BRIGHTCOVE PUBLISHER SERVICES AGREEMENT
BRIGHTCOVE PUBLISHER SERVICES AGREEMENT
PLEASE READ THIS
AGREEMENT VERY CAREFULLY. IT IS A LEGAL DOCUMENT. IT
CONTAINS BINDING OBLIGATIONS. BY CLICKING "I AGREE" AT THE END OF
THIS DOCUMENT, YOU ARE AGREEING TO BE BOUND BY THESE TERMS AND CONDITIONS.
IF YOU ARE ACCEPTING ON BEHALF OF YOUR EMPLOYER OR ANOTHER ENTITY, YOU REPRESENT
AND WARRANT THAT YOU HAVE FULL LEGAL AUTHORITY TO BIND YOUR EMPLOYER OR SUCH
ENTITY TO THESE TERMS AND CONDITIONS. "YOU" MEANS YOU OR, IF YOU
ARE ACCEPTING ON BEHALF OF YOUR EMPLOYER OR ANOTHER ENTITY, "YOU" MEANS THAT
EMPLOYER OR ENTITY.
1.
The Brightcove Service.
Brightcove shall provide You with the
Brightcove Service as it is available from time to time.
The "Brightcove Service" is an
Internet-based system that enables rights holders ("Content Owners") to upload,
manage, distribute and monetize their content directly to end users through
various distribution channels, including (a) their own, proprietary website/s,
(b) through selected website/s of Brightcove Affiliates, (c) through the
Brightcove website (brightcove.com, brightcove.tv or any variation of or successor to these websites, collectively, the "Brightcove Website"), and/or (d)
through the website/s of various Brightcove Syndication Partners. "Brightcove
Affiliates" are those individuals and/or companies that have entered into
agreements with Brightcove to participate in the Brightcove Affiliate Services
program and which permit Brightcove's distribution of a Content Owners' content
on or through Brightcove Affiliate owned and/or operated website/s.
"Brightcove Syndication Partners" are those individuals and/or companies
that are authorized to take possession of a Content Owners' content for
distribution to such Brightcove Syndication Partners' own end users.
Using the Brightcove Service, You may also distribute Your Content
(defined below) without Brightcove's mediation or control to websites not owned
by You or a Brightcove Affiliate or a Brightcove Syndication Partner
("Unregistered Affiliates"). The Brightcove Service
shall include the services described from time to time on the Brightcove
Website, provided, however, that Brightcove reserves the right to change,
improve and/or update the Brightcove Service from time to time in its sole
discretion, whether or not such change is reflected on the Brightcove Website.
2.
Access to the Service. You may establish one or
multiple user accounts through the Brightcove Service. You are
responsible for all activity occurring under Your user account/s.
You are solely responsible for the confidentiality and use of Your user
identification/s and password/s. Brightcove shall have the right to rely,
without further inquiry, on provision of the user identification/s and
password/s as sufficient to authenticate use of the Brightcove Service.
3.
Your Obligations.
In order to use the Brightcove Service, You must have "accepted" this Agreement,
and You must have an active, authorized account with Brightcove. You may only
provision such Content into the Brightcove Service as to which You have
sufficient rights and licenses to permit the distribution You select for such
Content. For purposes of this
Agreement, "Content" shall mean and include all content that is provided by You
to Brightcove and/or provisioned by You into the Brightcove Service hereunder
including, without limitation, video, music, photograph, text, any digital file,
any live event, advertising creative or other advertising material or metadata.
At all times, in using the Brightcove Service, You must observe and abide
by the terms and provisions of this Agreement and the
Brightcove
Acceptable Use Policy (or any successor thereto) (the "Brightcove AUP"). You
shall perform all obligations set forth in this Agreement and agree to abide by
and comply with this Agreement.
4.
The Brightcove Console. By using the Brightcove Console, You may make
numerous selections about the presentation, management, distribution of and end
user access to the Content. You may change Your
selections regarding each to the extent permitted by the Brightcove Console.
In all cases, Your last submissions reflected in Brightcove's database shall be
conclusive in the event of any dispute.
The "Brightcove Console" shall mean the feature of the
Brightcove Service, hosted by or for Brightcove as part of the Brightcove
Service, through which You manage Your Content offerings.
5.
Fees and Payment.
The fees and additional terms, if any, identified on
Brightcove's Website at
http://corp.brightcove.com/terms.cfm
(or any successor thereto) in connection with the account type/s you select,
shall be applicable to Your use of the Brightcove Service.
Brightcove shall issue invoices to You at the address identified by You through
Your registration for the Brightcove Service, setting forth the fees, if any,
You owe for Your use of the Brightcove Service. You agree to pay the full amount
of all invoices issued by Brightcove to You within thirty (30) days after the
date of each invoice. Brightcove's obligations hereunder are
conditioned upon Your fulfillment of all payment obligations to Brightcove. All
fees shall be paid by check or by other means expressly agreed to by Brightcove.
If You fail to pay fees invoiced by Brightcove within fifteen (15) business days
following the payment due date, then in addition to any other rights Brightcove
may have, Brightcove shall have the right to suspend delivery of the Brightcove
Service to You, in whole or in part. If You dispute the terms of an
invoice in good faith, You must raise such dispute with Brightcove within
forty-five (45) days of such invoice date, or Your right to dispute such invoice
shall be waived.
6.
Revenue Sharing. Depending upon Your selections in the Brightcove
Console, Brightcove may share revenue with You. The amount of
revenue, if any, shared by Brightcove shall be as described from time to time on the
Brightcove Website. In all cases, any revenue to be shared with
You shall be based only upon amounts actually collected by Brightcove, and shall
be less any applicable reductions, which shall include: (a) amounts refunded to
end users, advertisers and/or agencies, (b) amounts specified to be paid to
other publishers, Brightcove Affiliates and/or Brightcove Syndication Partners,
and (c) sales taxes paid by Brightcove in connection with its collection of
gross receipts. Brightcove makes no guarantee, representation or promise that
the parties will obtain or achieve any particular level of gross receipts or
revenue share or that the parties will achieve any specified level of orders for
any or all of the Content. You agree and acknowledge that there are many factors
that contribute to achievement of any particular level of gross receipts and end
user orders, including many factors that are not under the control of either or
both parties. Brightcove shall not be required to remit any payment
for any month in which Your share of revenue is less than $20 but, in the event
that Brightcove does not remit such payment, Brightcove shall instead credit
such amount to Your account for future payment. Any dispute or claim
concerning calculation or remittance of Your share of revenue must be brought to
the attention of Brightcove by e-mail at such designated e-mail address as
Brightcove shall identify on the Brightcove Website from time to time, within
forty-five (45) days following the payment due date, accompanied by the details
forming the basis for such dispute or claim. Failure to follow
the procedure set forth in the preceding sentence shall serve as sufficient
reason for Brightcove to reject such claim without further liability.
7.
Term.
The term ("
Term") of this Agreement shall be three years from the date of Your acceptance
of the terms hereof by clicking "I Agree" below.
8.
Termination. Either party may terminate this Agreement if (a) the
other party is adjudicated bankrupt, is insolvent, is the subject of a voluntary
or involuntary petition in bankruptcy or makes an assignment for the benefit of
its creditors pursuant to any bankruptcy law; (b) upon the occurrence of a
material breach of a material provision by the other party if such breach is not
cured within thirty (30) days after written notice is received by the breaching
party identifying the matter constituting the material breach; or (c) by mutual
written consent. Brightcove reserves the right to suspend its
performance or any aspect thereof under this Agreement at any time, without
giving prior notice, for any act which Brightcove, in its sole discretion,
determines to be harmful to any end user, the Brightcove Service, or which
Brightcove determines in good faith violates or fails to comply with any
applicable law or regulation.
9.
Ownership/Reservation of Rights.
Each party retains any and all pre-existing right, title and
interest in and to its website/s, Marks (defined below),
intellectual
property, Content (in Your case), the Brightcove Service (in the case of
Brightcove), and all components thereof.
This Agreement shall not be construed in any manner as transferring any
rights of ownership of or license to the foregoing, and/or to the features or
information therein, except as expressly set forth in this Agreement.
All rights not expressly granted are reserved.
Under no circumstances will this Agreement be construed as granting, by
implication, estoppel or otherwise, a license to any intellectual or other
property or components thereof other than as specifically granted in this
Agreement.
10.
License to Use the Brightcove Service. Subject to the terms and conditions of this
Agreement, and limited solely to the extent necessary to use the Brightcove
Service, Brightcove hereby grants You a limited, revocable, non-exclusive,
non-transferable, worldwide right to use the Brightcove Service solely for the
purposes described in this Agreement. All rights not expressly
granted to You are reserved by Brightcove and its licensors. Except
as expressly permitted by Brightcove, You shall not: (i) license, sublicense,
sell, resell, transfer, assign, distribute or otherwise commercially exploit or
make available to any third party the Brightcove Service in any way; (ii) modify
or make derivative works based upon the Brightcove Service; (iii) reverse
engineer, decompile, modify, translate, disassemble (except to the extent that
this restriction is expressly prohibited by law) or create derivative works
based upon Your access to or usage of the Brightcove Service; (iv) rent, lease
or otherwise transfer rights to any aspect of the Brightcove Service; or (v)
take any act to remove, obscure, interfere with or modify the presentation or
functionality of any aspect of the Brightcove Service. You further
agree that upon termination or expiration of this license, You shall no longer
have the right to use the Brightcove Service, display any Brightcove player, or
stream or make available for download any content from the Brightcove Service.
This license shall terminate automatically upon the termination or expiration of
this Agreement.
11.
License to Marks.
Subject to the terms and conditions of this Agreement, Brightcove grants You,
and You grant Brightcove, a non-transferable (except as provided herein),
non-exclusive, royalty-free right to reproduce and display the other's logos,
trademarks, trade names and other similar identifying material (the " Marks")
solely for the purposes described herein and in accordance with
the owner's established usage policies and procedures, as may be modified from
time to time in the owner's sole discretion and as supplied by link to the other
party, and to grant sublicenses thereto on the same terms and conditions to end
users, authorized Brightcove Affiliates, authorized Brightcove Syndication
Partners and Your Unregistered Affiliates to the extent necessary in connection
with the Brightcove Service. In connection with such licenses, each
party shall have the unilateral right to establish such quality standards and
additional terms and conditions as such party deems necessary to reasonably
protect its Marks. This license and all sublicenses thereto shall
terminate automatically upon the termination or expiration of this Agreement,
subject to the usage rights granted to end users through the Brightcove Service
(i.e., termination of this Agreement shall not serve to divest any end user of
usage rights acquired through the Brightcove Service which by their nature
extend beyond the termination of this Agreement).
12.
License to Content.
You hereby grant Brightcove a non-transferable (except as provided herein),
royalty-free (except as provided herein), non-exclusive, worldwide license to
perform such acts in connection with the Content as are necessary to provide the
Brightcove Service. Specifically, the foregoing license includes,
without limitation, permission for Brightcove,
to
the extent necessary to provide the Brightcove Service: (a) to deliver the
Content to end users of website/s selected by You (or otherwise permitted by
You); (b) to publicly display, publicly perform, transmit, distribute, copy,
store, provision into and/or reproduce the Content on or through the Brightcove
Service, either in its original form, copy or in the form of an encoded work;
(c) to secure, encode, reproduce, host, cache, route,
reformat, analyze and create algorithms based on the Content; (d) to distribute,
transmit, and/or display the Content and encoded works via such technologies as
are supported by Brightcove from time to time; (e) to display advertisements in
connection with any display of the Content and encoded works; and (f) to perform
such other acts with respect to the Content as are necessary from time to time
to provide the Brightcove Service as specified by You through the Brightcove
Console or otherwise permitted by You through the Brightcove Service.
This license also includes the right for Brightcove, in its sole
discretion, to offer or provide access to the Content on or through
the Brightcove Website(or other website
wholly-owned and/or operated by Brightcove) and/or sub-domains thereof.
FOR AVOIDANCE OF ANY DOUBT, THE PARTIES EXPRESSLY AGREE AND ACKNOWLEDGE
THAT THE BRIGHTCOVE SERVICE DOES NOT INCLUDE TAKING TITLE TO ANY CONTENT
SUPPLIED BY YOU.
13.
Representations, Warranties and Covenants.
(a)
Corporate. You
represent and warrant at all times that (i) You are duly organized and validly
existing and in good standing under the laws of the state of Your incorporation,
(ii) You have full corporate power and authority to enter into this Agreement
and to carry out the provisions hereof; (iii) You are duly authorized to execute
and deliver this Agreement and duly authorized to perform the obligations
hereunder; (iv) this Agreement is a legal and valid obligation, binding and
enforceable in accordance with its terms, (v) the execution, delivery and
performance of this Agreement does not conflict with any agreement, instrument,
or understanding, oral or written, to which You are a party or by which You may
be bound, nor violate any law or regulation of any court, governmental body or
administrative or other agency having jurisdiction over You.
(b)
Ability to Accept this Agreement. You affirm that You are either
more than 18 years of age, or an emancipated minor, or possess legal parental or
guardian consent, and are fully able and competent to accept, make and/or
perform the terms, conditions, obligations, affirmations, representations and
warranties set forth in this Agreement, and to abide by and comply with this
Agreement.
(c)
No Infringement. You represent and warrant that You either own fully
and outright or otherwise possess and have obtained all rights, approvals,
licenses, consents and permissions as are necessary to perform Your obligations
hereunder and to grant the licenses granted by You under this Agreement for the
duration of the Term.
(d)
Representations About the Content. You specifically represent and warrant that the Content and the distribution
and/or publication of the Content through the Brightcove Service or through
and/or by any Brightcove Affiliate and/or Brightcove Syndication Partner and/or
Unregistered Affiliate, to the extent enabled by You, directly or indirectly,
does not, and shall not, infringe or misappropriate any third party's rights,
nor shall doing so violate any right of any person. You further represent that
You have paid all license fees and/or other fees required to be paid to third
parties for performance of Your obligations or exercise of Your rights
hereunder, for the grant of the licenses hereunder, and for any other act by You
under this Agreement ("Third Party License Fees") and You covenant to
timely pay any Third Party License Fees required to be paid in the future for
such actions. You further expressly
agree that, as between You, on the one hand, and Brightcove on the other hand,
any obligation to pay Third Party License Fees as a result of distribution of
the Content pursuant to this Agreement shall be Your obligation and not the
obligation of Brightcove.
14.
Indemnification.
You agree to indemnify and hold harmless Brightcove and Brightcove's officers,
directors, shareholders, employees, accountants, attorneys, agents, affiliates,
subsidiaries, successors and assigns (the " Brightcove Indemnitees") from and
against any and all third party claims, damages, liabilities, costs and expenses
(each a " Claim"), arising out of or related to any breach of any
representation, warranty, covenant and/or agreement made by You in this
Agreement.
15.
DISCLAIMERS.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, BRIGHTCOVE MAKES NO
REPRESENTATION OR WARRANTY OF ANY KIND TO YOU, EITHER EXPRESS OR IMPLIED, AS TO
ANY MATTER IN CONNECTION WITH THIS AGREEMENT INCLUDING, WITHOUT LIMITATION,
IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY,
NON-INFRINGEMENT, TITLE, SUITABILITY OR OTHERWISE. EXCEPT AS EXPRESSLY SET FORTH
HEREIN, THE BRIGHTCOVE SERVICE IS PROVIDED ON AN "AS IS" BASIS ONLY, AND
BRIGHTCOVE MAKES NO REPRESENTATION, WARRANTY OR ASSURANCE TO YOU THAT IT WILL BE
ERROR-FREE OR PERFORM IN ACCORDANCE WITH ANY PARTICULAR STANDARD, LEVEL OR
METRIC. YOU ALSO EXPRESSLY
ACKNOWLEDGE AND AGREE THAT THE BRIGHTCOVE SERVICE RELIES UPON THIRD-PARTY
SOFTWARE FOR CERTAIN FUNCTIONS, INCLUDING, WITHOUT LIMITATION, THE ENCODING AND
APPLICATION OF SECURITY AND DRM FUNCTIONALITY AND PROTECTIONS, AND EXCEPT AS
EXPRESSLY SET FORTH HEREIN, BRIGHTCOVE MAKES NO REPRESENTATION, WARRANTY,
PROMISE OR GUARANTEE TO YOU THAT SUCH SOFTWARE WILL BE ERROR FREE, ACCOMPLISH
THE SPECIFIED INTENT OR PERFORM IN ACCORDANCE WITH ANY PARTICULAR STANDARD,
LEVEL OR METRIC AND BRIGHTCOVE WILL NOT BE LIABLE FOR ANY FAILURE THEREOF TO
YOU. YOU ALSO ACKNOWLEDGE AND AGREE
THAT TECHNOLOGY MAY EXIST OR BE DEVELOPED TO COPY, DOWNLOAD OR OTHERWISE ACQUIRE
CONTENT WITHOUT YOUR AND/OR BRIGHTCOVE'S AUTHORIZATION AND/OR KNOWLEDGE,
INCLUDING, WITHOUT LIMITATION, CONTENT DELIVERED THROUGH STREAMING TECHNOLOGY,
AND THAT SUCH SECURITY AND DRM FUNCTIONALITY AND PROTECTIONS AS ARE OFFERED BY
BRIGHTCOVE MAY NOT BE SUFFICIENT TO PREVENT SUCH UNAUTHORIZED ACTS.
16.
LIMITATIONS AND EXCLUSIONS OF LIABILITY. UNDER NO CIRCUMSTANCES
SHALL BRIGHTCOVE BE LIABLE TO YOU FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL,
SPECIAL OR EXEMPLARY DAMAGES (EVEN IF BRIGHTCOVE HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES) ARISING FROM THE PERFORMANCE UNDER OR FAILURE OF
PERFORMANCE OF ANY PROVISION OF THIS AGREEMENT (INCLUDING SUCH DAMAGES INCURRED
BY THIRD PARTIES), SUCH AS, WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED
PROFITS OR LOST BUSINESS. UNDER NO CIRCUMSTANCES WILL BRIGHTCOVE BE
LIABLE FOR DAMAGES IN EXCESS OF UNPAID AMOUNTS OWED TO YOU AS YOUR SHARE OF
REVENUE OR REFUNDS.
17.
End User Information. For certain transactions by end users accessing Content
distributed through the Brightcove Service, Brightcove may collect from end
users personally identifying information including user name, e-mail address and
credit card information (e.g., for ecommerce transactions). All
information collected or otherwise obtained by Brightcove from end users in
connection with the distribution of Your Content through the Brightcove Service
shall be referred to as " End User Information". Brightcove shall have the right
to use all such End User Information in accordance with the Brightcove privacy
policy disclosed to end users at the time of disclosure and in compliance with
all applicable laws.
18.
Confidentiality.
Each party agrees not to disclose the other party's Confidential Information
without their prior written consent. " Confidential Information"
includes, without limitation: (i) all intellectual property, including, without
limitation, all software, technology, programming, technical specifications,
materials, guidelines and documentation relating to each party's service; (ii)
any click-through rates, financial information (including pricing), business
information, including, without limitation, operations, planning, marketing
interests, products and any other reporting information (including revenue, if
any, paid to You by Brightcove); and (iii) any other information designated in
writing as "Confidential" or an equivalent designation or that would otherwise
be reasonably considered confidential or proprietary given its nature or the
circumstances under which it was disclosed. It does not include
information that has become publicly known through no breach by You or
Brightcove of these confidentiality obligations, or information that has been
(a) independently developed without access to Confidential Information, as
evidenced in writing; (b) rightfully received from a third party without a
breach of confidentiality by such third party; or (c) required to be disclosed
by law or by a governmental authority.
19.
General.
(a) Force Majeure: In the event that either party is prevented from performing
or is unable to perform any of its obligations under this Agreement due to any
cause beyond its reasonable control, then that party's performance shall be
excused and the time for performance shall be extended for the period of delay
or inability to perform due to such occurrence; (b) Independent Contractors:
Brightcove and You are independent contractors under this Agreement and nothing
herein shall be construed to create a partnership, joint venture or agency
relationship between Brightcove and You, and neither party has authority to
enter into agreements of any kind on behalf of the other; (c) Assignment:
Brightcove may assign performance of this Agreement or any of its rights or
delegate any of its duties under this Agreement without Your prior written
consent to the extent Brightcove deems it necessary to provide the Brightcove
Service; (d) Merger or Acquisition: In the case of a merger, acquisition, or
other change of control (as that phrase is interpreted under Delaware Law), this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, successors and assigns; (e) Governing Law: This
Agreement, its interpretation, performance or any breach thereof, shall be
construed in accordance with, governed by and all questions with respect thereto
shall be determined by, the laws of the Commonwealth of Massachusetts applicable
to contracts entered into and wholly to be performed within said state; (f)
Forum Selection: You hereby consent to the personal jurisdiction of the
Commonwealth of Massachusetts, acknowledge that venue is proper in any Federal
or state court in the Commonwealth of Massachusetts, agree that any action
arising out of or related to this Agreement must be brought exclusively in a
Federal or state court in the Commonwealth of Massachusetts, and waive any
objection You have or may have in the future with respect to any of the
foregoing; (g) Good Faith: You agree to act in good faith with respect to each
provision of this Agreement and any dispute that may arise related hereto; (h)
Effect of Waiver: The waiver by either party of a breach or a default of any
provision shall not be construed as a waiver of any succeeding breach of the
same or any other provision; (i) Severability: Each provision of this Agreement
shall be severable from every other provision of this Agreement for the purpose
of determining the legal enforceability of any specific provision; (j) Survival:
All terms of this Agreement which by their nature extend beyond their
termination shall remain in effect until fulfilled and apply to respective
successors and assigns; (k) Headings: The section headings and subheadings
contained in this Agreement are included for convenience only, and shall not
limit or otherwise affect the terms of this Agreement; and (l) International:
The Brightcove Service is controlled and offered by Brightcove from its
facilities in the United States of America, Brightcove makes no representations
that the Brightcove Service is appropriate or available for use in other
locations and those who access or use the Brightcove Service from other
jurisdictions do so at their own volition and are responsible for compliance
with local law.
20.
Notices.
All notice required to be given under this Agreement must be given in writing
and delivered either by hand, by e-mail, by certified mail, return receipt
requested, postage pre-paid, or by Federal Express or other recognized overnight
delivery service, all delivery charges pre-paid, and addressed:
If to Brightcove:
Brightcove Inc.
One Cambridge
Center
Cambridge, MA 02142
Fax:
617 395-8352
Attn:
General Counsel
If to You:
E-mail or transmittal to the address identified by You through Your
registration for the Brightcove Service shall be deemed sufficient notice.
21.
Promotion.
You agree to (a) permit Brightcove's issuance of a press release announcing
entry into the Agreement; (b) permit Brightcove to utilize Your Marks in
marketing materials and on the Brightcove Website, subject to established usage
restrictions and policies; and (c) permit Brightcove to identify You as a
customer.
22.
Entire Agreement.
This Agreement constitutes the entire understanding of the parties hereto with
respect to the matters and transactions contemplated hereby and supersedes all
previous agreements between Brightcove and You concerning the subject matter
hereof. No party hereto has relied on any statement, representation or promise
of any party or representative thereof in executing this Agreement except as
expressly stated therein.
23.
Modification of Terms.
Brightcove shall have the right to modify the terms of this Agreement at any
time, which modification shall be effective thirty (30) days following
Brightcove's posting of such change on the Brightcove Website. We
recommend that You check the Brightcove Website regularly for any such changes.
Your use of the Brightcove Service following such posting or the passage of
thirty (30) days from the time of such posting shall be deemed to constitute
Your acceptance of such modification. For Your convenience,
Brightcove shall post a version number and date at the bottom of the Agreement.
Version
1.6/8.20.07
Copyright 2007,
Brightcove Inc. All rights reserved.
