records including, without limitation, as appropriate, log analysis, database access, and administrative privileges. Subject to Customer’s data security policies, Customer will provide reasonable access to the relevant Customer records referred to in the previous sentence but may not be able to provide all records.
Training. DCT will provide training to Reseller staff via a webinar at no additional cost.
9:00 am – 5:00 pm UK time except weekends and Holidays
8×5 hrs coverage except weekends and Holidays
16×5 hrs coverage except weekends and Holidays
24×7 hrs coverage