General terms and conditions for the provision of Services using Digotel Live+ Media Platform.
DIGOTEL TERMS AND CONDITIONS
Services Agreement
(the “Agreement”)
1 Definitions
1.1 Customer means the customer identified in the Purchase Order to which this Agreement is attached.
1.2 Customer Materials means audiovisual content, videos, music, images, text, equipment, software or materials, creations, and written works, supplied or be available to Digotel by Customer in connection with the Services, including any copyright and intellectual property notices.
1.3 Digotel means Digotel Sarl a company incorporated under Swiss law with seat in 1291 Commugny, Switzerland.
1.4 Digotel Technology means Digotel proprietary technology, products in source and object codes, designs, algorithms, user interfaces, software tools, architecture, documentation, designs, trade secrets and any related Intellectual Property Rights used to provide the Services.
1.5 Documentation refers to the explanatory electronic and/or paper documents and notes in the English language describing the Services provided by Digotel.
1.6 End Users (viewers) means the Digotel subscribers, end users or any other third parties who access the Services to, view Customer Materials.
1.7 Effective Date means the date upon which this Agreement shall be applicable as specified in the Purchase Order.
1.8 Intellectual Property Rights means (i) patents, patent applications, patent disclosures and inventions (whether patentable or not), (ii) trademarks, service marks, trade dress, trade names, logos, corporate names, Internet domain names, and registrations and applications for the registration thereof together with all of the goodwill associated therewith, (iii) copyrights and copyrightable works (including computer programs) and registrations and applications thereof, (iv) trade secrets, know-how and other confidential information, (v) waivable or assignable rights of publicity, waivable or assignable moral rights and (vi) all other forms of intellectual property, such as data and databases.
1.9 Purchase Order means a document signed by both the Customer and Digotel which describes the Services purchased by the Customer and the applicable fees. In the event of any conflict or inconsistency between the Purchase Order and this Agreement, the Purchase Order shall prevail.
1.10 Services means these services provided by Digotel, in particular but not limited video asset management, video player and components and templates, media online storage and distribution, End Users payment solutions, mobile applications, advertising asset delivery and video encoding as chosen by the Customer and described in the Purchase Order.
1.11 Territory means the countries where the Customer Materials may be accessed and viewed by End Users as defined in the Purchase Order.
1.12 Use means to use, access (including through remote means), display, disclose, and operate the Services or the Customer Materials as the case may be.
2 Services
2.1 Digotel shall provide the Services as described in the Purchase Order.
2.2 Restriction on Services: the Services are subject to technical control. Parts or all of the Services may be disabled by Digotel if adversely affecting the Services as solely determined by Digotel. If Digotel determines that any part of the Customer Materials and or their use of the Services is adversely affecting the Services, then Digotel may block from End Users’ access such part or all of the adverse Customer Materials.
2.3 The Parties shall work together to resolve the problems or issues that adversely affect the Services until both parties mutually agree in good faith that such portions of the Customer Materials will no longer have an adverse effect on the Services.
2.4 Customer acknowledges that Digotel does not own or control the public internet and/or network operators wireless networks to upload Customer Materials to the Services and that Digotel does not own or control the public internet and/or network operators and public wireless networks used by the End Users to access the Customer Materials. Digotel is not responsible for the performance or non-performance of these networks.
2.5 Content: the Customer shall be wholly responsible for the Customer Materials and the content displayed using Digotel Technology and Services.
2.6 The Customer also acknowledges and affirms that Digotel is merely providing the Services to the Customer with the means to distribute the Customer Materials, and to make available the Customer Materials to End Users.
3 Intellectual Property
3.1 The Customer retains all of its Intellectual Property Rights in the Customer Materials.
3.2 The Customer hereby grants to Digotel for the duration of the Services a worldwide and royalty free non exclusive right to Use, reproduce, distribute, display, perform, make copies of or otherwise exploit the Customer Materials in the Territory solely in connection with the performance of the Services under this Agreement, including without limitation the right to promote and market the Customer Materials in any media formats, media channels or medium now or hereafter in existence, in particular the right to use screen shots and/or up to 30 seconds excerpts of the Customer Materials .
3.3 The Customer also grants each End User of the Services located in the Territory a non-exclusive license to access and view Customer Materials through Digotel Technology.
3.4 Digotel retains all right, title and license to all Intellectual Property Rights associated with the Services and Digotel Technology including any Intellectual Property developed during the term of this Agreement.
3.5 Customer recognizes and agrees that the Intellectual Property Rights in the Services and Digotel Technology, all portions, reproductions, corrections, enhancements, and modifications, or any other material thereof made available to Customer, are (i) the exclusive intellectual property of Digotel and (ii) are to be considered by Customer as strictly confidential.
3.6 Digotel prohibits the selling, the leasing, the licensing, the assignment, the transfer and the copying of any portions of the Services and Digotel Technology.
3.7 Customer will not attempt nor permit anyone else to attempt to modify, copy for distribution, decompile or disassemble, reverse engineer, reverse compile or reverse assemble the code of the Services and Digotel Technology.
4 Term and termination
4.1 Services are granted for the term mentioned in the Purchase Order.
4.2 This Agreement may be terminated by either Party during the term without cause by giving a written notice of ninety (90) days to the other party. In such event the Services fees are fully due until the expiration of the notice.
4.3 Either party may immediately terminate this Agreement in the event of a material default by the other party that is not cured within a reasonable period, i.e., the minimum cure period being thirty (30) days following immediate written notice of the breach, such notice specifying the nature of the default with reasonable explanatory information.
4.4 Upon expiration or termination of this Agreement, all rights of each Party to the other will cease. However in the event where End Users have subscribed and already paid for accessing and viewing Customer Materials that shall take place after the date of termination of this Agreement, the Customer agrees that this Agreement shall continue for such specific Customer Materials up and until the last specific Customer Materials are made available to End Users.
4.5 Exercise of the right of termination afforded to either party hereunder shall not prejudice legal rights or remedies either party may have against the other in respect of any breach of the terms of this Agreement.
5 Fees and payment terms
5.1 The fees payable for the Services are identified in the Purchase Order. The fees are payable within thirty (30) days of receipt of the relevant invoice or statement, unless otherwise provided for in the Purchase Order.
5.2 All fees are payable in the currency indicated in the Purchase Order.
5.3 Except for VAT (if applicable), all fees are net and shall be free and clear of any present or future income or other taxes, including withholding taxes, deductions, fees, or other levies.
6 Warranties
6.1 All content and applications provided in the Services are provided “as is” and are without any warranties of any kind, either express or implied, including but not limited to any warranties of merchantability, fitness for a particular purpose and title.
6.2 In particular Digotel does not warrant that:
6.2.1 the Services will be uninterrupted or error free;
6.2.2 defects or errors in the Services will be corrected;
6.2.3 the Services will be free from viruses or other harmful components;
6.2.4 any information contained in the Services will be accurate or reliable.
6.3 The Customer warrants that it is the creator and owner of the Customer Materials, or has the necessary licenses, rights, consents and permissions to distribute the Customer Materials and to authorize the End Users to access, view and review the Customer Materials, as necessary to exercise the rights and license granted by the Customer in this Agreement.
6.4 The Customer warrants that the Customer Materials do not and will not (a) infringe, violate or misappropriate any third party right, including any Intellectual Property Rights of any person or entity or (b) slander, defame, libel, or invade the right of privacy, publicity or other right of any person or entity.
6.5 The Customer warrants that the Customer Materials do not contain any viruses, adware, spyware, worms or other malicious code or any content or file that provide a method to access to potentially infringing content outside of the Services.
7 Indemnity
7.1 The Customer shall indemnify and hold Digotel harmless from any claims, losses, damages, liabilities, costs and expenses (including reasonable attorneys‘ fees), based upon or arising out of: (a) any breach or alleged breach by the Customer of its obligations, representation and warranties herein, (b) the Customer Materials, or (c) this Agreement.
7.2 Intellectual Property Indemnity
By Digotel: Provided that Customer has complied with all the terms and conditions of this Agreement, Digotel shall indemnify Customer and hold it harmless against any claim or action legally founded (including compensation of reasonable legal fees and expenses) based on a claim that the Services or a part thereof infringes any Intellectual Property Rights or other proprietary rights of any third party. Customer agrees that it will notify Digotel promptly in writing of any such claim, and grants Digotel the sole right to control the defence and disposition of such claim.
If as a result of any such claim Customer is permanently precluded from Using the Services or a part thereof, Digotel at its sole option and expense may procure for Customer the right to continue to Use the Services and/or a part thereof, or it may provide a replacement or modification to the Services or a part thereof so as to settle such claim.
By Customer: Provided that Digotel has complied with all the terms and conditions of this Agreement, Customer shall indemnify Digotel and hold it harmless against any claim or action legally founded (including compensation of reasonable legal fees and expenses) based on a claim that Customer Materials or a part thereof infringes any Intellectual Property Rights or other proprietary rights of any third party. Digotel agrees that it will notify Customer promptly in writing of any such claim, and grants Customer the sole right to control the defence and disposition of such claim.
If as a result of any such claim Digotel is permanently precluded from Using the Customer Materials or a part thereof, Customer at its sole option and expense may procure for Digotel the right to continue to Use the Customer Materials and/or a part thereof, or it may provide a replacement or modification to the Customer Materials or a part thereof so as to settle such claim.
8 Limitation of Liability
8.1 In no event shall Digotel be liable for (a) any failure, interruption or error with respect to any aspect of the Services including the availability of any content or application; and (b) for any breach in transaction security caused by a third party arising out of or relating to any attempt to access the Customer Materials.
8.2 Neither Party shall be liable to the other for any indirect, incidental special or consequential damages arising out of or relating to the Use of or inability to Use the Services, including without limitation damages for lost data, damages to software or firmware, system downtime, service interruption, inability to access data or services, and costs of procuring and transitioning substitute services total and aggregate l.
8.3 Except for liability arising out of the breach of Section 7 (Indemnity) and Section 9 (Non-Disclosure) the liability for damages of each party to the other for any reason and upon any cause of action whatsoever shall be limited to CHF 5’000 (five thousand Swiss francs)
9 Non-Disclosure
9.1 For the purposes of this Agreement confidential information shall include but not be limited to the Services, including specifications, documents, Documentation, this Agreement, all information concerning either party’s technical operations including, without limitation, computer systems, equipment, and facilities, and either party’s financial, business, and commercial information (“Confidential Information”). Confidential Information shall not include information that is or comes in to the public domain or the possession of a party.
9.2 Each party agrees that it shall not sell, transfer, publish, disclose, display, or otherwise make available to third parties the Confidential Information of the other without prior written consent of the other. Each party agrees to secure and protect Confidential Information and to take appropriate action by written agreement with its employees, agents, and/or subcontractors with permitted access to such Confidential Information to satisfy its obligations hereunder.
9.3 Each party further agrees that it shall promptly notify the other as soon as it becomes aware of any breach of confidentiality obligations and give the other all reasonable assistance in connection with investigation of the same. Each party shall use its best efforts to assist the other in identifying and preventing any unauthorised use or disclosure of any portion of Confidential Information. Neither party shall disclose any Confidential Information of the other to any third party unless it has (a) obtained the prior written consent of that party, and (b) provided that the third party has agreed to execute a confidentiality and non-disclosure agreement directly with the other party.
9.4 Obligations and undertakings relating to confidentiality and non-disclosure shall survive termination of this Agreement.
10 Force Majeure
10.1 No party shall be held liable for any delay or failures in performance of its obligations under this Agreement if and to the extent such delay or failure is caused, directly or indirectly, by earthquake, fire, flood, elements of nature or acts of God; riots, civil disorders, rebellions or revolutions; epidemic or pandemic or any other cause beyond the reasonable control of such party, provided the non-performing party is without fault in failing to prevent or causing such delay or failures, and such failure or delay could not have been prevented or circumvented by the non-performing party through the reasonable use of alternate sources, workaround plans or other reasonable precautions (a “Force Majeure Event”).
10.2 Where a Force Majeure Event has occurred, the non-performing party shall be excused from further performance or observance of the obligation(s) so affected for as long as such circumstances prevail and such party continues to use reasonable commercial efforts to recommence performance or observance as soon as possible and to whatever extent possible without delay.
10.3 The non-performing party shall immediately notify the party to whom performance is due and describe at a reasonable level of detail the circumstances causing such failure or delay.
10.4 A Force Majeure Event shall not excuse a party from meeting its payment obligations under the Purchase Order.
11 Notices
11.1 Any notice required to be given hereunder shall be given to the addresses as set out in the Purchase Order or to any subsequent address designated in writing by either party.
12 Non-Assignment
12.1 Neither party may assign or transfer its rights, duties, or obligations under this Agreement to any person or entity, in whole or in part, without the prior written consent of the other party, whose consent shall not be unreasonably withheld or delayed.
13 Entire Agreement
13.1 This instrument constitutes with the Purchase Order the complete and exclusive Agreement between the parties as to the subject matter hereof and supersedes all previous communications, negotiations, understandings, and/or discussions of the parties.
13.2 Each party hereby acknowledges that it has not entered into this Agreement in reliance upon any representation made by the other party but not embodied herein.
13.3 This Agreement may not be modified or altered except by a written instrument mutually agreed and executed by both parties.
14 Applicable Law and Jurisdiction
14.1 This Agreement, including the Purchase Order, shall be governed by Swiss Law, including any arbitration in accordance with this section.
14.2 Any dispute, controversy or claim arising under, out of or relating to this Agreement and any subsequent amendments, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, as well as non-contractual claims, shall be submitted to mediation in accordance with the WIPO Mediation Rules. The place of mediation shall be Geneva and the language to be used in the mediation shall be English.