Brightcove Service Agreement

This Service Agreement (the "Agreement") is by and between Brightcove Inc. ("Brightcove") and the entity or individual ("Company") identified in the order form executed by Brightcove and Company or identified in connection with Brightcove's online Account registration process (in each case, an "Order"), and governs Company's use, and Brightcove's provision, of the Brightcove Service. Each Order, and any exhibit attached to or referenced in an Order, is subject to this Agreement and is incorporated herein by reference. If you are an individual and are entering into this Agreement on behalf of an entity, you represent and warrant that you have the authority to bind such entity to all of the terms and conditions of this Agreement.

1. The Brightcove Service. The "Brightcove Service" means those online products and services that Company has ordered from Brightcove, and such other online products and services as Brightcove makes available to Company from time to time. The Brightcove Service enables Company to upload, import, transcode, manage, analyze, monetize, and/or distribute Company's Content online. "Content" means all content, data, video, templates or information in any form that is uploaded to or made available in Company's Account(s) by Company or on Company's behalf. The Brightcove Service does not include Company's Content or the Content of any other Brightcove customer. The Brightcove Service is a software-as-a-service (SaaS) offering which is intended to evolve over time. Brightcove may make such changes to the Brightcove Service as it deems appropriate provided that the overall level of functionality of the Brightcove Service will not materially diminish as a result of such changes. By using the online user interfaces or APIs (collectively, the "User Interface") provided with the Brightcove Service, Company may manage its use of the Brightcove Service and its Content. Company may change its selections within the Brightcove Service as permitted by the Brightcove Service. In all cases, however, Company's most recent selections in the User Interface, as reflected in Brightcove's database, shall be conclusive in the event of any dispute concerning Company's selections.

2.Licenses.

1. License to Use the Brightcove Service. Brightcove hereby grants Company a limited, revocable (as set forth in this Agreement), non-transferable (except as provided in Section 17(b)), non-exclusive, worldwide license to use the applicable Brightcove Service in Company's Order. All rights not expressly granted to Company are reserved by Brightcove. Except as expressly permitted by Brightcove, Company shall not: (i) sublicense, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Brightcove Service or any part thereof in any way; or (ii) modify or make derivative works based upon the Brightcove Service or reverse engineer, decompile or disassemble the Brightcove Service.
2. License to Content. Company hereby grants Brightcove a limited, revocable (as set forth in this Agreement), non-transferable (except as provided in Section 17(b)), non-exclusive, royalty-free, worldwide license to perform all such acts with respect to the Content as are necessary for Brightcove to provide the Brightcove Service in accordance with Company's Order, this Agreement and Company's selections made through the User Interface. All rights not expressly granted to Brightcove are reserved by Company.
3. License to Feedback, Suggestions or Recommendations. Company hereby grants Brightcove an unlimited, irrevocable, perpetual, transferable, non-exclusive, royalty-free, worldwide license to use and/or incorporate into the Brightcove Service any feedback, suggestions and/or recommendations provided to Brightcove by Company regarding the Brightcove Service.

3. Title. As between the parties, Brightcove owns all right, title and interest in and to the Brightcove Service, as well as non-personal and industrial data generated through the use of the Brightcove Service. This Agreement does not convey to Company any ownership interest in or to the Brightcove Service, but only a limited license to use the Brightcove Service that is revocable as set forth in this Agreement. As between the parties, Company owns all right, title and interest in and to the Content. This Agreement does not convey to Brightcove any ownership interest in or to the Content, but only a limited license to the Content that is revocable as set forth in this Agreement.

4. Access to the Brightcove Service; Free Accounts; Pre-Release Services.

1. Access to the Brightcove Service. Access to Company's Brightcove Service Account(s) shall be enabled by use of username(s) and password(s) ("Credentials") selected by Company. An "Account" is a single point of entry via the User Interface through which Company accesses and uses the Brightcove Service. Except where Brightcove has actual notice of loss, theft or unauthorized use of Company's Credentials, Company is responsible for all activity occurring in Company's Account(s).
2. Free Accounts. Brightcove may from time to time offer Accounts, such as trial Accounts, at no cost ("Free Account"). Unless otherwise specified during the Account registration process, the terms and conditions of this Agreement shall govern the use of such Free Accounts. All Orders for Free Accounts shall remain in effect for the period of time indicated during the Account registration process unless earlier terminated or Company enters into a subsequent Order prior to the conclusion of the trial period. Brightcove may terminate any Free Account at any time without notice, in its sole discretion. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE BRIGHTCOVE SERVICE IS PROVIDED "AS IS" AND WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND IN CONNECTION WITH FREE ACCOUNTS.
3. Pre-Release Services. Brightcove may from time to time offer products, features, functionality or services that are in a "beta" or "limited availability" phase or are otherwise not generally available ("Pre-Release Services"). Unless otherwise indicated, all Pre-Release Services will be offered at no cost and will be identified in a manner that indicates that the Pre-Release Service is in limited release or pre-release. Such Pre-Release Services are still in development and Brightcove may change aspects of the Pre-Release Services at any time, including prior to general release. Company will not be obligated or required to use any Pre-Release Services. Brightcove may cease offering any Pre-Release Services, or cease offering such services at no cost, at any time and without notice, in its sole discretion. Company agrees and acknowledges that there is no service level agreement or support package provided in relation to Pre-Release Services. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, PRE-RELEASE SERVICES ARE PROVIDED "AS IS" AND WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND.

5. Company's Obligations.

1. Restrictions on Use. Company covenants that it will not (i) use the Brightcove Service in any illegal or unlawful manner or for any illegal or unlawful purpose or (ii) perform any act which is intended or likely to harm Brightcove or the Brightcove Service. Brightcove will not review or screen Content for compliance with this Agreement or applicable law, and Brightcove shall have no obligation to do so. In addition to any other rights Brightcove may have, Brightcove reserves the right to suspend Company's access to and/or use of the Brightcove Service, or any particular Content, to the extent that Brightcove reasonably determines, in good faith, that such suspension is necessary to comply with applicable law (including without limitation a take-down notice under the Digital Millennium Copyright Act) or to prevent significant harm to any person or the Brightcove Service. In the event of a suspension, Brightcove shall use commercially reasonable efforts to suspend only that portion of the Brightcove Service, or the particular Content, as is reasonably necessary to prevent the occurrence or continuation of such violation and/or harm.
2. Obligation to Pay. Company shall pay Brightcove the fees set forth in each Order in accordance with the payment terms set forth in this Agreement and the Order. All fees are non-refundable. In the event that Company's use of the Brightcove Service exceeds any limits set forth in an Order, Company shall pay Brightcove for such excess usage at the rate(s) set forth in the Order. Company shall be responsible for and shall pay any applicable sales, use or other taxes or duties, tariffs or the like applicable to Company's Orders (except for taxes on Brightcove's income). All payments shall be made without deduction for withholding taxes. Late payments may be subject to fees at the rate of 1.5% per month or, if lower, the maximum rate allowed by law. If Company fails to pay applicable fees when payment is due, then in addition to any other rights Brightcove may have, Brightcove shall have the right to suspend delivery of all or a portion of the Brightcove Service to Company, provided that Brightcove has supplied Company prior notice and 5 days' opportunity to cure. If Brightcove pursues collection efforts due to Company's failure to pay fees due under this Agreement, Company shall pay Brightcove's reasonable costs of collection, including any attorneys' fees related thereto.

6. Brightcove's Obligations. Brightcove agrees to (a) make the Brightcove Service available to Company in accordance with this Agreement, including any current Order; and (b) perform any other obligations expressly identified in any current Order.

7. Term.

1. Term of this Agreement. This Agreement commences on the Effective Date and shall remain in effect until all of Company's Orders have expired or have been terminated in accordance with this Agreement (the "Term"). The "Effective Date" of this Agreement shall be the date specified in Company's initial Order or, if such Order was submitted online, the date Brightcove accepts the online Order.
2. Term of Orders. The initial term of each Order shall commence on the date specified in the Order or, if such Order was submitted online, the date Brightcove accepts the online Order (the "Order Effective Date"), and shall remain in effect for the duration set forth in the Order ("Initial Term"). If indicated in an Order, the Order shall automatically renew for successive periods on the first day following the end of the Initial Term (each, a "Renewal Term") unless either party hereto has provided notice to the other of non-renewal at least 60 days in advance of the end of the Initial Term or Renewal Term (as applicable).

8. Termination. Unless otherwise prohibited by law, either party may terminate this Agreement, including any outstanding Orders: (a) upon the occurrence of a material breach of this Agreement by the other party if such breach is not cured within 30 days after written notice; or (b) if the other party is adjudicated bankrupt or otherwise seeks to avoid its performance obligations under applicable bankruptcy or insolvency laws. In the event of the termination or expiration of this Agreement, (y) all current Orders as well as licenses granted under this Agreement shall terminate automatically and (z) unless the early termination resulted from a material, uncured breach of this Agreement by Brightcove, all outstanding fees and expenses shall become immediately due and payable.

9. Representations and Warranties.

1. The Brightcove Service. Brightcove represents and warrants that (i) it either owns fully and outright or otherwise possesses and has obtained all rights, approvals, licenses, consents and permissions as are necessary to perform its obligations hereunder, exercise its rights hereunder and to grant the licenses granted by it under this Agreement and (ii) the Brightcove Service, as used by Company in accordance with this Agreement, does not, and shall not, infringe, violate or misappropriate any third party's rights.
2. Content. Company represents and warrants that (i) it either owns fully and outright or otherwise possesses and has obtained all rights, approvals, licenses, consents and permissions as are necessary to perform its obligations hereunder, exercise its rights hereunder and to grant the licenses granted by it under this Agreement and (ii) the Content, and its use through the Brightcove Service, does not, and shall not, infringe, violate or misappropriate any third party's rights.
3. DISCLAIMERS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, BRIGHTCOVE MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND TO COMPANY, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, WORKMANLIKE QUALITY, NON-INFRINGEMENT, TITLE, SUITABILITY, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE OR THAT THE BRIGHTCOVE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. BRIGHTCOVE MAKES NO REPRESENTATION OR WARRANTY THAT THE USE OF ANY TECHNOLOGY STANDARD BY THE BRIGHTCOVE SERVICE WILL NOT INFRINGE ANY THIRD PARTY RIGHTS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE BRIGHTCOVE SERVICE IS PROVIDED ON AN "AS IS" BASIS ONLY. NO ADVICE OR INFORMATION PROVIDED BY BRIGHTCOVE SHALL CREATE ANY REPRESENTATION OR WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

10. Indemnification. Each party agrees to indemnify the other party and such other party's officers, employees, directors, agents, affiliates, subsidiaries, successors and assigns from and against any and all damages, liabilities, loss, government fines, costs and expenses (including reasonable attorney's fees and litigation expenses) arising out of a claim, action or demand brought by a third party for a breach of any representation, warranty or covenant made by the indemnifying party in this Agreement (each a "Claim") upon the entry of a full and final judgment of such Claim against the indemnified party.
The indemnification obligations in this section are conditioned upon: (a) written notice by the indemnified party to the indemnifying party within 30 days of the indemnified party's receipt of any Claim for which indemnification is sought; (b) counsel for the indemnified party reasonably acceptable to the indemnifying party; (c) approval by the indemnifying party of any settlement of the Claim for which indemnification is sought; (d) such reasonable cooperation by the indemnified party in the defense as the indemnifying party may request; and (e) Company having implemented any updates to the Brightcove Service as instructed by Brightcove. Notwithstanding anything to the contrary contained herein, the indemnifying party shall not, without the prior written consent of the indemnified party, settle, compromise or consent to the entry of any judgment with respect to any pending or threatened Claim unless the settlement, compromise or consent provides for and includes an express, unconditional release of such Claim against the indemnified party.

11. EXCLUSIONS/LIMITATIONS OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER UNDER ANY THEORY OF LIABILITY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM THE PERFORMANCE 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, HARM TO GOODWILL, OR LOST BUSINESS. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER FOR DAMAGES (OR AMOUNTS) IN EXCESS OF THE TOTAL FEES PAID AND/OR PAYABLE DURING THE TWELVE MONTHS IMMEDIATELY PRIOR TO THE INCIDENT GIVING RISE TO THE CLAIM HEREUNDER. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE PRECEDING SENTENCE, IF COMPANY IS USING THE BRIGHTCOVE SERVICE VIA A FREE ACCOUNT, COMPANY'S MAXIMUM LIABILITY TO BRIGHTCOVE IN CONNECTION WITH SUCH FREE ACCOUNT SHALL NOT EXCEED AN AMOUNT EQUAL TO THE DAMAGES INCURRED BY BRIGHTCOVE.

12. Third-Party Services. Brightcove may, from time to time, inform its customers of third-party services that can be used in connection with the Brightcove Service. Company's use of any third-party service in connection with the Brightcove Service, and any terms, conditions, representations and/or warranties associated with such use, are solely between Company and such third-party service provider. Brightcove makes no representation or warranty with regard to any such third-party service, even if such provider is recommended or certified by Brightcove, and Brightcove shall not be responsible to Company in any manner for any such third-party service. Brightcove does not, unless otherwise expressly set forth in writing, provide maintenance or support for third-party services.

13. Confidentiality. Each party agrees not to disclose the other party's Confidential Information without the other party's prior written consent. "Confidential Information" includes, without limitation: (a) all intellectual property; (b) financial and business information (including pricing); and (c) any other information designated in writing as "Confidential." Confidential Information does not include (v) Content; (w) information that has become publicly known through no breach by Company or Brightcove of these confidentiality obligations; (x) information that is independently and lawfully developed or obtained without access to Confidential Information, as evidenced in writing; (y) information required to be disclosed by law; or (z) the fact that Company is a customer of Brightcove.

14. Identification Rights. Brightcove shall have the right to identify Company as a customer, and to use Company's logo in Brightcove's general marketing materials. Company shall have the right to identify Brightcove as the provider of the Brightcove Service, and to use Brightcove's logo in connection with Company's use of the Brightcove Service.

15. Data Processing Agreement. The processing of Company's personal data (as such term is defined by applicable privacy laws) in connection with Company's use of the Brightcove Service is governed by the Data Processing Agreement located at https://www.brightcove.com/en/legal/cdpa/ in effect as of the Effective Date.

16. Notices. All notices under this Agreement must be in writing and delivered by e-mail and addressed, if to Company, to the email contact identified in Company's most recent Order and, if to Brightcove, to general_counsel@brightcove.com with the subject "Attention: General Counsel". All notices shall be deemed delivered upon receipt.

17. General. (a) Independent Contractors: Brightcove and Company are independent contractors under this Agreement and nothing herein shall be construed to create a partnership, joint venture or agency relationship; (b) Assignment: Neither party may assign performance of this Agreement or any of its rights without the prior written consent of the other, except that each party may assign this Agreement without the other party's prior written consent in the case of a merger, acquisition or other change of control. In the event of an assignment properly made hereunder, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Company may not delegate its payment obligations under this Agreement without the prior written consent of Brightcove; (c) Governing Law: This Agreement shall be governed by the laws of the Commonwealth of Massachusetts applicable to contracts entered into and wholly to be performed therein; (d) Forum Selection: Any and all disputes arising out of or related to this Agreement or performance hereof shall be brought exclusively in the Federal or state courts in the Commonwealth of Massachusetts and the parties hereby waive any objection thereto; (e) Jury Trial Waiver: Company and Brightcove each waive any right to a jury trial in connection with any and all disputes arising out of or related to this Agreement; (f) Limitation on Claims: Notwithstanding any law providing a longer statute of limitations, any claim or cause of action arising out of or related to this Agreement and/or Company's use of the Brightcove Service must be filed within 1 year after such claim or cause of action arose, without regard to the date such claim or cause of action was discovered, otherwise such claim or cause of action shall be forever barred; (g) Export Compliance: Each party shall comply with all applicable United States and international export control laws and regulations. Company specifically represents that (i) it is not located in any country or jurisdiction that is subject to U.S. economic sanctions, nor is it acting on behalf of the government of any such country; (ii) it is not identified on the U.S. Department of the Treasury's Office of Foreign Assets Control's Specially Designated Nationals List, as amended from time to time, nor is it owned or controlled by any such entity; and (iii) it will not use the Brightcove Service to publish, distribute or otherwise make available to any person any Content that contravenes any international export control laws and regulations; (h) Effect of Waivers: 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) Survival: All terms of this Agreement which by their nature extend beyond the termination of this Agreement remain in effect until fulfilled; (j) Execution: This Agreement and any other documents to be delivered in connection with it (including any Order) may be executed electronically, and any electronic signatures appearing on this Agreement or such other documents (including any Order) are deemed to have the same legal effect as handwritten signatures for the purposes of validity, enforceability and admissibility; (k) Integration; Amendment: This Agreement, including any Orders entered into hereunder, constitutes the entire understanding of the parties hereto with respect to the matters contemplated hereby, supersedes all previous agreements between the parties concerning the subject matter hereof and cannot be amended except by a writing signed by authorized representatives of both parties; (l) No Reliance: No party hereto has relied on any statement, representation or promise of any party or representative thereof except as expressly set forth in this Agreement; (m) No Future Deliverables: Company's decision to use, access, or license the Brightcove Service is not contingent on the delivery of any future functionality or features, or dependent on any oral or written comments made by Brightcove regarding future functionality or features; (n) Severability: If any term, provision, covenant or condition of this Agreement is held invalid or unenforceable for any reason, the remainder of the provisions will continue in full force and effect as if this Agreement had been executed with the invalid portion eliminated. The parties further agree to substitute for the invalid provision a valid provision that most closely approximates the intent and economic effect of the invalid provision; (o) Government Entities: The Brightcove Service is licensed to the U.S. government or any entity acting on its behalf as a Commercial Item, as that term is defined at 48 C.F.R. §2.101, and licensed only with those rights as are granted to all other entities or individuals entering into an agreement to use the Brightcove Service; (p) Purchase Orders/Instruments: Any instruments, including purchase orders, requests for proposals/information, questionnaires, acknowledgments and vendor registration forms not signed by both parties ("Instruments") shall not add to, supersede or modify, the terms of this Agreement or an Order and in the event any term of an Instrument purports to add to, supersede or modify any term of this Agreement or an Order, such term of the Instrument shall be void and without effect; (q) Order of Priority: In the event of a conflict or inconsistency between the terms of this Agreement and the terms of an Order, the order of priority between the relevant documents shall be as set forth in the Order; (r) Foreign Language Translation of Agreement: Any non-English language version of this Agreement is for reference purposes only. Company acknowledges and agrees that the English language version of this Agreement shall, in all instances, govern the parties' relationship; and (s) No Third Party Beneficiaries: This Agreement is between Company and Brightcove and is not intended for the benefit of any third party.