Bitmovin Master Service Terms

1. Definitions. In addition to terms defined elsewhere in the Agreement, the following capitalized terms will have the meanings set forth in this Section 1.
   1. “Affiliate” means in relation to a party any entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with such party and control means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of the party, whether through the ownership of voting securities or other interests, by contract or otherwise.
   2. “Agreement” means: (i) these terms and conditions (“Bitmovin Master Service Terms and Conditions”), (ii) each mutually-executed Order Form; and (iii) any other document that is expressly incorporated by reference.
   3. “Bitmovin” means Bitmovin, Inc., Bitmovin GmbH, and their respective Affiliates and assigns.
   4. “Bitmovin Analytics Service” means Bitmovin’s video analytics solution that enables Company to monitor, review and analyze specific data metrics in realtime. The Bitmovin Analytics Service may be further specified in an Order Form.
   5. “Bitmovin Encoding Service” means Bitmovin’s software as a service solution that enables the encoding of video assets into online video streaming formats, such as adaptive bitrate formats such as MPEG-DASH or HLS. The Bitmovin Encoding Service may be further specified in an Order Form.  
   6. “Bitmovin Encoding Software” means: (i) Bitmovin’s proprietary software (in Object Code format) that enables the encoding of video assets, including Company Content, into online video streaming formats, such as adaptive bitrate formats like MPEG-DASH or HLS, (ii) the programs and application programming interfaces that Bitmovin provides to Company hereunder, and (iii) all Upgrades to the foregoing that enable Company’s systems to integrate and communicate with the Bitmovin Encoding Software. The Bitmovin Encoding Software may be further specified in an Order Form.
   7. “Bitmovin Playback Service” means Bitmovin’s proprietary software utilizing the Bitmovin Player Software with the use of Bitmovin’s Analytics Service. Each Playback Impression enables Company to generate one Player Software Impression and one Analytics Service Impression, though only the Impressions generated through the Bitmovin Player Software will count towards the Usage Limit. The use of Bitmovin Analytics Service with a non-Bitmovin Player is not permitted.
   8. “Bitmovin Player Software” means: (i) certain player software development kits (“SDKs”), application programming interfaces (“APIs”), and associated Documentation provided to Company by Bitmovin, including, but not limited to, one or more of the following: the Object Code, dynamic link libraries, statically linked libraries, executables, header files, sample programs, specific parts of the source code as disclosed by Bitmovin, utility programs, makefiles, project files, scripts and documentation, (ii) any and all Upgrades, and (iii) any other documentation or source code or Object Code provided by Bitmovin under the Agreement that is intended to assist Company in integration work and development of the Company’s products that utilize the Bitmovin Player Software. The Bitmovin Player Software may be further specified in an Order Form.
   9. “Bitmovin Solution” means the products that Company has purchased the rights to use (as further detailed herein) pursuant to a valid Order Form.  The Bitmovin Solution may include: Bitmovin Analytics Service; Bitmovin Encoding Service; Bitmovin Encoding Software; Bitmovin Player Software; Bitmovin Support; or professional and integration services, as applicable.
   10. “Bitmovin Solution Fees” means the fees charged for the usage of the Bitmovin Solution as specified in the applicable Order Form. The Bitmovin Solution Fees are exclusive of Bitmovin Solution License Fees.
   11. “Bitmovin Solution License” means the right to use the applicable Bitmovin Solution subject to an Order Form. The terms of the Bitmovin Solution License for each of the Bitmovin Solutions shall be defined herein.
   12. “Bitmovin Solution License Fees” means the fees for the applicable Bitmovin Solution License.
   13. “Bitmovin Technologies” means Bitmovin’s software, including without limitation, the application programming interfaces that Bitmovin provides to Company hereunder and all new versions, updates, improvements and modifications to the foregoing that Bitmovin provides to Company to enable Company’s systems to integrate and communicate with the Bitmovin Solution.
   14. “Company” means the person or entity identified in the Company Information section of the Order Form that purchases the rights to use the Bitmovin Solution from Bitmovin as specified in the Order Form(s) and its Affiliates.
   15. “Company Data” means the information, data and other content, in any form or medium, that is requested, received, or downloaded, directly from Company by or through the Bitmovin Analytic Services and the Bitmovin Technologies.
   16. “Company Content” means: (i) Company’s trademarks and logos provided to Bitmovin by Company, and (ii) any other materials, data, and similar information, including without limitation text, video, photographs, graphics, images, music and sound, owned or licensed by Company that are provided by Company to Bitmovin for inclusion in or use with the Bitmovin Solution.
   17. “Documentation” means the manuals, instructions, documentation and other documents or materials that Bitmovin makes generally available to its customers and the specific documentation that Bitmovin provides to Company hereunder.
   18. “Effective Date” means the effective date of the Agreement, the MST, or each Order Form, as applicable.  Unless otherwise specified in the MST, the Effective Date of the MST is the Effective Date of the first Order Form made under the Agreement. Unless otherwise specified in the Order Form, the Effective Date is the date on which the last party signs the Order Form.
   19. “Encoded Content” means the video assets that are encoded and produced by Company’s use of the Bitmovin Solution.
   20. “End User(s)” means any person or entity that purchases the right to access and use Company’s products that utilize the Bitmovin Solution or Company’s personnel that Company allows to directly make use of the Bitmovin Solution.
   21. “Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose of which is to: (i) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any: (a) computer, software, firmware, hardware, system or network, or (b) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data processed thereby, or (ii) prevent Company from accessing or using the Bitmovin Solution as intended by the Agreement. Harmful Code does not include any means that Bitmovin uses to disable access to the Bitmovin Solution automatically or with the passage of time (such as a license key).
   22. “Impressions” means the initial start of a video stream for viewing for an End User. For avoidance of doubt, an End User pausing and continuing the video stream or seeking in the video stream, will not be considered as an Impression. However, an End User refreshing the web page and playing a video stream will be considered an Impression.
   23. “Integration Packages Definitions and Services” means Bitmovin’s current standard level of integration work, which can be viewed at: https://bitmovin.com/_ispds/.
   24. “Intellectual Property Rights” means all patent, copyright (including in both published and unpublished works, registrations and applications therefor), trade secret and rights in know-how, trademark, business domain names, designs, and other proprietary and intellectual property rights recognized in any jurisdiction worldwide, including moral rights.
   25. “Minute Calculation Methodology” means Bitmovin’s standard methodology for calculating encoding usage based on output format, which can be viewed at: https://bitmovin.com/_emcm/.
   26. “Object Code” means: (i) the nonhuman-readable, machine-executable version of the Bitmovin proprietary software code, unmodified and as originally made available to Company by Bitmovin, as part of the Bitmovin Player Software or the Bitmovin Encoding Software, and (ii) any enhancements, updates, or modifications thereto, unmodified and as originally made available by Bitmovin under the Agreement.
   27. “Order Form” means an ordering document for certain Bitmovin products and services that is entered into between Bitmovin and Company and that may contain mutually agreed upon additional terms, each of which is governed by the terms of the Agreement. For purposes of clarity, an Order Form may include an Insertion Order or a Statement of Work (“SoW”).
   28. “Open Source Component” means any software component that is subject to any open-source copyright license agreement, including any GNU General Public License or GNU Library or Lesser Public License, or other obligation, restriction or license agreement that substantially conforms to the Open Source Definition as prescribed by the Open Source Initiative or otherwise may require disclosure or licensing to any third party of any source code with which such software component is used or compiled.
   29. “Output” means the file size of all output files generated by the Bitmovin Encoding Software and the Bitmovin Encoding Service.
   30. “Overage Fees” means the fees charged if Company exceeds either the Output Limit or the Impression Limit (collectively the “Usage Limit”) as specified in the applicable Order Form.
   31. “Personal Data” means Personal Data as defined by Article 4 of Regulation (EU) 2016/679 (General Data Protection Regulation).
   32. “Resultant Data” means any information, data and other content that is derived by or through Bitmovin’s provision of the Bitmovin Solution or Company’s or an End User’s access to or use of the Bitmovin Solution. Resultant Data may include: (i) all traffic data, cryptographically-hashed samples of Company Data, log files, clickstream information, logged snippets of transmitted Company Content, and other server activity data collected by Bitmovin in the course of performing its obligations hereunder such as historical encoding data, demographic information, quality experience metrics, usage information, or geodata, and (ii) any and all machine learning or analytical products derived therefrom.
   33. “Service Level Agreement” means Bitmovin’s current standard service level agreement, which can be viewed at: https://bitmovin.com/_sla/.
   34. “Service Start Date” or Order Form Effective Date” means the date on which the Bitmovin Solution shall first be activated for Company. The Service Start Date is specified in each applicable Order Form and must be on or after the Effective Date of the MST or the Order Form, as applicable.
   35. “Subscriber” means an end user that (i) has been successfully authenticated as an authorized subscriber to Company’s service, or an authorized sub-licensee, (ii) is licensed to stream and/or download Company’s content to the end user’s device via Company’s products, and/or (iii) access video from the Company service through a device or web browser, at least once in a given month.
   36. “Support Packages Definitions and Services” means Bitmovin’s current standard level of support, which can be viewed at: https://bitmovin.com/_espds/.
   37. “Upgrades” means either a non-scheduled service release of software or scheduled version release of the Bitmovin Encoding Software or Bitmovin Player Software, as applicable, provided by Bitmovin as a result of revisions or corrections to the current release or in order to enable a new feature, an innovation, performance improvement, or a major enhancement to the previous release that Bitmovin generally makes available at no additional cost to its licensees or evaluators of such software.
   38. “Usage Fees” means the fees for Company’s usage of the Bitmovin Solution.
2. Grant of Rights, License Grant, and Restrictions; Bitmovin Solution.
   1. Bitmovin Encoding Service. The terms of this Section 2.1 govern Company’s use of the Bitmovin Encoding Service if Company purchase a Bitmovin Solution License for the Bitmovin Encoding Service .  During the Term, Bitmovin will: (i) manage, operate and maintain on its infrastructure the Bitmovin Encoding Service for remote electronic access and use by Company in substantial conformity with the Documentation and the Agreement; and (ii) abide by the Service Level Agreement. With respect to any Bitmovin Technologies that are provided to Company by Bitmovin hereunder and subject to the terms of the Agreement, Bitmovin hereby grants Company a non-exclusive, non-transferable, non-sublicensable license to install, use, and reproduce such Bitmovin Technologies during the Term only in connection with its permitted use of the Bitmovin Encoding Service. Other than the foregoing license, the Agreement confers no license and no title of ownership in the Bitmovin Technologies or the underlying software pertaining to the Bitmovin Encoding Service and may not be construed as a license or sale of any rights in the software pertaining to the Bitmovin Encoding Service.
   2. Bitmovin Encoding Software. The terms of this Section 2.2 govern Company’s use of the Bitmovin Encoding Software if Company purchases a Bitmovin Solution License for the Bitmovin Encoding Software.  Subject to the terms of the Agreement, during the Term, Bitmovin hereby grants to Company a non-exclusive, non-sublicensable, non-transferable, limited right and license to host and use the Bitmovin Encoding Software solely for Company’s internal use in accordance with the Documentation and the Agreement. Any Upgrades of the Bitmovin Encoding Software that may be delivered to Company by Bitmovin will be considered Bitmovin Encoding Software under the terms of the Agreement. Bitmovin will use commercially reasonable efforts to assist Company in installing and deploying the Bitmovin Encoding Software on the environments and infrastructure provided and maintained by Company, up to a maximum of eight (8) person hours; provided that Company provides Bitmovin with access to Company’s facilities, computer equipment (including remote access, if applicable), systems and any other software, personnel, information, tools (including licenses) or materials that may be reasonably required for Bitmovin to provide such assistance. Should customer require more assistance in installing and deploying the Bitmovin Encoding Software on the environments and infrastructure provided and maintained by Company than can be provided for in eight (8) person hours, then Bitmovin reserves the right to charge for such assistance.
   3. Bitmovin Player Software. The terms of this Section 2.3 shall govern Company’s use of the Bitmovin Player Software if Company purchases a Bitmovin Solution License for the Bitmovin Player Software.
      1. License to the Bitmovin Player Software. Subject to the terms and conditions of the Agreement, during the Term, Bitmovin hereby grants to Company the following non-exclusive, worldwide, non-transferable rights and licenses in and to the Bitmovin Player Software: (i) to use, copy, reproduce, perform, display and modify the Bitmovin Player Software for Company’s internal purposes for integration work, testing, and support and maintenance of Company’s products that utilize the Bitmovin Player Software; and (ii) to use, reproduce, perform, display, and host the Bitmovin Player Software in order to provide Company’s products that utilize the Bitmovin Player Software to End Users.
      2. Sublicensing Rights to the Bitmovin Player Software.  Subject to the terms of the Agreement, during the Term, Company may sublicense to: (i) its End Users the rights to use, perform, display, reproduce and host the Bitmovin Player Software solely to the extent such rights are necessary for such End User’s use of the Bitmovin Player Software as part of Company’s products; and (ii) to third party intermediaries including distributors, resellers and VARs (“Distribution Channels”): (a) the rights to use, perform, display, reproduce, distribute, sell, import and offer for sale the Bitmovin Player Software as integrated with Company’s products; and (b) the rights to use, perform, display and reproduce the Bitmovin Player Software and Documentation to the extent required for such Distribution Channels to support their customers or End Users using the Bitmovin Player Software as integrated with the Company’s products. Company will not and will not allow third parties (including Distribution Channels) to offer to sell, sell or distribute the Bitmovin Player Software on a stand-alone basis. Any sublicense between Company and any of the foregoing shall be on terms at least as protective as the terms set out in Company’s own agreement with such party regarding Company’s products.  In no event shall the End User have any right to distribute or to use the Bitmovin Player Software or any other component of the Bitmovin Solution in source code format.
      3. End User License Terms for the Bitmovin Player Software. Company shall, and shall require its End Users, Subscribers, and Distribution Channels to, distribute the Bitmovin Player Software under an enforceable license agreement containing the following minimum terms in favor of Bitmovin (and may name Bitmovin as a “third party” or “supplier” in such agreement): (i) prohibition against modifications and derivative works; (ii) prohibition against decompiling, reverse engineering, disassembling, and otherwise reducing the software to a human-perceivable form; (iii) provision indicating ownership of software by sublicensor and its suppliers; (iv) disclaimer of all applicable statutory warranties, to the full extent permitted by law, and (v) industry standard confidentiality and limitation of liability, including a disclaimer of indirect, special, incidental, punitive, and consequential damages.
      4. Delivery. Upon the execution of the Agreement, Bitmovin shall deliver to Company the Bitmovin Player Software in accordance with the technical specifications set forth in the Documentation. Upon Company’s request, Bitmovin, in its sole discretion, shall provide reasonable assistance and support in the installation and incorporation of the Bitmovin Player Software with Company’s products.
   4. Bitmovin Analytics Service. The terms of this Section 2.4 shall govern Company’s use of the Bitmovin Analytics Service if Company purchases the right to use the Bitmovin Analytics Service on an Order Form.  During the Term, Bitmovin will: (i) manage, operate and maintain on its infrastructure the Bitmovin Analytics Service for remote electronic access and use by Company in substantial conformity with the Documentation and the Agreement; (ii) retain Company Data for the period specified in an Order Form; and (iii) abide by the Service Level Agreement. With respect to any Bitmovin Technologies which are provided to Company by Bitmovin hereunder, subject to the terms of the Agreement, Bitmovin hereby grants Company a non-exclusive, non-transferable, non-sublicensable license to use such Bitmovin Technologies during the Term only in connection with its permitted use of the Bitmovin Analytics Service. Other than the foregoing license, the Agreement confers no license and no title of ownership in the Bitmovin Technologies or the underlying software pertaining to the Bitmovin Analytics Service and may not be construed as a license or sale of any rights in the software pertaining to the Bitmovin Analytics Service.
   5. Support and Maintenance. The terms of this Section 2.5 shall govern Bitmovin’s provision of support and maintenance services which may be part of a Bitmovin Solution License.  In exchange for the Bitmovin Solution License Fees set forth on each Order Form, Bitmovin will provide support and maintenance services for the Bitmovin Solution as set forth in an applicable Order Form and subject to the terms and conditions of the Support and Maintenance Definitions and ServicesSupport Packages Definitions and Services. In exchange for the One-time Integration Fees set forth on each Order Form, if any, Bitmovin will provide one-time support and maintenance services for the Bitmovin Solution as set forth in an applicable Order Form and subject to the terms and conditions of the Integration Packages Definitions and Services.
   6. Documentation Licenses to Company. Subject to the terms and conditions of the Agreement, Bitmovin hereby grants to Company a non-exclusive, worldwide, non-transferable right and license to use, reproduce, perform, display, modify and create derivative works of the Documentation for: (i) Company’s internal purposes including integration work, testing, and support and maintenance of Company’s products that utilize the Bitmovin Solution, and (ii) distribution with Company’s products.       
   7. Company Obligations. Company is solely responsible for: (i) maintaining the confidentiality of its user credentials, passwords and encryption keys (if any) associated with its accounts; (ii) properly configuring the environment(s) and infrastructure in accordance with the Documentation and taking its own steps to maintain appropriate security, protection and backup of Company Content or Encoded Content; (iii) supporting and maintaining the availability of its website(s), the connectivity of its website(s) to the Internet, IP addresses, domain names, hyperlinks, databases, applications and other resources as necessary for Company to operate and maintain its website(s) to meet Company’s business requirements and to utilize the Bitmovin Solution; (iv) all activities that occur with respect to Company’s accounts regardless of whether the activities are undertaken by it, its employees or a third party (including its contractors or agents); and (v) all Company Content. Bitmovin is not responsible for any alteration, compromise, corruption or loss of Company Content or Encoded Content that arises from any access to, sharing or use of Company’s accounts, credentials, passwords or encryption key. Company acknowledges and agrees that Company will not, nor enable any third-party acting on Company’s behalf to, access or attempt to access the Docker or other such so-called containers that Bitmovin utilizes and deploys to provide any Bitmovin software on Company’s systems, if applicable.
   8. Restrictions. In addition to any restrictions set forth in each Order Form, Company will not, except as the Agreement expressly permits: (i) copy, modify or create derivative works or improvements of the Bitmovin Solution, (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Bitmovin Solution or any part thereof to any third party, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service, (iii) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Bitmovin Solution, in whole or in part, (iv) bypass or breach any security device or protection used by the Bitmovin Solution, (v) input, upload, transmit or otherwise provide to or through the Bitmovin Solution, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code; damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Bitmovin Solution or Bitmovin’s provision of products and services to any third party, in whole or in part, (vi) remove, delete, alter or obscure any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Bitmovin Solution, including any copy thereof, (vii) access or use the Bitmovin Solution in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party or that violates any applicable law (and Company represents and warrants that the foregoing is true), (viii) access or use the Bitmovin Solution for purposes of competitive analysis of the Bitmovin Solution, the development, provision or use of a competing software service or product or any other purpose that is to Bitmovin’s detriment or commercial disadvantage, (ix) otherwise access or use the Bitmovin Solution beyond the scope of rights granted under the Agreement, (x) provide to any person or export or re-export or allow the export or re-export of Bitmovin Solution, in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority, or (xi) permit any third party to do any of the foregoing. In addition, Company shall not, and shall not encourage any third party to utilize a network or packet analyzer, a network or packet monitor, a protocol analyzer, a deep packet inspector or similar device or mechanism to either attempt to or to monitor, review, inspect or otherwise gain access to the data that is exchanged between components of the Bitmovin Solution.  In addition, Company will not, and will not allow any third party to: (a) take any action that imposes or may impose (as determined by Bitmovin in its reasonable discretion) an unreasonable or disproportionately large load on Bitmovin’s (or its third party providers’) infrastructure, (b) interfere or attempt to interfere with the proper working of the Bitmovin Solution or any activities conducted on the Bitmovin Solution, or (c) bypass any measures Bitmovin may use to prevent or restrict access to the Bitmovin Solution (or other accounts, computer systems or networks connected to the Bitmovin Solution).  Each party agrees that it will, at all times, comply with all applicable laws, statutes, treaties and regulations to which it is respectively subject.
   9. Changes. Bitmovin reserves the right, in its sole discretion, to make any changes to the Bitmovin Solution that it deems necessary or useful to: (i) maintain or enhance: (a) the quality or delivery of the Bitmovin Solution to its customers, (b) the competitive strength of or market for the Bitmovin Service, or (c) the Bitmovin Service’s cost efficiency or performance, or (ii) comply with applicable laws, rules and regulations.
   10. Open Source Components. The Bitmovin Solution may include Open Source Components and any use of the Open Source Components by Company shall be governed by and subject to the terms and conditions governing such Open Source Components. On written request to Bitmovin, Bitmovin shall provide Company with a complete, machine-readable copy of the source code for such Open Source Components in accordance with the terms of such licenses at no cost to Company.
3. Proprietary Materials and Data Usage; Rights and Restrictions
   1. Company Data and Intellectual Property. As between Company and Bitmovin, Company owns and reserves all of its and its licensors’ right, title and interest to: (i) the Company Content and Encoded Content; (ii) Company Data; (iii) Company’s Confidential Information, and (iv) all Intellectual Property Rights in the foregoing (collectively, the “Company Intellectual Property”). Bitmovin’s use of the Company trademarks and logos shall be in accordance with Company’s then current trademark usage and style guidelines or specific instructions that are provided to Bitmovin. Bitmovin recognizes Company’s exclusive ownership of the Company trademarks and logos and agrees not to take any action inconsistent with such ownership. Except as may expressly be set forth in this Agreement, no right, title, or interest to any of the Company Intellectual Property is transferred or licensed to Bitmovin.  Bitmovin shall not assign, transfer, sell, license, sublicense, or grant any rights to Company Intellectual Property to any other person or entity without Company’s explicit written permission.  Further, Company shall retain all right, title, and interest in any Intellectual Property Rights contained in any permitted modifications to the Bitmovin Player Software which it develops during the Term; provided that, Company hereby grants to Bitmovin a limited, nonexclusive, worldwide, royalty-free, fully paid-up license to use such Intellectual Property Rights solely for the purpose of providing the Bitmovin Solution. Should Bitmovin provide Company with any professional services and related deliverables therein (collectively, and for the purpose of this clause, the “Deliverables”), the following shall apply: Company acknowledges that Bitmovin’s ability to provide the respective Deliverables is predicated on Bitmovin’s timely receipt of information, instructions, software code, and other inputs from Company.  Company shall have exclusive title to and use of all copyrights or trade secrets associated with any and all Deliverables, as defined in the respective Order Form or statement of work, created by Bitmovin or its employees or contractors during the course of creating the Deliverables for Company. Company shall have the sole right to obtain and to hold in its own name copyright, trademark, trade secret, and any other such registrations or protection as may be appropriate to any Deliverable, and any extensions and renewals thereof. All such Work Product made in the course of producing the Deliverables rendered hereunder shall, to the extent possible, be deemed “works made for hire” within the meaning of the Copyright Act of 1976, as amended. Accordingly, Company shall have the unlimited right, in its sole discretion, to adapt, reproduce, add to, delete from, edit, modify, duplicate, distribute, license, perform, display and otherwise use and exploit the Deliverables, including create derivative works, in any manner or media whether now known or hereafter created.   Notwithstanding the foregoing, nothing in any Order Form, statement of work, or this Agreement shall be construed as preventing Bitmovin from developing, producing, or selling other technologies, programmed software, procedures, work-flow methods, reports, manuals, visual aids, Documentation, techniques, inventions, processes concepts, ideas, and the like, which are similar to the Work Product for other Bitmovin customers or for its own internal processes (collectively, the “Bitmovin Materials”); provided that any copyrightable materials from the Work Product or Company Confidential Information are not incorporated in or disclosed by the Bitmovin Materials, respectively.
   2. Company Content License. Subject to the terms of this Agreement, Company grants to Bitmovin a limited, nonexclusive, worldwide, royalty-free, fully paid-up license to use, reproduce and distribute the Company Content as reasonably required for Bitmovin (including its employees, agents and contractors) to perform its obligations or exercise its rights under this Agreement.  In case of Company’s technical problems (server crashes, hosting crash), Bitmovin shall not be liable for the loss of Company Content, Encoded Content, Company Data, or Company’s files or any other customers’ or End Users’ files.
   3. Bitmovin Data and Intellectual Property. As between Company and Bitmovin, Bitmovin owns and reserves all of its and its licensors’ right, title and interest in and to: (i) the Bitmovin Solution, (ii) the Bitmovin Technologies, (iii) the Documentation, (iv) Bitmovin’s Confidential Information, including Resultant Data (vi) any and all software developed or used by Bitmovin to provide the Bitmovin Solution, (vi) any and all enhancements, improvements, developments, derivative works or other modifications made to the foregoing, subject to Section 3.1and (vii) all Intellectual Property Rights in the foregoing (collectively, the “Bitmovin Intellectual Property”). Except as may expressly be set forth in this Agreement, no right, title, or interest to any of the Bitmovin Intellectual Property is transferred or licensed to Company. All rights not expressly granted to Company in this Agreement are reserved by Bitmovin and its licensors.  
   4. Feedback. If Company provides suggestions, feedback or other input to Bitmovin concerning the functionality and performance of the Bitmovin Solution, including identifying potential errors and improvements (“Feedback”), then Company hereby grants Bitmovin and its affiliates a limited, worldwide, non-exclusive, royalty-free, fully paid-up right and license to all Feedback and all Intellectual Property Rights therein (except patent rights and trademark and branding rights) to use, perform, display, reproduce, create derivative works, and otherwise exploit such Feedback for any purpose.  The foregoing license shall be fully transferable and sublicensable.  Nothing in the Agreement shall be construed as to require Company to provide Feedback to Bitmovin.
   5. No Personal Data. Company will not and will not assist or permit any third party to, provide or transfer information to Bitmovin that Bitmovin could use or recognize as personally identifiable information, Personal Data, or sensitive personal information under any applicable laws, rules or regulations. Company will not and will not assist or permit any third party to use the Bitmovin Solution: (i) to violate the privacy or data rights of any person, or (ii) alter, suppress, or otherwise interfere with any End User privacy or data preferences, including all opt-out signals.
4. Fees and Payment Terms.
   1. Fees and Invoicing. As consideration for Bitmovin providing Company with the Bitmovin Solution and the services set forth herein, Bitmovin will invoice Company for, and Company will pay Bitmovin the fees for the applicable Bitmovin Solution License Fees, the Bitmovin Solution Usage Fees, and any other fees payable as set forth in each applicable Order Form (collectively the “Fees”). Commencing on the Effective Date of each applicable Order Form, Bitmovin will invoice Company for the applicable Bitmovin Solution License Fees and Bitmovin Solution Usage Fees for the entirety of such Term in advance. If Company exceeds the Usage Limit with in the Usage Cycle as specified in the applicable Order Form, each additional Billable Minute, Impression, or other limitation, as applicable, over the Usage Limit will be charged at the Overage Fee amount listed in the applicable Order Form.  Bitmovin will calculate the number of Billable Minutes that Company has utilized in a given month in accordance with the method set forth in the Minute Calculation Methodology. Bitmovin will invoice Company for the accrued Overage Fees at the end of each month during the Term, as applicable. If no Usage Cycle or Billing Cycle is specified in the Order Form, both shall be annual. Unless otherwise agreed upon in an Order Form, Company will: (i) pay all invoices in accordance with the Payment Terms set forth of the applicable Order Form, (ii) make all payments hereunder in the currency specified in the applicable Order Form, and (iii) make all payments hereunder by bank transfer, credit or debit card, or other means approved in writing and in advance by Bitmovin. Notwithstanding the foregoing, any delay in Bitmovin’s transmitting an invoice which is attributable to Company’s purchase order requirements or other financial controls, shall not excuse Company’s obligation to make timely payments per the payment schedule contemplated by the Billing Cycle in any Order Form, as measured from the Order Form Effective Date. If not specified in the applicable Order Form, the Fees shall be payable in U.S. Dollars upon receipt of the applicable invoice. Any amounts not paid when due shall bear interest at the rate of one and one-half percent (1.5%) per month, or the maximum legal rate, if less. For clarity, at the inception of the Renewal Term, if any, the applicable Bitmovin Solution License Fees, Bitmovin Solution Usage Fees, and Usage Limit will be pro rated at the annual rate for such Renewal Term.
   2. Taxes. The Fees are exclusive of all taxes, levies or duties imposed by taxing authorities. As between Company and Bitmovin, Company accepts sole responsibility for the payment of any taxes, charges or assessments imposed on Company, the Bitmovin Service, or the fees to be paid to Bitmovin by any foreign or domestic national, state, or local government bodies, or subdivisions thereof, and any penalties or interest (other than income taxes imposed on Bitmovin’s revenue). Notwithstanding the foregoing, Bitmovin will invoice, collect, and remit on Company’s behalf sales and use taxes for the US States: New York, Texas, Utah, and Washington, or other jurisdiction as the parties may agree, based on the billing address reported to Bitmovin by Company.
   3. No Deductions or Setoffs. All payment obligations under the Agreement are non-cancellable, and other than as provided in the Agreement, all amounts paid are non-refundable and shall be paid by Company to Bitmovin in full without any setoff, deduction, or withholding for any reason.
   4. Increases. The Fees are valid for the Initial Term of the Order Form. Bitmovin reserves the right to modify the Fees in its reasonable discretion at any time after one (1) year from the Effective Date of any Order Form, upon at least sixty (60) days prior notice to Company.  Notwithstanding the foregoing, if prior to the Effective Date of any Order Form for the Bitmovin Encoding Service, Company has provided video assets and configurations in order to obtain a pricing quote which has become the basis of the Fees contained in any such Order Form, and if Company’s actual encoded files vary significantly from such previously provided assets and configurations, then Bitmovin shall have the right to increase those Fees for the Bitmovin Encoding Service to match such variance for the remainder of the Order Form Term.  Bitmovin shall have the right to charge different prices for each of Company’s Affiliates under each applicable Order Form if such Affiliate’s use of the Bitmovin Solution is likely to vary materially (as determined on a good faith pro rata basis).
5. Term and Termination
   1. Term. The Agreement begins on the Effective Date and continues in full force and effect until terminated pursuant to the Agreement or until the expiration or termination of all Order Form Terms (the “Term”).
   2. Term of Order Form; Renewal. The Initial Term for the provision of the Bitmovin Solution will be as set forth in each applicable Order Form and will commence on the Service Start Date. The term of each Order Form will automatically renew for additional one-year terms after the Initial Term (each, a “Renewal Term” and with the Initial Term, the “Order Form Term”), unless: (i) either party gives the other party written notice of its intent not to renew the applicable Order Form at least ninety (90) days prior to the end of the then-current term, or (ii) the Order Form is terminated as provided for in the Agreement. Unless otherwise provided for, in the event the Agreement is terminated prior to the end of an Order Form Term, all of the terms and conditions of the Agreement will survive and continue to apply to such Order Form until the termination or expiration of such Order Form.
   3. Termination. Either party may terminate the Agreement or any Order Form with immediate effect, in whole or in part, by giving the other party prior written notice, if the other party: (i) commits a material breach of any of its obligations under the Agreement or an Order Form (as applicable), which breach is not cured within thirty (30) days following receipt of written notice, or that cannot be cured within thirty (30) days, (ii) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due, (iii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency laws, (iv) makes or seeks to make a general assignment for the benefit of its creditors, or (v) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. 
   4. Suspension of Bitmovin Solution. Bitmovin may, directly or indirectly, suspend or otherwise deny Company’s or any other third party’s access to or use of all or any part of the Bitmovin Solution or Bitmovin Technologies, without incurring any resulting obligation or liability, if: (i) Bitmovin receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Bitmovin to do so, or (ii) Bitmovin believes, in its good faith and reasonable discretion, that: (a) Company has failed to comply with, any material term of the Agreement, or accessed or used the Bitmovin Solution beyond the scope of the rights granted or for a purpose not authorized under the Agreement or in any manner that does not comply with any material instruction or requirement of the Documentation, (b) Company is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities, or (c) in order to maintain the integrity of the Bitmovin Solution or Bitmovin Technologies until a threat to such integrity has been resolved. This Section 5.4 does not limit any of Bitmovin’s other rights or remedies, whether at law, in equity or under the Agreement.
   5. Effect of Termination; Survival. When the Agreement or any Order Form terminates or expires: (i) Company will no longer have the right to use the Bitmovin Solution referenced in each terminated or expired Order Form, and any licenses grants to Company in the Agreement with respect to each terminated or expired Order Form will immediately cease to exist as of the date of termination or expiration, (ii) if Company owes Bitmovin any Fees prior to such termination/expiration, Company will be invoiced for those Fees immediately and will pay them in accordance with Section 4, and (iii) Company will destroy all copies of the applicable Bitmovin Solution in its possession or control. Sections 1 (Definitions), 3 (Proprietary Materials and Data Usage; Rights and Restrictions), 4 (Fees and Payment Terms) (with respect to payment obligations incurred during the Term) 5.5 (Effect of Termination; Survival), 6 (Confidential Information), 8 (Limitation of Liability), 9 (Indemnity), and 10 (General), including, without limitation, all Order Forms, exhibits and other attachments hereto, that may be reasonably interpreted as surviving termination or expiration of the Agreement, will survive the termination or expiration of the Agreement.
6. Confidential Information.
   1. Definition of Confidential Information and Obligations. Each party (the “Receiving Party”) acknowledges that by reason of its relationship to the other party (the “Disclosing Party”) under the Agreement, the Receiving Party will have access to certain information and materials, including the terms of the Agreement and each Order Form, concerning the Disclosing Party’s business, plans, technology, products and services that are confidential and of substantial value to the Disclosing Party, which value would be impaired if such information were disclosed to third parties (“Confidential Information”). The Receiving Party will use the same degree of care as the Receiving Party uses to protect its own confidential or proprietary information of like kind, but with no less than reasonable care, to: (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its employees and contractors who need access for purposes consistent with this Agreement and have signed confidentiality agreements containing terms not materially less protective of Confidential Information than the terms set forth herein.  Upon request by the Receiving Party, the Disclosing Party shall advise whether or not it considers any particular information to be Confidential Information.  The Receiving Party shall not publish any technical description of the Disclosing Party’s Confidential Information beyond any descriptions published by the Disclosing Party.  In the event of expiration or termination of the Agreement, there shall be no use or disclosure by the Receiving Party of any Confidential Information of the Disclosing Party, and the Receiving Party shall not develop any software, devices, components or assemblies utilizing the Disclosing Party’s Confidential Information. If the parties have signed a non-disclosure agreement in contemplation of the Agreement such non-disclosure agreement shall be automatically terminated and replaced by the confidentiality provisions of the Agreement as of the first such Effective Date.
   2. Exclusions. Confidential Information does not include any information that the Receiving Party can demonstrate by written records: (i) was known to the Receiving Party prior to its disclosure under the Agreement by the Disclosing Party, (ii) is independently developed by the Receiving Party, (iii) is or becomes publicly known through no wrongful act of the Receiving Party, (iv) has been rightfully received from a third party whom the Receiving Party has reasonable grounds to believe is authorized to make such disclosure without restriction, (v) has been approved for public release by the Disclosing Party’s prior written authorization, or (vi) must be produced or disclosed pursuant to applicable law, regulation or court order,  or upon request by an examiner, auditor or regulator provided that the Receiving Party provides prompt advance notice thereof to enable the Disclosing Party to seek a protective order or otherwise prevent such disclosure.  In addition, either party may disclose the existence and terms of the Agreement in connection with a potential acquisition of substantially the entire business of such party or a private or public offering of such party’s securities.
   3. Return. Upon the earlier of the Disclosing Party’s request or the termination or expiration of the Agreement and/or Order Form(s), the Receiving Party shall, at the Disclosing party’s option, promptly return to the Disclosing Party or destroy all Confidential Information including all copies thereof, in whatever medium in its possession or control; and in either event, will certify in writing to the Disclosing Party that such actions have all been completed. Notwithstanding the foregoing, copies of the Confidential Information can be retained on a confidential basis if they are electronically archived in accordance with Bitmovin’s archival and deletion policies, and the obligations of confidentiality set out herein shall survive with respect to, and continue to apply to, such Confidential Information.
7. Warranties.
   1. Mutual Warranties. Each party represents and warrants to the other that it has the right, power, and authority to enter into the Agreement and perform its obligations hereunder. 
   2. Limited Warranty. During the Term, Bitmovin warrants solely to Company that the Bitmovin Solution will materially conform to Bitmovin’s then-current Documentation under normal use and circumstances. Further, Bitmovin warrants solely to Company that Bitmovin maintains security practices designed to guard against the introduction of Harmful Code into the Bitmovin Technology.  If Company notifies Bitmovin of a breach of the foregoing warranties, Bitmovin will, at its option, either: (a) correct the nonconformity in the Bitmovin Solution or Bitmovin Technology, or (b) issue Company a credit or refund of a portion of the Fees paid by Company for the nonconforming Bitmovin Solution that fairly reflects (at Bitmovin’s reasonable determination) the diminished value of the nonconforming component of the Bitmovin Solution. The foregoing constitutes Company’s sole and exclusive remedy for any breach of this limited warranty.
   3. Additional Warranty. Company represents and warrants that the information it provides to Bitmovin regarding its prospective usage (including but not limited to video assets, configurations, bit-rate ladders, usage, etc.) in order to obtain a pricing quote and which has become the basis of the Fees contained in any such Order Form is truthful, accurate, and complete, to the best of its knowledge.
   4. Disclaimer of Warranties. EXCEPT AS OTHERWISE SET FORTH IN THE AGREEMENT, THE BITMOVIN SOLUTION IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND, TO THE MAXIMUM EXTENT PERMITTED BY MANDATORY LAW, BITMOVIN EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
8. Limitation of Liability. IN NO EVENT WILL BITMOVIN BE LIABLE TO COMPANY OR ANY THIRD PARTY FOR ANY DAMAGES WHATSOEVER WITH RESPECT TO COMPANY’S OR SUCH THIRD PARTY’S USE OF THE BITMOVIN SOLUTION, INCLUDING WITHOUT LIMITATION ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR SPECIAL DAMAGES EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. BITMOVIN HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF COMPANY DATA, COMPANY CONTENT OR ENCODED CONTENT.  IN ALL EVENTS, BITMOVIN’S LIABILITY TO COMPANY FOR CLAIMS OR DAMAGES RELATED TO THE AGREEMENT OR THE BITMOVIN SOLUTION WILL IN NO EVENT EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY COMPANY TO BITMOVIN UNDER THE AGREEMENT IN THE PRECEDING TWELVE MONTHS FROM THE DATE OF THE CLAIM OR EVENT THAT GAVE RISE TO THE LIABILITY. TO THE EXTENT THAT IN A PARTICULAR CIRCUMSTANCE ANY DISCLAIMER OR LIMITATION ON DAMAGES OR LIABILITY SET FORTH HEREIN IS PROHIBITED BY APPLICABLE LAW, THEN, INSTEAD OF THE PROVISIONS HEREOF IN SUCH PARTICULAR CIRCUMSTANCE, BITMOVIN WILL BE ENTITLED TO THE MAXIMUM DISCLAIMERS AND/OR LIMITATIONS ON DAMAGES AND LIABILITY AVAILABLE BY SUCH APPLICABLE LAW IN SUCH PARTICULAR CIRCUMSTANCE AS PROVIDED ABOVE, AND TO THE MAXIMUM EXTENT PERMITTED BY MANDATORY LAW.
9. Indemnity.
   1. Bitmovin Indemnification. Bitmovin shall defend Company and Company’s officers, directors, employees, and agents (each, a “Company Indemnitee”) from and against any claim, suit, action or proceeding brought against a Company Indemnitee by a third party alleging that the Bitmovin Solution (excluding Company Content and Open Source Components) infringes a U.S. Intellectual Property Right of such third party (a “Claim Against Company”), and will indemnify Company Indemnitee from any damages, attorney fees and costs finally awarded against Customer Indemnitee as a result of, or amounts actually paid by Customer Indemnitee under settlements approved in advance by Bitmovin of, a Claim Against Company. The foregoing obligation does not apply to any Claim Against Company arising out of or relating to any: (a) access to or use of the Bitmovin Solution not in accordance with the Agreement, (b) modification of Bitmovin Solution other than: (1) by or on behalf of Bitmovin, or (2) with Bitmovin’s written approval in accordance with Bitmovin’s written specification or Documentation, (c) the use or combination of the Bitmovin Solution or any part thereof with software, hardware, data, or processes not provided by Bitmovin, if the Bitmovin Solution or Company’s use thereof would not infringe without such use or combination, (d) failure to timely implement any modifications, upgrades, replacements, enhancements, Upgrades made available to Company by or on behalf of Bitmovin, (e) the Deliverables, (f) either the HLS protocol, the MPEG-DASH standard or the H.264, VP9, AV1, or HEVC codecs, or (g) act, omission or other matter described in Section 9.2, whether or not the same results in any Claim Against Bitmovin. 
   2. Company Indemnification. Company shall defend Bitmovin and each of its officers, directors, employees, and agents (each, a “Bitmovin Indemnitee”) from and against any claim, suit, action or proceeding brought against a Bitmovin Indemnitee by a third party alleging: that: (i) any Company Content, including any processing of Company Content by or on behalf of Bitmovin in accordance with the Agreement, or (ii)  any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Company, and any customer of Company or End User, including Bitmovin’s compliance with any specifications or directions provided by or on behalf of Company to the extent prepared without any contribution by Bitmovin, infringes or misappropriates such third party’s intellectual property rights, or arising from Company’s use of the Bitmovin Solution in an unlawful manner or in violation of the Agreement, the Documentation, or an Order Form (each, a “Claim Against Bitmovin”), and will indemnify Bitmovin Indemnitee from any damages, attorney fees and costs finally awarded against Bitmovin Indemnitee as a result of, or amounts actually paid by Bitmovin Indemnitee under settlements approved in advance by Company of, a Claim Against Bitmovin.
   3. Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 9.1 or 9.2, as the case may be. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 9.3 will not relieve the Indemnitor of its obligations under this Section 9 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
   4. Mitigation. If the Bitmovin Solution, or any component thereof, is, or in Bitmovin’s opinion is likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right then, Bitmovin may, at its option and expense: (i) obtain the right for Company to continue to use the Bitmovin Solution materially as contemplated by the Agreement, (ii) modify or replace the Bitmovin Solution, in whole or in part, to seek to make the Bitmovin Solution (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Bitmovin Solution, as applicable, under the Agreement, or (iii) by written notice to Company, terminate the Agreement and require Company to immediately cease any use of the Bitmovin Solution, and will provide to Company a refund of any fees pre-paid by Company as of such termination.
   5. Losses. For the purposes of this Section 9, “Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
   6. LIMITATION. THIS SECTION 9 SETS FORTH COMPANY’S SOLE REMEDIES AND BITMOVIN’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED ACTIONS THAT THE AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE BITMOVIN SOLUTION) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT.
10. General.
    1. Governing Law, Jurisdiction. The Agreement and all rights and obligations of the parties will be exclusively governed by, and construed and interpreted in accordance with the laws of the State of California (without regard to conflict of law principles). Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the federal or state courts sitting in the County of San Francisco, California, and any appellate court of such court, solely for the purpose of any suit, action or proceeding brought to enforce its obligations under the Agreement or in any way relating to the Agreement. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act will not apply to the Agreement.
    2. Remedies. The parties acknowledge that any actual or threatened breach of Sections 2 (Grant of Rights, License Grant, and Restrictions; Bitmovin Solution) or 6 (Confidential Information) will constitute immediate, irreparable harm to the non-breaching party, for which monetary damages may be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. If any legal action is brought to enforce the Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses from the non-prevailing party, in addition to any other relief the prevailing party may receive.
    3. Entire Agreement. The Agreement, together with all Order Forms, Insertion Orders, and documents, which are incorporated into and made a part of the Agreement, contain the entire understanding of the parties relating its subject matter and supersedes any prior written or oral agreement or understandings between the parties with respect to its subject matter of the Agreement. Except as otherwise set forth in the Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
    4. Trademarks. Except as expressly permitted in the Agreement, Bitmovin shall not use any trademark, service mark, trade name, or other name or logo of Company in any advertising or publicity and shall not issue any public statement concerning the Agreement or the products and services rendered hereunder without the prior written consent of Company.
    5. Severability. If any provision of the Agreement shall be held to be invalid or unenforceable, the remainder of the Agreement shall remain in full force and effect. To the extent any express or implied restrictions are not permitted by applicable laws, these express or implied restrictions shall remain in force and effect to the maximum extent permitted by such applicable laws. The parties will work in a spirit of partnership to find an arrangement that approximates as nearly as possible the inoperative terms. Without limiting the generality of the foregoing, Company agrees that Section 8 (Limitation of Liability) will remain in effect notwithstanding the unenforceability of any provision in Section 7 (Warranties and Disclaimers).
    6. Assignment. Neither party is allowed to assign or transfer any of its rights or obligations in the Agreement, in whole or in part, by operation of law or otherwise, without the other party’s prior written consent, and any attempt by Company to do so without Bitmovin’s consent will be null and void. Notwithstanding the foregoing, either party may assign the Agreement in its entirety, upon notice to the other party but without the requirement to obtain consent, in connection with a merger, acquisition, corporate reorganization, or sale of the party’s equity or assets.
    7. Force Majeure. Except with respect to obligations to make payments under the Agreement, neither party shall be deemed in default under the Agreement, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations under the Agreement due to causes beyond its reasonable control including, but not limited to:  earthquake, flood, fire, storm or other natural disaster, act of God, labor controversy or threat thereof, civil disturbance or commotion, disruption of the public markets, war or armed conflict or any change in or the adoption of any law, ordinance, rule, regulation, order, judgment or decree.
    8. Relationship of the Parties. Bitmovin is an independent contractor of Company.  The Agreement shall not be construed to and does not create a relationship of agency, partnership, employment or joint venture.  Neither party has the authority to bind the other or create any legal obligation or responsibility for the other without the other party’s prior written consent. The inclusion of portions of the Agreement in Bitmovin’s arrangements with its consultants or subcontractors shall not create a contractual relationship between a consultant or subcontractor of Bitmovin and Company.        
    9. Notice. Any legal notice, request, demand or other communication required or permitted under the Agreement should be in writing, should reference the Agreement, and will be deemed to be properly given: (i) upon receipt, if delivered personally; (ii) upon confirmation of receipt by the intended recipient, if by e-mail; (iii) five (5) business days after it is sent by registered or certified mail, with written confirmation of receipt; or (iv) three (3) business days after deposit with an internationally recognized express courier, with written confirmation of receipt. Notices should be sent to the address(es) set forth in the Order Form, unless the parties have notified each other in writing that those addresses have changed.
    10. Amendments. Alterations or modifications of the Agreement will be valid only if made in a writing signed by both parties and such writing makes clear the terms to be changed. For purposes of clarity, the Additional Terms and Conditions section of a valid Order Form, may vary certain provisions of this Bitmovin Master Service Terms and Conditions should such Order Form make clear the terms to be modified. No purchase order or other such instrument issued by Company shall vary the legal terms of the Agreement or any Order Form hereunder, regardless of whether such purchase order or other instrument is accepted by Bitmovin. Agreement may incorporate by reference certain terms and schedules via links to webpages (the “Online Schedules”).  Bitmovin may not materially alter the Schedules and any such changes will have no force or effect unless modified in a manner consistent with this Section ‎10.10.  Notwithstanding the foregoing, Bitmovin may amend the Online Schedules and the Bitmovin Master Service Terms and Conditions to accommodate new products and new features not offered by Bitmovin as of any given Service Start Date (the “Permissible Modifications”).  The Permissible Modifications shall only apply prospectively to such new products and new features when purchased by Company subject to a valid Order Form or when Company utilizes such new features where applicable.
    11. Headings for Convenience Only. The division of the Agreement into sections is for convenience of reference only and shall not affect the interpretation or construction of the Agreement.

End of Bitmovin Master Service Agreement

DATE: January 1, 2023

Bitmovin Inc
1550 Wewatta St, Suite 200
Denver, CO 80202
US

Bitmovin GmbH
Schleppe Platz 7, Top 4.3
9020 Klagenfurt
Austria