This Commercial Use License Agreement (this "Agreement") is entered into between OpenTV, Inc., a Delaware corporation on behalf of itself and its Affiliates ("OpenTV") and the party receiving the accompanying software ("Licensee"). For the purpose of this Agreement, "Affiliate(s)" means any legal entity that a party controls, that controls a party, or with which it is under common control and for so long as such control exists. Control is deemed to happen by exercising 50% or more of the voting rights. This Agreement takes effect when you click an "I Agree" button or check box presented with these terms or, if earlier, when you download or use any of the Software (the "Effective Date")
The purpose of this Agreement is to grant Licensee a limited license to the applicable software and documentation selected and/or downloaded by you and provided by OpenTV for commercial use of the Software for the licensed uses set forth in Section 3 below.
DEFINITIONS. Unless otherwise defined, capitalized terms used herein shall have the following meanings:
1.1. "Approved Device" means the third-party hardware devices such as mobile phones, desktop PCs, laptop PCs, and tablet devices, that are listed as certified by OpenTV at supported devices and installed with the Software to enable License to deliver Licensee Content to its Subscribers.
1.2. "Documentation" means the documentation made available by OpenTV to Licensee in connection with the Software that OpenTV designates as the final user guides or manuals and all related written or graphical material in tangible form provided to Licensee by OpenTV in connection with this Agreement.
1.3. "Effective Date" has the meaning given to it in the first paragraph of this Agreement.
1.4. "Extra Impressions" means the number of Impressions in a given calendar month that exceed the Included Impression in such calendar month and for which an additional Impression Fee shall be due in accordance with the selected Fee Structure.
1.5. "Fee Structure" means the combinations of Recurring License Fees and Per Impression License Fees made available by OpenTV at www.video.space/pricing (which site may be updated by OpenTV in its sole and absolute discretion at any time and without any notice to Licensee, provided that OpenTV shall not change a Fee Structure during such period as it is binding on Licensee) with one such combination to be selected by, and binding on, Licensee in accordance with Section 2 in exchange for the rights granted to Licensee herein.
1.6. "FOSS" means the software set forth in the documentation (which may be updated from time to time upon written notice from OpenTV to Customer and without need for formal amendment of this Agreement) which may include Open Source Software developed by third parties.
1.7. "Impression" means each and every instance a Subscriber streams, plays, and/or views any Licensee Content for more than five (5) second and less than four (4) hours using the Software or any portion thereof as may be reasonably determined and measured by OpenTV in accordance with its standard methodologies and protocols, provided that (i) each and every additional four (4) hours of streaming, playing, and/or viewings of Licensee Content beyond the initial four (4) hours shall count as separate Impressions (e.g. streaming 24 hours of Licensee Content constitutes 6 Impressions); (ii) any reloading or resetting of the streaming, playing, and/or viewing of License Content shall count as separate Impressions per each such reloading or resetting; and (iii) where a Subscriber streams, plays, and/or views more than one item of Licensee Content on a single page or screen each such stream, play, and/or view of an item of Licensee Content shall count as separate Impressions. For the avoidance of doubt, the act of pausing or seeking within a particular item of Licensee Content does not alone constitute a separate Impression except to the extent it otherwise qualifies as separate Impressions pursuant to the foregoing subsections (i), (ii), and/or (iii).
1.8. "Included Impressions" means the number of Impressions in a given calendar month that are included for the fixed fee set forth in the selected Fee Structure for such calendar month.
1.9. "Intellectual Property Right" means any and all intellectual property rights howsoever arising and in whatever media, whether or not registered or capable of registration including patents, copyright, trademarks, service marks, trade names, trade secrets, know-how, domain names, design rights, database rights, rights in computer programs, rights to inventions, and any applications for the protection or registration of these rights and all renewals and extensions thereof throughout the world.
1.10. "Licensee Content" means the audio and/or video programming content made available by Licensee to its Subscribers in the Territory, including but not limited to the live broadcast of television programming, video on demand ("VOD"), special events via pay-per-view ("PPV"), as well as metadata relating to any of the foregoing.
1.11. "Licensee Registered Domain" has the meaning given to it in Section 9.
1.12. "Open Source Software" means any software that is licensed under any license terms or other contract terms ("Open License Terms") which require, as a condition of use, modification and/or distribution of such software and/or any other software incorporated into, derived from or distributed with such software ("Derivative Software"), any of the following: (i) that the source code of such software and/or any Derivative Software be made available to third parties; (ii) that permission for creating derivative works of such software and/or any Derivative Software be granted to third parties; and/or (iii) that a royalty-free license be granted to third parties under any intellectual property rights contained in the software and/or any Derivative Software. By means of example and without limitation, Open License Terms include the following licenses or distribution models: the GNU General Public License (GPL), the GNU Lesser or Library GPL (LGPL), or any similar open source, free software or community licenses.
1.13. "Per Impression License Fees" has the meaning given to it in Section 2.2.
1.14. "Prohibited**** Territories" means any country subject to, and for so long as subject to, sanctions, embargo or similar prohibitions by U.S., European, or other applicable export control laws including, but not limited to, as of the Effective Date at least the following countries: Afghanistan, Albania, Armenia, Azerbaijan, Balkans, Belarus, Bulgaria, Burundi, Cambodia, Central African Republic, Cyprus, Cuba, Democratic Republic of the Congo, Eritrea, Estonia, Georgia, Haiti, Iran, Iraq, Kazakhstan, Kyrgyzstan, Laos, Latvia, Lebanon, Liberia, Libya, Lithuania, Moldova, Mongolia, North Korea, People's Republic of China, Romania, Russia, Somalia, Syria, Tajikistan, The Republic of the Sudan, Turkmenistan, Ukraine, Uzbekistan, Venezuela, Vietnam, Yemen, and Zimbabwe.
1.15. "Recurring License Fees"has the meaning given to it in Section 2.1.
1.16. "Registration" means the identification and registration of an instance of the Software by Licensee with OpenTV and delivery of a unique certificate to the Licensee associated with such instance of Software which is a condition for the Subscriber to access to Licensee Content using the Software.
1.17. "Software" means the software products selected and/or downloaded by you from OpenTV's website at video.space or otherwise provided to Licensee by OpenTV pursuant to this Agreement, in each case in machine-readable object code form only.
1.18. "Subscriber" shall mean an end user given permission by Licensee to view the Licensee Content using, in whole or in part, the Software.
1.19. "Term" has the meaning given to it in Section 27.
1.20. "Territory" means any country other than the Prohibited Territories.
FEES. Licensee shall pay to OpenTV the fees set forth in this Section 2 upon the terms and conditions set forth
2.1. Recurring License Fees. In addition to the Per Impression License Fees, Licensee shall pay OpenTV the applicable recurring license fee set forth at video.space/pricing (e.g. monthly, bi-annually, or annually) (the " Recurring License Fees") according to the applicable Fee Structure selected by Licensee. The Recurring License Fees are nonrefundable and due and payable upon the Effective Date of this Agreement and thereafter upon the beginning of each subsequent applicable period.
2.2. Per Impression License Fees. In addition to the Recurring License Fees, Licensee shall pay OpenTV all applicable fees for Included Impression and Extra Impressions in accordance with applicable Fee Structure selected by Licensee including the fees for any Extra Impressions in a given calendar month at the rate for such Extra Impressions ("Per Impression License Fees"). The Per Impression License Fees are nonrefundable and, with respect to Extra Impressions, due and payable on the first of each calendar month for the Extra Impressions in the prior calendar month.
2.3. Selected Fee Structure. The licenses granted herein to Licensee and any use of the Software by Licensee are subject to Licensee's prior selection of a Fee Structure which shall be binding upon Licensee and OpenTV for the applicable period selected (e.g. a month, six months, or a year). Unless Licensee provides OpenTV at least thirty (30) days written notice of its selection of a different then-available Fee Structure or terminates this Agreement prior to the end of the applicable period selected, Licensee's selection of a Fee Structure will automatically renew, and Licensee shall be charged, for such successive periods upon the beginning of each subsequent applicable period. OpenTV reserves the right in its sole and absolute discretion to change the available Fee Structure at any time and without any notice to Licensee, provided that OpenTV shall not change a Fee Structure during such period as it is binding on Licensee.
2.4. Payments Terms. All amounts payable to OpenTV under this Agreement shall be paid in advance by Licensee by credit card which credit card information may be stored by OpenTV (or on OpenTV's behalf) for the payment of Recurring Licensee Fees and/or Per Impression License Fees which Licensee hereby authorizes OpenTV to charge upon the terms and conditions set forth on video.space/pricing. If a payment transaction with the credit card provided by Licensee fails, OpenTV will use commercially reasonable efforts to retry processing such payment transaction up to four (4) times within (i) thirty (30) days for a Fee Structure that is six (6) months or longer in duration or (ii) fourteen (14) days for a monthly Fee Structure (the "Grace Period"). If the payment transaction is not able to be processed and Licensee has not otherwise paid OpenTV the applicable fees due during the applicable Grace Period, this Agreement and the licenses granted herein will immediately and automatically terminate upon expiration of the Grace Period.
2.5. Tracking of Impressions. Licensee hereby agrees and authorizes OpenTV to, at any and all times during the Term, track, record, store, collect, and process the Impressions and any other information of Licensee or its Subscribers as OpenTV may reasonably require to determine the Per Impression License Fees, to manage Licensee's account, to provide customer support, to enforce the terms of this Agreement, and/or to perform such other functions as described to Licensee at the time of collection. Licensee shall not prevent OpenTV from tracking Impressions nor take any action that results in the information resulting from the tracking of Impressions to be incorrect, false, or otherwise inaccurate. Licensee hereby grants OpenTV and its Affiliates a royalty-free, worldwide, non-exclusive, perpetual, and irrevocable license to use any information collected from Licensee or its Subscribers regarding Impressions for the operation of the Software, to ensure compliance with this Agreement and for internal business, development and testing purposes.
2.6. Taxes; Set-offs. Any and all payments made by Licensee in accordance with this Agreement are exclusive of any taxes that might be assessed against Licensee by the applicable jurisdiction(s), upon the terms and conditions set forth on video.space/pricing. Licensee shall either (i) pay such taxes at the time the fees are paid by Licensee under this Section 2 or (ii) reimburse OpenTV for all value-added, sales, use, property and similar taxes; all customs duties, import fees, stamp duties, license fees and similar charges; and all other mandatory payments to government agencies of whatever kind, except taxes imposed on the net or gross income of OpenTV. All fees payable to OpenTV under this Agreement shall be without set-off and without deduction of any taxes, levies, imposts, charges, withholdings and/or duties of any nature which may be levied or imposed, including without limitation, value added tax, customs duty and withholding tax. If Licensee is at any time required by any applicable law to make any such deduction from any amount due to OpenTV under this Agreement, then the amount due from Licensee to OpenTV in respect of such payment shall be increased by such amount to result, notwithstanding the deduction, in OpenTV's receipt on the due date of the amount that OpenTV would have received if Licensee had not been required to make such deduction.
2.7. Late Payments. Notwithstanding any other rights of OpenTV including its right to terminate this Agreement pursuant to Sections 2.4 and 27, in the event of late payment by Licensee, OpenTV shall be entitled to interest on the amount owing at a rate of 1% per month or the highest rate allowed by applicable law, whichever is less, compounded on a daily basis from the due date of payment until the date of actual payment. Notwithstanding any other rights of OpenTV, as long as Licensee is in delay for any payment due hereunder, OpenTV shall be entitled to refuse delivery of the Services under this Agreement and to demand pre-payment for further Services under this Agreement.
2.8. Additional Services. Any fees for additional services, as well as expenses not included in this Agreement, will be invoiced separately with such services provided at OpenTV's then-current rates for such services.
LICENSE TO SOFTWARE. Subject to Licensee's compliance with the terms of this Agreement including timely payment to OpenTV of all applicable fees, OpenTV hereby grants Licensee a limited, royalty-bearing non-transferable, non-exclusive, non-assignable and non-sublicensable license during the Term and solely in connection with the distribution of Licensee's Content to Subscribers over the internet in the Territory and in a manner consistent with the applicable Documentation, to:
- (i)use, test and integrate the Software at Licensee's facilities for the purpose of enabling Subscribers to receive Licensee Content on Approved Devices through Licensee's Registered Domain;
- (ii)distribute the Software to Subscribers on Approved Devices for the sole purpose of viewing and interacting with Licensee Content through to receive Licensee Content on Approved Devices through Licensee's Registered Domain; and
- (iii)copy the software solely to the extent necessary to give effect to Sections 2(i) and (ii).
Notwithstanding anything to the contrary herein, Licensee understands and agrees that the licenses to the Software granted in this Section 3 in each case are in machine-readable object code form only, and do not include the right to re-sell or otherwise distribute the Software to third parties as a standalone product. Licensee shall not sublicense or transfer its rights under this Agreement.
LICENSE TO DOCUMENTATION. OpenTV hereby grants to Licensee, a limited, non-transferable, non-exclusive, non-assignable and non-sublicensable license to use the Documentation during the Term in connection with the permitted use of the Software under Section 3. Licensee shall have the right to make and use a sufficient number of copies of the Documentation as reasonably necessary to give effect to the purpose of the rights granted to Licensee in this Agreement.
RESTRICTIONS ON LICENSES. In addition to the limitations set forth above, Licensee agrees that, except as otherwise expressly provided by this Agreement, it shall not: (a) exceed the scope of the licenses granted in Section 3; (b) make copies of the Software or Documentation; (c) sublicense, assign, delegate, rent, lease, sell, time-share or otherwise transfer the benefits of, use under, or rights to, the licenses granted hereunder or any of the related rights or obligations, whether as a standalone or bundled product, for any reason, and any attempt to make any such sublicense, assignment, delegation or other transfer by Licensee shall be void and of no effect; (d) reverse engineer, decompile, disassemble or otherwise attempt to learn the source code, structure or algorithms underlying the Software, or use the Software or any portion thereof except in machine-readable object code form, except to the extent required to be permitted under applicable law; (e) modify, translate or create derivative works of the Software without the prior written consent of OpenTV, including without limitation any software that emulates or otherwise substitutes for the Software or any component thereof; (f) remove any copyright, trademark, patent or other proprietary notice that appears on the Software, Documentation or copies thereof; (g) combine or distribute any of the Software with any software subject to Open License Terms; or (h) use or permit the use of the Software in conjunction with devices other than Approved Devices. The licenses provided by this Agreement are limited licenses, and Licensee acknowledges that this Agreement does not grant Licensee, and OpenTV expressly disclaims the grant of, any license, immunity, or other right to or under any patent or other Intellectual Property Right of OpenTV or any Affiliate, whether directly or by implication, legal or equitable estoppel, exhaustion or otherwise, except for the limited licenses expressly set forth in Sections 2.
NO LICENSE TO CONTENT. All content accessed by use of the Software is the property of the applicable content owner and may be protected by applicable copyright law. Nothing in this Agreement shall be construed to give Licensee any rights to such content and Licensee shall be solely responsible for obtaining such rights to the extent necessary for Licensee's contemplated use of such content.
THIRD PARTY PRODUCTS AND INTELLECTUAL PROPERTY. All third-party products, services, and related documentation accessed by the use of the Software or used as components of the Software, including, without limitation, any Open Source Software, remain the property of the applicable third party owner and may be protected by applicable intellectual property laws. Nothing in this Agreement shall be construed to give Licensee any rights to such third-party products, services, and related documentation or third-party components of the Software. Use by Licensee of Open Source Software is subject to the applicable Open Source Software terms and conditions. Except as expressly provided in this Agreement, no license under any patents, copyrights, trademarks, trade secrets or any other Intellectual Property Right, express or implied, are granted by OpenTV to Licensee under this Agreement. Licensee acknowledges and agrees that the use of the Software may require licenses on (i) codecs and/or transport stream related third party Intellectual Property Rights such as but not limited to H264, MPEG2 TS, AAC audio and mp4 and/or on (ii) user interface ("UI") design related third party Intellectual Property Rights. To the extent such a third party a license is required, Licensee acknowledges and agrees that it shall be responsible for obtaining any such required licenses and Licensee expressly agrees to indemnify and hold OpenTV and its Affiliates harmless for all fees, damages and costs incurred as a result of Licensee's failure to obtain or comply with such licenses.
REGISTRATION REQUIRED; USE LIMITED TO LICENSEE REGISTERED DOMAIN. The right of Licensee or any Subscriber to use the Software is subject to prior Registration (i) with OpenTV of Licensee's domain name(s) and/or package name(s) to be used by Licensee to distribute Licensee Content ("Licensee Registered Domain"); and (ii) with Licensee of each instance of the Software or any portion thereof provided by, or made available by, Licensee to its Subscribers. With respect to Section 9(ii), Licensee shall provide to OpenTV records of all such registrations at any time promptly upon OpenTV's request. Licensee shall not use the Software to distribute Licensee Content except through a Licensee Registered Domain. Registration shall follow the OpenTV requirements set forth in the Documentation.
USE OF SOFTWARE ON APPROVED DEVICES ONLY. Licensee and its Subscribers shall only use and access the Software on Approved Devices. Licensee may not use nor permit its Subscribers to use any other application, device, or client platform other than the Approved Devices to use or access the Software without OpenTV's prior written consent which consent OpenTV may withhold in its sole discretion for any reason or no reason.
SECURITY. Notwithstanding anything to the contrary herein, unless Licensee has entered into a separate written agreement with OpenTV for the provision of OpenTV's proprietary content protection technology, OpenTV does not supply nor is OpenTV responsible for any security or digital rights management ("DRM") with respect to the Licensee Content or the Approved Devices (e.g. Google Widevine™, Microsoft® PlayReady®, or FairPlay Streaming by Apple,) including but not limited to the implementation, security, functionality, or operation of any such DRM. Licensee is solely responsible for protecting the security and confidentiality of the token unique to Licensee that is provided by OpenTV and is necessary for Licensee's use of the Software. Licensee shall use industry standard security measures to protect the confidentiality of such token. Licensee shall not embed such token in applications made available to its Subscribers (e.g. client applications). OpenTV recommends that Licensee store such token on a secure server and Licensee's client application makes a secure HTTP request for it, injecting it into the client application at run time using APIs provided within the software.
NO SUPPORT; UPDATES. Notwithstanding anything to the contrary herein, unless Licensee has entered into a separate written agreement with OpenTV for the provision of maintenance and/or support, OpenTV shall have no obligation to provide any maintenance or support with respect to the Software or this Agreement and OpenTV shall not be responsible for correcting failures of the Software. OpenTV reserves the exclusive right, in its discretion and at its expense, to change, modify, update, or enhance the Software from time to time. Partner shall install any and all updates to the Software made available by OpenTV within a reasonable amount of time following the availability of such updates.
LICENSEE OBLIGATIONS. Except as otherwise expressly provided herein, Licensee shall: (a) be responsible for all technical support of its Subscribers; (b) inform OpenTV of any complaints or problems encountered during use of the Software or Documentation of which Licensee becomes aware and any resolutions by Licensee of such complaints and problems; (c) immediately notify OpenTV upon learning of any unauthorized use or disclosure of the Software any portions thereof, or of any actual or threatened misappropriation, violation, or infringement by a third party or parties of OpenTV's Intellectual Property Rights; (d) immediately notify OpenTV upon receipt of any notice that Licensee's use of the Software infringes or potentially infringes any third party Intellectual Property Rights; (e) supervise and control the use of the Software and Documentation in accordance with Licensee's security procedures and in accordance with the normal business practices of the industry to ensure that such use takes place in accordance with the terms of this Agreement; (f) ensure that all Software hereunder maintains appropriate patent, copyright, and trademark notices or other markings in accordance with the laws in the applicable Territory; and (g) comply with all applicable laws and regulations with respect to obtaining the necessary licenses and permits, and comply with regulations regarding labeling, approvals, registrations and notifications as may be applicable to this Agreement and Licensee's exercise of its rights hereunder.
SUGGESTED IMPROVEMENTS TO SERVICES. If Licensee or its Affiliates provides any suggested improvements to the Software to OpenTV or its Affiliates ("Suggestions"), OpenTV will own all right, title, and interest in and to the Suggestions, even if Licensee has designated the Suggestions as confidential. OpenTV and its Affiliates will be entitled to use the Suggestions without restriction. Licensee hereby irrevocably assigns to OpenTV all right, title, and interest in and to the Suggestions and agrees to provide OpenTV any assistance it may require to document, perfect, and maintain its rights in the Suggestions.
OPEN SOURCE SOFTWARE POLICY. In connection with the permitted use of the Software, Licensee shall not use any Open Source Software that subjects the Software, in whole or in part, to all or part of any Open License Terms. Licensee shall not use any Open Source Software in combination or integrated with any Software without (i) OpenTV's prior written consent of such intended use and (ii) full compliance with any and all requirements and rules provided by OpenTV for such Open Source Software in connection with the software provided hereunder. In the event that Licensee does not meet its obligations under this Section 15 and the use of any Open Source Software results in any of the software provided by OpenTV under this Agreement, or portion thereof, being subject to Open License Terms, then Licensee shall fully indemnify OpenTV and its Affiliates for any and all losses, costs, expenses, and damages that OpenTV or its Affiliates may suffer because of such use.
FOSS. Licensee agrees and acknowledges that the Software, or portions thereof, may contain certain FOSS. Licensee's use of any such FOSS shall be governed exclusively by the terms and conditions set forth in the FOSS documentation. Licensee's use of the FOSS constitutes Licensee's express agreement to such terms and conditions applicable to the FOSS. Except for this Section 16, the terms and conditions of this Agreement shall not otherwise apply to the FOSS. For the avoidance of doubt, OpenTV does not provide any warranties with respect to the FOSS other than to the extent any such obligations are expressly set forth in the FOSS documentation.
OWNERSHIP. This Agreement does not convey any rights of ownership in the Software. All right, title and interest in the Software (and the OpenTV Intellectual Property Rights), and in any ideas, know-how and programs which are developed by OpenTV in the course of providing any technical services, including any enhancements or modifications made to the Software (or the OpenTV Intellectual Property Rights), shall, at all times, remain the property of OpenTV or its licensors. The Software and Documentation are licensed and not sold to Licensee. OpenTV and its licensors own and retain all right, title and interest in the Software and Documentation, any design changes, improvements, enhancements, derivative works, or modifications thereof or thereto, and any related and/or associated Intellectual Property Rights, whether developed by OpenTV or by Licensee or its employees or independent contractors. Licensee shall cooperate with OpenTV in good faith to the extent necessary for OpenTV to arrange or obtain registration on behalf of OpenTV of all Intellectual Property Rights in any design changes, improvements, enhancements, derivative works, or modifications to the Software or Documentation, without payment of any consideration therefor to Licensee.
EXPORT CONTROL. The Software is subject to United States export control laws, including the United States Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Licensee agrees to use the Software in compliance with all such laws. Licensee represents, warrants and covenants that the Software shall not be distributed, directly or indirectly, to countries other than in the Territory, or entities prohibited by U.S., European, or other applicable export control laws. Licensee shall, at its own expense, defend, indemnify and hold harmless OpenTV and its Affiliates from and against any and all claims, losses, liabilities, damages, judgments, government or federal sanctions, costs and expenses (including attorneys' fees) incurred by OpenTV and its Affiliates arising from any claim or assertion by any third party (including, but not limited to, individual Subscribers or, as applicable, governmental authorities) of violation of any export and import control laws or regulations by Licensee or any of its agents, officers, directors or employees.
PRIVACY. Licensee shall comply with all applicable privacy laws and regulations in its use of any Software and Documentation including, but not limited to, (i) the EU General Data Protection Regulation 2016/679 and as amended, replaced or superseded from time to time, (ii) the Privacy and Electronic Communications Directive 2002/58/EC (as amended by Directive 2009/136) to be replaced by the Regulation on Privacy and Electronic Communications anticipated to come into effect in 2018, and (iii) data protection or privacy laws of any other country in the Territory, including without limitation the unlawful gathering, collecting, processing or assisting in the gathering, collecting, or processing, of Subscriber information in violation of any such privacy laws or regulations. Licensee shall, at its own expense, defend, indemnify and hold harmless OpenTV and its Affiliates from and against any and all claims, losses, liabilities, damages, judgments, government or federal sanctions, costs and expenses (including attorneys' fees) incurred by OpenTV and its Affiliates arising from any claim or assertion by any third party (including, but not limited to, individual Subscribers or, as applicable, governmental authorities) of violation of any privacy laws or regulations by Licensee or any of its agents, officers, directors or employees.
20.1. OpenTV Marks. "OpenTV", "OpenTV" and any other trademarks, trade names and service marks adopted by OpenTV to identify the Software, Documentation and any services provided to Licensee hereunder belong to OpenTV or its Affiliates (collectively, the "OpenTV Marks"). Licensee shall not market the Software, Documentation or services in any way that implies that such Software, Documentation or services are proprietary products of Licensee or of any other party other than OpenTV. Prior to any use by Licensee of the OpenTV Marks, Licensee will obtain the prior written consent of OpenTV, which consent shall not be unreasonably withheld, conditioned or delayed.
20.2. Licensee Marks. Licensee hereby grants OpenTV the right to use Licensee's name, logo and any applicable trade names (collectively, "Licensee Marks") solely in Licensee lists and marketing materials prepared by or on behalf of OpenTV.
20.3. Acknowledgements. Each party acknowledges that, except as expressly set forth herein, such party shall not acquire any rights in the trademarks, trade names and service marks of the other party by virtue of its use of such marks pursuant to this Agreement, and any and all such use shall inure to the sole and exclusive benefit of such other party. Neither party will make or attempt to make any trade or service mark application with respect to the other party's trade or service marks, and each party will cooperate with the other party, at the other party's sole cost and expense, in securing registration of any of the other party's trade or service marks in the Territory, to the extent deemed necessary by such other party.
CONFIDENTIALITY. Licensee acknowledges that, in the course of using the Software and Documentation pursuant to this Agreement, it may obtain or have access to confidential and proprietary information relating to, among other things, OpenTV Intellectual Property Rights, OpenTV's products and services and intellectual property rights of OpenTV's licensors (collectively, "Confidential Information"). Such Confidential Information shall belong solely to OpenTV and includes, but is not limited to, the Software and its features, specifications and mode of operation, trade secrets, know-how, inventions (whether or not patentable), techniques, processes, programs, ideas, algorithms, schematics, testing procedures, software design and architecture, computer code, documentation, design and function specifications, problem reports, analysis and performance information, documents, and other technical, business, marketing and financial information, plans and data. As regards to the Confidential Information:
(a) Licensee agrees to take all reasonable measures to maintain the Confidential Information in strict confidence.
(b) Licensee will disclose the Confidential Information only to those of its employees and consultants (and, if Licensee is an educational institution, students) as are necessary for the use of the Software as contemplated hereunder, and only after such employees, contractors and students have agreed in writing to be bound by confidentiality provisions applicable to the Confidential Information that are at least as restrictive as those contained in this Agreement. Licensee shall not, without the prior written consent of OpenTV, disclose or otherwise make available the Confidential Information or copies thereof to any third party.
(c) Confidential Information shall not include any information that (i) was in the public domain at the time it was disclosed or has entered the public domain through no fault of Licensee; (ii) was previously known to Licensee free of any obligation of confidentiality at or after the time it was communicated to Licensee by OpenTV; (iii) was independently developed by Licensee without any use of the Confidential Information; or (iv) is or becomes available to Licensee on a non-confidential basis from a person other than OpenTV who is not known by Licensee to be otherwise bound by a confidentiality agreement with OpenTV or to be under an obligation to OpenTV not to transmit the information to Licensee.
(d) Licensee acknowledges and agrees that due to the unique nature of OpenTV's Confidential Information, there can be no adequate remedy at law for any breach of this Section 21 and that OpenTV is therefore entitled to injunctive and other equitable relief in addition to whatever remedies it may have at law.
LICENSEE'S REPRESENTATIONS AND WARRANTIES
22.1. Licensee represents and warrants to OpenTV that Licensee is a company duly organized and validly existing under the applicable laws, has the power and authority to enter into this Agreement and to perform fully its obligations hereunder, and is under no contractual or other legal obligation which shall in any way interfere with its full, prompt, and complete performance hereunder.
22.2. Licensee represents and warrants to OpenTV that Licensee is currently in compliance, and throughout the term of this Agreement shall continue to comply, and shall cause each of its subcontractors, distributors and other designees to comply, with all applicable laws, regulations and local practices existing from time to time.
22.3. Licensee represents and warrants to OpenTV that: (a) Licensee or its licensors own all right, title, and interest in and to the Licensee Content; (b) Licensee has all rights in the Licensee Content necessary to grant the rights contemplated by this Agreement; and (c) none of the Licensee Content or Subscribers use of Licensee Content will violate any applicable laws or regulations.
23.1. Unauthorized Use by Third Parties. Licensee shall promptly notify OpenTV of any unauthorized use of the Software or any portion thereof, including any acts of infringement, as it comes to its attention. Licensee shall cooperate, and shall cause its subcontractors, distributors, service providers and suppliers to cooperate, in good faith with OpenTV in the prosecution of any action that OpenTV, in its reasonable discretion, may deem advisable for the protection of its rights and shall make, and shall cause its subcontractors, distributors, service providers and suppliers under this Agreement to make, available all information as may be relevant for the purpose of such prosecution. Licensee shall have no right to take any action with respect to the Services or any portion thereof except as expressly provided herein or with OpenTV' prior written consent.
23.2. Licensee Notification of Piracy. Licensee shall notify OpenTV immediately of any information relating to the occurrence of any piracy or any suspected piracy in connection with or in relation to the Software or any portion thereof.
LICENSEE INDEMNIFICATION. In addition to Licensee's indemnification of OpenTV pursuant to Sections 15, 18 and 19, Licensee shall indemnify, defend and hold harmless OpenTV, its Affiliates, its licensors, and each of their respective employees, officers, directors, and representatives ("OpenTV Indemnified Parties") from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys' fees) arising out of or relating to any third party claim concerning: (i) any use by Licensee or its Subscribers of the Software or any portion thereof which is not in accordance with this Agreement; (ii) Licensee Content or the combination of Licensee Content with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by Licensee Content or by the use, development, design, production, advertising or marketing of Licensee Content; (iii) infringement, actual or alleged, of any Intellectual Property Right resulting from the combination of all or part of the Software with software and/or hardware items that were not delivered or furnished by OpenTV pursuant to this Agreement; and/or (iv) a dispute between Licensee and any Subscriber.
OPENTV'S DISCLAIMER OF WARRANTY. THE SOFTWARE IS PROVIDED TO LICENSEE "AS IS." ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGENENT ARE HEREBY EXCLUDED TO THE MAXIMUM EXTENT ALLOWED BY LAW. OPENTV DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE (OR ANY PORTION THEREOF) WILL BE UNINTERRUPTED, ERROR FREE, FREE OF HARMFUL COMPONENTS, THAT ANY CONTENT, INCLUDING LICENSEE CONTENT OR THIRD-PARTY CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED, OR THAT THE SOFTWARE (OR ANY PORTION THEREOF) WILL OPERATE IN COMBINATION WITH OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA.
LIMITATION OF LIABILITY. IN NO EVENT SHALL OPENTV BE LIABLE FOR ANY LOST REVENUE, PROFIT OR DATA OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR DOCUMENTATION OR ANY PORTION THEREOF, EVEN IF OPENTV HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CONSEQUENTIAL, INCIDENTAL, INDIRECT, AND PUNITIVE DAMAGES REFERRED TO UNDER THIS SECTION SHALL INCLUDE, BUT ARE NOT LIMITED TO, LOSS OF PRODUCTION, LOSS OF REVENUE OR PROFITS, LOSS OF USE, LOSS OF BUSINESS, LOSS OF INVESTMENT, LOSS OF GOODWILL AND/OR LOSS OF DATA. IN NO EVENT SHALL OPENTV'S AND ITS AFFILIATES' TOTAL LIABILITY TO LICENSEE FOR DAMAGES OR LOSSES OF ANY KIND UNDER OR IN RELATION TO THIS AGREEMENT EXCEED, EITHER INDIVIDUALLY OR IN THE AGGREGATE, AND WHETHER IN CONTRACT, TORT OR OTHERWISE EXCEED THE FEES PAID BY LICENSEE TO OPENTV UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO LIABILITY.
TERM; TERMINATION. The term of this Agreement will commence on the Effective Date and will remain in effect until terminated under this Section 27 (the "Term"). Either party may terminate this Agreement at any time and for any reason or no reason upon thirty (30) days prior written notice to the other party. In addition, OpenTV may terminate this Agreement immediately upon a material breach by Licensee of this Agreement by delivering written notice of such termination to Licensee. Upon termination of this Agreement, the licenses granted hereunder shall terminate, and Licensee shall immediately return to OpenTV or destroy the Software, together with any and all notes and other materials regarding the Software, including, without limitation, all Confidential Information and all copies and extracts of the foregoing. Notwithstanding the termination of this Agreement, the terms and obligations pertaining to confidentiality in this Agreement shall nevertheless remain in full force and effect for a period of fifteen (15) years from the date of termination.
NOTICES. All notices, requests, responses, acceptances, consents and other communications required or permitted by this Agreement shall be effective upon receipt and shall be in writing, and shall be sent by hand, air courier, or overnight express mail and deemed delivered upon receipt, to the addresses set forth in the first paragraph of this Agreement. The addresses for notifications given pursuant to this Agreement may be changed by means of a written notice given to the other Party at least five (5) days prior to the effective date of such change.
RELATION BETWEEN THE PARTIES. This Agreement does not obligate either party to enter into any other agreement or relationship with the other party. Nothing in this Agreement shall be deemed to create a partnership or joint venture between the parties.
ARBITRATION; GOVERNING LAW. Any dispute, controversy or claim arising out of or in relation to this Agreement, including the validity, invalidity, breach or termination thereof, shall be resolved by final and binding arbitration in accordance with the Rules of Arbitration of the International Chamber of Commerce (in force on the date when the Notice of Arbitration is submitted). The number of arbitrators shall be one. The seat of the Arbitration shall be New York, New York and the arbitral proceedings shall be conducted in English. The prevailing party shall be entitled to seek its reasonable attorneys' fees, costs and other reasonable expenses. This Agreement shall be interpreted, construed and enforced in accordance with the laws of the State of New York without regard to its conflict of law provisions.
SEVERABILITY. If any of the provisions of this Agreement are held to be in violation of applicable law, void or unenforceable in any jurisdiction, then such provisions are herewith waived to the extent necessary for the Agreement to be otherwise enforceable in such jurisdiction. However, if in OpenTV's reasonable opinion, deletion of any provision of this Agreement by operation of this Section 31 unreasonably compromises the rights or liabilities of OpenTV or its licensors, OpenTV shall have the right to terminate this Agreement immediately.
SUCCESSORS AND ASSIGNS. The terms and conditions of this Agreement shall inure to the benefit and be binding upon the respective successors and assigns of either party. Notwithstanding the foregoing, this Agreement may not be assigned by Licensee without the prior written consent of OpenTV, and any attempted assignment by Licensee without such consent shall be null and void.
INTEGRATION. This Agreement is the entire agreement between Licensee and OpenTV relating to the Software and i) supersedes all prior contemporaneous oral or written communications proposals and representations with respect to its subject matter and ii) prevails over any conflicting or additional terms of any quote, order acknowledgment or similar communication between the parties during the term of this Agreement.
AMENDMENTS. No modification or amendment of this Agreement (or any document entered into pursuant to this Agreement) shall be valid unless is it in writing and signed by each of the Parties, referring specifically to this Agreement and stating the Parties' intention to modify or amend the same. Any waiver of any term or condition of this Agreement must be in writing signed by the Party sought to be charged with such waiver referring specifically to the term or condition to be waived and no such waiver shall be deemed to constitute the waiver of any other breach of the same or of any other term or condition of this Agreement.
SURVIVAL. Notwithstanding any expiration or termination of this Agreement, the Parties' obligations, acknowledgments, representations, warranties and covenants which by their express terms extend beyond termination or expiration of the Agreement or which by their nature should so extend, such as under Sections 1, 2.4, 2.6, 2.7, 2.8, 14, 15, 17, 18, 19, 21, 22, 24, 25, 26, and 28 through 35 will survive such termination and remain in full force and effect.
Licensee shall ensure that the Subscriber is given access to and use of the Software only upon prior written agreement on the terms of the EULA (by clicking "I Agree").
Licensee shall ensure that the EULA at a minimum, include and otherwise be consistent with the following provisions, which wording can be adapted by Licensee if required by local law or other applicable regulations. Licensee shall be responsible towards the Subscriber for any warranties on the Client Application, express or implied by law to the extent not disclaimed and for addressing any claims of the Subscriber relating to the Client Application or its use in the context of the EULA.
The Client Application, documentation and fonts accompanying this License whether on disk, in read only memory, on any other media or in any other form are licensed, not sold, to you by Licensee for use only under the terms of this License, and Licensee reserves all rights not expressly granted to you. The terms of this License will govern any software upgrades provided by Licensee that replace and/or supplement the original Client Application, unless such upgrade is accompanied by a separate license in which case the terms of that license will apply.
Subject to the terms and conditions of this License, you are granted a limited non-exclusive, non-transferable and non-sublicensable license to install the Client Application on your Approved Device and to use the Client Application to get access to the application store in accordance with the Usage Rules set forth in the application store Terms of Service and/or to Licensee platform in accordance with the terms and conditions of Licensee.
You may not and you agree not to, or to enable others to, copy (except as expressly permitted by this License), decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, create derivative works of the Client Application, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by licensing terms governing use of open-sourced components included with the Client Application). Any attempt to do so is a violation of the rights of Licensee and Licensee's licensors of the Client Application.
You may not rent, lease, lend, transfer, redistribute or sublicense the Client Application unless there is an explicit agreement between OpenTV and Licensee.
Licensee may release updates to the Client Application at its convenience. You acknowledge and agree that you may be instructed to install the update and to stop using the previous version of the Client Application failing which access to the application store and /or to the Licensee platform may be denied. If a Client Application update completely replaces (full install) a previously licensed version of the Client Application, you may not use both versions of the Client Application at the same time nor may you transfer them separately.
Consent to Use of Data
You agree that Licensee and its affiliates and licensors may collect and use technical and related information, including but not limited to technical information about your Approved Device, that is gathered periodically to facilitate the provision of software updates, product support and other services to you (if any) related to the Client Application and to verify compliance with the terms of this License. Licensee may use this information, as long as it is in a form that does not personally identify you, to improve our products or to provide services or technologies to you.
The license is effective until terminated. Your rights under this License will terminate automatically without notice from Licensee if you fail to comply with any term(s) of this License. Upon the termination of this License, you shall cease all use of the Client Application and destroy all copies, full or partial, of the Client Application.
Disclaimer of Warranties
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE CLIENT APPLICATION IS PROVIDED "AS IS", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND AND THAT USE OF THE CLIENT APPLICATION IS AT YOUR SOLE RISK. LICENSEE HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE CLIENT APPLICATION, EITHER EXPRESS IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF PERFORMANCE, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. LICENSEE DOES NOT WARRANT THE FUNCTIONS CONTAINED IN THE CLIENT APPLICATION WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE CLIENT APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE CLIENT APPLICATION WILL BE CORRECTED. YOU FURTHER ACKNOWLEDGE THAT THE CLIENT APPLICATION ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OF, OR ERRORS OR INACCURACIES IN THE CONTENT, DATA OR INFORMATION PROVIDED BY, THE CLIENT APPLICATION COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE, INCLUDING WITHOUT LIMITATION THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT OR WEAPONS SYSTEMS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSEE OR A LICENSEE AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE CLIENT APPLICATION PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL LICENSEE BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE CLIENT APPLICATION OR SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF LICENSEE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL LICENSEE'STOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF FIFTY DOLLARS ($50.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Third Party Acknowledgements and Terms
Portions of the Client Application utilize or include third party software, open source software and other copyrighted material. Acknowledgements, licensing terms and additional disclaimers for such material are contained in the "online" electronic documentation for the Client Application or may otherwise accompany such material, and your use of such material is governed by their respective terms."