ClearCaster Sales Agreement
Thank you for your interest in the ClearCaster™ hardware device from Wowza Media Systems, LLC (“Wowza”). This ClearCaster Sales Agreement (this “Agreement”) is a legally binding contract between you and Wowza that describes the sole and exclusive terms under which Wowza is willing to sell you a ClearCaster device.
Before you click to purchase a ClearCaster device, please read this Agreement carefully and in its entirety. IF YOU DO NOT AGREE TO EACH AND EVERY TERM AND CONDITION OF THIS AGREEMENT, YOU MAY NOT PURCHASE A CLEARCASTER DEVICE FROM WOWZA. If you do not agree with each and every of the terms and conditions of this Agreement, do not click to purchase a ClearCaster device or indicate your agreement to these terms. If you have already purchased a ClearCaster device prior to being offered the opportunity to review this Agreement, and you do not agree to each and every of the terms and conditions of this Agreement, immediately notify Wowza at firstname.lastname@example.org and LegalNotices@wowza.com; if we have not yet collected payment and shipped a ClearCaster device to you, we may be able to provide you a refund.
BY PURCHASING A CLEARCASTER DEVICE FROM THE WOWZA ONLINE STORE, OR BY OTHERWISE SIGNIFYING YOUR ACCEPTANCE TO THIS AGREEMENT, YOU ACKNOWLEDGE AND AGREE THAT: (1) YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (2) YOU AGREE TO BE BOUND BY EACH AND EVERY TERM OF THIS AGREEMENT; (3) IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR ENTITY, YOU HAVE THE POWER AND AUTHORITY TO DO SO AND TO BIND SUCH COMPANY OR ENTITY; AND (4) REGARDLESS OF ANY PURCHASE ORDER OR OTHER DOCUMENT PROVIDED BY YOU TO WOWZA, YOU AGREE THAT THIS AGREEMENT IS THE EXCLUSIVE TERMS AND CONDITIONS GOVERNING YOUR PURCHASE OF THE CLEARCASTER DEVICE FROM WOWZA.
This ClearCaster™ Sales Agreement (this “Agreement”), is entered into between Wowza Media Systems, LLC, a Delaware limited liability company (“Wowza”), and You (“You” or “Buyer”, and together with Wowza, the “Parties”, and each, a “Party”) as of the date you complete your purchase on the Wowza website.
WHEREAS, Wowza is in the business of selling hardware devices to capture, manipulate, and stream audio video content over networks;
WHEREAS, Buyer is in the business of buying hardware devices;
WHEREAS, Buyer desires to purchase from Wowza, and Wowza desires to sell to Buyer the Goods; and
WHEREAS, Wowza and Buyer each agree to conduct the transaction contemplated by this Agreement exclusively upon the terms contained herein, and to manifest their respective assent to this Agreement by clicking an “I agree …” (or similarly labeled) checkbox during the shopping cart checkout process in the Wowza online store.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
1. Sale of Goods. Wowza agrees to sell to Buyer and Buyer agrees to purchase from Wowza ClearCaster™ hardware devices (the “Goods”) upon the terms and conditions set forth in this Agreement, in the quantity and at the price(s) specified in the Wowza website online shopping cart purchase transaction (“Shopping Cart”) and confirmed in purchase documentation provided by Wowza to Buyer. Once placed, orders for Goods may not be cancelled or changed without Wowza’s consent, which Wowza may withhold in its sole discretion.
2. No Software License Granted; Registration Required. The Goods may contain or include software products installed or loaded in or on the Goods by Wowza at the time of delivery to the Delivery Point, and Wowza may provide Buyer with software products for installation in or on the Goods from time to time (collectively, the “Software”). No license to Software is provided by this agreement. Buyer is granted no right to, and agrees not to, ACCESS, use, copy, modify, or remove Software from the Goods until Buyer has agreed to a Wowza End User Software License Agreement for the Software during registration of the Goods (“EULA”); provided, however, Buyer is hereby granted a limited license to use the Software solely in order to register the Goods with Wowza and enter into the EULA. The EULA, and not this Agreement, will exclusively govern Buyer’s use of the Software except as otherwise explicitly provided herein. In order to use the Goods and Software, Buyer will be required to agree to the unmodified EULA.
3. Third Party Services. Buyer understands and agrees that use of the Goods may: (i) require an account with third parties; (ii) require payment of money to, or agreement to terms and conditions with, third parties; and (iii) be subject to the availability and performance of third party products and services. Wowza makes no commitment or assurances about any of the foregoing and Wowza will not be liable to Buyer for anything related to or caused by the actions or failures of a third-party or a third-party product or service. WOWZA RESERVES THE RIGHT TO DEACTIVATE OR REFUSE TO ACTIVATE ANY GOODS SOLD TO A BUYER WHO FAILS TO COMPLY WITH THIS AGREEMENT OR RELEVANT THIRD-PARTY AGREEMENTS.
4. Use of the Goods; Prohibited Actions. Buyer is prohibited from, and hereby agrees not to attempt to or to do any of the following, nor to encourage, permit, or assist any third party to do any of the following, unless specifically instructed by Wowza: (a) access, copy, modify, or remove any software (including the Software) from the Goods;
(b) remove, alter, or obfuscate any titles, Wowza trademarks, trademarks, service marks, trade names, copyright notices, legends, watermarks, or other proprietary markings on or in the Goods or accompanying packaging or documentation;
(c) disassemble, unbundle, break apart, reverse engineer, dismantle, repair, modify, or otherwise make changes to the Goods;
(d) sell, resell, lease, license, sublicense, rent, assign, distribute, give away, or otherwise transfer or share, in whole or in part, the Goods, or access to or use of the Goods, including but not limited to providing use of the Goods to third parties in a third-party outsourcing facility, on a service or service bureau arrangement, or on a rental, application service provider, or timesharing basis;
(e) incorporate the Goods into other products or create derivative works based upon the Goods or Software;
(f) use the Goods to capture, transmit, reproduce, store, or share audio visual content that Buyer does not have the right to capture, transmit, reproduce, store, or share;
(g) use or collect information about people who come into contact with the Goods or for whom the Goods are used to transmit information about or depictions of, that is in any way illegal, violates the rights of such people, or is otherwise prohibited;
(h) export the Goods outside of the United States if the Goods were originally shipped to Buyer in the United States, or re-export the Goods from the country to which the shipper originally delivered the Goods to Buyer, and in any event export or re-export the Goods except in compliance with applicable law, including without limitation, the applicable provisions of the United States Export Administration Act and its related rules and regulations, along with applicable international export laws, rules, and regulations; and
(i) assist, encourage, or permit any other person or entity to do anything prohibited or not explicitly permitted by this Agreement.
5. Price; Taxes; Payment; No Setoff.
(a) Price. Buyer shall purchase the Goods from Wowza at the price(s) set forth in the Shopping Cart (the “Price” or “Prices”). Except as may be reflected on an invoice provided by Wowza upon shipment of Goods, all Prices are exclusive of all sales, use, and excise taxes, and VAT or any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer or otherwise arising in connection with this Agreement or the purchase or use Goods by Buyer. Buyer shall be responsible for and hold Wowza harmless from, all such charges, costs, and taxes; provided, that Buyer shall not be responsible for any taxes imposed on, or with respect to, Wowza's income, revenues, gross receipts, real or personal property, or other assets.
(b) Payment Terms. Buyer shall pay all invoiced amounts due to Wowza at the time Buyer places an order with Wowza. Wowza will not deliver Goods to the Delivery Point in advance of Wowza’s receipt of full payment for the Goods (including time for Wowza to verify funds received electronically, by check, or by other payment METHOD). Buyer shall make all payments hereunder by a payment method approved by Wowza in its sole discretion and in US dollars. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Wowza for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees.
(c) No Setoff. Buyer shall not, and acknowledges that it will have no right under this Agreement or any other agreement, document or law, to withhold, offset, recoup or debit any amounts owed (or to become due and owing) to Wowza or any of its affiliates, whether under this Agreement or otherwise, against any other amount owed (or to become due and owing) to it by Wowza or its affiliates, whether relating to Wowza's or its affiliates' breach or non-performance of this Agreement or any other agreement between Buyer or any of its affiliates, and Wowza or any of its affiliates, or otherwise.
6. Delivery Estimates; Delivery; Partial Shipments.
(a) Shipment and delivery estimates communicated by Wowza or displayed on the Wowza website are estimates only and are not a commitment or guarantee. Manufacture, supply, transit, and regulatory issues can significantly affect when Buyer will receive the Goods; Buyer understands and agrees that Wowza cannot guarantee a delivery date or provide refunds in the event of a delivery delay. Wowza will take commercially reasonable steps to ship the Goods within a reasonable time subject to availability of finished Goods. Wowza shall not be liable for any delays, loss or damage in transit.
(b) Wowza or its agent(s) will deliver the Goods to a shipper of Wowza’s choosing from Wowza’s or Wowza’s third party facility (the “Delivery Point”), using Wowza's standard methods for packaging and shipping. Although Buyer agrees to take takes delivery of the Goods at the Delivery Point, Wowza will instruct the shipper to ship the goods on Buyer’s behalf and at Buyer’s sole risk to the location specified by Buyer in the Shopping Cart and by a shipper of Wowza’s election.
(c) All Prices are EXW Delivery Point, Incoterms® 2010.
(d) Wowza may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the Goods shipped whether such shipment is in whole or partial fulfilment of the quantity purchased in the Shopping Cart.
7. Title and Risk of Loss. All sales of Goods hereunder are EXW Delivery Point, Incoterms® 2010. Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Wowza a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the applicable Uniform Commercial Code or other applicable law.
8. Inspection and Rejection of Nonconforming Goods.
(a) Buyer shall inspect the Goods within 3 calendar days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Wowza in writing of any Nonconforming Goods during the Inspection Period and furnishes such evidence, pictures, or other documentation as reasonably required by Wowza. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in this Agreement, documentation provided by Wowza, or the Shopping Cart; or (ii) product's label or packaging incorrectly identifies its contents.
(b) If Buyer timely notifies Wowza of any Nonconforming Goods, Wowza shall, in its sole discretion: (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Wowza's facility via reputable carrier reasonably approved by Wowza and within three (3) days of notifying Wowza of such Nonconforming Goods. If Wowza exercises its option to replace Nonconforming Goods, Wowza shall, after receiving Buyer's shipment of Nonconforming Goods, ship to Buyer, at Buyer's expense and risk of loss, the replaced Goods to the Delivery Point with instructions for a shipper to deliver such replaced Goods to Buyer’s location. Buyer acknowledges and agrees that the remedies set forth in this Section are Buyer's exclusive remedies for the delivery of Nonconforming Goods.
(c) Except as provided under this Section 8 in the event of Nonconforming Goods, all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Wowza.
(a) Subject to Section 3, Wowza warrants to Buyer that for a period of three (3) years from the date of delivery of the Goods to the Delivery Point, or for other period of time described in the Shopping Cart and in Wowza purchase documentation (collectively, the “Warranty Period”), the Goods will materially conform to the description and specifications set forth in Wowza's published specifications in effect as of the date of this Agreement and will be free from significant defects in material and workmanship that prevent any use of the Goods (“Warranty”).
(b) EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 9(a), WOWZA MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY: (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(c) Products manufactured by a third party (“Third-Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods. Third-Party Products are not covered by the warranty in Section 9(a). WOWZA MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY: (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(d) In the event Wowza is liable for a breach of the Warranty, Wowza will repair or replace the Goods in accordance with—and subject to Buyer’s compliance with— Wowza’s then-effective policies and procedures, which may require Buyer to promptly return the Goods in question. Replacement Goods may be refurbished Goods. Wowza shall not be liable for a breach of the Warranty unless: (i) Buyer gives written notice of the defect, reasonably described, to Wowza within three (3) days of the time when Buyer discovers or ought to have discovered the defect; (ii) Wowza is given a reasonable opportunity after receiving the notice to examine such Goods and Buyer (if requested to do so by Wowza) returns such Goods to Wowza's place of business at Wowza's cost for the examination to take place there; and (iii) Wowza reasonably verifies Buyer's claim that the Goods failed to meet the Warranty. THE REMEDIES SET FORTH IN THIS SECTION 9(d) SHALL BE THE BUYER'S SOLE AND EXCLUSIVE REMEDY AND WOWZA'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 9(a).
(e) Wowza shall not be liable for a breach of the Warranty if: (i) Buyer makes any further use of the Goods after giving Wowza notice of such defect; (ii) the defect arises as a result of Buyer’s failure to comply with this Agreement or follow Wowza’s reasonable instructions related to use and care of the Goods, including but not limited to storage, installation, commissioning, or maintenance of the Goods; or (iii) Buyer opens, disassembles, alters, repairs, or modifies the Goods in any way without Wowza’s prior written consent.
10. Intellectual Property Rights. "Intellectual Property Rights" means all industrial and other intellectual property rights comprising or relating to: (i) patents; (ii) trademarks; (iii) internet domain names, whether or not Trademarks, web addresses, web pages, website and URLs; (iv) works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; (v) trade secrets, inventions, discoveries, business and technical information and know-how; (vi) semiconductor chips, mask works and the like; and (vii) all industrial and other intellectual property rights, and all rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights or forms of protection pursuant to the laws of any jurisdiction throughout in any part of the world.
(a) Buyer acknowledges and agrees that the Goods comprise, are the result of, and constitute Wowza Intellectual Property Rights. Buyer further acknowledges and agrees that: (i) any and all Wowza Intellectual Property Rights are the sole and exclusive property of Wowza or its licensors; (ii) Buyer does not acquire any ownership interest in or to any of Wowza’s Intellectual Property Rights under this Agreement; (iii) any goodwill derived from the use by Buyer or a third party of Wowza’s Intellectual Property Rights exclusively inures to the benefit of Wowza or its licensors, as the case may be; (iv) if Buyer acquires any Intellectual Property Rights, rights in or relating to the Goods (including any rights in any trademarks, derivative works or patent improvements relating thereto) by operation of law or otherwise, such rights are deemed and are hereby irrevocably and exclusively assigned to Wowza or its licensors, as the case may be, without further action by either of the Parties; and (v) Buyer shall use Wowza Intellectual Property Rights, if at all, solely for purposes of using the Goods pursuant to this Agreement and only in accordance with this Agreement and the instructions of Wowza.
(b) Buyer shall not, and agrees to not: (i) take any action that might interfere with any of Wowza’s rights in or to Wowza’s Intellectual Property Rights, including Wowza’s ownership or exercise thereof; (ii) challenge any right, title or interest of Wowza in or to Wowza’s Intellectual Property Rights; (iii) make any claim or take any action adverse to Wowza’s ownership of Wowza’s Intellectual Property Rights; (iv) register or apply for registrations, anywhere in the world, for Wowza’s trademarks or any other trademark that is similar to Wowza’s trademarks or that incorporates Wowza’s trademarks in whole or in confusingly similar part; (v) use any mark anywhere that is confusingly similar to Wowza’s trademarks in whole or in confusingly similar part; (vi) engage in any action that tends to disparage, dilute the value of, or reflect negatively on the Goods or any Wowza trademark; (vii) misappropriate any of Wowza’s trademarks for use as a domain name without prior written consent from Wowza; or (viii) alter, obscure or remove any Wowza’s trademarks, or trademark or copyright notices or any other proprietary rights notices placed on the Goods, marketing materials or other materials that Wowza may provide.
11. Limitation of Wowza Liability.
(a) IN NO EVENT SHALL WOWZA BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, OR IN CONNECTION WITH THE GOODS OR ANY BREACH OF THIS AGREEMENT, REGARDLESS OF: (i) WHETHER SUCH DAMAGES WERE FORESEEABLE; (ii) WHETHER OR NOT WOWZA WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (iii) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED; AND (iv) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL WOWZA'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO WOWZA FOR THE GOODS SOLD HEREUNDER, or FIVE THOUSAND U.S. DOLLARS (US $5,000), WHICHEVER IS LESS.
12. Compliance with Law Covenants, Representations, and Warranties. Buyer is, and will at all times Buyer is using the Goods remain, in compliance with all applicable laws, regulations and ordinances. Buyer has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement or use the Goods. Without limiting the generality of the foregoing, Buyer makes the additional covenants, representations, and warranties below.
(a) Buyer’s Foreign Corrupt Practices Act Representation and Warranty. Buyer hereby represents and warrants to Wowza that Buyer and its representatives are, and for at least five (5) years prior to the date of this Agreement have been, in compliance with the U.S. Foreign Corrupt Practices Act of 1977, as amended ("FCPA") and the United Kingdom Anti-Bribery Act, as amended (“UKABA”). Neither Buyer nor any of its Representatives has: (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity or to influence official action; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (iii) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment; or (iv) failed to disclose fully any contribution or payment made by Buyer (or made by any Person acting on its behalf of which Buyer is aware) that violates the FCPA or UKABA. Buyer shall, and shall cause its representatives to, comply with the FCPA and UKABA, including maintaining and complying with all policies and procedures to ensure compliance with this Act.
(b) Buyer’s OFAC Representation and Warranty. Buyer hereby represents and warrants to Wowza that Buyer and its representatives are, and for at least five (5) years prior to the date of this Agreement have been, in compliance with the International Emergency Economic Powers Act (50 U.S.C. § 1701) and all other Laws administered by the United States Treasury Department’s Office of Foreign Asset Control (“OFAC”) or any other governmental authority imposing economic sanctions and trade embargoes ("Economic Sanctions Laws") against countries ("Embargoed Countries") and Persons designated in such laws (collectively, "Embargoed Targets"). Buyer hereby represents and warrants to Wowza that Buyer and its representatives are not now and have never been an Embargoed Target or otherwise subject to investigation or penalty under any Economic Sanctions Law. Buyer shall comply with all Economic Sanctions Laws, and without limiting the generality of the foregoing, Buyer shall not: (i) directly or indirectly export, reexport, transship, or otherwise deliver the Goods or any portion of the Goods to Embargoed Countries or an Embargoed Target; or (ii) broker, finance or otherwise facilitate any transaction in violation of any Economic Sanctions Law, including to Embargoed Countries or an Embargoed Target.
(c) Export Regulation (EAR) Covenant. Buyer acknowledges that the Goods and its software, documentation and any related technical data included with, or contained in, such Goods, (collectively, "Regulated Goods") are subject to United States export control laws and regulations, including the U.S. Export Administration Regulations (“EAR”). Buyer shall not, and shall not permit any third parties to, directly or indirectly, export, re-export or release any Regulated Goods to any jurisdiction or country to which, or any party to whom, the export, re-export or release of any Regulated Goods is prohibited by the EAR. Buyer shall be responsible for any breach of this Section by its, and its successors' and permitted assigns', parent, affiliates, employees, officers, directors, partners, members, shareholders, customers, agents, distributors, resellers or vendors that are not Buyer or Buyer's Representatives. Without limiting the foregoing, Buyer shall comply with all applicable federal laws, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting or releasing any Regulated Goods.
13. Restriction on Use of Goods. Buyer agrees to comply with specifications provided by Wowza or its suppliers regarding use of the Goods. The Goods are not intended or authorized for use in life support systems, human implantation, nuclear facilities, defense items, or for a military purpose, or any other application where the delay or failure of the Goods could lead to loss of life or property damage (each, a “Prohibited Use”). If Buyer uses or permits the use of the Goods for a Prohibited Use or otherwise fails to comply with a Wowza or supplier specification, then Buyer: (i) acknowledges and agrees that such use is at Buyer’s sole risk; (ii) agrees that neither Wowza, nor its licensors and suppliers, are liable in whole or in part for any claim, damage, or action arising from or related in any way to such Prohibited Use; and (iii) agrees that such use is a violation of this Agreement and agrees to indemnify, defend, and hold Wowza, and its licensors and suppliers, harmless from and against any claims, damages, losses, costs, expenses, and liabilities arising from or in any way related to such Prohibited Use.
14. Indemnification. Buyer shall indemnify, defend and hold harmless Wowza, its affiliate, vendors, and agents, and each of their respective officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys' fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by the Indemnified Party or awarded against the Indemnified Party, relating to or arising out of or resulting from any claim of a third party, government entity, or Wowza arising out of or occurring in connection with this Agreement, the Goods, Buyer's negligence, willful misconduct, or breach of this Agreement or any of Buyer’s representations and warranties herein. Wowza shall be entitled to control the defense of any matter governed by this Section and Buyer shall not enter into any settlement of such matter without Wowza's or the Indemnified Party's prior written consent.
15. Insurance. During the term of this Agreement and for a period of one year thereafter, Buyer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability in a sum no less than One Million U.S. Dollars (US $1,000,000) with financially sound and reputable insurers.
16. Termination. In addition to any remedies that may be provided in this Agreement, Wowza may terminate this Agreement and cancel any orders for Goods placed hereunder with immediate effect upon notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. WOWZA RESERVES THE RIGHT TO DEACTIVATE OR REFUSE TO ACTIVATE ANY GOODS SOLD TO A BUYER WHO FAILS TO COMPLY WITH THIS AGREEMENT.
17. Confidential Information. All non-public, confidential or proprietary information of Wowza, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Wowza to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized by Wowza in writing. Upon Wowza's request, Buyer shall promptly return all documents and other materials received from Wowza. Wowza shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to the Buyer at the time of disclosure; or (c) rightfully obtained by the Buyer on a non-confidential basis from a third party.
18. Entire Agreement.
(a) This Agreement, including and together with any related exhibits, schedules, attachments and appendices, sets forth Wowza’s entire liability for and Buyer’s exclusive remedies regarding, this Agreement and the Goods, and constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.
(b) Any purchase order or other document provided by or received from Buyer shall be for Buyer’s internal use only and shall not be applicable to Wowza nor shall it MODIFY the terms of this Agreement or govern Buyer’s purchase of the Goods. Wowza rejects any terms contained in purchase orders or similar documents.
19. Survival. Subject to the limitations and other provisions of this Agreement: (a) the representations and warranties of the Parties contained herein shall survive the expiration or earlier termination of this Agreement; and (b) any provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of this Agreement.
20. Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement must be in writing and addressed: (i) if to Wowza, at the address provided below; or (ii) if to Buyer, at the address or email address provided by Buyer to Wowza in the Shopping Cart or during Buyer’s purchase of the Goods on the Wowza website (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Wowza may also provide any notice to Buyer hereunder by electronic mail. Except as otherwise provided in this Agreement, a notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the notice has complied with the requirements of this Section.
Notice to Wowza:
Wowza Media Systems, LLC
ATTN: Legal Notices (ClearCaster)
523 Park Point Drive, Suite 300
Golden, Colorado 80401
With a copy to: LegalNotices@wowza.com
21. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to—and a court of competent jurisdiction may if the parties are unable to agree—modify this Agreement to affect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
22. Amendments. No amendment to or modification, rescission, termination or discharge of this Agreement or any term is effective unless it is in writing, identified as an amendment to this Agreement and signed by an authorized representative of each Party.
23. Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this 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.
24. Cumulative Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise. Notwithstanding the previous sentence, the Parties intend that Buyer's rights under Section 8 and Section 9 are Buyer's exclusive remedies for the events specified therein.
25. Assignment. Buyer shall not assign, transfer, delegate or subcontract any of its rights or obligations under this Agreement without the prior written consent of Wowza. Any purported assignment, transfer, delegation or subcontract in violation of this Section shall be null and void. No assignment, transfer, delegation or subcontract shall relieve Buyer of any of its obligations hereunder. Wowza may at any time assign, transfer, delegate or subcontract any or all of its rights or obligations under this Agreement without Buyer's prior written consent and without providing notice to Buyer.
26. Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
27. No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
28. Choice of Law. This Agreement, including all exhibits, schedules, attachments and appendices attached to this Agreement and thereto, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of the State of Colorado, United States of America, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Colorado.
29. Choice of Forum.
(a) Choice of Forum for United States Buyers. Except as provided in (b), below, each Party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments and appendices attached to this Agreement, and all contemplated transactions, including contract, equity, tort, fraud and statutory claims, in any forum other than the United States District Court located in Denver, Colorado or, if such court does not have subject matter jurisdiction, the courts of the State of Colorado sitting in Denver County, Colorado, and any appellate court from any thereof. Except as provided in (b), below, each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation or proceeding only in the United States District Court located in Denver, Colorado or, if such court does not have subject matter jurisdiction, the courts of the State of Colorado sitting in Denver County, Colorado. Each Party agrees that a final judgment in any such action, litigation or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
(b) Choice of Forum for Non-United States Buyers. If Buyer resides (if Buyer is an individual) or is domiciled (if Buyer is an entity) outside of the United States of America, any claim or dispute brought by Buyer and arising out of or related to this Agreement or the Goods shall be submitted to BINDING arbitration in DENVER, COLORADO, USA UNLESS WOWZA AGREES IN WRITING TO WAIVE SUCH REQUIREMENT, in which case section (a), above, will control. Such arbitration shall be before an arbitrator-member of the American Arbitration Association (“AAA”) to be mutually agreed to by the parties, or, in the event the parties cannot agree on a single such arbitrator-member, to a panel of three arbitrator-members selected in accordance with the rules of the AAA. The dispute shall be settled in accordance with the Commercial Arbitration Rules of the AAA and the decision of the arbitrator(s) shall be final and binding upon the parties and judgment may be obtained thereon in a court of competent jurisdiction. Subject to the limitations of liability contained herein, the prevailing Party shall be entitled to recover from the other Party the fees and expenses of the arbitration as well as reasonable attorneys' fees, costs and expenses incurred by the prevailing Party. The Convention on the Recognition and Enforcement of Foreign Arbitral Awards shall apply to this Agreement if Buyer resides or is domiciled outside of the United States.
30. Waiver of Jury Trial. Each Party acknowledges and agrees that any controversy that may arise under this Agreement, is likely to involve complicated and difficult issues and, therefore, each such Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement, including any exhibits, schedules, attachments or appendices attached to this Agreement, or the transactions contemplated hereby.
31. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Notwithstanding anything to the contrary in herein, a copy of this Agreement signed or agreed to and delivered by electronic acknowledgement, electronic signature, facsimile, email or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
32. Force Majeure. Any delay or failure of Wowza to perform its obligations under this Agreement will be excused to the extent the delay or failure was caused directly by an event beyond Wowza’s reasonable control (which events may include natural disasters, embargoes, explosions, riots, wars, acts of terrorism, strikes, labor stoppages or slowdowns, supplier delays, or other industrial disturbances, and shortage of adequate power or transportation facilities).
33. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, franchise, business opportunity, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever. No relationship of exclusivity shall be construed from this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date the Parties completed the Shopping Cart purchase transaction and indicated their acceptance of this Agreement.