By the parties’ signature of a Service Agreement (as defined below) incorporating these Piksel Digital EnterpriseTM General Terms and Conditions of Service (“Terms and Conditions”) below, You (“You”) and the Piksel entity defined in the Service Agreement (“Piksel”) agree to be bound by the Agreement (as defined below), which will govern Your use of the Services and Piksel Technology (each as defined below) provided by Piksel. The “Effective Date” refers to the effective date set forth in a Service Agreement. All Service Agreements signed by Piksel and You, on or after the Effective Date, these Terms and Conditions, and any other terms and conditions set forth in, or incorporated by reference in, these Terms and Conditions or in any Service Agreement shall be deemed to form one and the same agreement (all of the foregoing are collectively the “Agreement”).
Capitalized terms have the meaning given to them in the Agreement.
1. The Services.
1.1 You may purchase certain Services (as defined below) from Piksel each as further described on an applicable Service Agreement signed by both Piksel and You (each, a “Service Agreement”).
1.2 Each Service Agreement accepted by Piksel and You on or after the Effective Date shall become part of, and subject to, these Terms and Conditions. In the event of any conflict between or among any Service Agreement executed by both You and Piksel and these Terms and Conditions, then they will prevail in the following order: the Service Agreement and then these Terms and Conditions.
2. Term and Termination.
2.1 Each Service Agreement becomes effective on the Effective Date set forth on such Service Agreement. The term for each Service Agreement shall begin upon the latter of the Effective Date, or the date of initial notification of Service availability or use provided by Piksel to You under a Service Agreement (the “Commencement Date”) and shall extend for the period of a number of specified months thereafter as set forth in the applicable Service Agreement (the “Service Agreement Term”).
2.2 The Service Agreement Term is stated in a given Service Agreement. Upon expiration of the initial Service Agreement Term or any renewal Service Agreement Term, the Service Agreement Term shall automatically renew for consecutive twelve (12) month terms unless either party terminates the applicable Service Agreement effective as of the end of the then-current Service Agreement Term by notifying the other party in writing at least sixty (60) days prior to the end of the then-current Service Agreement Term.
2.3 Upon any early termination of any Service Agreement by You without cause, prior to the end of the then- current Service Agreement Term, You shall pay to Piksel a fee equal to, for each Service Agreement so terminated (i) the number of months remaining in the then-current Service Agreement Term, multiplied by (ii) the minimum monthly charge under such Service Agreement (“Early Termination Fee”). The parties agree that the Early Termination Fee shall be liquidated damages and shall constitute compensation, for Your breach in early termination of a Service Agreement without cause, and is not a penalty. The payment by You of such liquidated damages shall be Your sole liability and entire obligation and Piksel’s sole and exclusive remedy with respect to such termination. The parties agree that the Early Termination Fee is reasonable because: (i) the amount of actual damages to Piksel caused by such early termination is difficult or impossible to calculate accurately; and (ii) the Early Termination Fee is a reasonable pre-estimate of Piksel’s probable loss in the event of any such early termination. Upon termination or expiration of this Agreement for any reason, Sections 2.3, 3, 5.3, 5.4, 6, 8, 9, 12, 13, 14 (for the period set forth in the last sentence of 14.1), 15 through 17 of these Terms and Conditions shall survive, along with any other provisions of the Agreement that by their terms survive such termination or expiration.
2.4 Either party may terminate this Agreement (and all Service Agreements) due to the other party’s breach of a material covenant, term or condition of this Agreement; provided that: (i) the non-breaching party has first provided written notice of such breach to the breaching party, and (ii) the breaching party has failed to cure such breach, if curable, within the thirty (30) day period following its receipt of such notice. Either party may also terminate this Agreement upon written notice to the other party in accordance with Section 8.7 or Section 17.9.
2.5 Either party may terminate this Agreement effective immediately upon written notice if: (i) the other party files a petition for bankruptcy or is adjudicated as bankrupt; (ii) a petition in bankruptcy is filed against the other party and such petition is not removed or resolved within thirty (30) calendar days; (iii) the other party makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to bankruptcy law; (iv) the other party discontinues any line of its business affecting the Services; (v) a receiver is appointed over all or substantially all of the other party’s assets or business; (vi) the other party is dissolved or liquidated; or (vii)in accordance with Section 11 of these Terms and Conditions. For avoidance of doubt, in the event that You terminate this Agreement in accordance with this Section 2.5, You will not be required to pay an Early Termination Fee.
2.6 Piksel may in its sole discretion suspend Your access to the Services (or any portion thereof) under the applicable Service Agreement: (i) should You fail to comply with the terms and conditions of this Agreement; (ii) based on any conduct that Piksel believes is or may be directly or indirectly harmful to other users, to Piksel or its suppliers (including their respective systems or the Services); (iii) based on any conduct that Piksel reasonably believes may be a violation of law or third party rights; or (iv) in the event of any legal restriction imposed on You, Piksel, or its suppliers with respect to provision of the Services; provided that Piksel will provide You with three (3) business days’ prior written notice of such suspension and afford You the opportunity to cure such violation prior to exercising such suspension rights. In addition, Piksel may in its sole discretion suspend Your access to the Services (or any portion thereof) or terminate the applicable Service Agreement or Statement of Work, should You change Your business model if such change materially diminishes the revenue share between You and Piksel, if Piksel notifies you of such diminished revenue share, and You have not reinstated Your previous business model, or one of similar import within ninety (90) days of such notification. Piksel’s right to suspend or terminate the Services as set forth in this Section shall not absolve You of any payment or indemnification obligations described herein or diminish any other right or remedy available to Piksel or its suppliers. No Service interruption shall be deemed to occur and Piksel shall have no responsibility to or liability for the Services during such period of suspension.
2.7 In the event that Piksel announces the end-of-life of any of the Services, Piksel shall provide: (i) at least three (3) months’ written notice of its intention to so discontinue such Services together with confirmation of the exact date on which the applicable Services will become end-of-life; and (ii) a written notification to You as to how long Piksel will continue to provide support for the Services that become end-of-life.
2.8 You hereby understand, acknowledge, and agree that in the event that this Agreement is terminated for any reason, Piksel has no obligation to maintain information, files, and Content (as defined herein) associated with Your account including, without limitation, Content posted by You. You shall be responsible for maintaining any and all backups of information, files, and Content uploaded to Your account, and Piksel shall not be liable for the deletion of such information, files or Content from Your account of the applicable Service Agreement’s termination.
3. Pricing and Payments.
3.1 The rates, fees and charges applicable to the Services are outlined in the applicable Service Agreement and incorporated by reference herein.
3.2 Base recurring charges, license platform, and other product or service fees shall be invoiced in advance in accordance with the billing intervals specified on the Service Agreement. Any other charges or fees shall be payable as set forth in the applicable Service Agreement. Any one-time fee shall be invoiced upon execution of the Service Agreement. Services provided for a partial month will be invoiced on a pro-rata basis. All amounts set forth in Piksel’s invoices shall be due and payable in the currency agreed to in the applicable Service Agreement within thirty (30) days of the date each invoice is received by You (“Due Date”), unless You dispute the amount of any such invoice in good faith in accordance with Section 3.4 below. You shall pay all amounts by check, credit card or wire transfer. The unpaid and undisputed portion of any invoice not paid by the Due Date will be subject to an interest rate equal to 1.5% per month. You shall be deemed to be in material default hereunder if payment is not received within thirty (30) days of the Due Date and all amounts invoiced or earned but not yet invoiced by Piksel shall be deemed “past due.” In addition to any other remedy available at law or in equity, if all undisputed past due balances are not paid in full within thirty (30) days of the Due Date, Piksel reserves the right to immediately suspend the Services. Notwithstanding anything in these Terms and Conditions or any Service Agreement to the contrary, if Piksel elects to suspend the Services, no Service interruption shall be deemed to occur and Piksel shall have no responsibility to or liability for the Services during such period of suspension; provided, that Piksel shall reinstate the Services within forty- eight (48) hours of Your cure of any such payment defaults.
3.3 Reasonable, documented travel costs for Piksel personnel which are approved by You in writing in advance (email approval is acceptable), including actual pre-approved costs of airfare, hotel expenses, meals, and local transportation expenses incurred by Piksel personnel solely in connection with the performance of Piksel’s obligations on Your premises, or on a location designated by You, shall be reimbursed by You.
3.4 If You have a bona fide dispute with respect to invoiced amounts, You must notify Piksel of the dispute within ten (10) days of the date such invoice is received at the notice address. You may withhold payment of the disputed charge, provided that: (i) You pay all undisputed amounts when due; (ii) You identify the specific charge in dispute and provide a reasonably detailed written explanation of the basis for the dispute; and (iii) You reasonably cooperate with Piksel in investigating and resolving the dispute. You waive any dispute regarding any amounts set forth on a given invoice if You do not timely notify Piksel in accordance with this Section.
3.5 Except as set forth in Section 3.4, Your obligation to pay any fees or amounts due under this Agreement shall not be subject to any rights of set-off, counterclaim, deduction, defense or other right which You may have against Piksel or any other party. Your sole and exclusive remedy for such a dispute will be an adjustment or credit to Your account in the event the dispute is resolved in Your favor.
3.6 All fees paid are non-refundable, except as provided herein.
4. General Obligations.
4.1 Subject to these Terms and Conditions, Piksel agrees to provide to You during the applicable Service Agreement Term, and You agree to pay for, the Services as set forth in each Service Agreement accepted by Piksel and You.
4.2 While Piksel utilizes certain Piksel Technology (including hardware and software) at Piksel’s facilities as necessary to make the Services available and to store certain Content Y ou provide, Y ou are solely responsible for providing hardware, software, power, Internet connectivity and bandwidth necessary for You to access and utilize the Services (except for certain Piksel Technology which Piksel may expressly agree to provide to You pursuant to a Service Agreement). You shall not modify the Piksel Technology, including, without limitation, the installation of unauthorized software or the modification of software or hardware contained on such Piksel Technology, without Piksel’s prior written consent authorization such modification. Piksel reserves its right to remove any unauthorized software from the Piksel Technology.
4.3 Piksel is not responsible for, and Your obligations under this Agreement are not relieved by, Your inability to access or utilize the Services or Piksel Technology due to issues related to Your failure or inability to provide appropriate hardware, software, power and Internet connectivity and bandwidth.
5.2 Access and use of a Service shall be limited by use of usernames and passwords (“Credentials”). You are responsible for all activity occurring in Your account. Except where Piksel has actual notice of loss, theft or unauthorized use of Your Credentials, Piksel shall have the right, without further inquiry, to rely on provision of Your Credentials as sufficient to authenticate Your use of the Services.
5.3 Except as expressly permitted under this Agreement or expressly authorized by Piksel, You shall not: (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services or Piksel Technology in any way, including without limitation any license that accompanies such Services or Piksel Technology; (ii) copy, modify or make derivative works based upon the Services or Piksel Technology; or (iii)reverse engineer or access the Services or Piksel Technology in order to build a competitive product or service, or copy any ideas, features, functions or graphics of the Services or Piksel Technology.
5.4 To the extent permitted by law, Piksel may track, capture and own user data and usage data primarily for optimizing the Services and Your and the end users’ use of and benefit derived from the Services.
6. Intellectual Property Ownership.
6.1 Piksel (and its licensors, where applicable) owns all right, title, and interest, including all related Intellectual Property Rights, in and to the Piksel Technology and the Services. Piksel hereby retains administrative access to all Piksel Technology provided to You under this Agreement. You shall not, at any point during the Term of this Agreement, obstruct or attempt to interfere with Piksel’s access to the Piksel Technology provided to You under this Agreement. Any such attempt to circumvent Piksel’s access to the Piksel Technology will be deemed a breach of Your obligations under these Terms and Conditions, and Piksel may suspend the Services (or any portion thereof) in accordance with Section 2.6 above.
6.2 Except as set forth herein, this Agreement is not a sale and does not convey to You any rights of ownership in or related to the Services, Piksel Technology or the Intellectual Property Rights owned by Piksel or its licensors. Upon termination of this Agreement for any reason, You shall promptly (and in no event later than fourteen days thereafter) return all hardware provided to You by Piksel under the applicable Service Agreement, including without limitation Piksel-provided encoders and the related software incorporated thereto, if applicable. You hereby understand, acknowledge, and agree that should You fail to return any such hardware, Piksel will invoice You and You shall pay to Piksel the full cost of the unreturned hardware and related software incorporated thereto. The Piksel name, the Piksel logo, and the product names associated with the Services and Piksel Technology are trademarks or service marks of Piksel or of third parties, and no right or license is granted to use them hereunder.
6.3 For avoidance of doubt, You retain all right, title, and interest in and to any products or services and marks owned or controlled by You. All other rights in and to any products and services not expressly granted under this Agreement by You are hereby reserved by You. The names, logos and product names associated with Your products and services are your trademarks or service marks and no right or license is granted to use them hereunder.
7. Billing Information.
7.1 You agree to provide Piksel with complete and accurate billing and contact information, and update Piksel promptly upon any change in such information. This information includes Y our name, Y our legal company name (if applicable), street address, e-mail address, name and telephone number of an authorized billing contact. You also agree to update this information within thirty (30) days of any change to it. Piksel reserves the right, in addition to any other legal remedies, to terminate Your access to the Services and any Piksel Technology if any contact information You have provided is false or fraudulent.
7.2 To the extent Piksel expressly agrees to accept a credit card as a billing mechanism in connection with Your account, You agree that Piksel may automatically renew and bill Your credit card at the beginning of each period for which Y ou are being billed.
8. Content and Indemnification.
8.1 All Content (as defined below), including all copies of Content resulting from encoding, transcoding or other Services provided to You by Piksel pursuant to a Service Agreement, shall remain, as between You and Piksel, Your sole and exclusive property, and You are solely responsible for the back-up and maintenance of such Content. You hereby grant Piksel, for the term of this Agreement, a limited, revocable, non-exclusive, non-transferable, non-sublicensable, worldwide, royalty free, license to modify (solely to comply with Your technical specifications), copy, exhibit, publish, transmit, publicly perform, publicly display and distribute the Content, as required for Piksel’s provision of the Services at Your direction as specified by a Service Agreement during the applicable Service Agreement Term, and in connection with the Services or Piksel’s business, including without limitation for promoting and redistributing part of or all of the Content in any media formats and through any media channels, provided that Piksel’s promotion of such Content includes a reference to You and incorporates a citation to Your social media handle, if applicable.
8.2 FAITH-BASED CUSTOMERS OF PIKSEL FAITH, LLC (F/K/A MULTICAST MEDIA NETWORKS, LLC AND 316 NETWORKS, LLC), PIKSEL STREAMING FAITH, LLC (F/K/A STREAMING FAITH, LLC), AND PIKSEL AMERICAS, INC. (F/K/A KIT DIGITAL – AMERICAS, INC.) ONLY: For purposes of this Agreement, in addition to the license granted in Section 8.1 above, You hereby grant Piksel, for the term of this Agreement, a limited, revocable, non-exclusive, non-transferable, non-sublicensable, worldwide, royalty free, license to syndicate the Content to www.streamingfaith.com unless You explicitly opt-out of Piksel’s syndication services. You hereby grant Piksel the right to publish and promote all Content that is syndicated to www.streamingfaith.com, including without limitation the right to promote the Content through any social media channels provided that Piksel’s promotion of such Content includes a reference to You and incorporates a citation to Your social media handle, if applicable. For the avoidance of doubt, none of the Content that You provide to Piksel for syndication to www.streamingfaith.com shall be subject to any obligation of confidentiality on the part of Piksel, and Piksel will not be liable for disclosure of any use or disclosure of any Content Y ou provide.
8.3 You agree, represent, and warrant to Piksel that You have and will maintain, throughout any applicable Service Agreement Term, all necessary rights and permissions (including rights and permissions in any applicable Intellectual Property Rights) to provide Content to Piksel and to grant the licenses granted by You under this Agreement. In addition, YOU AGREE TO PAY, WAIVE OR HAVE WAIVED BY THE APPLICABLE THIRD PARTY ANY AND ALL ROYALTIES, LICENSE FEES (E.G. BMI, ASCAP, SESAC, ETC.) AND OTHER SIMILAR AMOUNTS DUE TO ANY OWNER OF ANY OF THE INTELLECTUAL PROPERTY RIGHTS IN THE CONTENT APPLICABLE TO THE USE OF THE CONTENT VIA YOUR WEBSITES.
8.5 You will indemnify, defend and hold harmless Piksel, its Affiliates, successors and assigns, and all of their respective officers, directors, employees or agents from and against any and all claims, losses, demands, causes of action, liabilities, costs and expenses (including reasonable attorneys’ fees) (collectively, “Losses”), arising out of a third-party claim resulting from: (i) Your negligence or willful misconduct; (ii) any breach or alleged breach of Y our obligations, representations, or warranties under this Agreement; or (iii) any claim that any Content: (a) misappropriates any third party’s confidential information, (b) is libelous, defamatory, racist, sexist or pornographic or breaches the terms of any law or code of practice that is applicable or is otherwise likely to cause offence to a significant proportion of the population in any part of the world, or (c) violates or infringes the rights of any third party, including, without limitation, any Intellectual Property Rights.
8.6 Piksel will indemnify, defend and hold harmless You and your Affiliates, successors, and assigns, and all of their respective officers, directors, employees and agents from and against any and all Losses arising out of a third-party claim resulting from any claim that the Services, the Piksel Technology or Your use of any of the foregoing in accordance with the terms of this Agreement: (i) misappropriates any third party’s confidential information; or (ii) violates or infringes the rights of any third party, including, without limitation, any Intellectual Property Rights.
8.7 Should the Services or Piksel Technology become the subject of any claim of infringement, then Piksel, at its sole option and expense, may: (i) procure for You the right to continue using the Services or Piksel Technology; (ii) replace the Services or Piksel Technology with a substantially equivalent non-infringing version; or (iii) modify the Services or Piksel Technology (without materially reducing the features or functionality thereof) to make them non-infringing. If Piksel, despite its diligent efforts, is unable to provide any of the remedies described in the preceding sentence, then either party may terminate this Agreement, in which case Piksel shall refund to You any prepaid amounts for Services not performed by Piksel.
8.8 The party seeking indemnification hereunder (“Indemnified Party”) shall promptly inform the other party (“Indemnifying Party”) of any suit or proceeding filed against the Indemnified Party for which the Indemnified Party is entitled to indemnification hereunder (provided, however, that failure to give prompt notice will not relieve the Indemnifying Party of any liability hereunder, except to the extent the Indemnifying Party has suffered actual material prejudice by such failure). The Indemnified Party will allow the Indemnifying Party to direct the defense and settlement of any such claim, with counsel of the Indemnifying Party’s choosing, and will provide the Indemnifying Party, at the Indemnifying Party’s expense, with information and assistance that are reasonably necessary for the defense and settlement of the claim. The Indemnified Party shall have the right, but not the obligation, at its sole expense to participate in (but not to control) the defense of any such suit or proceeding. An Indemnifying Party will not settle any such action without the written consent of the Indemnified Party (which consent will not be unreasonably conditioned, withheld or delayed).
9. Your Obligations.
You covenant and agree not to: (i) use the Services, or collect, use, or disclose any personally identifiable information of any person, in any illegal or unlawful manner or for any illegal or unlawful purpose; (ii) use the Services in a manner which is intended to interfere with or disrupt Piksel’s or its customers’ use of the Services, including without limitation: (a) installing unauthorized software applications onto the Piksel Technology, or (b) transferring hardware licenses from the Piksel Technology to a third party device (including devices owned by You); (iii) remove Piksel Technology parts, including without limitation a Piksel encoder’s capture cards and video cards; or (iv) make any unauthorized modification to the Piksel Technology, including without limitation tampering with such Piksel Technology’s capture cards and storage drives.
Piksel will not review or screen Content for compliance with this Agreement or applicable law, and Piksel shall have no obligation to do so, provided, however, that in addition to any other right Piksel may have, Piksel reserves the right to suspend Your access to and/or use of the Services in accordance with the provisions of Section 2.6 above.
10. Additional Limited Warranty.
Piksel represents and warrants that, during the applicable Service Agreement Term: (i) it will provide the Services in a professional, workmanlike manner consistent with general industry standards and the Service Level Agreement (“SLA”) as set forth in Section 11 herein; (ii) it will perform its obligations under this Agreement in accordance with all applicable laws, rules and regulations; and (iii) to the knowledge of Piksel, the Services and Piksel Technology do not and will not contain any virus or any other contaminant, disabling devices or other code that may compromise the operation or security of Your website or other services, including, but not limited to, codes, commands or instructions that may be used to access, alter, delete, remotely access, damage, disable Your site or services, or any computers or systems used by end users to access Your site or services.
11. Service Level Agreement
Availability of the Services is defined as the ability for Content to be ingested, published, or played from the Services, both from an end consumer view and from an administrator’s view, as measured by Piksel’s monitoring system.
Availability Level (Excluding Exceptions)
The Services may not be available for use under the following circumstances (each, an “Exception”), and in such case such periods of unavailability shall not be counted against Piksel for purposes of calculating the Availability Level set forth in the table above.
- Downtime or degradation attributable to: (i) normal scheduled or Emergency Maintenance; or (ii) a security intrusion event or a “denial-of-a-service” attack from external sources outside of Piksel’s control;
- Breach of the Agreement by You, Your administrative users, employees, contractors or agents (“Breach”) which has not been cured in accordance with Section 2.4 of this Agreement;
- Downtime or degradation resulting from bugs in third- party software not caused by Piksel;
- Beta products, features, or services;
- Instances of Force Majeure; or
- Emergency Maintenance required to protect or recover the Services.
In the event that the Services fail to meet the Availability Level described above in any two (2) consecutive months, in arrears, during the applicable Service Agreement Term, You will have the right to terminate this Agreement upon written notice to Piksel. Such termination right shall be Your exclusive remedy for any failure of the Services to meet the Availability Level described above.
A. Hours of Operation. Support is available 24 / 7 / 365 for Critical (as defined below) case submissions. Submissions and updates for High, Medium and Low level issues (as defined below) will typically occur during normal business hours.
- Critical | Severe impact – Errors that meet the following criteria:
- Errors that prevent playback and updating from being done;
- Material errors in essential functions for which no work around exists;
- Errors that cause a loss of data; and
- Security related issues.
- High | Significant impact – Errors that disable essential functions but for which a work around exists.
- Medium | Moderate impact – Features are impaired but do not impact Your playback activity; issue impacting playback on only one of many devices; analytics discrepancy, etc.
- Normal | No impact – Generally categorized as “How to,” enhancements, report requests, etc.
C. Issue Management Channels
Support. You will have direct access to a pool of technical support engineers via phone and email with advanced knowledge of the Piksel application, productized integration and programming expertise.
D. Issue Reporting
- You can access the Support Team via: firstname.lastname@example.org for all cases; or 866-708-1542 for Critical cases only.
- All service issue requests are tracked in Piksel’s Incident Management System and You will be provided a ticket number upon request.
E. Issue Update Expectations.
Support has established the following goals, by channel, for issue update times. When third party services are required to evaluate and resolve the relevant issue, updates will be provided as they become available.
- For Critical Issues, every 2 hours until resolved.
- For High, every 4 hours until resolved.
- For Medium, every 8 hours until resolved.
- For Normal, every 24 hours until resolved.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND TO THE OTHER PARTY, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, TITLE, OR SUITABILITY, OR WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES, PIKSEL TECHNOLOGY AND CONTENT ARE PROVIDED ON AN “AS IS” BASIS ONLY. NO ADVICE OR INFORMATION OBTAINED BY EITHER PARTY FROM THE OTHER PARTY SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
13. Limitation of Liability.
UNDER NO CIRCUMSTANCE SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM THE PERFORMANCE OR FAILURE OF PERFORMANCE OF ANY PROVISION OF THIS AGREEMENT (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES), INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, ANTICIPATED PROFITS, LOST BUSINESS, OR COST OF REPLACEMENT SERVICES OR TECHNOLOGY. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR DAMAGES IN EXCESS OF (A) $10,000 OR (B) THE TOTAL VALUE OF PAYMENTS EXPRESSLY IDENTIFIED IN THE SERVICE AGREEMENT UNDER WHICH LIABILITY AROSE, WHICHEVER OF (A) AND (B) IS GREATER. NOTWITHSTANDING ANY OF THE FOREGOING IN THIS ENTIRE SECTION, THE LIMITATIONS SET FORTH IN THIS SECTION SHALL NOT APPLY TO LIMIT: (I) DAMAGES RESULTING FROM A BREACH OF SECTION 14 BELOW (CONFIDENTIALITY); (II) DAMAGES RESULTING FROM GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; OR (III) A PARTY’S INDEMNIFICATION OBLIGA TIONS.
14.1 “Confidential Information” means any and all information that is disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”), either directly or indirectly, in writing, orally or by inspection of tangible objects, which if disclosed in writing or tangible form is marked as “Confidential,” or with some similar designation, or is identified as being proprietary or confidential at the time of disclosure, or by the nature of the circumstances surrounding the disclosure should reasonably be treated as proprietary or confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is or becomes generally known to the public through no fault of or breach of this Agreement by the Receiving Party; (ii) is rightfully known by the Receiving Party at the time of disclosure without an obligation of confidentiality as shown by the Receiving Party’s written records; (iii) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information as shown by the Receiving Party’s written records; or (iv) the Receiving Party rightfully obtains from a third party without restriction on use or disclosure. The Receiving Party may use the Confidential Information of the Disclosing Party solely as necessary for its performance under this Agreement and the Receiving Party may disclose the Disclosing Party’s Confidential Information solely to those of its employees, agents or subcontractors that need to know such Confidential Information for the purpose of its performance this Agreement, provided that any such employee, agent or subcontractor is subject to a written agreement or other obligation of confidentiality that includes binding use and disclosure restrictions that are at least as protective of Confidential Information as those set forth herein. The Receiving Party must use all reasonable efforts to maintain the confidentiality of all the Disclosing Party’s Confidential Information in its possession or control, but in no event less than the efforts the Receiving Party ordinarily uses with respect to its own proprietary information of similar nature and importance. The foregoing obligations will not restrict the Receiving Party from disclosing Confidential Information: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the Receiving Party gives reasonable notice to the Disclosing Party to contest such order or requirement; and (b)on a need-to-know basis under an obligation of confidentiality to its legal or financial advisors. The Receiving Party’s obligations pursuant to this Section 14 shall survive termination or expiration of this Agreement for a period of three (3) years.
14.2 The Disclosing Party further acknowledges that the Receiving Party may currently be developing information or may in the future develop information, may be receiving or may in the future receive information, or may be exploring or may in the future explore other opportunities, any of which may be similar or related to the Services being provided under this Agreement or the Disclosing Party’s Confidential Information. Accordingly, nothing in this Agreement will be construed as a representation or agreement that the Receiving Party will not develop or have developed for it products, services, concepts, systems or techniques that are similar to or compete with the products, services, concepts, systems or techniques contemplated by or embodied in the Disclosing Party’s Confidential Information, provided that the Receiving Party does not otherwise violate its obligations under this Agreement in connection with such development.
Each party must give notice to the other party (such notice shall be deemed given when received) by: (i) letter sent by confirmed facsimile (with a copy of such letter delivered by certified mail); (ii) personal delivery with proof of receipt; (iii) nationally recognized overnight delivery service; or (iv) by prepaid, certified, mail addressed as follows:
If to Piksel:
Attention: Legal Department
1250 Broadway, Suite 1902
New York, New York 10001 USA Tel. (646) 553-4845
If to You: to Your address as set out in the Service Agreement.
16. English Language.
This Agreement is in the English language only, which language shall be controlling in all respects, and all versions hereof in any other language shall not be binding on the Parties hereto. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.
17.1 If the Piksel entity designated in the Services Agreement is Piksel, Inc. (f/k/a KIT digital, Inc.), Piksel Americas, Inc., Piksel Faith, LLC, or Piksel Streaming Faith, LLC, this Agreement shall be governed by the laws of the State of Georgia, excluding choice of laws principles, and explicitly not by the United Nations Convention on Contracts for the International Sale of Goods. ANY DISPUTES, ACTIONS, CLAIMS OR CAUSES OF ACTION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES OR PIKSEL TECHNOLOGY SHALL BE SUBJECT TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN OR FOR COBB COUNTY, GEORGIA, AND EACH PARTY HEREBY CONSENTS TO THE PERSONAL JURISDICTION OF SUCH COURTS.
17.2 If the Piksel entity designated in the Services Agreement is Piksel France SAS, this Agreement shall be governed by the laws of France, excluding choice of laws principles, and explicitly not by the United Nations Convention on Contracts for the International Sale of Goods. ANY DISPUTES, ACTIONS, CLAIMS OR CAUSES OF ACTION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES OR PIKSEL TECHNOLOGY SHALL BE SUBJECT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF PARIS, AND EACH PARTY HEREBY CONSENTS TO THE PERSONAL JURISDICTION OF SUCH COURTS.
17.3 If the Piksel entity designated in the Services Agreement is Piksel Limited, this Agreement shall be governed by the laws of England and Wales, excluding choice of laws principles, and explicitly not by the United Nations Convention on Contracts for the International Sale of Goods. ANY DISPUTES, ACTIONS, CLAIMS OR CAUSES OF ACTION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES OR PIKSEL TECHNOLOGY SHALL BE SUBJECT TO THE EXCLUSIVE JURISDICTION OF THE ENGLISH COURTS, AND EACH PARTY HEREBY CONSENTS TO THE PERSONAL JURISDICTION OF SUCH COURTS.
17.4 If the Piksel entity designated in the Services Agreement is Piksel Limited – Italian Branch, this Agreement shall be governed by the laws of Italy, excluding choice of laws principles, and explicitly not by the United Nations Convention on Contracts for the International Sale of Goods. ANY DISPUTES, ACTIONS, CLAIMS OR CAUSES OF ACTION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES OR PIKSEL TECHNOLOGY SHALL BE SUBJECT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF MILAN, AND EACH PARTY HEREBY CONSENTS TO THE PERSONAL JURISDICTION OF SUCH COURTS.
17.5 Except as otherwise provided in this Agreement, no waiver, alteration, modification or cancellation of any of the provisions of this Agreement shall be binding on either party unless agreed to in writing by both parties. No trade usage or other regular practice or method of dealing between the parties may modify, interpret, supplement or alter in any manner the express terms of this Agreement.
17.6 This Agreement constitutes the entire agreement between You and Piksel concerning the subject matter of this Agreement, and supersedes any prior agreement between the parties. You understand and agree that Services may be provided by, and payments may be collected by, an Affiliate (as defined below) of Piksel. In the event that You become in default under or otherwise breach this Agreement, You agree to pay all actual, reasonable out-of-pocket expenses (including, without limitation, outside attorneys’ fees and collection agency fees) incurred by Piksel in its enforcement of its rights under this Agreement.
17.7 If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision, with all other provisions remaining in full force and effect, and, if such construction is not permissible, such provision shall be deemed severed from this Agreement.
17.8 Except as set forth herein with respect to Affiliates, You may not assign this Agreement or any right or obligation hereunder without Piksel’s prior written consent.
17.9 If either party is prevented from performing any portion of this Agreement due to Force Majeure, such party shall be excused from performance for the period of the delay and the time for such party’s performance shall be extended for a period of time equal to the duration of such delay. Notwithstanding the foregoing, in no event shall Your obligation to make payments to Piksel as required hereunder be excused due to Force Majeure for a period of longer than thirty (30) days. If such Force Majeure event prevents a party from performing hereunder for a period of thirty (30) days or more, then the other party may terminate this Agreement immediately upon written notice to the non-performing party.
17.10 Piksel may insert advertisements within the Services provided to You, the location of which shall include the banner stub, pre-roll and mid-roll or any other location reasonably agreed upon by the parties and subject to the terms and conditions set forth in this Agreement.
17.11 Without limiting Section 14 above, and intending to generate mutual beneficial public relations, the Parties agree that Piksel may, within one year of the Effective Date of this Agreement, publish a press release and conduct and release a case study regarding the Parties and their use of Piksel Video Platform.
“Affiliate” means, with respect to either party, an entity that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such party, where “control” means: (i) the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through the ownership of voting securities, by contract or otherwise; or (ii) ownership of at least fifty percent (50%) of the voting stock, shares or interests of any such entity.
“Beta” means a product, feature, or service provided under the Service Agreement to You that Piksel has not made generally available to its customers, and has been designated by Piksel as Beta, limited release, developer preview, or by descriptions of similar import.
“Content” means any data or material (including without limitation copyrightable subject matter, graphics, text, video content and audio content, trademarks, and service marks) that You direct Piksel to acquire or use or is provided or submitted by You, or on Your behalf, or by any User to the Services in the course of use of the Services (including any of the foregoing that is to be used, modified, copied, adapted, exhibited, published, transmitted or distributed by Piksel pursuant to a Service Agreement).
“Emergency Maintenance” means maintenance required to protect or recover the Services by any incident of failure of a third-party systems or services or Force Majeure.
“Force Majeure” means an event beyond a party’s reasonable control (other than payment obligations), including labor disputes, strikes, lockouts, carrier gateway provider service failures, third party or other subcontractor delays, internet or telecommunications failures, shortages of or inability to obtain labor, energy, or supplies, war, terrorism, riot, acts of God or governmental action.
“Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how, and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
“Piksel Technology” means all of Piksel’s or Piksel’s licensors’ proprietary technology, including without limitation, software, hardware (such as the Piksel-provided encoder), products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information, used by Piksel, or made available to You by Piksel, in providing the Services.
“Services” means, individually and collectively, the Internet- accessible media conversion, asset management and distribution services and other services to be provided hereunder by Piksel, including, without limitation, Piksel Digital EnterpriseTM, as more fully described in a then- effective Service Agreement.
Effective June 28, 2016