BY CLICKING THE “I ACCEPT” BUTTON, YOU (EITHER AN INDIVIDUAL OR A LEGAL ENTITY) ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT, AND THAT YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT CLICK THE “I ACCEPT” BUTTON BELOW.

THIS SOFTWARE (“SOFTWARE”) IS PROVIDED UNDER THE FOLLOWING LICENSE TERMS AND CONDITIONS WHICH DEFINE WHAT YOU CAN AND CANNOT DO WITH THE SOFTWARE, AS WELL AS CONDITIONS AND LIMITATIONS ON WARRANTIES AND REMEDIES.

1. 1. DEFINITIONS

(a) “Software” shall mean the software identified in Exhibit A of this Agreement for which applicable license fees shall be payable by electronic payment system.

(b) “YOU” means either: (i) a corporate entity or other organization, on behalf of whom the Software will be used if you are acting as an authorized representative of such entity or organization; or (ii) you as an individual if you are not an authorized representative of such an entity or organization.

(c) “Documents” as used in this Agreement, means product descriptions, program descriptions, users’ manuals, technical manuals, and any other writings related to Software.

(d) “LICENSEE Products” shall mean LICENSEE’s video services using Software.

(e) “HISPLAYER” means HISPlayer SDK SL, a Spanish corporation, with its principal place of business at 16th Fl. C/ Poeta Joan Maragall 1, 28020 Madrid, Spain.

(f) “HISPLAYER License Fees” means the fees for the applicable HISPlayer Software License.

2. 2. GRANT OF LICENSE

(a) HISPlayer grants a non-transferable and non-exclusive license to LICENSEE to use the Software to 1) make any appropriate operations on the Software to have it integrated into LICENSEE Products, 2) demonstrate the resulting LICENSEE Products to possible authorized sub-licensees, 3) distribute to Authorized Sub-Licensee, on a sublicense basis, LICENSEE Products embedding the Software for the use by the Authorized Sub-Licensee always under the commercial conditions of this agreement and with a prior written authorization from HISPlayer (i.e. via eMail).

(b) LICENSEE agrees to use the Software in compliance with all applicable laws, ordinances, rules, and regulations.

(c) Except as expressly provided in Sections 2, HISPlayer does not grant to LICENSEE a right to use the Software in source code or object code form, or its algorithms for any products other than for LICENSEE Products.

(d) LICENSEE shall not reverse translate, decompile, or disassemble the Software or attempt to derive the source code from the Software, in whole or in part.

3. 3. OWNERSHIP

      HISPlayer is the owner of or has the right to use Software, all copies of Software and all intellectual property rights in Software, including, but not limited to patent rights, trade secret rights, copyrights, and trademarks relating thereto.

4. 4. PAYMENT

In consideration for the rights granted under Section 2, YOU shall pay the agreed license fee to HISPlayer by electronic payment system.

5. 5. LICENSE RESTRICTIONS

YOU agree to the following:

(a) YOU shall maintain as confidential and shall NOT use, publish or disclose Software, Run-Time Software or Documents, except as expressly permitted by this Agreement.

(b) YOU shall NOT remove any copyright notices, confidentiality notices, proprietary markings, notices, labels, trademarks, or trade names of HISPlayer or an entity designated by HISPlayer from Software or any Documents.

(c) YOU shall NOT: (i) permit or assist a third party to use Software; (ii) modify, translate, reverse engineer, decompile, disassemble (except to the extent that this restriction is expressly prohibited by law) Software, Run-Time Software or Documents or create derivative works based upon Software, Run-Time Software or Documents, or permit or assist a third party to do so; (iii) redistribute Software, Run-Time Software and Documents unless YOU has separately entered into an express, written distribution agreement with HISPlayer permitting it to do so; or (iv) rent, lease, transfer, or otherwise transfer Software, Run-Time Software or Documents or rights therein.

(d) YOU shall only use Software, Run-Time Software and Documents in a manner that complies with all applicable laws in the jurisdictions in which YOU use Software, Run-Time Software and Documents, including but not limited to, applicable restrictions concerning copyright and other intellectual property rights.

(e) YOU shall NOT use Software in an attempt to, or in conjunction with, any device, program, or service designed to circumvent technological measures employed to control access to, use, or the rights in, a content file or other work protected by the intellectual property related laws of any jurisdiction.

6. 6. WARRANTY AND WARRANTY DISCLAIMER

(a) THE SOFTWARE IS LICENSED TO YOU ON AN “AS IS” BASIS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, HISPLAYER MAKES, AND YOU RECEIVES, NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. HISPLAYER DOES NOT WARRANT THAT ANY OR ALL FAILURES, DEFECTS OR ERRORS WILL BE CORRECTED, OR WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS. YOU ACKNOWLEDGE THAT HISPLAYER HAS MADE NO REPRESENTATIONS REGARDING WARRANTY OR LIABILITY OTHER THAN AS STATED IN THIS AGREEMENT.

(b) HISPLAYER SHALL NOT BE LIABLE TO YOU OR TO ANY OF YOUR SUBLICENSEES, CUSTOMERS, OR END-USERS FOR ANY LOSS OF PROFIT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THE LICENSING OR USE OF THE SOFTWARE OR FOR ANY ERROR OR DEFECT IN THE SOFTWARE.  The maximum liability of HISPlayer arising out of or in connection with any license, use or other employment of any Software downloaded to YOU under this Agreement, whether such liability arises from any claim based on breach or repudiation of contract, warranty, tort or otherwise, shall in no case exceed the actual amounts paid to HISPlayer by YOU during the one (1) year prior to the date such claim arose for the Software.

7. 7. Support and Maintenance

Any Upgrades of Software that might be delivered to YOU by HISPLAYER will be considered Software under the terms of the Agreement. HISPLAYER will use commercially reasonable efforts to assist YOU in installing and deploying the Software on the environments and infrastructure provided and maintained by YOU. Should Company require more assistance in installing and deploying the Software on the environments and infrastructure provided and maintained by YOU, then HISPLAYER reserves the right to charge for such assistance.

1. 8. Open source

 

             9. Indemnification

YOU acknowledge and agree that the Software has been developed based on industry recognized standards and software programs published by industry recognized standards bodies, and this Agreement does not convey a license to any intellectual property rights owned by third parties in relation to the standards and that YOU are solely responsible for any claims related to YOUR use and distribution of the Software.

YOUR Obligations. YOU are solely responsible for: (i) maintaining the confidentiality of its user credentials, passwords and encryption keys (if any) associated with its accounts; (ii) properly configuring and the compatibly the environment(s) and infrastructure and taking its own steps to maintain appropriate security, protection and back up of Company Content of Encoded Content; (iii) supporting and maintaining the availability of its website(s), the connectivity of its website(s) to the Internet, IP address, domain names, hyperlinks, databases, applications and other resources as necessary for YOU to operate and maintain its website(s) to meet your business requirements and to utilize the HISPLAYER Software; (iv) all activities are undertaken by YOU, Your employees, or a third party (including the Customer’s contractors or agents); and (v) all your Content. HISPlayer is not responsible for any alteration, compromise, corruption or loss of your Content or Encoded Content that arises from any access to, sharing or use of your accounts, credentials, passwords or encryption key. YOU acknowledge and agrees that YOU will not, nor enable any third-party action on your behalf to access or attempt to access the Docker or any other so-called containers that HISPLAYER utilizes and deploys to provide any HISPLAYER software on your systems, if applicable. Use of the HISPLAYER Software by you shall not unreasonably interfere with the use of the HISPLAYER Software by other HISPLAYER’s customers. YOU shall comply with all applicable local, state, national and international laws and regulations, including, without limitation, any export control laws or regulations of the United States of America or any other relevant jurisdiction.

         10. TERM AND TERMINATION

The license rights granted above are effective from the date the Software is activated for LICENSEE Products and as long as the HISPLAYER License Fees are satisfied by YOU unless a termination takes place. 

In the case of free demo licenses, those might be terminated at any time by HISPLAYER. Upon expiry or termination of the license granted herein, YOU must immediately destroy Software and Documents, together with all copies, adaptations and merged portions in any form or return same to HISPlayer, at HISPlayer’s option. The provisions of Section 8 shall survive termination of this Agreement.

        11. MODIFICATION OF AGREEMENT

HISPLAYER may terminate the Agreement or an Order Form with immediate effect, in whole or in part, by giving the other party prior written notice, if YOU: (i) commits a material breach of any of its obligations under the Agreement or an Order Form (as applicable), which breach is not cured within ten (10) days, following receipt of written notice, or that cannot be cured within (10) days; (ii) become insolvent or is generally unable to pay, or fails to pay its debts as they become due: (iii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy insolvency laws; (iv) makes or seeks to make a general assignment for the benefit or its creditors; or (v) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

HISPLAYER may, directly or indirectly, suspend or otherwise deny YOU or any third-party’s access to or use of all or any part of the HISPLAYER Software, without incurring any resulting obligation or liability if: (i) HISPLAYER receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires HISPLAYER to do so; or (ii) HISPLAYER believes, in its good faith and reasonable discretion that: (a) YOU has failed to pay its debts or to comply with any material terms of the Agreement or accessed or used the HISPLAYER Software beyond the scope of the rights granted or for a purpose not authorized under the Agreement, or in any manner that does not comply with any material instruction or requirement of the Documentation; (b) YOU have been, or are likely to be, involved in any fraudulent, misleading or unlawful activities; or (c) in order to maintain the integrity of the HISPLAYER Software until a threat to such integrity has been resolved. This Section 5.3 does not limit any of HISPLAYER´s other rights or remedies whether at law, in equity, or under the Agreement.

         12. GOVERNING LAW AND DISPUTE RESOLUTION

The parties to this Agreement will work together in good faith to remedy any technical, business, legal or other difficulties which may arise in connection therewith.  In the event disputes do arise between the parties, out of or in relation to or in connection with this Agreement or for the breach thereof, they shall be finally settled by arbitration in Madrid, Spain, in accordance with the Commercial Arbitration Rules of the Spanish Commercial Arbitration Board by one or three arbitrators appointed in accordance with the said Rules. The award rendered by the arbitrator(s) shall be final and binding upon both parties concerned.

This Agreement shall be governed by the laws of the Kingdom of Spain.

          13. MISCELLANEOUS

(a) YOU will be fully accountable and responsible for actions of any of its officers, employees, subsidiaries, or affiliates, which constitute a breach of its obligations under this Agreement, whether such actions are authorized or not. YOU undertake, at its own expense, to enforce the obligations under this Agreement against such employees, subsidiaries, affiliates, business partners, and clients.

(b) YOU may not assign any of its rights, obligations or privileges hereunder without the prior written consent of HISPlayer.

(c) Waiver by either party of a breach of any provision of the Agreement or the failure by either party to exercise any right hereunder will not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right. The relationship of the parties hereunder is that of independent contractors. In the event that any provision of the Agreement is held to be unenforceable, the Agreement will continue in full force and effect without said provision and will be interpreted to reflect the original intent of the parties.

(d) HISPlayer Software does not collect any personal data.

          14. PAYMENT FEE

(a) Fees. Customer agrees to pay HISPLAYER the fees in the amounts and at the times specified in the selected Plan or the applicable Order Form including applicable HISPLAYER´s License Fees, the HISPLAYER Software Usage Fees, Overage Fees, Integration Fees, and any other fees payable as set forth in each applicable Order Form or Plan (collectively the “Fees”). It is understood and agreed that banking fees associated with the transfer of funds shall be borne solely by the Customer. Unless otherwise stated in an Order Form, Company shall only be entitled to the pro rata share of the annual Usage Limit equivalent to the billing cycle specified in such Order Form. If Company exceeds the Usage Limit as specified in the applicable Order Form or Plan, each additional Billable Minute, Input Minute, Live Unit, Impression or Subscriber, as applicable, over the Usage Limit will be charged at the Overage Fee amount listed in the applicable Order Form or at the fee of the applicable Plan. HISPLAYER will calculate the number of Billable Minutes or Live Units that Company has utilized in a given month in accordance with the method set forth in the Encoding Calculation Methodology.

(b) Invoicing, and Payment Terms. Commencing on the Effective Date of each applicable Order Form, HISPLAYER will invoice Company for the Fees in advance on an annual basis or in accordance with the billing cycle as defined in the applicable Order Form or applicable Plan. If the Initial Term is not equal to a full year, but less than two (2) years, then HISPLAYER shall invoice Company in advance for the Fees for the Initial Term on the Effective Date unless it’s agreed differently in the Order Form. HISPLAYER will invoice Company for the accrued Overage Fees at the end of each month during the Term, as applicable. Monthly and annual Usage Limits are calculated on calendar months and years, respectively, and are based on the Order Form Service Start Date contained in an Order Form or date of account activation, as applicable. Payment Terms are specified in an Order Form. If Payment Terms are not specified in the Order Form, the HISPLAYER Software Fees and Usage Fees are due upon receipt. HISPLAYER will not provide refunds or credits in the case of cancellations, downgrades, or when there are unused portions of the Fees on an open account.

(c) Payment by a Credit Card. By submitting credit card details, the Customer authorizes HISPLAYER to charge all Fees incurred through its account or as set forth in the applicable Order Form or in the applicable Plan to the designated credit card. HISPLAYER reserves the right to terminate this Agreement in accordance with Section 10 if Customer does not provide a valid credit card for the payment of fees hereunder. All Fees will be charged to the Customer’s credit card monthly or according to the billing cycle, as applicable according to the Order form or the Plan. For credit card orders, fees will be charged to the Customer’s credit card at the time of the order. If the card cannot be charged, after seven (7) failed attempts to charge the card, HISPLAYER will terminate the Customer’s access to the HISPLAYER Software.

(d) Taxes. The Fees are exclusive of all taxes, levies or duties imposed by taxing authorities. As between YOU and HISPLAYER, YOU accepts sole responsibility for the payment of any taxes, charges or assessments imposed on YOU, the HISPLAYER Software, or the fees to be paid by HISPLAYER by any foreign or domestic national, state, or local government bodies, or subdivisions thereof, and any penalties or interest (other than income taxes imposed on HISPLAYER´s revenue). Notwithstanding the foregoing, HISPLAYER will invoice, collect, and remit sales and use taxes on your behalf for the US States where the applicable HISPLAYER Software is subject to such a tax based on the shipping address reported to HISPLAYER by You.

(e) No Deductions or Setoffs. All payment obligations under the Agreement are non-cancellable, and other than as provided in the Agreement, all amounts paid are non-refundable and shall be paid by Customer to HISPLAYER in full without any setoff, deduction, or withholding for any reason.

(f) Increases. The Fees are valid for the Initial Term. HISPLAYER reserves the right to modify the Fees in its reasonable discretion at any time. If Customer’s use of the HISPLAYER Software during the Term varies significantly from previously provided assets, configurations, or number of exports, HISPLAYER shall have the right to increase those Fees to match such variance for the remainder of the Term.