Terms & Conditions
Terms & Conditions
WURL PLATFORM AND BROADCAST SERVICES AGREEMENT
IMPORTANT – READ CAREFULLY: THIS WURL PLATFORM AND BROADCAST SERVICES AGREEMENT WILL GOVERN USE OF THE WURL PLATFORM, INCLUDING THE WURL PLATFORM SERVICES AND WURL BROADCAST SERVICES. CLICKING THE “I ACCEPT” BOX AND PRESSING ENTER ON THE WEB PAGE AT WHICH THIS AGREEMENT IS PRESENTED FOR ACCEPTANCE CONSTITUTES BINDING ACCEPTANCE OF THIS AGREEMENT ON BEHALF OF THE VIDEO PRODUCER AND A REPRESENTATION THAT THE PERSON CLICKING THE “I ACCEPT” BOX AND PRESSING ENTER IS AUTHORIZED TO BIND THE VIDEO PRODUCER TO THIS AGREEMENT. IF YOU DO NOT WISH TO ACCEPT THIS AGREEMENT, DO NOT CLICK THE “I ACCEPT” BOX AND YOU WILL NOT BE GIVEN ACCESS TO THE WURL PLATFORM AND SERVICES.\
This Wurl Platform and Broadcast Services Agreement, including the attachments (the “Agreement”), sets forth the agreement and understanding by and between Wurl, Inc., 591 Lytton Avenue, Palo Alto, CA 94301 (“Wurl”) and the video producer on whose behalf this agreement has been accepted (“Video Producer”) in connection with Wurl services to be provided by Wurl as of the Effective Date (as defined below).
WHEREAS, Client creates and/or acquires and licenses video programming content that it plans to distribute through various video services as streaming video channels including live and/or pre-recorded programming (“Video Programming”); and
WHEREAS, Client desires to utilize Wurl Services (as defined hereinbelow) in connection therewith.
NOW THEREFORE, for the mutual premises and promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Wurl and Client (each, a “Party” and collectively, the “Parties”) hereby agree as follows:
1. CONSTRUCTION. This Agreement is comprised of these Basis Terms (inclusive of all Exhibits thereto), the Order Form and such other documents (each, an “Addendum”) executed by Wurl and Client. The Agreement shall be read as a single whole and the terms of these Basic Terms shall apply to each Addendum, except as otherwise specifically set forth to the contrary in each such Addendum. In the event of any inconsistency between the terms of these Basic Terms and any Addendum, the terms of the Addendum shall govern but only to the minimal extent necessary to rectify such inconsistency. In the event of any inconsistency between the terms of two or more Addendums, the terms of the most recent Addendum shall prevail (followed by the next most recent Addendum and so forth) but only to the minimal extent necessary to rectify such inconsistency.
2. WURL SERVICES. The “Wurl Services” consist of any or all of the following, as selected by Client:
a. Wurl Network. The “Wurl Network” consists of the Managed Channel Services, the AdSpring Service and the Connectors, as each are further defined below.
i. Managed Channel Services. Wurl’s Managed Channel Services provide video producers with a complete solution for the creation, management and distribution of Video Programming on a live, linear basis and/or on a VOD basis (each, a “Channel”), in each case to certain video streaming services (the “Video Services”). Managed Channel Services includes services for the ingest & on-boarding of video assets, transcoding and storage of video renditions suitable for target video services, metadata ingest and normalization, cloud-based scheduling of linear channels, cloud-based scheduling of ad breaks and certain other services.
ii. AdSpring Services. Wurl’s “AdSpring Service” is an ad management platform that provides an end-to-end solution for the dynamic insertion of interstitial video advertising into internet-based streaming video content, whether such content is made available on an on-demand or scheduled linear basis (the “Content”). The AdSpring Service is a real-time server-side ad routing service that dynamically inserts video ads uniquely targeted to each viewer of such Content during video playout via Video Service Clients (as defined hereinbelow). For purposes of this Agreement, “Video Service(s)” refers to companies that operate services for consumer video discovery and playback and “Video Service Client” refers to applications, web interfaces and other consumer-facing software provided by Video Services for the discovery and playback of the Content. Wurl’s AdSpring Service and architecture are more fully set forth and described in Exhibit A, attached hereto and made a part hereof by this reference.
iii. Wurl Connectors. Wurl distributes Channels using connectors between the Wurl Network and the Video Services (“Connectors”). The Connectors include a combination of technology and services for the delivery of Video Programming to a selected Video Service. The various types of Connectors are set forth in Exhibit “A,” attached hereto and made a part hereof by this reference. If Client desires to distribute a Channel to a Video Service for which Wurl does not already have an appropriate Connector, Client may request the implementation of a new Wurl Connector, which Wurl will consider in its discretion and the incorporation of such shall be upon terms to be negotiated in good faith between the Parties.
b. Wurl Professional Services. Wurl provides professional services for the purpose of helping clients onboard new content, transcoding content, setting up channels, programming assistance, training new clients on the use of the Wurl Network, and for other efforts involving the use of Wurl products. Some of these services are available as part of Managed Channel Services, and some are available separately, on an hourly basis. Client and Wurl shall agree, in writing (email sufficing) as to any professional services to be rendered and the fees thereof prior to Wurl providing such Professional Services.
c. Wurl Support. Wurl provides assistance in identifying and resolving problems with, monitoring the use of, and updating, maintaining, the Wurl Network, and answering questions related to the operational use of Wurl Services. Client and Wurl shall agree, in writing (email sufficing) as to any support services to be rendered and the fees thereof prior to Wurl providing such support services.
3. TERM. The term of this Agreement shall commence on the date first written above and shall remain in effect until terminated as set forth herein (the “Term”). Each Addendum hereto shall have its own term and termination procedure as set forth therein. The termination of an Addendum shall not affect the Term of this Agreement but the termination of this Agreement shall terminate each Addendum, unless otherwise set forth in such Addendum.
4. FINANCIAL TERMS.
a. The Wurl fees consist of the following, as more fully set forth in Exhibit “A”:
i. Managed Channel Services Fees. The Managed Channels can be licensed on a monthly basis or with a one, two or three year commitment. In the event that Client licenses the Managed Channels with an annual commitment, at the end of the designated term (one, two or three years) the Agreement shall continue on month-to-month basis under the pricing then in effect for Managed Channels without an annual commitment and may be terminated by either Party by providing the other Party with no less than thirty (30) days’ prior written notice of termination.
(1) CDN Charges. Client may use Client’s preferred CDN vendor or Wurl’s CDN vendor. Unless Client elects to use Client’s CDN vendor, Wurl’s CDN vendor shall be used at the pricing set forth in Exhibit “A.”
(2) Head-End Transport Charges. Certain streaming services require the use of proprietary transport services for the delivery of TV channels to the streaming service’s headend. These costs are set forth in Exhibit “A.”
ii. Wurl AdSpring. In the event that Client elects to license the AdSpring services, Client may do so on an annual (one, two or three years) or monthly basis.
iii. Wurl Connectors. Wurl Connectors are licensed on a monthly basis, the cost of which is in addition to the Managed Channel Fees.
b. Payment Terms. For annual commitments, Wurl will invoice Client on a quarterly basis, in advance of providing services. For services rendered on a monthly basis, Wurl will invoice Client on a monthly basis, in advance of providing services. All invoices are due and payable within thirty (30) days from the date of Wurl’s invoice. Certain services such as CDN charges, may be billed in arrears based on Client’s actual usage levels. Ad Insertion Fees in a commitment model that exceed the committed level are also billed in arrears, based on Client’s actual usage,
c. Collections, Suspension of Services. Wurl may suspend any or all of the Wurl Services if payment for any Service is overdue by more than thirty (30) days from the due date. In addition, Client shall pay to Wurl the reasonable costs of collection of overdue amounts, including collection agency fees, attorneys’ fees and court costs.
5. ACCESS TO AND USE OF THE WURL SERVICES. Subject to Client’s compliance with the terms of this Agreement including timely payment to Wurl of all applicable fees set forth herein, Wurl hereby grants Client, during the Term, a non-exclusive, non-transferable, non-sublicensable, limited, and revocable license to access and use those elements of the Wurl Services ordered by Client hereunder. The license granted in this Agreement does not constitute a transfer of ownership or sale of the Wurl Services or any other proprietary rights of Wurl, including all intellectual property rights in any of the foregoing (collectively referred to as “Wurl Property”). Except for the license granted above, Wurl retains all right, title, and interest in and to Wurl Property. Client shall not remove, alter, or obscure any proprietary notices, including copyright notices, on any portion of the Wurl Services.
Subject to the foregoing, Client’s employees, contractors and other persons authorized by Client to use Wurl Services may access and use Wurl Services solely in accordance with this Agreement and solely on behalf of Client, provided, however, that if Client is a direct competitor of Wurl or of Wurl Services, Client cannot access or use Wurl Services without Wurl’s prior written consent. Client shall comply, and shall cause all persons using Wurl Services on its behalf to comply, with the terms of this Agreement and all laws, rules and regulations applicable to access and use of Wurl Services. Wurl may change, limit or discontinue any or all of Wurl Services or change, limit or remove functionality of any or all of Wurl Services from time to time. Wurl will make reasonable efforts to notify Client in advance of any material change to or discontinuation of any of Wurl Services, if practicable to do so. Some of Wurl Services are currently free, but Wurl reserves the right to charge for certain or all Wurl Services in the future. Wurl will notify Client before any Wurl Service that Client is currently using begins to carry a charge, and if Client desires to continue using such Wurl Services it must pay all applicable fees. Wurl may suspend Client’s access or use of any portion or all of Wurl Services immediately upon notice to Client if Wurl determines, in its sole good faith discretion, that access or use of Wurl Services by anyone acting on behalf of Client or accessing or using Wurl Services through Client’s account (i) poses a security risk to or could adversely impact Wurl Services or any portion thereof, or any related systems, networks or storage; (ii) could subject Wurl or any third party to liability; (iii) could be fraudulent or illegal; or (iv) is in material violation of the terms or conditions of this Agreement. In addition, Wurl may in its sole discretion remove or block Video Programming, Channels or portions of the content therein in response to complaints or notices from rights holders submitted pursuant to the Digital Millennium Copyright Act (DMCA) or similar laws or regulations in any other country or as a result of any claim of infringement or violation of a third-party’s rights or in the event of any other breach of Client’s representations, warranties or covenants hereunder.
6. LICENSES TO CONTENT AND MARKS.
a. Client hereby grants, and Wurl hereby accepts, a non-exclusive, worldwide, royalty-free, fully paid up, non-transferable, revocable license, during the Term, to copy, store, display and deliver the Video Programming and Channels to Video Service providers. Client hereby grants to Wurl a non-exclusive, worldwide, royalty-free, fully paid up, non-transferable, revocable right to use the trademarks of Client, during the Term, solely in connection with the performance of the Wurl Services.
b. Wurl may list Client as a client of Wurl and include Client’s name and logo on Wurl’s website and other marketing and promotional materials.
c. Client acknowledges and agrees that Wurl or its licensors retain all rights, titles and interests in the Wurl Services and all elements thereof and no title to or ownership of intellectual property in the Wurl Services is transferred pursuant to this Agreement.
d. As between Wurl and Client, Client and its licensors shall retain all right, title and interest in the Video Programming and Channels produced by Client and the content therein. Wurl shall not have the right to distribute, use, sell, or otherwise exploit the Video Programming or Channels produced by Client, except as expressly permitted under the terms of this Agreement in connection with providing Wurl Services.
7. CLIENT RESPONSIBILITIES. Client shall be solely responsible (i) for meeting Wurl’s applicable minimum hardware, software, networking and system requirements for accessing and using Wurl Services as disclosed to Client and updated from time to time by Wurl (with no less than thirty (30) days advance notice to Client); (ii) for compliance with this Agreement and for any other activity by its employees, contractors and other persons authorized by Client to use Wurl Services; (iii) for the quality, integrity, accuracy, and legality of its Video Programming and Channels and any content therein or related thereto; (iv) to use commercially reasonable efforts to prevent unauthorized access to or use of Wurl Services through its account; (v) for obtaining all necessary consents and authorizations from relevant authorities in, and must comply with the applicable laws of, any country where the Video Programming and/or Channels are transmitted and/or received; (vi) to provide all support and assistance that Wurl may reasonably require in relation to provision of the Wurl Services; and (vii) to properly configure and use the Wurl Services.
8. CLIENT ASSETS. Wurl will exercise reasonable efforts to protect Client’s assets including, without limitation, the Video Programming. The foregoing notwithstanding, Client shall maintain appropriate security, protection and backup of its information and assets including, without limitation, the Video Programming, and Wurl shall have no liability of any kind for the deletion, correction, destruction, loss of, or damage to, any Client information or data including, without limitation, the Video Programming.
9. PROHIBITIONS. Client shall not (i) make Wurl Services available to anyone other than its employees, contractors and other persons authorized by Client to use Wurl Services on behalf of Client; (ii) resell, rent or lease Wurl Services or include Wurl Services in a service bureau or outsourcing offering; (iii) use Wurl Services to distribute infringing, libelous, deceptive, fraudulent, threatening, harassing, obscene or other unlawful or tortious material; (iv) use Wurl Services to store or transmit viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of Wurl Services; (vi) attempt to reverse engineer or to gain unauthorized access to Wurl Services or any portion thereof, or of any related systems, networks or storage; (vii) access Wurl Services in order to aid in the building of a competitive product or service or to copy any features, functions or graphics of Wurl Services; (viii) attempt in any manner to obtain the password, account, or other security information from any other user of Wurl Services; (ix) use Wurl Services, or permit them to be used, for purposes of product benchmarking or other comparative analysis.
10. WURL DISTRIBUTION SERVICE LEVELS. Wurl will provide Wurl Distribution Services at the Service Levels, and with the related support, as described in Exhibit “B,” attached hereto and made a part hereof by this reference.
11. TAXES. All fees and other charges for Wurl Services are exclusive of any federal, state, local sales, international excise, value-added, and similar taxes, levies, duties, administrative or recovery fees or charges, or similar governmental assessments of any nature imposed by any jurisdiction, but not including any taxes assessable against Wurl based on its income, property and employees (“Taxes and Fees”). Client shall pay all Taxes and Fees, however denominated, that may now or hereafter be levied on Wurl Services. Should Wurl pay or be required to pay any such Taxes and Fees, Wurl shall invoice Client for such Taxes and Fees, and Client shall pay or reimburse Wurl for such Taxes and Fees.
12. SUGGESTIONS. Client hereby grants Wurl a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into Wurl Services or Wurl’s other products or services any suggestions, enhancement requests, recommendations or other feedback provided by Client or its employees, contractors or other persons acting on its behalf.
13. REPRESENTATIONS AND WARRANTIES.
a. Each Party represents and warrants to the other that (i) it has the right to enter into this Agreement; and (ii) in the case of Client, the individual signing this Agreement on its behalf has the power and authority to do so.
b. Wurl further warrants that (i) the Wurl Services do not violate, infringe or misappropriate any patent, copyright, trade secret or trademark, or the privacy rights of any third-party; and (ii) it shall comply with all applicable laws and regulations.
c. Wurl does not represent or warrant that the Wurl Services (or any portion thereof) will be uninterrupted, error free, free of harmful components, that any content, including the Video Programming will be secure or not otherwise lost or damaged, or that the Wurl Services (or any portion thereof) will operate in combination with other hardware, software, systems or data other than as expressly specified in this Agreement. EXCEPT AS EXPRESSLY COVENANTED IN THE SERVICE LEVELS, THE WURL SERVICES PROVIDED BY WURL ARE PROVIDED “AS IS” AND “AS AVAILABLE.” CLIENT ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 13, WURL MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE SERVICES, OR THEIR CONDITION. WURL IS FURNISHING THE WARRANTIES SET FORTH IN THIS SECTION 13 IN LIEU OF, AND WURL HEREBY EXPRESSLY EXCLUDES, ANY AND ALL OTHER EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES, WHETHER UNDER COMMON LAW, STATUTE OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY AND ALL WARRANTIES AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.
d. Client represents and warrants to Wurl that Client owns or has enforceable license rights to all its Video Programming, Channels and content therein, and that such Video Programming, Channels and content do not and shall not infringe or misappropriate any patent, copyright, trademark, trade secret, publicity or likeness right, or any other right of any third-party and that Client shall abide by all applicable laws, rules and regulations.
e. The representations and warranties shall continue throughout the Term and shall survive, to the extent applicable to the actions or inactions occurring under this Agreement, the expiration or termination of this Agreement, regardless of the reason for such expiration or termination.
a. By Client. Client shall defend or settle, indemnify and hold harmless Wurl, its parent, subsidiary and affiliated entities and their respective officers, directors, shareholders, members, attorneys, agents and employees (the “Wurl Indemnities”), from and against any liabilities, losses, damages and expenses, including court costs and reasonable attorneys’ fees, arising out of or in connection with any claim (i) that a third-party has suffered injury, damage or loss resulting from access or use of Wurl Services by Client or its employees, contractors or other persons authorized by Client to use Wurl Services, or that such access or use violates this Agreement in any manner; (ii) that any of Client’s Video Programming, Channels or content therein infringe or misappropriate any patent, copyright, trademark, trade secret, publicity or likeness right, or any other right of any third-party; (iii) Client’s breach of any of its representations, warranties, covenants or obligations herein; or (iv) as set forth in paragraph 19.e hereinbelow.
b. By Wurl. Wurl shall defend or settle, indemnify and hold harmless Client, its officers, directors and employees, from and against any liabilities, losses, damages and expenses, including court costs and reasonable attorneys’ fees, arising out of or in connection with any claim that any of Wurl Services, as furnished by Wurl hereunder, infringes or misappropriates any patent, copyright, trademark, trade secret, publicity or likeness right, or any other intellectual property right of any third-party.
c. Procedure. The indemnified Party (the “Indemnified Party”) shall promptly notify the indemnifying Party (the “Indemnifying Party”) in writing of any third-party Claim for which the Indemnifying Party may have obligations under this Section 14; provided, however, that any failure of the Indemnified Party to provide prompt written notice pursuant to this Section 14 shall excuse the Indemnifying Party only to the extent that it is prejudiced thereby. The Indemnified Party shall reasonably cooperate with the Indemnifying Party, at the Indemnifying Party’s expense, with regard to the defense of any third-party Claim. The Indemnifying Party shall have full control of any such third-party Claim and the authority to settle or otherwise dispose of any suit or threatened suit; provided that the Indemnifying Party may not make any admission of liability on behalf of any Indemnified Party without such Indemnified Party’s prior written approval; and, further provided, that in no event may the Indemnifying Party agree to any settlement of any third-party Claim for which it has agreed to provide indemnification under this Agreement if such settlement would impose any liability, obligation, or admission upon the Indemnified Party, without the Indemnified Party’s prior, written consent.
d. Other. In the event that Wurl’s right to provide one or more of Wurl Services is enjoined or in Wurl’s reasonable opinion is at risk of being enjoined, Wurl may obtain the right to continue providing Wurl Services, replace or modify Wurl Services so that they become non-infringing, or, if such remedies are not reasonably available, terminate this Agreement without liability to Client. Wurl shall have no liability under this Agreement to the extent that any claims described above are based on any combination of Wurl Services with products, services, methods, or other elements not furnished by Wurl, or any use of Wurl Services in a manner that violates this Agreement or the instructions given to Client by Wurl or with respect to any matter for which Client is required to indemnify Wurl hereunder.
15. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE OR RESPONSIBLE TO THE OTHER PARTY FOR ANY OF THE OTHER PARTY’S INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THE WURL SERVICES OR THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL WURL'S AND ITS AFFILIATES TOTAL LIABILITY FOR DAMAGES OR LOSSES OF ANY KIND UNDER OR IN RELATION TO THIS AGREEMENT EXCEED, EITHER INDIVIDUALLY OR IN THE AGGREGATE, THE FEES PAID BY CLIENT TO WURL UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO LIABILITY. NEITHER PARTY EXCLUDES OR LIMITS ITS LIABILITY TO THE OTHER PARTY: (1) FOR DEATH OR PERSONAL INJURY ARISING OUT EITHER PARTY'S PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT; (2) DUE TO THE FRAUD OR FRAUDULENT MISREPRESENTATION OF A PARTY; OR (3) WITH RESPECT TO ANY INDEMNITY OBLIGATION HEREIN.
16. FORCE MAJEURE. Neither Party shall be liable to the other for any failure of performance due to civil commotion, war, riots, strikes, explosions, fire, flood, earthquake, failure of essential technology or other catastrophic event, vandalism or "hacker" attacks, acts of terrorism, or other similar events beyond the reasonable control of the affected Party (“Force Majeure”). If Force Majeure prevents Wurl from providing Wurl Services for seven (7) consecutive, or fifteen (15) cumulative, days during the Term, then Client shall have the right to terminate this Agreement immediately upon notice to Wurl.
a. For Convenience. Client may terminate this Agreement or any part of the Wurl Services (including, without limitation, any one or more Connectors) for any reason by providing Wurl with prior written notice, which shall become effective at the end of the calendar month following the calendar month in which Client provides such notice. Such termination shall not relieve Client of its obligation to pay Wurl for all ordered and unpaid services for the remainder of the term of such order and the payment thereof shall be immediately due and payable. Wurl may terminate this Agreement or any part of the Wurl Services (including, without limitation, any one or more Connectors) for any reason by providing Client at least ninety (90) days’ advance notice, with such termination becoming effective at the end of the calendar month in which the 90-day notice expires. In the event that Wurl terminates any of the Wurl Services as aforesaid, Client shall have no obligation to pay for any such services that were not provided by Wurl.
b. For Cause. Either Party may terminate this Agreement for cause if the other Party is in material breach of this Agreement and the material breach remains uncured for a period of 30 days from receipt of notice of breach by the other Party. Wurl may also terminate this Agreement immediately upon notice to Client (A) if Client is in breach of its payment obligations and such breach is uncured within five (5) business days after Client receives Wurl’s notice thereof, provided further, that Client shall only have the right to cure such failure two (2) times during the Term, or (B) in order to comply with the law or requests of governmental entities.
c. Upon expiration or termination of this Agreement, Wurl shall remove all of Client’s marks and Client’s Video Programming, Channels and content thereof from Wurl Services and related systems.
18. CONFIDENTIALITY. Each Party (the “Receiving Party”) acknowledges that it has or may receive from the other Party non-public business, technical or financial information that a reasonable person would understand to be confidential given the nature of such information and the circumstances of its disclosure, whether or not marked or identified as confidential or proprietary (“Proprietary Information”), relating to the business of the other party (the “Disclosing Party”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information that are no less than the precautions it takes to protect its own Proprietary Information of similar import, and (ii) not to use (except as necessary for the Receiving Party to perform its obligations under this Agreement) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after one (1) year following the Termination of this Agreement or any information that the Receiving Party can document (a) is or becomes generally available to the public without breach of the obligations under this Agreement, or (b) was rightfully in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third-party, or (d) was independently developed without use of, or reference to, any Proprietary Information of the Disclosing Party. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law, court or government order to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. The Receiving Party shall disclose only such information as it reasonably deems is legally required and shall use reasonable efforts to obtain confidential treatment for any Confidential Information (to the extent legally permitted) that is so disclosed. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party shall reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
19. DATA PROTECTION
a. The Parties acknowledge and agree that with regard to the processing of personal data, to the extent applicable, Client is the Data Controller and Wurl is the Data Processor.
b. Client shall, in its provision of services to its end users, process personal data in accordance with the requirements of applicable Data Protection Laws. Client shall have sole responsibility for the accuracy, quality, and legality of personal data. Client further agrees, that as an essential element of this agreement, that it shall not submit (or allow access to Wurl) of any personal data to Wurl beyond that which is precisely necessary for provision of Wurl Services by Wurl.
c. Wurl shall only process personal data for the following purposes: (i) processing required to provide the Wurl Services in accordance with the Agreement; (ii) processing to comply with other reasonable instructions provided by Client that are consistent with the terms of the Agreement; and (iii) as required by applicable law or a court or government order.
d. Wurl acts on behalf of and on the written instructions of Client in carrying out all Data Processor responsibilities. Wurl shall process personal data in accordance with the requirements of the Data Protection Laws and Client shall ensure that its documented instructions for the processing of personal data shall comply with the Data Protection Laws.
e. Client shall bear responsibility and liability for any and all losses arising out or relating to Client’s non-compliance with Data Protection Laws, and fully indemnify the Wurl Indemnities (as defined in paragraph 14.a hereinabove) to the fullest extent for any and all losses arising therefrom.
f. Each Party shall render such assistance and co-operation as is reasonably necessary or reasonably requested by the other Party, including but not limited to the provision of information regarding the existence, applicability and extent of application of Data Protection Laws in particular jurisdictions to Protected Data.
g. For the purposes hereof, capitalized terms shall have the meaning given below:
i. “Data Protection Laws” means all laws and regulations, applicable to Client including, if applicable, the laws and regulations of the European Union, applicable to the processing of personal data under this Agreement and the (US) Data Protection Act 1998.
ii. “Data Controller” means the entity that determines the purposes and means of the processing of personal data;
iii. “Data Processor” means the entity which processes personal data on behalf of the Data Controller.
20. NOTICES. All notices and payments to be given or made hereunder shall be given or made at the respective addresses of the parties as set forth on the Order Form, unless notification of a change of address is given in writing. Notices may be sent by certified or registered mail, return receipt requested, by personal delivery or by overnight or second day delivery via FedEx or UPS, in all cases properly addressed, with postage or fees prepaid. All notices shall be deemed delivered upon the earlier of: (a) actual receipt; or (b) if sent by mail, when the mailing party receives the return receipt acknowledgment or if sent by FedEx or UPS, three (3) business days after deposit with such company. Correspondence in the ordinary course may be done via email provided that the sender of the email receives a written confirmation of receipt from the recipient (which may be in the form of a non-automated email response).
21. ASSIGNMENT. This Agreement is binding on the parties and their respective permitted successors and assigns, and is not assignable by either Party without the other Party’s prior written consent, such consent not to unreasonably be withheld, and any attempt to assign any rights, duties, or obligations hereunder without such consent will be void and invalid. Notwithstanding the foregoing, either Party may assign this Agreement to any person or entity controlling, controlled by or under common control with the assigning Party or to any person or entity that acquires substantially all of the shares, assets, or business of the assigning Party.
22. GOVERNING LAW; JURISDICTION. This Agreement shall be governed by the laws of the State of California, notwithstanding any conflicts or choice of law principles. The exclusive venue for any litigation hereunder or relating hereto shall be the state or federal courts located in the Northern District of California. The prevailing Party in any such litigation shall be entitled to receive in addition to all other damages to which it may be entitled, the costs incurred by such Party in conducting the litigation, including reasonable attorneys' fees and expenses and court costs. Any summons, order to show cause, writ, judgement, decree or other process, issued by such court, may be served on either Party at the address indicated in this Agreement and in the manner set forth for Notices herein or personally without the state of California, and when so served, such Party shall be subject to the jurisdiction of such court as though the same had been served within the state of California.
23. MISCELLANEOUS. The captions used in connection with the sections, paragraphs and subparagraphs of this Agreement are used only for purposes of reference and shall not be deemed to govern, limit, modify or in any manner effect the scope, meaning or intent of the provisions of this Agreement or any part thereof, nor shall such captions be given any legal effect. This Agreement cancels and supersedes all prior agreements and understandings between the parties relating to the subject matter hereof, and contains all of the terms, conditions and promises of the parties hereto and no modification of any provision hereof shall be valid or binding unless in writing. Where any conflict arises between the provisions of any said amendment or modification and the provisions incorporated in earlier documents, the most recent provisions shall be controlling. Nothing herein contained shall be construed so as to require the commission of any act contrary to law or applicable collective bargaining agreements and wherever there is any conflict between any provision of this Agreement and any present or future law or collective bargaining agreement, contrary to which the parties have no legal right to contract, the latter shall prevail, but in such event, the provision(s) of this Agreement effected shall be curtailed and limited only to the minimum extent necessary to bring it within the requirements of such law or collective bargaining agreement. This Agreement may be executed in one or more counterparts, each of which when taken together shall constitute one and the same agreement, and each of which shall constitute an original of this Agreement. In addition, this Agreement may be executed electronically (including via scans and facsimile) and such electronic versions shall constitute an original of this Agreement. No failure by either Party to insist upon the strict performance of any covenant, duty, agreement, or condition of this Agreement or to exercise any right or remedy consequent upon a breach thereof shall constitute waiver of any such covenant, duty, agreement, or condition, or any such breach. Notwithstanding anything to the contrary contained in this Agreement, there are no third-party beneficiaries to this Agreement. Submission of this Agreement for examination, negotiation, or signature does not constitute an offer, and this Agreement shall not be effective until it is duly executed and delivered, if at all, by each Party hereto. Each party acknowledges that he/she/it has had an opportunity to consult with an independent attorney or other representative regarding the terms and conditions of this Agreement and that the drafting and negotiation of this Agreement has been fully participated in by all parties hereto and, for all purposes, this Agreement shall be conclusively deemed to be jointly drafted by all parties. Words importing the singular shall include the plural and vice versa, words importing any gender shall include all other genders, words importing persons shall include bodies corporate, unincorporated associations and partnerships and vice versa. References to the whole shall include the part and vice versa. Defined terms herein shall include all forms, variations and conjugations thereof. Whenever examples are used in this Agreement with the words “including,” “for example,” “e.g.,” “such as,” “etc.” or similar or any derivation thereof, such examples are intended to be illustrative and not in limitation thereof. All references to the words “and” or “or shall be deemed to be “and/or”. All references to dollars herein shall mean United States dollars. Except as specifically set forth herein, nothing in this Agreement shall be construed as creating a partnership or joint venture of any kind between the parties or as constituting any Party as the agent of the other parties for any purpose whatsoever and no Party shall have the authority or power to bind the other Party or to contract in the name of or create a liability against the other Party in any way or for any purpose. Each Party undertakes with the other to do all things reasonably within its power which are necessary or desirable to give effect to the spirit and intent of this Agreement.
I. Managed Channel Services – Other Fees
• Headend Transport – Some streaming services require the use of proprietary transport services for the delivery of TV channels to the streaming service’s headend. Wurl contracts for these transport services and bills for them at cost + 10%. Upon receipt of a new Connector Order, Wurl will provide an estimate of related Headend Transport services.
• CDN – In some cases, Wurl is required to provide CDN services for the delivery of programming directly to consumer devices. For example, TV Player and Roku delivery uses Wurl’s CDN. Wurl re-bills its customers (video producers) for CDN services at the rate of $0.01 per GB.
• Clients who contract for both the Sling TV and Dish Connectors will only be charged a single Headend Transport charge.
• For multiple HLS streams that are exactly the same, delivered via an application development platform like ViewLift, MAZ, Float Left, and others:
o 1st stream: $1,000
o 2-5: +$250 each
o 5 plus: +$200 each
II. Wurl AdSpring
AdSpring is Wurl’s advertising inventory management and processing service. For video producers and streaming video provide services, AdSpring provides a complete set of services for the creation and management of ad inventory including: server-side dynamic ad insertion, ad targeting, normalization and enhancement of ad targeting info and a variety of ad measurement services.
AdSpring Fees: $2.00 CPM
AdSpring Impressions Processed will be calculated each month and billed in arrears.
CPM - The fee charged by Wurl for the number of filled AdSpring Impressions processed (per thousand).
III. Wurl Connectors
Wurl Connectors provide services for the delivery of a customer’s live, linear and VOD programming to a streaming video service. Distribution Connectors include a suite of services including video re-packaging, insertion of ad markers, live streaming, 24/7 monitoring, SLAs and other services.
Distribution Connector Fees: Monthly /Channel
|Connector Type||Monthly Fee||Examples|
Samsung, Sinclair, TV Player, Roku HLS
Roku VOD, Xumo VOD
Sling, YouTube TV, DirecTV Now
Wurl Service Levels & Related Support
1. SERVICE LEVELS AND SUPPORT
a. Uptime Percentage Service Level. Wurl will provide Wurl Distribution Services with an Uptime Percentage (as defined below) of 99.9%, measured on an aggregate monthly basis. “Uptime Percentage” means, with respect to a given month, 100 times the following ratio (computed to one decimal point):
i. The total number of minutes during the month that Wurl Distribution Services are functioning without a Severity 1 level problem (for clarity, this clause 1.a.i shall not count any Maintenance Window minutes),
ii. The total number of minutes in the month minus (i) minutes during which a Severity 1 level problem exists with respect to Wurl Distribution Services that is caused by Force Majeure or Internet Problems (as defined below), and (ii) up to 120 actual Maintenance Window (as defined in section 1.c.iii hereinbelow) minutes.
b. Certain Definitions.
i. “Internet Problems” means outages and interruptions of Wurl Distribution Services due to technical problems that are not within the reasonable control of Wurl, including but not limited to Domain Name Service (“DNS”) errors, caching outages, routing errors, Internet performance issues and other technical issues both within Client’s Internet protocol infrastructure or the Internet as a whole.
ii. “Force Majeure” is defined in the Basic Terms.
c. General Support. Wurl will provide support for Wurl Services as set forth below:
i. Wurl will provide support for assistance in identifying and resolving any Severity 1 and 2 problems with respect to Wurl Distribution Services (in accordance with the Severity Levels and Response Times set forth in Sections 1.d and 1.e hereinbelow), and will provide standard support during regular business hours to answer questions related to the operational use of Wurl Services;
ii. Wurl will reasonably monitor Wurl Distribution Services to determine whether they are being provided according to the service levels of this Exhibit; and
iii. Wurl will schedule upgrades and maintenance for Wurl Services during appropriate, non-peak usage hours (except in the case of emergencies) (the “Maintenance Window”).
d. Severity Levels. When Wurl initially detects a problem with Wurl Distribution Services, and/or when Client reports to Wurl a problem with Wurl Distribution Services, the problem will be classified by Wurl in accordance with the following severity incident guidelines.
Severity Incident Level
A critical problem with Wurl Distribution Services in which any of the following occur: Wurl Distribution Services are down, inoperable, inaccessible or unavailable, Wurl Distribution Services otherwise materially cease operation; the performance or nonperformance of Wurl Distribution Services prevents distribution of Video Programming or Channels to Video Services.
A problem with Wurl Distribution Services in which any of the following occur: Wurl Distribution Services are severely limited or degraded, major functions are not performing properly, the situation is causing a significant impact to Wurl Distribution Services users’ operations or productivity; or Wurl Distribution Services have been interrupted but recovered, and in Client’s or Wurl’s reasonable opinion there is high risk of reoccurrence.
|3||A minor or cosmetic problem with Wurl Distribution Services in which any of the following occur: the problem is an irritant, affects non-essential functions, has minimal impact to business operations; the problem is localized or has isolated impact; the problem is an operational nuisance; the problem results in documentation errors; or the problem is any other problem that is not a Severity 1 or a Severity 2 level, but is otherwise a failure of Wurl Distribution Services to operate correctly.|
e. Incident Response Service Level. Wurl will respond to Client and provide Initial Responses, Temporary Resolutions and Final Resolutions (as defined below) in accordance with the time requirements set forth in the table below.
Initial Response will be provided within:
Temporary Resolution will be provided within:
|Final Resolution will be provided within:|
2 hours from receipt of initial notice from Client, or other discovery, of a problem
72 hours from receipt of initial notice from Client, or other discovery, of a problem
7 days from receipt of initial notice from Client, or other discovery, of a problem
6 hours from receipt of initial notice from Client, or other discovery, of a problem
5 days from receipt of initial notice from Client, or other discovery, of a problem
14 days from receipt of initial notice from Client, or other discovery, of a problem
12 hours from receipt of initial notice from Client, or other discovery, of a problem
7 days from receipt of initial notice from Client, or other discovery, of a problem
30 days from receipt of initial notice from Client, or other discovery, of a problem
i. For purposes of this Section 1.e, the following definitions apply:
(1) “Initial Response” means a verbal, written, or electronic response from Wurl to Client regarding a reported or discovered problem;
(2) “Temporary Resolution” means a temporary fix or patch that has been implemented and incorporated into Wurl Services by Wurl to restore Wurl Services functionality to correct operation until the Final Resolution is available;
(3) “Final Resolution” means a permanent fix that has been implemented and incorporated into Wurl Services by Wurl to restore Wurl Services functionality to correct operation.
2. SERVICE CREDITS
a. Uptime Percentage Service Level. If Client believes that Wurl has failed to meet the Uptime Percentage identified in Section 1.a hereinabove for a particular month, Client must give Wurl written notice of the failure within three (3) months after the end of the month during which such failure occurred. The notice shall include the period(s) during which Severity 1 problems occurred and a description of the problems during those periods. Upon verification by Wurl that Wurl failed to meet the Uptime Percentage during that month, Client shall be entitled to credits as follows:
Credit (against Monthly Fee per Channel for the affected Wurl Service)
98% - 99.8%
Less than 95%
b. Incident Response Service Level. If Client believes that Wurl has failed to provide a Temporary Resolution or Final Resolution within the Incident Response Service Levels identified in Section 1.e hereinabove for any Severity 1 or Severity 2 level problems on two (2) or more occasions within a month, Client must give Wurl written notice of the failure within three (3) months after the end of the month during which such failure occurred. The notice shall describe the failures of Wurl to provide a Temporary Resolution or Final Resolution as required. Upon verification by Wurl that Wurl failed to meet the Incident Response Service Level during that month, Client shall be entitled to a credit equal to 5% of the total Monthly Fee per Channel charged to Client for the affected Wurl Service for the month in which Wurl failed to meet the metric.
c. Chronic Failure to Meet Service Levels. If the Uptime Percentage Service Level is missed (by any amount) for three consecutive months or for four months out of any twelve-month period, Client reserves the right, at its sole discretion, to terminate the Agreement immediately upon written notice.
d. Limitations. Wurl will have no obligation or liability for a failure to provide a Temporary Resolution or Final Resolution within the Incident Response Service Levels caused by circumstances beyond Wurl’s reasonable control or by Client or any of its Video Programming, Channels or content therein, or by Client’s IT network or systems.
3. SOLE REMEDY
The service credits set forth herein are Client’s sole and exclusive remedy for any unavailability or service interruption of Wurl Services. Nothing in this Section will be deemed to limit or obviate Client's right to terminate this Agreement as otherwise set forth in the Basic Terms.