Innova TV Networks, LLC is committed to implementing measures designed to protect the privacy of those using our services. Moreover, we see it as our responsibility to set examples and help establish the standards for privacy on the Internet.
Information We Gather
We gather two types of information about the users of the Services:
(1) Non-personally identifiable information: When you use the Services, we may collect and aggregate information indicating, among other things, which pages were visited, the order in which they were visited, and which hyperlinks were “clicked.” Collecting such information involves the logging of IP addresses, operating system and browser software used by each user. Although such information is not personally identifiable, we can determine from the IP address a visitor’s Internet Service Provider and the geographic location of his or her point of connectivity.
The non-personally identifiable information we collect helps us diagnose problems with our server, administer the Services, identify the most popular areas or features of the Services, and determine the effectiveness of our promotional activities. In addition, we may disclose some of this information to advertisers to inform them of the number of people who have seen and/or clicked through their advertisements.
For the same purposes, we use “cookies”—that is, small text files placed on your computer’s hard drive—to help us determine the type of content and sites to which you link, the length of time you spend at any particular area or feature of the Services, and your usage of the Services. Cookies also tell us which advertising you have seen on the Services. At certain times, we may use outside advertising companies to display advertisements on the Web site that may contain cookies (“banner ads”). These banner ads collect information stored by the advertising company and we do not have access to this information.
Essentially, cookies are your identification cards for our computers, or servers, that placed them there. Cookies are only read by the server that placed them, and are unable to execute any code or virus. Cookies allow us to serve you better and more efficiently, and to personalize your experience on the Services. Nevertheless, you are able to control how and whether cookies will be accepted by your web browser or device. For more information on how to do so, please refer to the documentation accompanying your browser or device.
At this time, this website and the Services do not recognize automated browser signals regarding tracking mechanisms and preferences, which may include “do not track” instructions. However, you may adjust the privacy preferences of your browser, including the control of how and whether cookies will be accepted by your web browser or device. For more information on how to do so, please refer to the documentation accompanying your browser or device.
(2) Personally identifiable information: Certain features of the Services, such as surveys and contests, may require that you provide personally identifiable information (including, for example, zip code, age, income, and e-mail address, and when applicable, credit card information). Innova TV Networks, LLC has access to this information. In addition, when registering to set up an account to use certain services of the Web site such as e-mail, chat rooms, and forums, or to receive certain newsletters or specifically targeted information, we do require that you provide a valid e-mail address.
In addition, we may collect information about your location when you access any of our mobile applications. If you do not enable the service to use your location information or if the app does not have that feature, we will not collect or store your location information.
We do not control the acts of users of the Services. All users should be aware that, when they disclose personally identifiable information in a bulletin board, chat room, guestbook, or other forum, the information may be collected and used by others to send that person unsolicited e-mail from other parties outside of the Services or Innova TV Networks, LLC. In the event that you encounter any user of the Services who is improperly collecting or using information about you or other users, please contact Info@Innovatvlive.com.
How We Use (and do not use) The Information We Gather
Please take some time to familiarize yourself with the different ways we use the information that we gather. We cannot and do not assume any responsibility for any actions or omissions of third parties, including the manner in which they use information received either from us or independently. Nevertheless, in the event you encounter any third party associated with, or who claims association with us who you feel is improperly collecting or using information about you, please contact Info@innovatvlive.com; we will be happy to forward your message to the third party.
(1) How we use (and do not use) non-personally identifiable information: We use non-personally identifiable information in aggregate form to build higher quality, more useful Services by performing statistical analyses of the collective characteristics and behavior of the users of the Services, and by measuring demographics and interests regarding specific areas and features of the Services. We provide statistical information based on this data to advertisers, affiliates, and other current and potential business partners. We also use the aggregate data to inform these third parties as to the number of people who have seen and clicked on links to their web sites.
The Services may contain links to other Internet websites and services, including co-branded or other affiliated sites that may or may not be owned or operated by us. Unless otherwise explicitly stated, we are not responsible for the privacy practices or the content of such websites or services, including their use of any information (such as IP number, browser type, or operating system) collected when users or visitors to the Services click through links to those sites. Even though such information might not identify you personally, we strongly encourage you to become familiar with the privacy practices of those sites and services.
We limit our own e-mail contact and solicitations to those customers who have “opted in” to receiving such communications. The solicitations are limited in that they, among other things, will clearly indicate the originator of the e-mail and provide the customer with a method of “opting out” of receiving future communications of a similar nature.
In addition, as our businesses change, we may buy or sell various assets. In such cases, personally identifiable information about our users of our Services may be disclosed to the other party(ies) of the transaction.
In addition, we sometimes use demographic data to decide which advertisements and sponsor messages to show to which members. As an example, if Sponsor XYZ wishes to display their advertising only to female members of the Services, we may use member registration data to ensure that Sponsor XYZ’s ads are displayed only to female members.
Finally, we may use individual members’ data to “pre-populate” forms, which are displayed for the purpose of collecting individual data by us and/or our sponsors. In no case does pre-populating a form transfer any data to any advertiser or third party. Only if the member voluntarily requests that such data be transferred will any transfer take place—for example, if/when a member clicks a “submit form” button or other button.
In addition, we may use information about your location when you access our mobile applications to provide location aware products or services and for advertising purposes, and if you submit video or images. Notwithstanding anything herein to the contrary, we may provide your location information to third parties who provide goods or services that we believe may be of interest to you.
We reserve the right to release any and all information contained within our access logs concerning any visitor or member when that visitor or member is in violation of our Terms of Service or other published guidelines, or partakes (or is reasonably suspected of partaking) in any illegal activity, even without a subpoena, warrant, or other court order, and to release such information in response to discovery requests, or in response to any circumstance which we, in our sole discretion, deem an emergency. We cooperate with law enforcement agencies in identifying those who may be using the Services for illegal activities. We also reserve the right to report any suspected illegal activity to law enforcement for investigation or prosecution. We also reserve the right to comply with subpoenas, warrants, and other court orders requesting information obtained or any information obtained or stored by us.
Changing/Deleting Personal Information
If you would like to have your personally identifiable information changed or removed from our database, please contact us at Info@innovatvlive.com, and we will use reasonable efforts to comply with your request. Keep in mind, however, that there will be residual information that will remain within our databases, access logs, and other records, which may or may not contain such personally identifiable information. The residual information will not be used for commercial purposes; however we reserve the right, from time to time, to recontact former customers or users of this Web site.
Third-Party Ad Serving
We may use third-party advertising companies to serve ads when you visit this Web site. These companies may use information (not including your name, address or telephone number) about your use of the Services and visits to other web sites and services in order to provide advertisements about goods and services of interest to you. If you would like more information about this practice and to know you choices about not having this information used by these companies, please contact us at Info@innovatvlive.com, or click here http://www.networkadvertising.org/optout_nonppii.asp.
Terms of Service
Terms of Service
As the web is an evolving medium, the terms of this Agreement may change from time to time. Please periodically review and become familiar with these terms. Your continued use of the Web site after the posting of changes to these terms will signify your acceptance of these changes. Innova TV Networks, LLC may immediately terminate any individual’s use of the Web site and/or such user’s password(s) or account(s) in the event user violates the terms of this Agreement or engages in conduct that Innova TV Networks, LLC, in its sole discretion, considers to be unacceptable. Such removal or termination may occur without notice to the user.
Although the Web site is freely accessible, by providing such access Innova TV Networks, LLC does not intend to relinquish our respective rights, or any other party’s rights, to the materials appearing on the Web site. Unless otherwise noted, Innova TV Networks, LLC owns all materials, including images, illustrations, designs, icons, photographs, video clips, and written and other materials that are part of the Web site. The material on the Web site is provided for private, non-commercial use only.
Reporting Copyright Infringement:
If you are a copyright owner or an agent thereof and believe any content or other information appearing on the Web site infringes upon your copyrights, you may submit a notification of claimed infringement under the Digital Millennium Copyright Act (“DMCA”) containing the following information:
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of a copyright interest that is allegedly infringed;
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
(iii) Identification of the material that is claimed to be infringing or to be the subject of the infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit us to locate the material;
(iv) Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail address;
(v) A statement that you have a good faith belief that the disputed use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(vi) A statement that the information in the notification is accurate, and made under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Innova TV Networks, LLC’s designated agent to receive notifications of claimed infringements is: Copyright Agent, c/o Innova TV Networks, LLC, 7211 Ogden Business Lane #201, Wilmington, NC 28411., Telephone number: 843-864-6688; email address: firstname.lastname@example.org.
If you consider any material appearing on the Web site to be objectionable and would like to report it, please send an e-mail to Info@innovatvlive.com.
The “Innova TV” logo is a trademark and service mark of Innova TV Networks, LLC. All other trademarks, service marks and logos used in the Web site are the trademarks, service marks or logos of their respective owners. You may not use any trademark or service mark appearing on the Web site without the prior written consent of the owner of the mark.
CODE OF CONDUCT
You agree not to engage in any of the following conduct. Such conduct is unacceptable and may result in termination of your use of the Web site:
•Restricting or inhibiting any other user from using and enjoying the Web site and services;
•Impersonating any person or entity or posting personally identifying information of any other person;
•Posting or transmitting any unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable or harmful information of any kind;
•Without Innova TV Network’s prior written approval, posting or transmitting any advertisement, promotion or solicitation of goods or services for commercial purposes (including without limitation the solicitation of users of the Web site to become users of other online services competitive with Innova TV Networks, LLC);
•Posting or transmitting any information or software that contains a virus, worm, time bomb, Trojan horse, or other harmful or disruptive component;
•Posting or transmitting materials in violation of another party’s copyright or intellectual property rights;
•Using the Web site for any commercial or unlawful purposes, including “spamming”; or
•Modifying, adapting, sublicensing, translating, selling, reverse engineering, decompiling or disassembling any portion of the Web site.
YOU AGREE TO INDEMNIFY, DEFEND AND HOLD INNOVA TV NETWORKS, LLC, ITS SPONSORS, HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, COSTS OR OTHER EXPENSES THAT ARISE DIRECTLY OR INDIRECTLY OUT OF OR FROM (A) YOUR BREACH OF THIS AGREEMENT, INCLUDING THE PROVISIONS RELATING TO CONTENT SUBMITTED BY YOU, (B) YOUR VIOLATION OF THE CODE OF CONDUCT ABOVE, AND/OR (C) YOUR ACTIVITIES IN CONNECTION WITH THE WEB SITE OR SITE-RELATED SERVICES.
By using the Web site you are indicating that you agree to be bound by the terms of this Agreement. If you do not agree to the terms of this Agreement, please do not enter the Web site. If you are not yet 18 years old, a parent or guardian may agree to be bound by the terms of this Agreement on your behalf.
You may submit any text, images, data, or other materials (“Content”) to the Web site. In so doing, you acknowledge and agree that you grant to Innova TV Networks, LLC a royalty-free, perpetual, irrevocable, non-exclusive, worldwide right and license to:
•Link to, use, reproduce, transmit, modify, adapt, publish, display, perform, distribute, and translate such Content without notice, attribution or payment to you.
•Sublicense such Content (in whole or in part) and/or to incorporate it in other works in any form, media or technology now known or hereafter developed for the full term of any copyright that may exist in such material without notice, attribution or payment to you.
Further, by submitting Content to the Web site, you acknowledge that you have the authority to grant such rights to Innova TV Networks, LLC and use of the Content by Innova TV Networks, LLC will not violate the rights of any third party. You further acknowledge that the burden of determining whether any Content posted or transmitted to the Web site by you is protected by copyright or will otherwise violate the rights of any third party rests solely with you. Innova TV Networks, LLC, and its subsidiaries, licensees and third party content providers and licensors have the right to assert and enforce these provisions relating to the submission of Content directly or on its own behalf.
CONTESTS, SWEEPSTAKES, AND PROMOTIONS
You acknowledge that if and when Innova TV Networks, LLC sponsors contests, sweepstakes, or promotions (“Special Program”), or third parties sponsor a Special Program in conjunction with Innova TV Networks, LLC that Innova TV Networks, LLC, or the third party will post terms and conditions in the official rules and/or registration area for the Special Program that apply to the particular Special Program. Those terms and conditions, to the extent they conflict with this Agreement, will govern that particular Special Program.
USE OF SECURE AREA AND PASSWORD
You are given access to any password-protected area of the Web site when you are given permission and a password to enter such area. You may not distribute your password to others, but if you wish to authorize another individual to use your password, you must request permission from Innova TV Networks, LLC in writing, with the understanding that Innova TV Networks, LLC is under no obligation to approve any such request. You are responsible for all uses of your password and any and all damages to Innova TV Networks, LLC resulting from the distribution of your password, whether or not authorized by you.
You acknowledge and agree that Innova TV Networks, LLC has the right, but not the responsibility, to monitor the Web site and site-related services, including without limitation chat rooms and forums, and to disclose any information to any third party in order to operate the Web site properly, to protect itself, its sponsors and customers, and to comply with legal obligations or governmental requests, or to respond to any circumstance that Innova TV Networks, LLC deems to be an emergency. Innova TV Networks, LLC reserves the right to refuse to post or to remove any information or materials, in whole or in part, in the sole discretion of Innova TV Networks, LLC, that are unacceptable, offensive or in violation of this Agreement, in the sole determination of Innova TV Networks, LLC.
THE WEB SITE, INCLUDING ANY CONTENT OR INFORMATION CONTAINED WITHIN IT OR ANY SITE-RELATED SERVICE, OR ANY PRODUCT OR SERVICE LICENSED OR PURCHASED THROUGH THE WEB SITE, IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES WHICH ARE INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT. YOU ACKNOWLEDGE THAT ANY WARRANTY THAT IS PROVIDED IN CONNECTION WITH ANY OF THE PRODUCTS OR SERVICES DESCRIBED HEREIN IS PROVIDED SOLELY BY THE OWNER, ADVERTISER OR MANUFACTURER OF THAT PRODUCT AND/OR SERVICE, AND NOT BY INNOVA TV NETWORKS, LLC. YOU ALSO ACKNOWLEDGE THAT YOUR ACCESS TO THE WEB SITE AND/OR SITE-RELATED SERVICES MAY NOT BE UNINTERRUPTED, ERROR-FREE, OR SECURE. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THIS WEB SITE AND SITE-RELATED SERVICES.
INNOVA TV NETWORKS, LLC, NOR OUR EMPLOYEES, AGENTS, SPONSORS, THIRD-PARTY CONTENT PROVIDERS OR LICENSORS ARE RESPONSIBLE OR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THE WEB SITE, SITE-RELATED SERVICES AND/OR CONTENT OR INFORMATION CONTAINED WITHIN THE WEB SITE. YOU SPECIFICALLY ACKNOWLEDGE THAT INNOVA TV NETWORKS, LLC IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD-PARTIES, AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE WEB SITE, SITE-RELATED SERVICES AND/OR CONTENT OR INFORMATION CONTAINED WITHIN THE WEB SITE IS TO STOP USING THE SITE AND/OR THOSE SERVICES.
SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
Although Innova TV Networks, LLC attempts to ensure the integrity of the Web site, a possibility exists that the Web site could include inaccuracies or errors, or unauthorized additions, deletions and alterations made by third parties to the Web site. Innova TV Networks, LLC makes no guarantees whatsoever as to its completeness, correctness, or accuracy. In the event that such an inaccuracy arises, please inform Innova TV Networks, LLC at Info@innovatvlive.com so that it can be corrected.
In many instances, the content available through the Web site represents the opinions and judgments of the respective information provider, Web site user or member, or other user not under contract with Innova TV Networks, LLC. Innova TV Networks, LLC neither endorses nor is responsible for the accuracy or reliability of any opinion, advice or statement made on the Web site by anyone other than authorized Innova TV Networks, LLC employee spokespersons while acting in their official capacities. Under no circumstances will Innova TV Networks, LLC be liable for any loss or damage caused by your reliance on information obtained through the Web site. It is your responsibility to evaluate the accuracy, completeness or usefulness of any information, opinion, advice or other content available through the Web site.
LINKS TO OTHER WEB SITES AND SERVICES
PARENTAL CONTROL PROVISIONS
Pursuant to 47 U.S.C. Section 230(d), as amended, we hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available at the Web sites of the Electronic Frontier Foundation: http://www.eff.org and America Links Up: http://www.netparents.org.
VOID WHERE PROHIBITED
Although the Web site is accessible worldwide, not all products or services discussed or referenced in or on the Web site are available to all persons or in all geographic locations or jurisdictions. Innova TV Networks, LLC reserves the right to limit the availability of the Web site and/or the provision of any product or service to any person, geographic area or jurisdiction it so desires, in our sole discretion, and to limit the quantities of any such product or service that it provides. Any offer for any product or service made in the Web site is void where prohibited.
RESTRICTED RIGHTS LEGEND
Use, duplication or disclosure by the Government is subject to the restriction as set forth in the Technical Data and Computer Software Clause in DFARS 227.7202 and FAR 12.212, as applicable. Supplier is Innova TV Networks, LLC, 7211 Ogden Business Lane #201, Wilmington, NC 28411
This Agreement is entered into in the State of North Carolina and shall be governed by and construed in accordance with the laws of the State of North Carolina, exclusive of its choice of law rules. Each party to this Agreement hereby submits to the exclusive jurisdiction of the state and federal courts sitting in the County of New Hanover in the State of North Carolina, and waives any jurisdictional, venue or inconvenient forum objections to such courts. In any action to enforce this Agreement, the prevailing party will be entitled to costs and attorneys’ fees. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof, and any and all prior or contemporaneous written or oral agreements existing between the parties hereto are expressly canceled. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption, or paragraph title contained in this Agreement is inserted only as a matter of convenience and in no way defines or explains any paragraph or provision hereof.
Innova TV Networks, LLC may at any time change the Web site, including eliminating or discontinuing any content or feature of the Web site, restricting its availability or limiting the amount of use permitted. Such changes, modifications, additions, or deletions shall be effective immediately upon notice thereof, which may be given by any means including, but not limited to, posting on the Web site, or by electronic mail, or by conventional mail. Your use of the Web site after such notice shall be deemed to constitute your acceptance of such changes, modifications, additions, or deletions.
BY ACCESSING OR USING THIS WEB SITE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU SHOULD NOT ACCESS OR USE THIS WEB SITE. PLEASE READ THE INFORMATION CAREFULLY.
Media Distribution Agreement
This Media Distribution Agreement (“MDA”) is made and entered into as of the effective date listed on Innova TV Networks, LLC, Order.
1. Provision of Services by INTV.
1.1. Services offered by ITVN allow customers, in exchange for exclusive rights to distribute exhibit, telecast and sublicense programming, to place customer’s content on digital media platforms. Details and terms and conditions of each specific service, license and/or provision of platform to be provided by ITVN to Customer pursuant to this MDA (“Service(s)”) shall be specified in ITVN standard order form (“Order”). Each Order includes schedules applicable to the Service ordered by Customer (“Schedule(s)”). This MDA, all Orders executed by the parties, and all schedules and documents referenced herein shall be collectively referred to as the “Agreement.”
1.2. Orders will be binding only when signed by both parties, or when ITVN acknowledges and accepts in writing (which may be electronic) an Order transmitted to ITVN by Customer. During the Initial Term and for any Renewal Term(s) designated for each Service, ITVN shall provide and support the Services set forth in an Order, and Customer shall receive a revenue share from ITVN for such Services, and ITVN shall receive from Customer exclusive rights for programming content. The parties may enter into one or more Orders for Services during the term of this Agreement.
1.3. The initial term for each Service shall be as set forth in the Order (the “Initial Term”). The term of each Service shall be renewed automatically for additional terms, each equal in length to (a) the renewal period specified in the Order or (b) if no renewal period is specified in the Order, the shorter of (i) the Initial Term or (ii) twenty four months, (each such period a Renewal Term”). Either party may prevent a Renewal Term from taking effect by notifying the other party in writing of its intent not to renew the Service not less than sixty (60) days prior to the end of the then-expiring Initial Term or Renewal Term, as the case may be. Unless otherwise terminated pursuant to the terms of this Agreement, each Order shall be in effect during the Initial Term and Renewal Term(s) for such Service or for so long as any Services under that Order are active.
1.5. The “Service Commencement Date” for each Service is the date on which ITVN notifies the Customer (by writing or electronic transmission) that such Service is available for Customer’s use, unless Customer notifies ITVN within forty-eight (48) hours of its non-acceptance of such Service on the basis that agreed technical specifications for the applicable Service have not been met. In the event Customer so notifies ITVN further tests of the Service will be conducted and (i) if ITVN finds a defect, a new Service Commencement Date will be established as the date on which ITVN notifies the Customer (by writing or electronic transmission) that such Service is available for Customer’s use without such identified defect(s); or (ii) if ITVN fails to find a defect in the Service during re-testing, the original Service Commencement Date will remain unchanged. Notwithstanding anything contained to the contrary herein or in any other part of the Agreement, any Customer use of a Service other than for testing purposes (even if following notice of non-acceptance) shall be deemed as acceptance of such Service.
1.6. Services may include ITVNs’ own services and services that it resells from its suppliers (“ITVNs’ Suppliers”). Customer acknowledges that ITVNs’ ability to grant Customer a license to use certain Services or ITVNs’ ability to provide certain resold Services is subject to all leases, licenses, and/or other agreements (each a “Resale Agreement”) between ITVN and ITVNs’ Suppliers. In the event of the expiration or termination of any applicable Resale Agreement, ITVN may terminate the affected resold Service upon written notice to Customer without any liability to Customer. ITVN agrees to give at least thirty (30) days prior written notice to Customer (or, if it is not possible to give 30 days notice, as much notice as possible under the circumstances) of the termination or expiration of the Resale Agreement governing ITVNs’ delivery of the resold Service to Customer, or any other condition arising under such Resale Agreement which may adversely affect Customer’s use of the resold Service or ITVNs’ ability to provide such resold Service.
1.7. Defined Terms. Unless otherwise defined in the Order or its applicable Schedules, the following terms shall be defined as follows:
a. “Network” means the telecommunications network and undersea or terrestrial fiber optic systems, and network of servers and other network assets, owned, operated or otherwise licensed for use by ITVN and offered to Customer for carriage of Customer’s traffic or for other Services under this Agreement.
b. “ITVN Technology” means ITVNs’ proprietary technology, including the
Services, software (in source code and object code), software tools, hardware designs, algorithms, user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, trade secrets and any related intellectual property rights throughout the world (whether owned by ITVN or licensed to ITVN from a third party) and also including any derivatives, improvements, enhancements or extensions of any of the foregoing, conceived, reduced to practice, or developed during the term of this Agreement by either party.
c. “Customer Content” means any files, pages, data, works, information and/or materials on, within, displayed, linked or transmitted to, from or through the Network, including, without limitation, images, photographs, illustrations, graphics, audio clips, video clips, e-mail or other messages, metatags, domain names (including those registered on Customer’s behalf in connection with the provision of Services hereunder), games and text as provided by Customer or Customer’s clients or end users.
d. “Customer Technology” means Customer’s proprietary technology, including Customer’s internet operations design, Customer Content, software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), trade secrets and any related intellectual property rights throughout the world whether owned by Customer or licensed to Customer from a third party, together with any derivatives, improvements, enhancements or extensions of any of the foregoing, conceived, reduced to practice or developed during the term of this Agreement solely by Customer without reference to the ITVN Technology.
e. “Customer Equipment” means any computer hardware, software, and other tangible equipment owned or otherwise controlled by Customer, and excludes ITVN Supplied Equipment.
2. Fees and Payment Terms.
2.1. ITVN shall have the right to insert commercial spot announcements within both archived and live/linear content. ITVN and Customer shall divide the nets proceeds of any ad revenue as pursuant to provision of Services according to the fees and terms listed in the Order(s), together with all reasonable fees or costs for third party products or services that ITVN procures on behalf of Customer, to the extent such third party fees and costs are approved by Customer in writing.
2.2. Usage Charge. The “Usage Charge” for a particular month shall be an amount equal to the sum of all of the Per Service Usage Charges (as defined hereafter) for all Services provided to Customer under an Order during such month. The “Per Service Usage Charge” for each Service shall mean the total fees incurred by Customer with respect to such Service as set forth in the applicable
Schedule referenced in the Order. Any outstanding charges will be collected from any revenue due to customer from ad insertion.
2.3. Prior to rendering any Service under an
Order, ITVN shall bill Customer for all non-recurring
fees indicated in the Order (“Initial Invoice”). Customer will be required to pay the Initial Invoice for each Order prior to ITVN rendering any Service under that Order to Customer. After the Initial Invoice, invoicing under each Order occurs monthly in arrears for Usage Charges.
2.4. Customer shall pay ITVN on all invoices within thirty (30) days of the invoice date. Any invoiced charges not received by ITVN on or prior to their due date will accrue interest at a rate of one and one half percent (1.5%) per month, or the highest rate allowed by applicable law, whichever is lower. In addition to the foregoing and without prejudice to ITVN other rights and remedies under this Agreement, at law or equity, if Customer is delinquent in its payments, ITVN may, at ITVNs’ sole discretion do any one or more of the following: (i) terminate this Agreement pursuant to its terms; (ii) suspend providing Services (or any of them, in whole or in part) to Customer until payment in full has been made to ITVN; or (iii) require other assurances to secure Customer’s payment obligations hereunder.
2.5. All fees charged by ITVN with respect to the Services and equipment provided to Customer are exclusive of taxes (including without limitation, all sales, use, or privilege taxes), VAT and similar fees, or governmentally or quasi-governmentally imposed charges, now in force or enacted in the future and imposed on ITVN, the transaction or the Customer due to the provision, sale or use of the Services or to the transaction or performance under this Agreement (“Taxes and Governmental charges”). All Taxes and Governmental Charges shall be paid by the Customer, except for taxes based on ITVNs’ net income.
2.6. The fees for a Service listed in an Order will remain in effect during the Initial Term of such Service. ITVN may change its fees for a Service during a Renewal Term upon thirty (30) days’ prior written notice to Customer. Customer may terminate such Service by providing written notice to ITVN at least fifteen (15) days prior to any increase in fees; otherwise the Customer will be deemed to have accepted the new fees.
2.7. Subject to the terms and conditions of this Agreement, ITVN shall pay to Customer amounts calculated as set forth on the Order Form for the ITVN service. The Customer Amounts constitute full payment by ITVN for advertisements routed and/or served to the Customer’s content. ITVN shall send to Customer each month a report that shows in reasonable detail the basis for payment due to Customer (“Customer Report”) by the 30th day of the month following. Customer acknowledges and agrees that all payments to Customer hereunder shall be based on the impression counts used by the applicable Advertisers to pay ITVN, and that the Customer Reports are adjusted to reflect such counts, following the end of each month. All amounts received from activities ITVN deems to be fraudulent may be refunded to Advertisers in ITVN’s sole discretion.
2.8 ITVN agrees to pay Customer within 30 days after the last day of the month in which ITVN received the applicable Net Revenue, provided that no check will be issued for any amount less than $50 U.S. All unpaid earnings will rollover to the next pay period. Each party is responsible for paying any taxes, duties or fees relating these transactions for which such party is legally responsible.
3. Customer Obligations.
3.1. In addition to its obligation to pay for
Services, Customer shall:
a. Provide ITVN with the name of a Customer representative who can be reached, in person, at all times, regarding technical support, the Services, DMCA takedown notices, the Network, security and abuse issues, and matters related to any of the foregoing;
b. Provide to ITVN, its agents or suppliers reasonable access to Customer Equipment, facilities and locations as necessary to install, provide and maintain the Services, Network, ITVN Supplied Equipment and Customer Equipment, as applicable;
c. Maintain valid postmaster and abuse addresses for their domains; comply with all applicable Internet RFCs; maintain appropriate reverse DNS information for all hosts receiving connectivity through ITVNs’ Network for which DNS responsibility has been delegated to the Customer; maintain accurate contact information with the InterNIC and any other appropriate domain, IP and AS registrars; take reasonable steps to prevent IP spoofing by their users and downstream customers, including, without limitation, using IP unicast reverse-path forwarding (“uRPF“) wherever appropriate and using IP address filtering wherever appropriate;
d. Provide network functionality and any other equipment and facilities required to support the Services’ configurations and to connect Customer to
e. Ensure that all of the Customer Equipment used in connection with the Services performs according to the applicable manufacturer’s published technical specifications and applicable interface specifications as defined for the Services. ITVN may disconnect any Customer Equipment from the ITVN Supplied Equipment and/or the Network if, in ITVN’s reasonable opinion, such equipment poses a danger of personal injury or damage to ITVN’s employees, agents, subcontractors or property or will materially impair the Services or the Network. Except as may be specifically provided in an Order or Schedule, ITVN shall have no obligation to install, maintain or repair any Customer Equipment;
f. Participate as requested in any testing procedures and provide technician support services and a secure and safe environment to any of ITVN’s employees, agents or subcontractors working on Customer’s premises for installation, testing or maintenance of the Services or Supplied Equipment;
g. Obtain, as required by law or in accordance with the terms of this Agreement, any necessary permission or cooperation of a telecommunications network provider or other relevant person for the connection or maintenance of Customer Equipment and Supplied Equipment;
h. Use the Services, Network and Supplied Equipment only in accordance with the terms of this Agreement;
i. Take reasonable steps to ensure that Customer, Customer’s clients and end users do not interfere with or disrupt other users of the Services or ITVN Network;
j. Obtain any and all required licenses and permits relating to Customer’s use of the Services, the resale (if not prohibited in the Agreement) of the Services, and/or their use by Customer’s clients and end users; and
k. Comply with any and all laws, directives, regulations and conventions, and with any public policy related laws, that may be applicable to the use of the Services by Customer and/or Customer’s clients and end users and/or relating to the provision of those Services by Customer to its clients or end users, including, without limitation, all laws and regulations relating to the use of the Services, Network and Supplied Equipment.
3.2. Digital Millennium Copyright Act Compliance. Customer agrees that it will: (i) maintain a Designated Agent for takedown notices pursuant to the terms of the Digital Millennium Copyright Act of 1998 (“DMCA”); (ii) take expeditious action to remove allegedly infringing material contained in the Customer Content and of which it actually becomes aware; and (iii) maintain and enforce a policy of terminating any repeat infringers who are Customer’s end users or who access the Network through Customer. Customer will act expeditiously to ITVN’s requests with respect to Network abuse and actions needed to be undertaken for Customer’s or ITVN’s compliance with the DMCA and any safe-harbor requirements thereunder.
3.3. Acceptable Use Policy. Customer
acknowledges that ITVN exercises no control over the content of the information available on the Internet or accessed through the Network. Customer agrees that it is the sole responsibility of Customer to ensure that the information it and third parties (including, without limitation, Customer’s clients and end users) accessing the Internet through Customer’s use of a ITVN Service complies with all applicable laws and regulations and the ITVN Acceptable Use Policy (the “AUP”), which policy may be updated by ITVN from time to time. The AUP is incorporated into this Agreement and made a part hereof by this reference. The current, complete AUP is available for review at http://www.innovatvlive.com/legal. Customer agrees that it has received, read and understands the current version of the AUP. ITVNs may change its AUP from time to time and Customer agrees to accept and be bound by the then current version of the AUP. Customer shall require that its clients and end users, if applicable, adhere to the AUP and take steps to ensure compliance by its clients and end users, including, without limitation, termination of services that relate to or utilize any of ITVN’s services, products, servers or equipment to clients and end users who violate the AUP. When ITVN receives a complaint regarding an alleged violation of the AUP by Customer’s user, ITVN may notify the Customer of such complaint, inform the complainant that Customer is investigating the complaint and provide the complainant with the necessary information to contact Customer directly to resolve the complaint.
4. Network; Network Modification and Maintenance. ITVN reserves the right to modify its Network, system configuration or routing configurations at any time without prior notice to Customer. ITVN may, at its sole discretion and without liability, change or modify the features and functionalities of a Service or modify or replace any hardware or software in the Network or in equipment used to deliver any Service over the Network, provided that there is no material adverse effect on the ordered Service. ITVN may, upon such notice as is reasonably practicable under the circumstances, perform scheduled or emergency maintenance (including temporary suspension of a Service as necessary) to maintain or modify the Network, the ITVN Supplied Equipment or the Services. Service suspensions for the purposes of scheduled or emergency Network modification or preventative maintenance shall not be counted as outage time unless specifically stated otherwise in the Schedule applicable to the affected Service.
5. Grant of Limited Software License; Intellectual Property.
5.1. Subject to the terms and conditions of this Agreement, ITVN hereby grants to Customer a limited, nonexclusive, nontransferable, revocable license during the term of this Agreement to use the Software solely to support Customer’s use of the applicable Service(s) ordered. For purposes of this Agreement, “Software” means the object code form of the software and related documentation owned or licensed by ITVN that may be provided to Customer under this Agreement for use with the applicable Service ordered.
5.2. Customer acknowledges that it is not obtaining any ownership or exclusive rights in the Software, notwithstanding any language to the contrary in this Agreement. Nothing in this Agreement should be construed as a sale of the Software or any copy of the Software. Customer shall not, without the prior written consent of ITVN: (i) reverse engineer, disassemble, decompile, recompile, update or modify the Software, or any part thereof; (ii) create derivative works based on the Software; (iii) reproduce or make copies of the Software or any portion thereof; (iv) sublicense, provide access to, distribute or otherwise transfer the Software to any other person or entity; (v) remove any identification or notices of any proprietary or copyright restrictions from any Software, related documentation or support or training material; or (vi) compile or use the Software or any part thereof for the purpose of any activities that violate any laws or regulations, including, without limitation, any anti-spamming laws and regulations. Customer agrees that ITVN may crawl or otherwise monitor the external interfaces of the Software for the purpose of verifying Customer’s compliance with this Agreement. Customer may not attempt to block or otherwise interfere with such crawling or monitoring.
5.3. ITVN and ITVN’s Suppliers expressly retain, and Customer hereby waives any claim that it
may have had or has to, title and ownership in and to all worldwide intellectual property rights in and to the ITVN Technology, Services, Supplied Equipment, Network, Software, any documentation related to or provided with the ITVN Technology, Services, Supplied Equipment, Network, or Software, and any improvements, extensions, modifications, adaptations, derivative works, and enhancements made thereto. Except as expressly set forth in this Agreement, no express or implied license, moral rights, or other rights of any kind are granted to Customer regarding the Software, Supplied Equipment, Services , Network or the ITNV’s Technology.
5.4. Trademarks. Customer may not use the name, logo, trademarks, service marks, trade dress or other proprietary indicia owned or used by ITVN (the “Marks”) without ITVN’s prior written approval,
including, without limitation, using ITVN’s Marks (or any one of them) to identify ITVN as the supplier or source of the Services provided to Customer hereunder. Neither party will publish or use any advertising, sales promotions, press releases or other publicity that uses the name, logo, trademarks or service marks of the other without the prior written approval of the other, except that ITVN may
list Customer as a customer. Customer acknowledges the validity and ownership of the Marks by ITVN and agrees not to challenge or assist any entity in challenging the Marks.
6. Term; Termination.
6.1. This MDA shall be effective as of the
Effective Date or upon execution by both Customer and ITVN, whichever is earlier, and shall continue in full force and effect until the termination of the last Order in effect, unless earlier terminated pursuant to the terms hereof.
6.2. Either party may terminate this Agreement or an Order immediately upon written notice to the other party (or ITVN may, in its sole discretion, suspend or cancel the provision of Services under any Order) if: (i) the other party commits a material breach of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of the same, except in the case of Customer’s failure to pay fees, which must be cured within five (5) calendar days after receipt of written notice from ITVN; (ii) the other party becomes the subject of any voluntary or involuntary proceeding relating to bankruptcy, insolvency, receivership, liquidation, or composition for the benefit of creditors; or (iii) the other party commits a
material breach of this Agreement that is incapable of remedy, including, without limitation Customer’s breach of its representations and warranties or obligations of confidentiality, or breach by Customer or Customer’s clients or end users of the AUP, or if Customer makes available Customer Content that is or is alleged to be illegal or in violation of the rights of third parties. In addition to the foregoing, ITVN may terminate this Agreement or an Order (or suspend or cancel the provision of Services under any Order) immediately upon written notice to Customer, if (a) Customer commits or omits from takingany action which causes, or can reasonably be expected to cause, imminent harm to ITVN, ITVN’s Suppliers or any of the foregoing parties’ property or network; (b) Customer repeatedly breaches this Agreement; (c) ITVN believes that provision of Services is or will be a violation of applicable law or regulation or of any ITVN’s licenses (or similar provision) in any jurisdiction.
6.3. ITVNs may terminate the Agreement or
an Order on thirty (30) days prior written notice, if ITVN determines in its sole discretion that: (i) Customer’s traffic pattern is not what was anticipated by ITVN or (ii) the Services used by Customer are, or are reasonably anticipated to, negatively affect ITVN’s own network or the use of ITVN’s services by other customers.
6.4. Subject to the payment of any fees due to ITVN, including without limitation, the early termination fees set forth in Section 6.5 below, Customer may terminate this Agreement or any Order (but not an individual Service), without cause, upon thirty (30) days prior written notice to ITVN.
6.5. Termination of this Agreement or any Order will not affect Customer’s payment obligations to ITVN that have already accrued. In addition, in the
event that this Agreement or any Order is terminated by ITVN pursuant to Section 6.2 of this MDA, or by Customer pursuant to Section 6.4, then Customer shall pay to ITVN one hundred percent (100%) of the accrued costs of Services that would have been deducted from gross revenue from ad placement and which would have been payable, assuming termination had not occurred, for the remainder of the then-current Initial or Renewal Terms (as the case may be) of the terminated Order(s); provided, however, that if Customer cancels an Order for any reason prior to the Service Commencement Date for Services set forth in such Order and no Services have been provided by ITVN, Customer shall: (i) pay to INTV and fifty percent (50%) of any non-recurring installation charges set forth in the Order, if any; and (ii) reimburse ITVN for all reasonable costs incurred by ITVN relating to Customer’s cancellation, including any costs incurred by ITVN in preparing for or arranging for installation and provision of the ordered Services, ITVN Supplied
Equipment and any third party charges, including without limitation early termination charges, levied on ITVN by any underlying supplier or vendor relevant to the ordered Services. Customer agrees that the injury ITVN will suffer upon Customer’s breach or early termination of this Agreement or any Order are difficult to estimate accurately and that the termination fees provided for in this Section are not a penalty, but are a reasonable estimate of the probable loss ITVN will suffer in such event. Except in instances where ITVN terminates the Agreement or any Order under Section 6.3, or Customer terminates the Agreement or Order under Section 6.2, Any prepayment of an Order by Customer are NON-REFUNDABLE AND NOT SUBJECT TO EXCHANGE. If ITVN terminates this Agreement or an Order pursuant to Section 6.3, or Customer terminates the Agreement or Order under Section 6.2, and Customer has prepaid for Services under the Agreement or terminated Order, then ITVN shall, after applying such prepayment to all fees and charges due under the Agreement, return the unused portion of such prepayment to Customer within forty-five (45) days after the date of termination.
6.6. Termination of any Order shall not serve to terminate any other Order or the parties’ respective obligations thereunder. However, termination of this Agreement shall serve to terminate all Orders made under this Agreement. Upon the effective date of termination of any Order: (i) ITVN will immediately cease providing the Services set forth in such Order, and Customer shall immediately cease using such Services; (ii) all licenses granted hereunder with respect to the terminated Services will immediately terminate; and (iii) any and all payment obligations of Customer under such Order for Services provided through the date of termination and pursuant to Section 6.5 will immediately become due. If Customer fails to pay such amounts on the date due, then ITVN shall impose the late fees set forth in Section 2.3. In addition to the foregoing, within thirty (30) days of termination of this Agreement as a whole, each party will return or certify the destruction of all Confidential Information (as defined in Section 6 below) of the other party in its possession and will not make or retain any copies of such Confidential Information, except as required to comply with any applicable legal or accounting recordkeeping requirement.
6.7. The definitions in this Agreement and the respective rights and obligations of the parties under Sections 1.7, 2.3, 2.4, 5.2, 5.3, 5.4 and 6-11 shall survive any termination or expiration of this Agreement.
7. Confidential Information.
7.1. Each party acknowledges that it will have access to certain confidential information of the other party concerning the other party’s business, plans, pricing, financial data, vendors, employees, customers, technology, know-how, ideas, trade secrets, products, specifications, software, designs, services, forecasts, strategies, and other information held in confidence by the other party (collectively, “Confidential Information”). The parties also agree that the terms of this Agreement shall be deemed Confidential Information of ITVN. Confidential Information will include all information in tangible or intangible form that is marked or designated as confidential or that, under the circumstances of its disclosure, should be considered confidential. Confidential Information will also include, but not limited to, ITVN Technology, Customer Technology, and the terms and conditions of this Agreement, but shall not include Customer Content. Notwithstanding anything contained to the contrary herein, information will not be deemed Confidential Information if such information: (i) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or (iv) is independently developed by the receiving party without use of or reference to the Confidential Information of the disclosing party.
7.2. Each party agrees that it will not use in any way, for its own account or the account of any third party, except as expressly permitted by, or to the limited extent required to achieve the purposes of, this Agreement, nor disclose to any third party (except as required by law or to such party’s employees, attorneys, accountants and other advisors as reasonably necessary), any Confidential Information of the other party. Each party will protect the confidentiality of the Confidential Information of the other party by employing the same measures (but in no event less than reasonable measures) as it takes to protect its own Confidential Information. The receiving party may disclose Confidential Information pursuant to the requirements of a validly issued subpoena, governmental agency or by operation of law, provided that it gives the disclosing party, when practical and permitted, reasonable prior written notice sufficient to permit the disclosing party to contest such disclosure. The obligations of this Section 7.2 shall survive the expiration or termination of this Agreement.
7.3. In the event of a violation or threat of
violation by a party, directly or indirectly, of the terms of Section 7, the party who would be harmed by such violation, will have the right, and in addition to all other remedies available to it at law, in equity or under this Agreement, to affirmative or negative injunctive relief from a court of competent jurisdiction. Each party acknowledges that a violation of this Section 7 would cause irreparable harm and that all other remedies are inadequate.
7.4. Personal Data. In the event that Customer (or Customer’s clients or end users) discloses any personal data to ITVN (“Personal Data”), Customer (i) agrees that ITVN, ITVN’s Suppliers and their affiliates may store, process and use such Personal Data consistent with applicable laws and regulations, only for the purpose of the provision of Services by ITVN to Customer or for purposes connected with the subject matter of the disclosure and/or business relationship between the parties; (ii) acknowledge that such use and processing may include the transfer of such Personal Data to ITVN’s Suppliers and ITVN’s affiliates worldwide and/or its storage in a local or foreign database; and (iii) agree that Customer will, to the extent required by applicable law, obtain all necessary consents to such processing from the data
8.1. Each party warrants and represents that it has the legal right to enter into this Agreement and to perform its obligations hereunder. Customer warrants that the use and exhibition of the video programming provided by Customer and each and every part thereof, including the sounds and music synchronized therewith, and the exercise of any right herein granted to ITVN, will not violate or infringe upon the trademark, trade name, copyright, patent, literary, dramatic, music, artistic, personal, private, contract, civil or property right, right of privacy or publicity, or any other right of any person or constitute a libel or slander of any person, and such footage will not contain any unlawful or censorable material; it has not sold, nor will it sell, assign, transfer, convey or hypothecate to any person or company, any right title or interest in or to the video programming or any footage provided by Customer herein, or any of the other rights granted exclusively to ITVN. Customer warrants that no lawsuits are, or shall be, threatened or pending in connection with any programming or footage Customer may provide pursuant to this agreement. Customer represents and warrants that the performance of its obligations and use of the Services by Customer, its clients and end users will not violate any applicable laws or the AUP.
8.2. The Service Level Warranty for each
Service is set forth in the applicable Schedule to Order(s). CUSTOMER’S SOLE REMEDY FOR ITVN’S BREACH OF ANY OF THE SERVICE LEVEL WARRANTIES ARE THE SERVICE CREDITS SET FORTH IN THE APPLICABLE SCHEDULE. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN EACH SCHEDULE, THE SERVICES ARE PROVIDED EXCLUSIVELY ON AN “AS IS” BASIS, AND ITVN AND ITS SUPPLIERS DISCLAIM ANY AND ALL OTHER EXPRESS, IMPLIED AND STATUTORY WARRANTIES WITH RESPECT TO THE SERVICES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, QUALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE. ITVN DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERRORFREE OR COMPLETELY SECURE. CUSTOMER’S SOLE MAXIMUM REMEDY FOR ITVN’S BREACH OF ANY OF THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE (i) TERMINATION OF THIS AGREEMENT PURSUANT TO THE TERMS OF THIS MDA; (ii) RETURN OF ALL UNUSED FEES AND DEPOSITS PAID TO ITVN FOR ANY TERMINATED SERVICES; AND (iii) SERVICE CREDITS AS SPECIFIED IN THE APPLICABLE SCHEDULE.
9. Limitation of Liability; Force Majeure.
9.1. Customer acknowledges and agrees that Customer shall bear sole responsibility for adequate security, protection and backup of the Customer Content, Customer Technology and Customer Equipment. ITVN disclaims all responsibility or liability to Customer for unauthorized access or use, corruption, deletion, destruction or loss of any Customer Content, Customer Technology or Customer Equipment.
9.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ITVN, ITS AFFILIATES OR SUPPLIERS BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES OR COSTS, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUES, LOSS OF DATA OR PROPERTY ARISING FROM ANY CLAIMS WHETHER BASED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE AND STRICT TORT), OR OTHERWISE IN CONNECTION WITH THE SERVICES OR THIS AGREEMENT, EVEN IF ITVN, ITS AFFILIATES OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS. IN NO EVENT WILL ITVN, ITS AFFILIATES OR SUPPLIERS, BE LIABLE TO CUSTOMER, ITS CLIENTS OR END USERS UNDER THIS AGREEMENT OR OTHERWISE, REGARDLESS OF THE FORM OF CLAIM OR ACTION, IN AN AMOUNT THAT EXCEEDS THE TOTAL FEES RECEIVED BY ITVN UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO SUCH CLAIM.
9.3. Neither party shall be liable for and will not be responsible to the other for any delay or failure to perform under this Agreement if such delay or failure results from circumstances beyond its reasonable control, including without limitation, any act of God or of any governmental body, riot, war, civil unrest, sabotage, strike or other labor disturbance, fire, flood, earthquake, interruption or delay in transportation, or mechanical, electrical or communications failure or delay beyond the party’s control, but excluding failures caused by a party’s financial condition or negligence (“Force Majeure”). If either party is unable to perform under this agreement because of the occurrence of an event of Force Majeure lasting more than thirty (30) days, then the other party may terminate the Order applicable to the affected Service(s) only upon written notice to the other party delivered during the event of Force Majeure.
10. Indemnification by ITVN and Customer.
10.1. Customer will indemnify, defend and hold ITVN, its affiliates and their respective directors ,officers, employees, agents, shareholders, successors and assigns (each a “ITVN Indemnitee”) harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys’ fees and costs) (collectively, “Losses”) resulting from any claim, suit, action, or proceeding (each, an “Action”) brought by any third party against a ITVN Indemnitee relating to (i) a claim of infringement, misappropriation or violation of patent, copyright, trademark, trade secret, or other proprietary rights of a third party, defamation, publication of obscene, indecent, offensive, racist, unreasonably violent, threatening, intimidating or harassing material, or violation of data protection legislation, based on or involving (1) Customer Content, Customer Equipment, Customer Technology or any other content or information transmitted by Customer or its clients or end users using the Services, Network or ITVN Supplied Equipment; or (2) the use and/or publication of all communications or information transmitted by Customer or its clients or end users using the Services, Network or ITVN Supplied Equipment; or (ii) Customer’s misuse of the Service, Network or ITVN Supplied Equipment; or (iii) Customer’s gross negligence or willful misconduct; or (iv) breach of any of Customer’s representation, warranties, covenants or obligations in this Agreement. THIS SECTION STATES CUSTOMER’S ENTIRE LIABILITY AND
ITVN’S SOLE AND EXCLUSIVE REMEDY FOR THIRD PARTY CLAIMS AND ACTIONS.
10.2. ITVN will indemnify, defend and hold harmless Customer, its affiliates and their respective directors, officers, employees, agents, shareholders, successors and assigns (each a “Customer Indemnitee”) from and against any and all Losses resulting from any Action brought by any third party against a Customer Indemnitee relating to (i) a claim that the Services infringe, misappropriate or violate patent, copyright, trademark, trade secret, or other proprietary rights of a third party; and (ii) gross negligence or willful misconduct; provided, however that ITVN shall have no obligation under this Section 10.2 to the extent such Action is caused by (1) Customer’s or a third party’s modification of a Service or ITVN Supplied Equipment; (2) ITVN’S adherence to Customer’s instructions or specifications; (3) infringing items of Customer’s or third party’s origin, design or selection, including, without limitation, Customer Content; (4) the operation, combination or use of Service or ITVN Supplied Equipment with products or services provided by Customer or third parties; or (5) Customer’s misuse of the Services or ITVN’s Supplied Equipment, negligence, willful misconduct or intentionally wrongful conduct. THIS SECTION STATES HIGHWIND’S ENTIRE LIABILITY AND CUSTOMER’S SOLE ANDEXCLUSIVE REMEDY FOR THIRD PARTY CLAIMSAND ACTIONS.
10.3. Each party’s indemnification obligations hereunder shall be subject to: (i) receiving prompt written notice of the existence of any Action (provided, however, that failure to satisfy this condition shall relieve a party of its indemnification obligations only to the extent the indemnifying party is actually prejudiced thereby); (ii) being able to, at its option and expense, control the defense of such Action (provided, however, that the indemnifying party shall not, without the prior written consent of the indemnified party, settle any Action or otherwise consent to the entry of any order or judgment in any Action if such settlement, order or judgment admits any liability of the indemnified party or requires the indemnified party to take or to refrain from taking any action, other than the payment of damages); (iii) permitting the indemnified party to participate in the defense of any Action, at the indemnified party’s option and expense; and (iv) receiving full cooperation of the indemnified party in the defense thereof In the event Customer notifies ITVN of any Action against Customer, ITVN’s indemnification obligations shall be further conditioned on ITVN having the option to do one or more of the following: (1) to permit any party obligated to indemnify ITVN in such circumstances to defend or settle, at such party’s own expense, such a claim or suit; (2) to procure a license sufficient to continue offering the Services or products (including, without limitation, Customer’s use thereof); or (3) to terminate the applicable Service or provision of equipment (provided that in the event of terminating the applicable Service, Customer shall continue to remain liable for its indemnification obligations).
11.1. If and to the extent that any products,
software or technical information provided by ITVN to Customer under this Agreement are or may be subject to any applicable export laws and regulations, Customer agrees that it will not use, distribute, transfer or transmit such products, software or technical information (even if incorporated into other products) except in compliance with such export laws and regulations (or licenses or orders issued pursuant thereto). In no event shall ITVN be obligated under this Agreement to take any action or omit to take any action that ITVN believes, in good faith, would cause it to be in violation of any U.S. laws, including the Foreign Corrupt Practices Act.
11.2. The parties and their respective personnel are and shall be independent contractors, and neither party by virtue of this Agreement shall have any ability to act or create any obligation on behalf of the other party. Nothing in this Agreement will be construed to create a partnership, joint venture, employment or agency relationship between the parties.
11.3. This Agreement constitutes the exclusive statement of all mutual understandings between the parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, oral or written. Each Order and applicable Schedules, NDA, and AUP, includes terms that are in addition to, and not in lieu of this MDA. In the event of a conflict between or among the terms of documents relating to a Service, the following order of priority will govern, except where the specific terms of a document provide otherwise: (1) any Order; (2) any applicable Schedule to the Order; (3) this MDA; (4) the then-current AUP.
11.4. This Agreement may only be amended in a writing signed by both parties. No waiver of any provision hereof or of any right or remedy hereunder shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. If any provision of this Agreement is determined to be invalid under any applicable law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable. The headings in this Agreement are provided for convenience only and shall not affect in any way the meaning or interpretation of this Agreement.
11.5. Neither this Agreement, nor Customer’s obligations or rights hereunder, may be transferred or assigned by Customer without ITVN’s prior written consent. ITVN may freely assign this Agreement without consent of the Customer. This Agreement shall inure to the benefit of and be binding upon the permitted successors, legal representatives and assigns of the parties hereto. There shall be no third party beneficiaries to this Agreement.
11.6. All notices shall be in writing and shall be deemed to be delivered when received by nationally recognized courier, postage prepaid, or when sent by facsimile or e-mail (an in the case of e-mail, confirmed by facsimile or nationally recognized courier). All notices shall be directed to the parties at the respective addresses given above or to such other address as either party may, from time to time, designate by notice to the other party.
11.7. This Agreement and all obligations of the parties hereunder shall be interpreted, construed, and enforced in accordance with the laws of the State of North Carolina, without regard to any conflict of laws rules or analyses. Any action or proceeding arising from or relating to this Agreement must be brought in a state or federal court having jurisdiction in New Hanover County, North Carolina, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding and agrees to waive any defenses to venue and jurisdiction including forum non conveniens. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
11.8. This Agreement, including without limitation this MDA and any Order entered into hereunder, may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. The parties may sign this MSA and any Order and deliver the signature pages via facsimile or electronic transmission all of which shall be deemed original signatures.