This PUBLISHER AGREEMENT ("Agreement") is between Viaway, Inc.,
a Delaware corporation ("Viaway"),
and Your Company a Your Contry Your Corporate Entity with a principal place of
business at Your Address ("Publisher")
and is entered into 4/18/2024 (“Effective
Date”).
RECITALS
A.
Publisher owns or has the right to display and distribute audio/visual content
available through a website or server operated, owned, or otherwise controlled
by Publisher (“Content”);
B.
Viaway owns and markets proprietary internet media platform (“IMP”) that enables consumer
electronic devices (“Devices”) to
display Content from internet sites and/or as otherwise hosted by Publisher or
Viaway; and
C.
Publisher and Viaway desire to provide consumers wherever located (“End
Users”) with access to the Content
through the IMP.
AGREEMENT
1.
REGISTRATION AS A Viaway PUBLISHER.
You are registering as a Publisher with Viaway,
so that you may be eligible to publish and monetize Content with Viaway. You
agree to comply with the terms and provisions of this Agreement, the Terms of
Use of the Viaway website, and the
policies posted on the Viaway website (the "Viaway Policies"), as may be amended from
time to time by Viaway in its sole
discretion (collectively, the "Viaway Terms and Conditions”).
2.
DEFINITIONS. All capitalized terms not defined
herein have the meanings set forth in the body of the Agreement.
2.1
“Intellectual Property Rights” means
all inventions and proprietary rights owned or controlled by a party, including
without limitation all copyrights, patents, trademarks, business processes, data
rights, trade secrets, know-how, moral rights, performance rights, and
specifications, including any registrations or applications in or to the
foregoing, arising or enforceable under any international treaty, U.S. law, or
the laws of any other jurisdiction.
2.2
“Marks” means Publisher’s logos and
trademarks or other logos or trademarks delivered to Viaway .
2.3
“Metadata” means information about the Content, including
without limitation title, description, dates, key words, genre, Ratings, run
time, names of actors, directors, producers, and authors, and any other
information that Publisher provides to Viaway regarding the Content.
2.4
“MPAA Ratings” means the industry
standard ratings found at
www.mpaa.org/FlmRat_Ratings.asp, which
are G, PG, PG-13, R, NC-17.
2.5
“Publisher Ratings” means a ratings
system comparable to the MPAA Ratings or TV Parental Ratings and which ratings
apply to the particular Content of the Publisher.
2.6
“Ratings” means the MPAA Ratings, TV
Parental Ratings, or Publisher Ratings, as applicable to each piece of Content.
2.7
“TV Parental Ratings” means the
industry standard ratings found at
www.tvguidelines.org, which are TV-Y, TV-Y7, TV-Y7 FV, TV-G, TV-PG,
TV-14, TV-MA.
2.8
“Content” pay
content and free content (each as defined below) collectively.
2.9
“Gross
Revenue” all revenue collected from
end users related to the distribution of content via IMP
2.10
“IP Royalties”
All royalties payable to third party
licensors of intellectual property utilized in connection with the distribution
of Content, including, by way of example only, amounts payable to performance
rights organizations such as ASCAP, BMI and/or SESAC, and licensors of patents
related to standards applicable to distribution of Content via IMP.
2.11 “Launch Date” date upon which Content
is initially available for consumption by an end user via IMP.
2.12 “Net Revenue” gross revenue less customer refunds voided on the “IMP Reporting Console,” as defined in this Agreement.
2.13
“Pay content” content provided to
Viaway by Publisher that is published via IMP and delivered via the public
Internet or private networks for a fee, including without limitation as a
purchase for unlimited viewings, on a “pay per view” basis, as part of a paid
subscription service, as a time-based viewing and/or as a viewing for a certain
number of times.
2.14
“Free Content”
content provided to Viaway by Publisher
that is published via IMP and delivered via the public Internet or private
networks without cost to the end consumer.
2.15
"Viaway On Demand" is
Viaway On Demand, the digital
on demand distribution service, as
further described on the Viaway Site, made available via the Viaway Properties.
2.16
"World TV" is
World TV, the digital
subscription service, as
further described on the Viaway Site, made available via the Viaway Properties.
2.16
"Viaway Premium" is
Viaway Premium, the digital
subscription service, as
further described on the Viaway Site, made available via the Viaway Properties.
2.17
“Viaway Site” means
the web site whose primary home page is identified by the URL viaway.com
(and any successor or replacement web site) and also includes any other web
sites maintained by or for us or our affiliates.
2.18
“Viaway Properties” means
(i) the Viaway Site and any "mirrored" version of the Viaway Site which
substantially replicates the Viaway Site or a portion thereof, (ii) any site
with a web page widget, any site with any other web page real estate, any
application for use on mobile devices, or other online point of presence, which
in each case is branded or co-branded "Viaway" and allows for the discovery and
purchase of products from Viaway or its affiliates, (iii) any other web site or
online point of presence on any platform through which Viaway Inc. or its
affiliates make products or services available for discovery, (iv)
internet media platform (“IMP”)
that enables consumer electronic devices (“Devices”)
and (v) any other online point of
presence or web site that you approve for treatment as an Viaway Property at our
request, such approval not to be unreasonably withheld.
3.
LICENSES.
3.1
Metadata.
Subject to the terms and conditions of this Agreement, Publisher hereby grants
to Viaway a worldwide, non-exclusive license to copy, modify, distribute, and
publicly display the Metadata through the IMP (“License”).
3.2
Content.
Subject to the terms and conditions of this Agreement, Publisher hereby grants Viaway permission to enable End Users to access the Content worldwide through the IMP on their Devices. Publisher can restrict End Users to access the Content country by country through the IMP.
3.3
Content
Restriction. Except as set forth in this
Agreement, Publisher retains all right, title, and interest in and to the
Content and Viaway shall not use the Content except as set forth herein.
3.4
Content
Withdrawal. You may withdraw your Content from further distribution through the IMP at
any time on five business days advance notice by following the then current
procedures for Digital Content withdrawal or un-publishing. We may fulfill any
customer orders completed through the date the Content is available for rent or
sale. All withdrawals of Content will apply prospectively only and not with
respect to any customers who rented or purchased the Content prior to the date
of removal.
3.5
Marks.
Subject to the terms and conditions of this Agreement, Publisher hereby grants
to Viaway the worldwide, non-exclusive right and license to use the Marks solely
to the extent necessary for Viaway to exercise its rights under this Agreement. Viaway understands that the Marks are
owned solely by Publisher, or otherwise licensed to Viaway by Publisher, and may
not be used in any way except as set forth herein.
3.6
Marks
Restrictions.
3.6.1.
Viaway agrees that
its use of the Marks shall conform to the Publisher Branding Guidelines
delivered to Viaway.
3.6.2.
Viaway agrees that
display of the Marks on Viaway’s website or fixed media will first be submitted
to Publisher for its prior written approval, such approval not to be
unreasonably withheld or delayed.
3.6.3.
Viaway agrees that
any use of the Marks will be accompanied by the trademark attribution
"[Publisher or owner of Marks]® and associated logos are trademarks of
[Publisher or owner of Marks] and are used under license" and Viaway will place
such attribution where other, similar legal attributions are displayed (but only
if Viaway uses the Marks).
3.6.4.
All goodwill
generated from Viaway’s use of the Marks shall inure to the benefit of Publisher
or owner of Marks, as applicable.
3.7
Marks
Sublicense. Subject to the terms and
conditions of this Agreement, Publisher hereby grants to Viaway the worldwide,
non-exclusive right and license to sublicense the use of the Marks solely to
device manufacturers ("OEMs") solely
to the extent necessary for Viaway or OEM to promote and market the Content
accessed through the IMP on such OEMs’ Devices; provided, however, that Viaway
shall get Publisher’s prior written consent to how such use of the Publisher
Marks is implemented by the OEMs.
4.
LAUNCH DATE
Each of the parties acknowledges and
agrees that it shall work in good faith to achieve Launch Date by no later than
thirty (30) days following the Effective Date.
5.
SERVICES AND
TOOLS
5.1
Content Set-Up Tools. During the Term, Viaway shall provide
the following tools (“Content Set-Up Tools”):
5.1.1.
capture of Content from source media provided to Viaway
by Publisher;
5.1.2.
encoding of captured Content into a IMP Media Format;
5.1.3.
encryption of Content as needed;
5.1.4.
metadata entry tools and storage of metadata;
5.1.5.
publication onto the IMP system; and
5.1.6.
quality assurance (“QA”) of Content encoded in a IMP
Media Format.
5.2
Managed Services.
During the Term, Viaway shall provide services as follows to Publisher
(collectively, the “Managed Services”):
5.2.1.
storage of Content metadata;
5.2.2.
delivery of Content metadata over an IP network;
5.2.3.
storage of original and encoded Content;
5.2.4.
delivery of Content over an IP network;
5.2.5.
hosting of video-on-demand, or VOD;
5.2.6.
hosting of IMP’s digital rights management system;
5.2.7.
enabling Publisher to link to IMP’s player for the
purpose of end users’ playback of Content;
5.2.8.
web-based access to real-time report and customer
service tools (the “IMP Reporting Console”) that will enable Publisher to track
Content royalties; and
5.2.9.
delivery of a monthly report, no less than fifteen (15)
calendar days after the end of each calendar month, describing total purchase
and playback activity for each item of Content.
5.2.10.
Viaway shall be responsible for all end-user customer
support. Viaway shall provide
technical assistance via e-mail to Publisher’s support personnel via
content@viaway.com and support web site at
http://www.viaway.com.
5.3
Publisher acknowledges and agrees that: Content Set-Up Services and Managed Services, including without limitation data entry and technical assistance, shall be provided in English.
5.4
The parties acknowledge and agree that Viaway
will maintain the confidentiality of all end user customer data associated with
transactions relating to the Content.
Except as necessary to provide the reports described in Section 5.2.7 or
to process and/or maintain such data, or if disclosure is required by law or
order of a court, administrative agency or other governmental body, Viaway shall
not disclose such data to any third party, including Publisher.
6.
ROYALTIES
6.1
Publisher Royalties. Viaway shall pay Publisher as
follows:
6.1.1.
Viaway shall pay Publisher one tenth of a cent (USD
$0.001) per minute of video Pay Content delivered to end users by Viaway; and
6.1.2.
Viaway shall pay Publisher four hundreds of a cent (USD
$0.0004) per minute of audio Pay Content delivered to end users by Viaway; and
6.1.3.
Delivery of Free Content. Viaway shall pay Publisher zero cents
(USD $0.00) per minute of Free Content delivered to end users by Viaway
and fifty percent (50%) of Net Revenue from advertising revenue generated from
Free Content.
6.1.4.
Delivery of Pay On-Demand Content by Viaway. Viaway
shall pay Publisher 50% every time customer rent your content. For example, if
you content is rented at USD $0.99, you earn a royalty of USD $0.49; and if your content is purchased as USD $2.99, you earn a royalty of USD $1.49
6.1.5.
All payments shall be made in US Dollars within thirty (30) calendar days
after the first of the month, and shall be pursuant to the payment instructions
therein. All amounts due under this
Agreement are exclusive of any tariffs, duties, or taxes imposed or levied, and
all such tariffs, duties or taxes, with the exception of income taxes accrued by
Viaway, are the sole responsibility of Publisher.
If such tariffs, duties, or taxes are paid or required to be paid by
Viaway, that amount shall be deducted from the amount payable to Publisher.
6.2
Reports.
Viaway shall provide to Publisher, within fifteen (15) calendar days after the
end of each calendar month, at
http://www.viaway.com a royalty report, describing Publisher’s
royalty
for the applicable revenue related to this
Agreement (“Royalty Report”).
6.3
Taxes.
All payments under this Agreement are exclusive of taxes imposed by any
governmental entity. Publisher shall
pay any applicable taxes, including sales, use, personal property, value-added,
excise, customs fees, import duties or stamp duties or other taxes and duties
imposed by governmental agencies of whatever kind and imposed with respect to
services and/or transactions provided under this Agreement, including penalties
and interest, but specifically excluding taxes based upon Viaway’s net income. When Viaway has the legal obligation
to collect any applicable taxes, the appropriate amount shall be invoiced to and
paid by Publisher “net thirty (30) days” from the date of invoice or other
notification. Content Publisher
shall promptly provide to Viaway: (i) original or certified copies of all tax
payments or other sufficient evidence of tax payments at the time such payments
are made by Publisher pursuant to this Agreement; or (ii) a valid certificate of
Publisher’s exemption from obligation to pay such taxes as authorized by the
appropriate taxing authority.
6.4
Audit. Upon reasonable notice
Publisher or its agent shall have the right to audit Viaway’s books and records
relating to this Agreement. Viaway
shall cooperate fully with this audit.
If any audit conducted under this Section indicates that any amount due
to Publisher was underpaid, Viaway shall within three (3) business days pay to
Publisher the amount due. All
expenses associated with any such audit shall be paid by Publisher unless the
audit reveals underpayment in excess of 5%, in which case Viaway shall pay such
expenses as well as any amount due to Publisher.
7.
COST AND FEES.
7.1
Storage and distribution costs. If Publisher chooses to store and distribute Free Content with IMP, publisher might be required to subscribe to Cloud TV: Record & Play service unless Viaway provided complimentary Cloud TV: Record & Play service. If Publisher chooses to store and distribute Paid Content with IMP, Viaway may offer a complimentary Cloud TV: Record & Play service for twelve (12) month period immediately following Effective Date at Viaway discretion.
8.
OBLIGATIONS.
8.1
Publisher.
8.1.1.
Metadata and
Content. Promptly after the Effective Date and
then continuing through the Term, Publisher shall make available or otherwise
deliver the Metadata and Content to Viaway.
Publisher shall provide notice to Viaway no less than five (5) days prior
to any changes in how the Metadata or Content is delivered to Viaway; such
changes include without limitation Metadata feed format, Metadata fields made
available, change in domain location for the Content, and changes in the
encoding or transport format for the Content.
8.1.2.
Content Rating.
Publisher shall provide, at the same time it provides or otherwise makes Content
available through the IMP and/or to Viaway, Ratings for each item of Content
made accessible under this Agreement.
In the event any Content accessed through the IMP is required (by law,
rule, regulation, or otherwise) to be labeled with a Rating, Publisher agrees
and acknowledges that it is solely responsible for labeling all Content.
8.1.3.
Closed-captioning. If closed-captioning or similar
technology is required (by law, rule, regulation, or otherwise) with respect to
the Content accessed through the IMP, Publisher shall provide and deliver
closed-captioning at the same time it provides access to the Content.
8.1.4.
Rights. As
between Publisher and Viaway, Publisher shall be responsible for any and all
fees, costs, or licenses for Publisher’s distribution, display, performance, or
any other rights associated with the Metadata and Content through the IMP.
8.2
Viaway.
8.2.1.
Content Rating. In
its discretion, Viaway may provide Ratings for any Content not previously rated
by Publisher as set forth in Section 8.1.2.
8.2.2.
Advertising.
Viaway may integrate and maintain 3rd party ad server in connection
with providing the Content through the IMP; and further provided that any
advertising distributed or displayed with the Content complies with generally
accepted industry standards for decency and legally-permissible content. If applicable, Viaway shall also
integrate and maintain a means of measuring user metrics related to the Content.
8.2.3.
Reporting.
Viaway shall deliver to Publisher monthly reports regarding Content accessed
through the IMP, such reports to include without limitation aggregated number of
views and length of views. At such
time as Viaway implements an on-line version of these monthly reports for its
other content Publishers, Viaway will implement an on-line version for
Publisher.
9.
CONFIDENTIALITY.
9.1
Definition. Each
party (“Receiving Party”) acknowledges and agrees that all business and
technical information provided by the other party (“Disclosing Party”) under this Agreement constitutes the confidential and
proprietary information of the Disclosing Party.
For purposes of this Agreement, “Confidential
Information” includes all oral, written, or recorded information about or
related to the Disclosing Party or its business, including without limitation
the terms and conditions of this Agreement, regardless of when received or the
manner in which it is furnished, together with any summaries, extracts,
analyses, compilations, studies, or other documents or records prepared by the
Receiving Party which contain, reflect, or are generated from such information. Notwithstanding the
foregoing, Confidential Information does not include information that (i) is or
becomes publicly available without breach of this Agreement; (ii) can be shown
by documentation to have been known to the Receiving Party prior to its receipt
from the Disclosing Party; (iii) is rightfully received from a third party who
did not acquire or disclose such information by a wrongful or tortious act; or
(iv) can be shown by documentation to have been independently developed by the
Receiving Party without reference or reliance to any Confidential Information. Notwithstanding the above, the
Receiving Party may disclose the Confidential Information to a governmental
entity with jurisdiction over it where it is obligated to disclose such
information; provided, that, the Receiving Party shall disclose only such
information as is legally required and shall provide the Disclosing Party prompt
written notice to allow the Disclosing Party to seek and obtain a protective
order or other appropriate remedy prior to any such disclosure. In addition, the Receiving Party is
entitled to disclose the terms and conditions of this Agreement (x) as required
by law, including applicable securities law, and (y) to banks, proposed
investors, and financing sources, where disclosure is related to any financial
or corporate event for that party; provided such third parties maintain the
confidentiality of the terms and conditions of this Agreement and only use such
information for the purposes of such event.
9.2
Use of
Confidential Information; Protective Measures. The Receiving Party shall not use any
Confidential Information for its own use or for any purpose other than as
necessary to perform or enforce its rights and/or obligations under this
Agreement. The Receiving Party shall
not disclose Confidential Information to any third party and shall restrict the
possession, knowledge, and use of Confidential Information to its employees,
agents, subcontractors, and entities that it controls (collectively, “Personnel”) and that have a need to
know such information in connection with this Agreement. Personnel will have access only to
the Confidential Information they need for such purposes and the Receiving Party
shall ensure that its Personnel comply with its obligations under this
Agreement. The Receiving Party
agrees that it will take all reasonable measures to protect the secrecy of and
avoid disclosure of Confidential Information and to prevent it from falling into
the public domain or the possession of persons not authorized to possess such
information under this Agreement.
These measures shall be no less than reasonable care and shall include all of
those measures it uses to protect its own confidential information. The Receiving Party shall immediately
notify the Disclosing Party in writing of any breach of its obligations under
this Section
5.2.
9.3
Injunctive
Relief. Each Receiving Party
acknowledges and agrees that any breach of its obligations with respect to this
Section
5
in a manner inconsistent with this Agreement may cause or threaten irreparable
harm to the other party. Each party
further acknowledges and agrees that in the event of such actual or threatened
breach or misuse, the other party may have no adequate remedy at law and may be
entitled to immediate injunctive and other equitable relief. Any right to obtain an injunction,
restraining order, or other equitable relief shall not be deemed a waiver of any
right to assert any other remedy that may be available in law or in equity.
10.
WARRANTIES.
10.1
Viaway. Viaway represents, warrants, and
covenants as follows:
10.1.1.
Viaway has the
full right and power to enter, execute, and deliver this Agreement and to
consummate the transactions and perform its obligations as contemplated by this
Agreement.
10.2
Publisher.
Publisher represents, warrants, and covenants as follows:
10.2.1.
Publisher has the
full right and power to enter, execute, and deliver this Agreement and to
consummate the transactions and perform its obligations as contemplated by this
Agreement;
10.2.2.
Publisher shall
follow all laws, rules, and regulations concerning the use and collection of PII
collected by it when providing Content to End Users.
10.2.3.
Publisher has all
rights necessary to provide the License and enable access to the Content and
Metadata; and
10.2.4.
Neither the
Metadata nor the Content infringes upon or misappropriates any Intellectual
Property Rights of any third party.
10.2.5.
Publisher
warrants, represents and agrees that it will
NOT contribute, submit or make
available through the IMP, or use the IMP in connection with, any Content that
is infringing, libelous, defamatory, obscene, pornographic, abusive, offensive
or otherwise violates any law or right of any third party. Viaway reserves the
right to remove any Content from the IMP at any time, or to terminate
Publisher's right to use the IMP or access the IMP, for any reason (including,
but not limited to, upon receipt of claims or allegations from third parties or
authorities relating to such Content or if Company is concerned that Publisher
may have breached the terms of this paragraph), or for no reason at all, subject
to the provisions of paragraph 13 ("Termination"). Publisher is responsible for
all of its activity in connection with the IMP and accessing the Content.
Publisher may not post or transmit, or cause to be posted or transmitted, any
communication or solicitation designed or intended to obtain password, account,
or private information from any Viaway user. Publisher shall not use any part of
the IMP to violate the security of any computer network, crack passwords or
security encryption codes, transfer or store material that is deemed threatening
or obscene, or engage in any kind of illegal activity. User will not run
Maillist, Listserv, any form of auto-responder, or "spam" on the IMP, or any
processes that run or are activated while the User is not logged in.
10.3
Disclaimer.
THE LIMITED WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION
6 ARE THE
ONLY WARRANTIES PROVIDED BY THE PARTIES AND ARE IN LIEU OF ALL OTHERS. EXCEPT AS STATED IN THIS SECTION, ALL
RIGHTS GRANTED HEREUNDER ARE “AS IS”
AND EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR
OTHER, WITH RESPECT TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY
WARRANTIES ARISING OUT OF COURSE OF DEALING OR COURSE OF PERFORMANCE.
11.
INDEMNIFICATION.
11.1
By Viaway.
Viaway shall indemnify and hold harmless Publisher and its officers, directors,
employees, successors, and assigns (collectively, “Licensee Indemnifieds”) from and
against any and all third-party claims, losses, damages, liabilities, and
expenses (including reasonable attorneys fees and costs) actually incurred
(collectively, “Claim”) arising out
of:
11.1.1.
any material
breach by Viaway of its obligations pursuant to Section
5; or
11.1.2.
any material
breach by Viaway of its representations and warranties contained in Section
6.1.
11.2
By Publisher.
Publisher shall indemnify and hold harmless Viaway and its officers, directors,
employees, successors and assigns (collectively, "Viaway Indemnifieds”) from and
against any and all Claims arising out of:
11.2.1.
any material
breach by Publisher of its obligations pursuant to Section
5; or
11.2.2.
any material
breach by Publisher of its representations and warranties contained in Section
6.2.
11.3
Procedure. A party seeking
indemnification (“Indemnified Party”)
shall promptly notify the other party (“Indemnifying
Party”) in writing of any Claim of which it becomes aware. The Indemnifying Party shall control
the defense, settlement, adjustment, or compromise of any such Claim; provided
that unless the Indemnifying Party obtains a complete and unconditional release
of the Indemnified Party from any such Claim, the Indemnifying Party may not
settle any Claim on behalf of the Indemnified Party without prior written
authorization from the Indemnified Party.
The Indemnified Party may employ its own counsel at its own expense, and,
at the Indemnifying Party’s reasonable request and expense, shall cooperate and
assist the Indemnifying Party with respect to the negotiation, defense or
settlement of any such Claim, but shall have no right or authority to settle any
such Claim on behalf of the Indemnifying Party without first obtaining the
Indemnifying Party’s written authorization.
In the event of a settlement of any such Claim, each party agrees not to
disclose the terms of the settlement without first obtaining the other party’s
written authorization. Any
authorization sought under this Section
7.3 shall not be unreasonably withheld or delayed.
12.
LIMITATION OF LIABILITY.
12.1
Limitations and Exclusions.
EXCEPT FOR BREACH OF THE CONFIDENTIALITY OBLIGATIONS IN SECTION 5 OR A PARTY’S
INDEMNIFICATION OBLIGATIONS UNDER SECTION 7, IN NO EVENT SHALL EITHER PARTY BE LIABLE OR OBLIGATED TO THE OTHER PARTY
IN ANY MANNER FOR ANY SPECIAL, NON-COMPENSATORY, PUNITIVE, INCIDENTAL,
CONSEQUENTIAL, EXEMPLARY, OR OTHER INDIRECT DAMAGES OF ANY KIND OR NATURE,
INCLUDING WITHOUT LIMITATION LOST PROFITS AND LOST REVENUE, REGARDLESS OF THE
FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY,
OR OTHERWISE, INCURRED BY THE OTHER PARTY AND ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT, EVEN IF ADVISED OF OR OTHERWISE AWARE OF THE POSSIBILITY OF
SUCH DAMAGES IN ADVANCE.
12.2
Maximum Aggregate Liability.
EXCEPT FOR BREACH OF THE CONFIDENTIALITY OBLIGATIONS IN SECTION 5 OR A PARTY’S
INDEMNIFICATION OBLIGATIONS UNDER SECTION 7, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY IN
CONNECTION WITH THIS AGREEMENT EXCEED THE TOTAL FEES PAYABLE PURSUANT TO
SECTION 3 FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE IMPOSITION OF
SUCH LIABILITY.
12.3
Basis of the Bargain. THE LIMITATIONS SET FORTH
ABOVE SHALL BE DEEMED TO APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW
AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES. EACH PARTY ACKNOWLEDGES AND AGREES
THAT IT HAS FULLY CONSIDERED THE FOREGOING ALLOCATION OF RISK AND FINDS IT
REASONABLE, AND THAT THE FOREGOING LIMITATIONS ARE AN ESSENTIAL BASIS OF THE
BARGAIN BETWEEN THE PARTIES.
13.
TERM.
13.1
Term. This Agreement commences upon the
Effective Date and continues for three (3) years; it automatically renews for
additional one (1) year terms unless either party provides written notice to the
other party of termination at least ninety (90) calendar days prior to the
expiration of the then-current term.
13.2
Termination.
Either party may immediately terminate this Agreement:
13.2.1.
in the event of a
material uncured breach or default by the other party of any of its obligations
under this Agreement, provided that (a) notice is provided to the other party in
writing and (b) such breach or default is not cured within thirty (30) calendar
days after receipt of notice; or
13.2.2.
in the event that
the other party (a) institutes or otherwise becomes a party, voluntarily or
involuntarily, to a proceeding alleging or pertaining to the insolvency or
bankruptcy of that party; (b) is dissolved or liquidated; (c) makes an
assignment of its material assets for the benefit of creditors; or (d) initiates
or is subject to reorganization proceedings.
This Agreement shall be terminable on the date written notice is deemed
given to such party.
13.2.3.
Viaway may also
terminate or suspend any and all Content and access to the IMP immediately,
without prior notice or liability, if Publisher breaches any of the terms or
conditions of this Agreement. Any fees paid hereunder are non-refundable and
non-cancelable. Upon termination of the Publisher's account, Publisher's right
to use the IMP will immediately terminate. All provisions of this Agreement which by their
nature should survive termination shall survive termination, including, without
limitation, ownership provisions, warranty disclaimers, and limitations of
liability.
13.3
Effect. Upon termination or expiration, this
Agreement shall become void and the license granted hereunder shall immediately
terminate. However, nothing herein
shall be construed to release either party from any obligation which matured
prior to the effective date of such termination or expiration (or which may
continue beyond such termination or expiration) or to relieve the defaulting
party from any and all liabilities at law or in equity to the other for breach
of this Agreement. Upon termination
or expiration, any unpaid amounts due under this Agreement shall become
immediately due and payable, and each Receiving Party shall promptly return or
certify that it has destroyed (or, in the case of electronic embodiments,
permanently erased) all tangible material embodying Confidential Information of
the Disclosing Party.
13.4
Survival. Sections 1, 3, 5, 6.3, 7, 8, 9.1
through 9.3 inclusive, 10, and this Section 9.4 shall survive the expiration or
termination of this Agreement.
14.
GENERAL.
14.1
Publicity.
Publisher grants Viaway permission to issue one press release announcing that
Publisher has provided access to the Content through the IMP. Publisher further grants Viaway
permission to use Publisher’s name and Marks in its marketing and promotional
efforts for the IMP, provided Viaway uses such name and marks along with other
companies’ names and marks regarding access to content through the IMP. Except for these privileges, neither
party shall release any announcement, publicity, or advertising, which contains
reference to the other party or its affiliates, employees, representatives,
products, or to this Agreement without the prior written consent of the other
party, not unreasonably withheld or delayed.
14.2
Interpretation.
This Agreement may only be modified by a signed, written agreement. Titles or headings to the sections of
this Agreement are for convenience only, and shall not limit or define the scope
of this Agreement. This Agreement
has been negotiated by the parties, with each party having the opportunity to
avail itself of counsel of their own choosing, and it shall be fairly
interpreted in accordance with its terms and conditions without any strict
construction in favor of or against either party.
Any ambiguity shall not be interpreted against the drafting party. The waiver by either party of a
breach of any provision of this Agreement by the other party shall be in a
signed writing, and shall not operate or be interpreted as a waiver of any other
or subsequent breach. If any one or
more of the provisions of this Agreement shall for any reason be held to be
invalid, illegal, or unenforceable by a court of competent jurisdiction, the
remaining provisions of this Agreement shall be unimpaired and shall remain in
full force and effect, and the invalid, illegal, or unenforceable provision
shall be replaced by a valid, legal, and enforceable provision that comes
closest to the intent of the parties underlying the invalid, illegal, or
unenforceable provision. This
Agreement is written in the English language, and any translation shall be for
reference only.
14.3
Parties. Viaway and Publisher will be and
shall act as independent contractors, and this Agreement is not intended to
create, nor should it be construed to create, a partnership, joint venture,
agency, or employee/employer relationship.
Neither party by virtue of this Agreement shall have any right, power, or
authority to act or create any obligation, express or implied, on behalf of the
other party. Neither this Agreement
nor any rights granted herein may be assigned by Publisher without the prior
written consent of Viaway, not unreasonably withheld or delayed. Any attempt by Publisher to assign
any rights without such consent shall be void.
14.4
Notices. All notices, requests, and demands
given to or made upon the parties shall be in writing (in English) and shall be
mailed properly addressed, postage prepaid, registered or certified, by
internationally recognized postal or delivery service, or hand delivered, to the
other party at the addresses set forth below, or such other addresses to which
either party shall notify the other party. Any
notice sent shall be deemed given when sent.
Phone:
Mobile Phone:
Email:
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14.5
Law and Venue.
This Agreement, and any and all claims that may arise in connection with
the Content and IMP, shall be governed by the substantive laws of State of
California without giving effect to its conflict of law principles; the United
Nations Convention on Contracts for the International Sale of Goods shall not
apply. The state and federal courts
for the County of San Diego, California, shall have exclusive jurisdiction of
disputes arising under this Agreement, and Viaway and Licensee hereby consent to
and waive any objection to jurisdiction of and venue in such courts. If any action is commenced to enforce
the terms or provisions of this Agreement, the prevailing party shall be
entitled to recover its reasonable attorneys’ fees and costs incurred thereby.
14.6
Entire Agreement.
This Agreement constitute the entire agreement and understanding of the
parties with respect to the Content and IMP and supersedes all prior or
contemporaneous oral or written agreements or understandings.
Any terms or conditions
stated by Publisher in any purchase order or otherwise that are different from
or in addition to this Agreement shall be of no force and effect, and no course
of dealing, usage of trade, or course of performance shall be relevant to
explain or modify any term expressed in this Agreement.
This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same document. Electronic signatures are acceptable.
Agreed by
the Viaway and Date at Your Company as of the Effective Date:4/18/2024