The following Terms of Service (“Terms” or “Agreement”) constitute a legal agreement between you or the entity or company that you represent (“Customer” or “You”) and Bitmovin, Inc. (“Bitmovin”), which governs Customer’s use of the Services (as defined in Section 1 below). Customer’s use of the Services is subject to the terms and conditions set forth below and Bitmovin’s privacy policy, found at https://bitmovin.com/terms/ incorporated herein by reference, so please take the time to fully understand how these Terms and Bitmovin’s privacy policy govern Customer’s relationship with Bitmovin and Customer’s use of the Services. The Services are available only to individuals who are at least 18 years old. If Customer is an individual, Customer represents and warrants that Customer is at least 18 years old.

CUSTOMER’S RIGHT TO USE THE SERVICES IS EXPRESSLY CONDITIONED ON ACCEPTANCE OF THESE TERMS. BY CLICKING ON THE “ACCEPT” BUTTON AND/OR USING THE SERVICES, YOU ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCESSING THE SERVICES ON BEHALF OF YOUR EMPLOYER OR ANOTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO AGREE TO THESE TERMS ON ITS BEHALF. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

1. Definitions

“Bitmovin Software” means: (a) the player software development kit and associated documentation provided to Customer by Bitmovin, including, but not limited to, one or more of the following: the object or binary 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, (b) any and all updates and fix releases thereto, and (c) any other documentation or source code or object or binary code provided by Bitmovin under this Agreement that is intended to assist Customer in integration work and development of the Combined Product. For purposes of the Agreement, this Bitmovin Software may be deemed a part of the Services.

“Confidential Information” means all trade secrets, know-how, inventions, developments, software and other non-public or proprietary financial, business or technical information disclosed by or for a party in relation to this Agreement, but not including any information the receiving party can demonstrate is: (a) already rightfully known by it without restriction, (b) rightfully furnished to it by a third party without restriction and without breach of any obligation to the disclosing party, (c) generally available to the public without breach of this Agreement or (d) independently developed by it without reliance on the Confidential Information of the disclosing party.

“Content” means all text, software, scripts, graphics, photos, sounds, music, videos, audiovisual combinations, and other materials that may be viewed on, accessed through, or contributed to the Services.

“Customer Content” means Content contributed to the Services by Customer.

“Customer Data” means all Customer registration information and other data that Customer provides to Bitmovin in connection with providing the Services.

“Documentation” means the manuals, instructions, documentation and materials that Bitmovin makes generally available to its customers available at: https://bitmovin.com/support/ and the specific documentation that Bitmovin provides to Customer hereunder.

“Order Form” means the ordering document for certain Bitmovin products and services that is entered into between Bitmovin and Customer and that may contain mutually agreed upon additional terms, each of which are incorporated herein and governed by the terms of this Agreement.

“Plan” means Bitmovin’s free or any paid plans, as applicable and as further described on Bitmovin’s website available at: https://bitmovin.com/pricing/.

“Services” means all of the products and services provided by Bitmovin to Customer under this Agreement.

“Systems” means modems, servers, software, network and communications equipment and ancillary services that are owned, controlled or procured by Customer.

“Updates” means any patch, revision, update or release to the Services delivered by Bitmovin.

2. Services

2.1 Services. Subject to all terms and conditions of this Agreement, Bitmovin will use commercially reasonable efforts to provide the Services to Customer and Customer may access and use such Services in accordance with this Agreement. Bitmovin may provide the Services to Customer directly, or indirectly using contractors or other third-party vendors or service providers.

2.1.1. Bitmovin Software.  If Customer has signed up for the Bitmovin Software, then subject to the terms and conditions of this Agreement, Bitmovin hereby grants to Customer the following non-exclusive, revocable, limited worldwide, non-transferable rights and licenses in and to the Bitmovin Software: (a) to use, copy, reproduce, perform, display, modify and create derivative works of the Bitmovin Software for Customer’s internal purposes including integration work, testing, and support and maintenance of the Combined Products (as defined below), and (b) to use, reproduce, perform, display, and host the Bitmovin Software as combined with the Customer Product (as defined below) in order to make Combined Products available to Customer’s customers. For purposes of this Section, (i) “Customer Product” means Customer’s products and services that Customer sells, licenses or otherwise makes available for access and use by Customer’s customers and end users, and (ii) “Combined Product” means the Customer Product that incorporates the Bitmovin Software as permitted in this Agreement.

Customer shall have the right to use the standard terms and conditions under which it typically markets and sells the Customer Products when marketing and/or licensing the Bitmovin Software as part of such Combined Products.  Customer shall include in its standard form software license terms, for the benefit of Bitmovin, a warranty disclaimer, confidentiality and limitation of liability provisions (including exclusion of liability for consequential damages) that are materially similar to those set forth herein.  Bitmovin agrees that Customer may refer to Bitmovin as a “third party” in the standard form license terms.  Any sublicense between Customer to its customers shall be on terms at least as protective as the terms set forth herein.  In no event shall Customer have any right to distribute the Bitmovin Software or to use the Bitmovin Software in source code format. Customer shall remain liable at all times for the acts and omissions of its customers in connection with the Services.

2.2 Usage.  Use of the Services by Customer shall not unreasonably interfere with use of the Services by other Bitmovin customers. All Plans and Order Forms may have an associated usage limit as specified on the pricing page of the Bitmovin website (https://Bitmovin.com/pricing) or the applicable Order Form. Monthly and annual limits are calculated based on calendar months and years, respectively, and are based on the date of account activation. Unless otherwise agreed upon in an Order Form, once an account reaches its applicable usage limit, Customer will be notified and given the option of either: (a) upgrading to a Plan with a higher usage limit, or (b) paying for extra usage at the then current overage rate for your account (unless otherwise previously mutually agreed upon in an Order Form).

2.3 Security Measures; Passwords.  Customer may access the Services as Bitmovin instructs through a combination of one or more user names and passwords. Customer shall take full responsibility and liability for the security of each of its user names and passwords, and shall be solely responsible for all use of the Services through such user names or passwords. Customer agrees to immediately notify Bitmovin of any unauthorized use of the Services or any other breach of security known to Customer.

2.4 Prohibited Uses.  Except as expressly permitted herein, Customer agrees that it will not, nor allow any third-party on its behalf, to use or otherwise interact with the Services in a manner that:

  • infringes or violates the intellectual property rights or any other rights of any other person or entity (including Bitmovin);
  • violates any law, rule or regulation;
  • is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, pornographic, contains or depicts nudity, or otherwise objectionable, as determined by Bitmovin in its sole discretion;
  • jeopardizes the security of Customer’s Bitmovin account or anyone else’s (such as allowing someone else to log in to the Services as Customer)
  • attempts, in any manner, to obtain the password, account, or other security information from any other user;
  • violates the security of any computer network, or cracks any passwords or security encryption codes;
  • runs Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure);
  • “crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or Content (through use of manual or automated means);
  • copies or stores any significant portion of the Content;
  • decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services;
  • use any of Bitmovin’s Confidential Information to create any software, Documentation or service that is similar to the Services or any Documentation provided in connection therewith;
  • modify, translate, or otherwise create derivative works of any part of the Services or Documentation; or
  • copy, license, sublicense, sell, resell, encumber, rent, lease, time-share, distribute, transfer or otherwise use or exploit or make available the Services in any service bureau arrangement or otherwise for the benefit of any third party without the prior written consent of Bitmovin.

Customer shall comply all applicable local, state, national and international laws and regulations, including, without limitation, any export control laws or regulations of the United States of America or any other relevant jurisdiction. Finally, Customer must be a human. Access to the Services by “bots” or other automated methods is not permitted.

2.6 Changes to Services. Bitmovin reserves the right to modify or discontinue any Services or Plan (in whole or in part) at any time.

2.7 Changes to Terms. We reserve the right to change the terms and conditions of this Agreement at any time, and if we do, we may bring material changes to your attention by placing a notice on the Bitmovin website, by sending you an email, and/or by some other means. If you don’t agree with the new terms and conditions, you are free to reject them and terminate this Agreement; unfortunately, that means you will no longer be able to use the Services and will not be provided a refund for any fees pre-paid. If you use the Services in any way after a change to this Agreement is effective, that means you agree to all of the changes. Except for changes by us as described here, no other amendment or modification of this Agreement will be effective unless in writing and signed by both you and us.

2.8 Limitations. Bitmovin will not be responsible or liable for any failure in the Services resulting from or attributable to: (a) Customer’s Systems, Customer Data or the Customer Content, (b) network, telecommunications or other service or equipment failures outside of Bitmovin’s facilities, (c) Customer’s or third party’s products (including open source software utilized in the Services), services, negligence, acts or omissions, (d) any force majeure or cause beyond Bitmovin’s reasonable control, (e) scheduled maintenance or (f) unauthorized access, breach of firewalls or other hacking by third parties.

2.9 Systems. Customer shall obtain and operate all Systems needed to connect to, access or otherwise use the Services, and provide all corresponding backup, recovery and maintenance services. Customer shall ensure that all Systems are compatible with the Services. Customer shall maintain the integrity and security of its Systems (physical, electronic and otherwise).

3. Support and Maintenance

3.1 Support. Bitmovin will use commercially reasonable efforts to provide Customer with support and maintenance services for the Services in accordance with its standard practices (as amended from time to time) or as mutually agreed upon in an Order Form, if any. Unless otherwise agreed upon in an Order Form, Customer agrees that Bitmovin will have the right to charge in accordance with its then current policies for any support services resulting from problems, errors or inquiries relating to Systems or any other network, equipment, service or software not owned, controlled or procured by Bitmovin.

3.2 Updates. Unless otherwise agreed upon in an Order Form, Bitmovin shall have no obligation to provide Updates, except that Bitmovin will provide Customer with any Update that it makes generally available without charge to its similar customers.

4. Proprietary Rights

4.1 Services. Except for Customer Content, Bitmovin (and its licensors) own all right, title and interest in and to the Services and all modifications, enhancements and Updates to the Services (including all intellectual property and proprietary rights embodied therein). Bitmovin reserves all rights not expressly granted hereunder. Customer shall not take any action inconsistent with such rights. Customer shall not alter, obscure or remove any trademark, patent legend or other proprietary or legal notice. Other than the express licenses set forth herein, this Agreement confers no license and no title of ownership in the Services or the underlying software pertaining to the Services and may not be construed as a license or sale of any rights in the software pertaining to the Services.

4.2 Customer Content. Customer owns all right, title and interest in and to the Customer Content. Customer hereby grants Bitmovin a royalty-free, fully paid-up, irrevocable, worldwide license to use, process and otherwise exploit the Customer Content as necessary to provide the Services to Customer and its customers. Customer is responsible for all Customer Content, and Customer represents and warrants it has all rights necessary to grant the rights in the Customer Content set forth in this Agreement.

4.3 Customer Data. As between the parties, Customer shall own all Customer Data. Bitmovin shall not disclose to third parties or use any Customer Data except as reasonably necessary to provide the Services or to comply with any legal, regulatory or similar requirement or investigation. Notwithstanding the foregoing, during and after the term of this Agreement, Bitmovin may use aggregated and anonymous Customer Data, as combined with other Bitmovin customers’ data, to improve and/or market the Services or develop, market and sell new products and services; provided that Customer is never identified as the source of such Customer Data. Customer hereby grants Bitmovin a nonexclusive and royalty-free right and license to use the Customer Data solely for the purposes described above.

4.4 Indemnity. Customer agrees to defend, indemnify and hold harmless Bitmovin and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorneys’ fees) arising from: (a) Customer’s use of the Services, (b) violation of this Agreement, (c) the use of the Customer Data or Customer Content in connection with the provision of Services, or (d) Customer’s violation of any applicable law, rule or regulation.

5. Confidentiality

5.1 Confidentiality. Except for the specific rights granted by this Agreement, the receiving party shall not use or disclose any of the disclosing party’s Confidential Information without its written consent, and shall use reasonable care to protect the other’s Confidential Information, including ensuring that its employees and contractors with access (a) have a need to know for the purposes of this Agreement and (b) are bound by obligations of confidentiality at least as protective as those provided herein. Each party shall be responsible for any breach of confidentiality by its employees, contractors, and agents. Each party may disclose only the general nature, but not the specific terms, of this Agreement without the prior consent of the other party; provided, either party may provide a copy of this Agreement or otherwise disclose its terms in connection with any financing transaction or due diligence inquiry, provided that the party to whom such information is disclosed is bound by confidentiality obligations substantially similar to those herein and the party disclosing such information is responsible for any breaches of confidentiality by the party to whom such information is disclosed.

5.2 Compelled Disclosure. Nothing herein shall prevent a receiving party from disclosing any Confidential Information as necessary pursuant to any court order, lawful requirement of a governmental agency or when disclosure is required by operation of law (including disclosures pursuant to any applicable securities laws and regulations); provided, that prior to any such disclosure, the receiving party shall use reasonable efforts to: (a) promptly notify the disclosing party in writing of such requirement to disclose, and (b) cooperate with the disclosing party in protecting against or minimizing any such disclosure or obtaining a protective order.

5.3 Effect of Termination. Promptly after any termination or expiration of this Agreement (or at the disclosing party’s request at any other time), the receiving party shall return all of the other’s tangible Confidential Information, permanently erase all Confidential Information from any storage media and destroy all information, records and materials developed therefrom. Notwithstanding the foregoing, Bitmovin may retain and use Customer Data, as combined with other Bitmovin customers’ data, solely to improve and/or market the Services, even after termination or expiration of the provision of Services to Customer.

6. Payments

6.1 Fees. Customer agrees to pay Bitmovin the fees in the amounts and at the times specified in the selected Plan or the applicable Order Form.

6.2 Credit Card Information. In order to set up an account with Bitmovin, Customer must provide Bitmovin with accurate and complete billing information including legal name, address, telephone number, and a valid credit card. By submitting such credit card information, Customer gives Bitmovin permission to charge all fees incurred through its account or set forth on the applicable Order Form to the designated credit card. Bitmovin reserves the right to terminate this Agreement in accordance with Section 9.2 hereto if Customer does not provide a valid credit card for the payment of fees hereunder.

6.3 Payment Terms. Unless otherwise agreed upon in an Order Form, the Services are billed in advance on a monthly or annual basis, depending upon which Plan Customer chooses. Bitmovin will not provide refunds or credits in the case of cancellations, downgrades, or when there are unused portions of the Services on an open account. For any Services upgrade, the additional fee for the Services upgrade for the remainder of the current term (i.e. either month or year) will automatically be charged to the Customer’s credit card at the time of the upgrade. All future recurring charges for the Services will follow the monthly or annual billing cycle (as chosen by the Customer).

6.4 Taxes. All payments are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes). Customer will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with Customer’s activity in connection with the Services, excluding taxes based upon Bitmovin’s net income. All amounts due hereunder shall be grossed-up for any withholding taxes imposed by any foreign government.

7. Limited Warranty and Disclaimers

7.1 Limited Warranty. Bitmovin warrants that it will provide the Services in a manner substantially consistent with the applicable Documentation. Notwithstanding the foregoing, the Services may be temporarily unavailable, for example, when deemed reasonably necessary or prudent by Bitmovin to repair, maintain or upgrade the Services or for causes beyond Bitmovin’s reasonable control. Customer’s sole remedy and Bitmovin’s sole liability for breach of this representation and warranty will be Bitmovin’s, at Bitmovin’s expense, repair or replace the Services so that the Services conform to such warranty.

7.2 Disclaimers. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. BITMOVIN DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED BY LAW, BITMOVIN HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.

CUSTOMER UNDERSTANDS AND AGREES THAT ANY CUSTOMER DATA, CUSTOMER CONTENT, ACCOUNT HISTORY AND ACCOUNT CONTENT RESIDING ON BITMOVIN’S SERVICES, SYSTEMS OR SERVERS MAY BE DELETED AT ANY TIME FOR ANY REASON IN BITMOVIN’S SOLE DISCRETION, WITH OR WITHOUT NOTICE AND WITH NO LIABILITY OF ANY KIND. WE DO NOT PROVIDE OR GUARANTEE, AND EXPRESSLY DISCLAIM, ANY VALUE, CASH OR OTHERWISE, ATTRIBUTED TO ANY DATA RESIDING ON BITMOVIN’S SERVICES, SYSTEMS OR SERVERS. CUSTOMER SHOULD BE ABSOLUTELY SURE TO KEEP SECURE COPIES OF YOUR DATA, INCLUDING CUSTOMER CONTENT, IN YOUR SYSTEMS OR IN OTHER SECURE STORAGE. YOU SHOULD NOT RELY ON US TO PROVIDE COPIES OF OR ACCESS TO YOUR DATA OR CUSTOMER CONTENT.

8. Limitation of Liability. EXCEPT FOR DEATH, BODILY INJURY OR FRAUD, OR TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF ITS LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW, IN NO EVENT SHALL BITMOVIN BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL (INCLUDING ANY ERROR OR DAMAGE ATTRIBUTABLE TO ANY NETWORK OR SYSTEM), (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, OR (D) DIRECT DAMAGES IN EXCESS OF $100.00 IN THE AGGREGATE, EVEN IF BITMOVIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.

9. Term and Termination

9.1 Term.  This Agreement shall commence on the date that this Agreement is accepted or the applicable Order Form is executed by Customer, whichever occurs first. This Agreement shall continue in effect for the term specified in the Plan (or if no such term is specified, then for the length of your billing cycle) or the Order Form, unless this Agreement is terminated earlier as permitted in Section 9.2. At the end of such initial term, the Agreement will be extended automatically for additional terms equivalent to your billing cycle (i.e. 1-month terms or 1-year terms, as applicable), unless your Plan or the Order Form says otherwise or this Agreement is terminated earlier as permitted in this Section 9.1 or in Section 9.2. If Customer has executed an Order Form, then either party may elect not to have this Agreement extend automatically by giving written notice of such election to the other party at least one month prior to the end of the then current term. If Customer utilizes the Services under a Plan, then Customer is solely responsible for properly notifying Bitmovin of its election not to have this Agreement automatically renew by following the cancellation directions available in Customer’s Bitmovin account.

9.2 Termination. This Agreement may be earlier terminated by either party, in whole or in part: (a) if the other party materially breaches a provision of this Agreement and fails to cure such breach within 10 days after receiving written notice of such breach from the non-breaching party or immediately if, due to the nature of such material breach, it cannot be cured within 10 days, or (b) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within 90 days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.

9.3 Effects of Termination. Upon any expiration or termination of this Agreement, all rights, obligations and licenses of the parties shall cease, except that: (a) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) and remedies for breach of this Agreement shall survive, and (b) the provisions of Sections 4 (Proprietary Rights), 5 (Confidentiality), 6 (Paid Version Payments) (only with respect to amounts incurred prior to the effective date of termination), 7.2 (Disclaimers), 8 (Limitation of Liability), 10 (General Provisions) and this Section 9.3 (Effects of Termination) shall survive. For the avoidance of doubt, Bitmovin is under no obligation to provide to a Free Version customer a copy of such customer’s archived Customer Data upon any expiration or termination of this Agreement.

10. General Provisions

10.1 Third Party Sites. The Services may contain links or connections to third party websites or services that are not owned or controlled by Bitmovin. When you access third party websites or use third party services, you accept that there are risks in doing so, and that Bitmovin is not responsible for such risks. We encourage you to be aware when you leave the Services and to read the terms and conditions and privacy policy of each third party website or service that you visit or utilize.

10.2 Entire Agreement. This Agreement, together with each Bitmovin’s privacy policy, the applicable Plan(s), and the Order Forms, constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties about the subject matter of this Agreement. In the event of any conflict or inconsistency between the Agreement and the Order Form, the terms and conditions in the Order Form will prevail and be controlling. No waiver, consent or, except as expressly provided herein, modification of these Terms shall bind either party unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. If this Agreement is required to be registered with any governmental authority, Customer shall cause such registration to be made and shall bear any expense or tax payable in respect thereof.

10.3 Governing Law. You agree that: (i) the Services will be deemed solely based in California; and (ii) the Services will be deemed passive services that do not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than California. This Agreement shall be governed by and construed in accordance with the laws of the State of California, USA, without regard to its conflicts of law provisions. Neither the United Nations Convention on Contracts for the International Sale of Goods nor any enactment of the Uniform Computer Information Transactions Act shall apply to this Agreement. The sole jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in California having jurisdiction over Bitmovin’s offices, and both parties consent to the jurisdiction of such courts with respect to any such action. In any action or proceeding to enforce or interpret this Agreement, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys’ fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.

10.4 Remedies. Except as specifically provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 5, the non-breaching party may suffer irreparable damage for which it may have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to seek injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.

10.5 Notices. Except as otherwise provided in Sections 9.1 and 10, any notice or communication hereunder shall be in writing and either personally delivered or sent recognized express delivery courier or certified or registered mail, prepaid and return receipt requested, addressed to the other party at its address specified in the Plan, or at such other address designated in a subsequent notice. All notices shall be in English, effective upon receipt.

10.6 Assignment. This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party’s written consent (which shall not be unreasonably withheld). However, without consent, either party may assign this Agreement to any successor to all or substantially all of its business which concerns this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise). Any attempted transfer in violation hereof will be void and of no effect. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.

10.7 Independent Contractors. Nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.

11.8 Publicity. Customer acknowledges and agrees that Bitmovin has the right to issue a press release announcing the fact of this Agreement and describing the nature of their relationship hereunder. Provided Bitmovin complies with Customer’s brand guidelines as advised from time to time: (a) Bitmovin shall have the right to list Customer as a customer in written, oral and electronic materials which include the names of Bitmovin’s customers; and (ii) provide Customer as a customer reference for Bitmovin. Except as expressly permitted in this 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 this Agreement or the Services rendered hereunder without the prior written consent of Company.

 

Last updated: 21, August, 2017

 

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