Wowza GoCoder SDK Trial
Thank you for your interest in the Wowza GoCoder Software Development Kit for iOS and Android (the “SDK”) trial from Wowza Media Systems, LLC (“Wowza”). This trial End User License Agreement (this “EULA” or this “Agreement”) is a legally binding agreement between you (“Licensee” or “You”) and Wowza, and describes your rights to use the GoCoder SDK and related services provided by Wowza.
BY INDICATING THAT YOU AGREE TO THESE TERMS DURING THE PROCESS OF OBTAINING AN SDK TRIAL LICENSE KEY, OR BY REQUESTING OR USING THE GOCODER SDK, YOU ACKNOWLEDGE AND AGREE: (1) THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (2) THAT YOU AGREE TO BE BOUND BY EACH AND EVERY TERM OF THIS AGREEMENT; AND (3) IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, THAT YOU HAVE THE POWER AND AUTHORITY TO DO SO AND TO BIND SUCH COMPANY.
IF YOU DO NOT AGREE TO EACH AND EVERY TERM AND CONDITION OF THIS AGREEMENT, YOU MAY NOT USE THE GOCODER SDK. If you do not agree with each and every of the terms and conditions of this Agreement, do not take any action that signifies your agreement to this Agreement. Although fees paid to Wowza hereunder are generally nonrefundable, Wowza will gladly provide you with a refund of any fees paid related to your trial of the GoCder SDK if you have not used or taken advantage of the GoCoder SDK and request a refund from us promptly after agreeing to these terms and making payment to Wowza.
THIS IS A TRIAL LICENSE ONLY. AS DESCRIBED HEREIN, YOU MAY NOT USE THIS LICENSE FOR “PRODUCTION” PURPOSES.
1. GRANT OF SDK LICENSE.
1.1 The SDK is licensed, not sold. Subject to Licensee’s compliance with this Agreement and payment of applicable fees, if any, Wowza grants Licensee a limited, non-exclusive, non-transferable, non-assignable, revocable license during the Term to access and use the items in the SDK solely for the purpose of Licensee internally testing and evaluating the SDK, and Licensee designing, developing, and testing a mobile device application for the iOS (Apple) or Android (Google) platforms that transmits (streams) audio and/or video content to a Wowza Streaming Engine server, a Wowza Streaming Cloud service account, or both (each, a “Licensee Application”).
1.2 Licensee is granted no right to the SDK, and agrees to not use or distribute a “production” or “non-testing” Licensee Application, whether internally within Licensee’s organization or to third parties.
1.3 For the avoidance of doubt, this Agreement and the license grant in this Section 1 shall have no impact on software products and services separately licensed by Licensee from Wowza pursuant to a separate agreement.
1.4 Wowza reserves the right to limit or restrict access to the SDK trial in its sole discretion.
2. SDK AND LICENSE RESTRICTIONS. The license granted herein by Wowza to Licensee does not grant Licensee the right to, and Licensee agrees not to:
2.1 distribute any Licensee Application to a third party, regardless of whether or not Licensee receives compensation for such distribution, or to use a Licensee Application within Licensee’s organization for “production” or non-testing purposes;
2.2 use the SDK for any purpose that violates applicable law or that is not expressly permitted by this Agreement, including without limitation, using the SDK to create any product or service other than the type of mobile device application expressly permitted by Section 1;
2.3 work around any technical limitation in the SDK;
2.4 remove, alter, or obscure in any way watermarks imposed by the SDK and contained in the Licensee Application;
2.5 engage in any activity, including but not limited to development or distribution of an application or service, that is likely or intended to, or does in fact, interfere with, disrupt, damage, or access in an unauthorized manner, any Wowza or third party software, server, service, network, or other property;
2.6 sublicense, sell, transmit, rent, lease, loan, distribute, disclose, publish, or otherwise transfer any part of the SDK to any third party, or permit access to or use of any part of the SDK by or on behalf of any third party;
2.7 reverse engineer, decompile, or disassemble any part of the SDK (except and only to the extent permitted by applicable law despite this restriction);
2.8 create or distribute any malicious, deceptive, or unlawful applications;
2.9 make copies of the SDK;
2.10 create another SDK or any other derivative work of the SDK
2.11 include any part of the SDK in Licensee’s product(s) except for sample code as expressly permitted herein;
2.12 remove, obscure, alter, or interfere with any watermarks or other licensing mechanisms imposed by Wowza;
2.13 remove, obscure, or alter any proprietary rights notice contained in or on any part of the SDK; or
2.14 export or use the SDK or Confidential Information in any manner that violates applicable law.
3. Sample Code. Wowza may include sample code within the SDK. Notwithstanding restrictions to the contrary in Section 2 and unless Wowza instructs Licensee to the contrary, Licensee may not distribute sample code provided by Wowza externally or internally within Licensee’s organization.
4. NO DISTRIBUTION OR PRODUCTION USE OF LICENSEE APPLICATION. Licensee agrees to not distribute, either to third parties or within Licensee’s organization, any Licensee Application pursuant to this Agreement. Even if merely used internally, Licensee agrees to not use any Licensee Application developed pursuant to this Agreement for any “production” or commercial purposes whatsoever.
5. WOWZA PRODUCTS & SERVICES. Wowza may from time to time provide products and services that interact with the SDK or with the Licensee Product. Wowza may change or cancel such products or services at any time, or limit their availability. Licensee agrees to not use the SDK in any way that could harm, or gain unauthorized access to, any Wowza product, service, data, account, or network.
6. MAINTENANCE & SUPPORT. Wowza will receive technical support inquiries and provide technical and other support related to the SDK (“Support”) in a manner Wowza deems appropriate in its sole discretion; Wowza may notify Licensee of changes in what constitutes Support or how Support is to be requested or received, from time to time. Although Wowza will endeavor to respond to Support inquiries in a commercially reasonable manner, Wowza does not commit to any specific timeframe for such responses and does not commit to resolve all Support inquiries. Wowza may also, in its sole discretion, provide software updates (including without limitation, upgrades, improvements, bypasses, and bug fixes, collectively “Updates”). Support and Updates are each provided pursuant to this Agreement and Wowza policies then in effect. Wowza may chose to release Updates at any time but is not required to do so and does not commit to provide Updates according to any timeframe (for the avoidance of doubt and for example, Wowza does not commit to provide Updates within any timeframe following release of new operating system versions).
7. WOWZA TRADEMARKS. Licensee will not use any Wowza trademark, or Wowza’s name or product or service names, to market the Licensee Application, unless authorized in advance by Wowza. Regardless of the foregoing, any use of Wowza trademarks, name, service mark, trade name, logo, design, trade dress, domain name, or other brand designation shall inure to the sole benefit of Wowza. Licensee will not contest or aid in contesting the validity or ownership of, or Wowza’s rights in, any Wowza trademark, name, service mark, trade name, logo, design, trade dress, domain name, or other brand designation, or take any action in derogation of Wowza’s rights therein, including without limitation, applying to register any trademark, trade name, domain name, service mark, or other designation that is confusingly similar to any Wowza trademark or Wowza domain name, in any event as determined in Wowza’s sole discretion. Licensee hereby exclusively and irrevocably assigns all its rights in or to, and all rights obtained from or as a result of, any filing, application, or attempt to register, any trademark, trade name, domain name, service mark, or other designation that is confusingly similar to any Wowza name, service mark, trade name, logo, design, trade dress, domain name, or other brand designation or Wowza domain name, as determined in Wowza’s sole discretion.
8. LICENSEE TRADEMARKS. Licensee agrees that Wowza may use its name, organization name, logos, and other identifying information to identify Licensee as a Wowza customer in marketing and similar efforts, such as marketing collateral, trade show signage, and website content. Licensee agrees that such use of its name shall be without royalty or other obligation to Licensee by Wowza.
9. IDEAS. Licensee will test and evaluate the SDK. Licensee shall promptly notify Wowza of any problems or defects encountered in the SDK, or ideas for enhancements or changes to the SDK (collectively, “Ideas”). By providing such Ideas, whether such Ideas are conceived of or provided to Wowza during the Term of after, Licensee grants to Wowza a worldwide, royalty-free, irrevocable and exclusive license, with the right to sublicense, to use and disclose the Ideas in any manner Wowza chooses and to display, perform, copy, make, have made, use, sell, and otherwise dispose of Wowza’s and its sublicensee’s products embodying such Ideas in any manner and via any media Wowza or its sublicensees choose, without reference or obligation of any kind to Licensee. Licensee warrants that it will not give Wowza any Idea: (i) that Licensee has reason to believe is subject to any patent, copyright, or other intellectual property claim or right of a third party; or (ii) subject to license terms that seek to require any Wowza product incorporating or derived from any Idea, or other Wowza intellectual property, to be licensed to or otherwise shared with any third party.
10. TERM. This Agreement is effective from the Effective Date and will remain in effect for sixty (60) days from the Effective Date unless Wowza and Licensee agree to a different period of time in writing, email accepted (“Term”). Wowza may unilaterally extend the Term by email or written notice to Licensee.
11.1 Wowza may discontinue offering, terminate, or restrict access to any part of the SDK, any API, or both, at any time in its sole discretion and without prior notice to Licensee.
11.2 If Licensee is dissatisfied with any aspect of the SDK, Licensee’s sole and exclusive remedy is to cease using the SDK.
11.3 Wowza and Licensee may each terminate this Agreement by notifying the other Party in writing and complying with its obligations hereunder. Wowza may terminate this Agreement upon email notice to Licensee.
11.4 Sections 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, and 17 shall survive the termination of this Agreement for any reason.
12. OBLIGATIONS UPON TERMINATION. Within one (1) business day following termination of this Agreement for any reason, including the expiration of the Term, Licensee shall: (i) cease all usage of the SDK; (ii) destroy and erase from computer memory or return to Wowza the SDK and any copies thereof; (iii) return to Wowza or destroy all Confidential Information (as set forth in Section 7) and copies thereof; (iv) return to Wowza or destroy all copies of materials relating to the SDK, Confidential Information, or Ideas; and (v) provide to Wowza any Ideas conceived of but not provided to Wowza. Licensee shall, upon request from Wowza, provide Wowza with written certification that it has complied with these requirements within three (3) business days of such request.
13.1 Definition. Wowza may disclose to Licensee certain confidential, proprietary, and trade secret information of Wowza (“Confidential Information”). Confidential Information includes without limitation, information Licensee receives or has received from Wowza that is related to the SDK, that is designated as confidential by Wowza, or that, given the nature of the information, should reasonably be assumed to be confidential. Confidential Information also includes without limitation, Ideas, the SDK and all copies thereof, as well as computer programs, flowcharts, diagrams, manuals, documentation, development tools, marketing information, financial information, business plans, results of the beta testing, problems identified as a result of the beta testing, and Ideas. Confidential Information does not include those things that Wowza designates or identifies as not being subject to this Agreement or that are: (i) publicly available other than by a breach of this Agreement; (ii) rightfully received from a third party not in breach of any obligation of confidentiality; (iii) independently developed by Licensee without access or reference to the Confidential Information, as demonstrated by written records in Licensee’s possession; or (iv) known to Licensee at the time of disclosure without breach of this Agreement, as demonstrated by written records in Licensee’s possession.
13.2 Protection of Confidential Information. Licensee agrees to use the Confidential Information only during the Term and solely for the purpose of evaluating the SDK. Licensee agrees to take all steps reasonably necessary to maintain and protect the secrecy of the Confidential Information for the benefit of Wowza. Licensee agrees to refrain from disclosing Confidential Information to third parties, including without limitation, consultants, advisors, and contractors, and agrees to only disclose the Confidential Information to its own employees with a need to know the Confidential Information and who are made aware of and agree to the confidentiality obligations provided by this Agreement. Licensee acknowledges that unauthorized disclosure of the Confidential Information could diminish the value to Wowza of proprietary interests that are the subject of this Agreement. If Licensee breaches any obligations hereunder, Wowza may be entitled to seek equitable relief to protect its interests therein, including but not limited to injunctive relief, in addition to any and all other rights and remedies, including monetary damages, available at law or equity. Licensee waives any requirement that Wowza post security in order to seek injunctive relief related to this Agreement.
14. ALL RIGHTS RESERVED. Except for the limited license expressly granted herein, Licensee agrees that Wowza retains all rights, title, and interest in and to the SDK, including without limitation, any and all copies, improvements, enhancements, modifications, and derivative works thereof, along with Confidential Information and Ideas. Wowza’s retention of rights includes, without limitation, all patents, copyrights, inventions, trade secrets, trade dress, trademarks, and any other intellectual property rights in and to the Assets. Wowza retains all rights not expressly granted to Licensee. Licensee shall reproduce all titles, trademarks, copyright, and restricted rights notices contained in the SDK.
15. DISCLAIMER OF WARRANTIES, LIABILITY.
15.1 Licensee acknowledges that the SDK is trial documentation only, and may include pre-release code. Licensee acknowledges that the SDK may not function in or on all versions of iOS or Android, may contain errors and defects, and may be substantially modified in the future. The SDK may be withdrawn by Wowza. LICENSEE ACKNOWLEDGES THAT THE SDK IS PROVIDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND, INCLUDING BUT NOT LIMITED TO WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY, WARRANTIES THAT THE SDK WILL BE ERROR FREE OR WILL FUNCTION AS DESIRED BY LICENSEE, OR WARRANTIES OF FITNESS FOR ANY PARTICULAR PURPOSE. The entire risk as to the quality of the SDK and arising out of or related to Licensee’s evaluation and use of the SDK remains with Licensee. Wowza does not ensure continuous, error-free, secure, or virus-free operation of the SDK. Wowza is not obligated to provide support related to the SDK.
15.2 IN NO EVENT SHALL WOWZA, ITS AFFILIATES OR ASSOCIATED ENTITIES, AND ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, OFFICERS, AND/OR DIRECTORS, BE LIABLE FOR ANY DAMAGES IN EXCESS OF $15, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE USE OR INABILITY TO USE THE SDK, REGARDLESS OF THE LEGAL THEORY UPON WHICH ANY CLAIM FOR SUCH DAMAGES IS BASED. IN ADDITION, WOWZA WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR SIMILAR TYPES OF DAMAGES, OR FOR LOST PROFITS.
15.3 THE DISCLAIMERS OF WARRANTIES AND LIABILITY IN THIS AGREEMENT CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT AND THE LIMITATIONS OF LIABILITY PROVIDED HEREIN WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE EXCLUSIONS, DISCLAIMERS, AND LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT ARE ESSENTIAL COMPONENTS OF THIS AGREEMENT AND FORM THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SDK (OR, ALTERNATIVELY, FORM THE BASIS FOR WOWZA PROVIDING THE LICENSE GRANTS HEREIN FOR NO FEE), AND THAT WOWZA WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS TO ITS LIABILITY.
16. INDEMNIFICATION. Licensee agrees to indemnify, defend, and hold harmless, and hereby releases Wowza, its licensors, affiliates, and associated entities, and their respective officers, directors, employees, contractors, and agents from and against any and all losses, liabilities, claims, including product liability, warranty, and intellectual property claims, obligations, costs, and/or expenses, including reasonable legal fees, which result from, arise out of, or are in any way related to: (i) this Agreement; (ii) Licensee’s design, creation, testing, or distribution of the Licensee Product or sample code provided in the SDK; (iii) services or activities related to the SDK; (v) any actual, threatened, or anticipated breach by Licensee of this Agreement; or (vi) any other activity of Licensee.
17.1 Assignment. Licensee may not assign this Agreement without prior written consent of Wowza.
17.2 Relationship. This Agreement shall not be construed to create any employment, partnership, joint venture, franchise, or agency relationship between Wowza and Licensee, nor shall this Agreement be construed to authorize either Party to enter into any commitment or agreement binding on the other Party.
17.3 Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York excluding conflict of law rules and principles. Both Wowza and Licensee submit to personal jurisdiction in Colorado and further agree that any cause of action relating to this Agreement shall be brought in Jefferson County, State of Colorado (if under State law) or in the District of Colorado (if under Federal Law) and such courts shall have the exclusive jurisdiction to determine the validity, construction, and performance of this Agreement and the legal relations between parties thereto. Licensee hereby waives any claim that such venue is not proper or would be inconvenient.
17.4 Notice. Any notice required by this Agreement to any Party shall be in writing and in English, addressed as set forth on the Cover Page, and deemed to be sufficient and effective: (i) upon sending if given in writing by certified U.S. mail, postage prepaid, return receipt requested, or by overnight delivery by an internationally recognized carrier; or (ii) upon sending if given in writing by email and acknowledged by the receiving Party or followed within five (5) business days by a writing delivered as stated in subsection “(i)”, above. Either Party may designate a different or additional recipient for notices by like notice to the other Party.
17.5 Headings and Interpretation. The headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent. The Parties acknowledge that they have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed consistent with the joint drafting of this Agreement by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.
17.6 Survival and Severability. If any provision of this Agreement shall be held invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it valid and enforceable and most closely approximate the intent and economic effect of the invalid provision, and the validity and enforcement of all other provisions in this Agreement shall not be affected thereby. Sections 1 through 13 shall survive termination of this Agreement.
17.7 Entire Agreement. This Agreement constitutes the complete and exclusive agreement between Wowza and Licensee relating to the subject matter hereof, and supersedes all oral or written communications, proposals, representations, negotiations, commitments, understandings, or agreements not specifically incorporated herein. This Agreement shall only be amended by a written amendment duly signed by authorized representatives of each of Wowza and Licensee.
18. Technical Support Premium Services.
18.1 Wowza will provide Licensee with the premium technical support services (the “Premium Services”) described on http://www.wowza.com/support/plans-and-services, or other web pages hosted by Wowza (collectively, the “Wowza Website”). In the event of any discrepancy between the Wowza Website and this Agreement, the terms in this Agreement shall control and be given full force and effect.
18.2 Wowza and Licensee agree to work together reasonably and in good faith to facilitate timely and satisfactory delivery of the Premium Services by Wowza. Licensee agrees to promptly respond to inquiries from Wowza when receiving Premium Services. Wowza shall determine the manner of delivering the Premium Services in its sole discretion, including without limitation the days and times the Premium Services are provided, the manner of delivering the Premium Services, the personnel providing the Premium Services, and the technical and other resources to be utilized in providing and delivering the Premium Services, and the products and services for which the Premium Services are provided.
18.3 If Licensee is an organization, Premium Support is provided to the purchaser of the Premium Support and additional support contacts who have a valid Wowza account on the Wowza Website.
18.4 Licensee acknowledges and agrees that any audio-video content streamed to, from, or through any Wowza software product or service is the exclusive responsibility of Licensee.
18.5 The Premium Services are provided pursuant to Wowza policies and procedures, which may be described on the Wowza Website and may be updated from time to time by Wowza.
18.6 Wowza does not provide Premium Services with regard to: (i) prior versions of Wowza software; (ii) improper installation or use of Wowza software; (iii) software or other products or services not offered, licensed, and provided to you by Wowza, and the implementation or use of Wowza software with any of the foregoing; (iv) modified Wowza code; (v) other products and services not specifically described as within the scope of the Premium Services.
18.7 Descriptions of the Premium Services provided on the Wowza Website and in other communications from Wowza are not intended to be “SLAs” or guarantees of response or resolution times; the failure of Wowza to meet any specific timeframes described in such materials shall not be considered a breach of this Agreement, and shall not provide the basis for a refund or credit to Licensee from Wowza.
18.8 In providing the Premium Services, Wowza may need to download, install, and/or run software on Licensee devices or systems. These may include, without limitation, software or services that allow Wowza to diagnose and resolve problems, remotely control Licensee devices or systems and modify their operation or configuration. Licensee understands and consent’s to Wowza’s reasonable utilization of the foregoing technology.
18.9 Wowza may make written, audio, and/or video records or recordings of the Premium Services provided to Licensee and interactions between Licensee and Wowza. You agree Wowza may store, copy, use, disseminate, distribute, and make use of such records and recordings in any reasonable manner it sees fit without any obligation to you.
18.10 You agree to not expose Wowza or its employees providing the Premium Services to explicit, indecent, objectionable, adult, or illegal content.
19. Requirements to Receive Premium Support. In order to request and receive Premium Services, Licensee must at all times during the Term (as defined below):
19.1 be a licensee of Wowza Streaming Engine™ or Wowza Media Server™ software in good standing, or be a valid current user of the Wowza Streaming Cloud™ service in good standing;
19.2 have an active “maintenance and support” subscription with Wowza for each License Key (as defined in the Wowza software license agreement, each a “License Key”) on Licensee’s account if obtaining the Premium Services with regard to any Wowza Streaming Engine or Wowza Media Server License Key; “maintenance and support” refers to the “standard” maintenance and support plans that are included in Wowza Streaming Engine and Wowza Media Server monthly subscriptions and offered by Wowza for an additional fee for Wowza Streaming Engine and Wowza Media Server perpetual licenses; and
20. Software EULA; Premium versus Standard Maintenance and Support.
20.1 Wowza is not providing any license to current or future Software, or rights to use any service provided by Wowza, by this Agreement. EXCEPT AS PROVIDED IN THE FOLLOWING SECTION 3.2, THIS AGREEMENT DOES NOT MODIFY OR SUPERSEDE IN ANY WAY SOFTWARE LICENSE AGREEMENTS, OR SERVICES TERMS AND CONDITIONS, BETWEEN WOWZA AND LICENSEE.
21. Term; Automatic Renewal; Termination.
21.1 The initial term of this Agreement is the time period for which Licensee initially purchased the Premium Services (the “Initial Term”). The Initial Term, along with each Renewal Term (as described in Section 4.2 below), are collectively referred to herein as the Term.
21.2 AT THE CONCLUSION OF THE INITIAL TERM AND EACH RENEWAL TERM, THIS AGREEMENT AUTOMATICALLY RENEWS FOR AN ADDITIONAL PERIOD OF TIME EQUAL TO THE PRIOR INITIAL TERM OR RENEWAL TERM (EACH, A “RENEWAL TERM”). LICENSEE AGREES TO BE AUTOMATICALLY CHARGED AND PAY THE THEN-CURRENT RATE FOR THE PREMIUM SERVICES FOR EACH SUCH RENEWAL TERM UNLESS LICENSEE CANCELS THE PREMIUM SERVICES OR NOTIFIES WOWZA OF ITS DESIRE TO NOT RENEW THE PREMIUM SERVICES AT LEAST THIRTY (30) DAYS PRIOR TO THE END OF THE THEN-CURRENT INITIAL TERM OR RENEWAL TERM.
21.3 CANCELLATION OR NON-RENEWAL OF THE PREMIUM SERVICES MAY BE ACCOMPLISHED BY CUTOMER UTILIZING ONE OF THE METHODS PROVIDED BY WOWZA, SUCH AS USING CUSTOMER’S “MY ACCOUNT” PAGE ON THE WOWZA WEBSITE TO CANCEL THE PREMIUM SERVICES.
21.4 Either Party may terminate this Agreement if the other Party materially breaches a material term of this Agreement and fails to cure such breach following fifteen (15) days of written notice from the non-breaching Party. Licensee is not entitled to a pro-rata or other refund of Fees (as defined below) in the event this Agreement is terminated for Licensee’s uncured breach.
21.5 Wowza may suspend or cease providing the Premium Services and terminate this Agreement without owing a refund to you if your use of the Premium Services is determined by Wowza, in its sole and reasonable discretion, to be excessive, illegal, improper, abusive, or harassing.
21.6 Wowza may terminate this Agreement, and provide a pro-rata refund of Fees paid for Premium Services not performed, upon fifteen (15) days notice to Licensee.
21.7 Sections 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11 shall survive termination of this Agreement.
22. Fees. In exchange for the Premium Services provided by Wowza, Licensee agrees to pay Wowza the fees set forth for such Premium Services on the Wowza Website (collectively, “Fees”).
22.1 All Fees are in U.S. Dollars. All Fees are completely nonrefundable.
22.2 Fees are due according to the timeframes and payment methods as stated on the Wowza Website.
22.3 Wowza may withhold the Premium Services if Licensee is past due on any account with Wowza at any time. In addition, Wowza may suspend or terminate any Software license granted to Licensee by Wowza if Licensee fails to cure any nonpayment hereunder following fifteen (15) days notice by Wowza to Licensee.
22.4 Amounts not paid when due will accrue interest at the lesser of 1.5% per month or the maximum rate permitted by law. Licensee shall be responsible for reasonable costs of collection of past due amounts.
23. Non-Solicitation. During the Term and for one (1) year thereafter, Licensee will not encourage or solicit any employee or consultant of Wowza to leave Wowza for any reason, provided this provision shall not prevent Licensee from hiring a Wowza employee who responds to a general, non-specific, advertisement for employment by Licensee.
24. Confidential Information of Wowza.
24.1 CUSTOMER INFORMATION IS NOT CONFIDENTIAL INFORMATION UNDER THIS AGREEMENT. CUSTOMER IS RESPONSIBLE FOR DELETING OR OBFUSCATING ANY INFORMATION CUSTOMER CONSIDERS CONFIDENTIAL AND THAT WOWZA MAY VIEW OR BE EXPOSED TO WHILE PROVIDING THE PREMIUM SERVICES; WOWZA DOES NOT AGREE TO MAINTAIN THE CONFIDENTIALTY OF ANY CUSTOMER INFORMATION OR MATERIALS.
24.2 “Confidential Information" means any competitively sensitive or secret business, financial, marketing, or technical information disclosed by Wowza, its officers, employees, or agents. Confidential Information shall include without limitation: (i) intellectual property of Wowza; (ii) nonpublic information relating to Wowza’s technology, customers, business plans, promotional and marketing activities, finances, and other business affairs; (iii) third-party information that Wowza is obligated to keep confidential; (iii) the methodology Wowza employs to provide the Premium Services, along with the ideas, concepts, know-how, methodology, techniques, structures, information, materials, procedures, training materials, and training aids constituting or related to the Premium Services; and (iv) any other information provided by Wowza that is either designated by Wowza as confidential or that a reasonable businessperson would conclude to be sensitive, proprietary, confidential, or a trade secret.
24.3 Licensee agrees that it will: (i) use Confidential Information received by it solely for purposes of utilizing Wowza software and the Premium Services as permitted under the Software’s applicable license agreement and this Agreement; (ii) maintain the confidentiality of the Confidential Information using at least as great a degree of care as it uses to maintain the confidentiality of its own most confidential information and in no case less than reasonably prudent care; (iii) reasonably communicate the terms and conditions of this Agreement to any employees or contractors who come into contact with the Confidential Information and only disclose Confidential Information to employees and contractors who are subject to a written confidentiality agreement that protects the Confidential Information at least to the same extent as this Agreement; and (iv) not use, export, or re-export Confidential Information except in compliance with applicable laws, rules, and regulations of the United States and other nations.
24.4 Licensee may disclose Confidential Information to the extent required to comply with any law, order, or rule, or regulation of any applicable governmental agency, authority, or judicial authority; provided, however, that prior to any such disclosure, Licensee shall notify Wowza of Licensee’s intent to disclose Confidential Information and reasonably assist Wowza in any effort to prevent such disclosure.
24.5 Upon receipt of a written request from Wowza, Licensee will return all Confidential Information disclosed to it by Wowza.
24.6 Licensee will not use, repeat, perform, reverse engineer, copy, duplicate, modify, or create derivative works of any Confidential Information. Licensee will not alter, remove, or obscure any proprietary notices contained in the Confidential Information. To the extent Licensee obtains any rights in and to any Confidential Information or derivatives or improvements thereto, Licensee hereby assigns all such rights to Wowza.
24.7 The Parties agree that any actual, threatened, or anticipated disclosure of Confidential Information by Licensee will cause immediate, irreparable harm to Wowza for which equitable and any other legal remedies may be awarded. Wowza may seek injunctive relief to protect the Confidential Information and Licensee waives any requirement that Wowza post a bond or other security in order to pursue injunctive relief.
24.8 Wowza is the owner of, and expressly retains any and all rights in and to, the Confidential Information and any other proprietary information of Wowza. The Confidential Information is the exclusive intellectual property of Wowza or its licensors and protected by copyright laws and international treaties as well as other intellectual property laws and treaties. Wowza or its licensors retain all right, title, and interest in and to the Confidential Information, and all copies thereof, and in all related copyrights, patents, Wowza trademarks, and any other intellectual and industrial property and proprietary rights, including without limitation any registrations, applications, renewals, and extensions of such rights.
25. Disclaimer of Warranty and Limitations of Liability.
25.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WOWZA PROVIDES THE PREMIUM SERVICES WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS AGREEMENT OR COMMUNICATION WITH CUSTOMER. WOWZA SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WOWZA DOES NOT WARRANT THAT THE PREMIUM SERVICES WILL MEET CUSTOMER’S NEEDS, THAT THE PREMIUM SERVICES WILL BE ERROR-FREE, OR THAT THE PREMIUM SERVICES WILL BE PROVIDED WITHOUT INTERRUPTION OR DELAY.
25.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WOWZA BE LIABLE HEREUNDER FOR ANY LOST PROFITS OR LOST BUSINESS OPPORTUNITIES, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE.
25.3 WOWZA'S TOTAL LIABILITY UNDER THIS AGREEMENT WILL NOT, IN ANY EVENT, EXCEED THE FEES, IF ANY, PAID BY CUSTOMER FOR THE PREMIUM SERVICES UNDER THIS AGREEMENT.
25.4 THE FOREGOING LIMITATIONS AND DISCLAIMERS IN THIS SECTION 8 SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF WHETHER WOWZA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. CUSTOMER AND WOWZA AGREE THAT, GIVEN THE FEES CHARGED, THIS LIMITATION OF LIABILITY IS REASONABLE AND FAIR, AND THAT WOWZA WOULD NOT HAVE ENTERED INTO THIS AGREEMENT OR PROVIDED THE PREMIUM SERVICES WITHOUT THE LIMITATIONS OF LIABILITY AND DISCLAIMER OF WARRANTIES PROVIDED IN THIS SECTION 8.
26. Trademarks and Publicity.
26.1 Licensee is granted no right, title, license to, or interest in any Wowza trademarks, copyrights, or other intellectual property rights owned or held by Wowza, and Licensee hereby agrees to not use Wowza trademarks without Wowza’s prior written consent. Notwithstanding the foregoing, Licensee agrees that any use of Wowza trademarks, whether permitted or otherwise, shall inure to the sole benefit of Wowza.
26.2 Licensee agrees that Wowza may use Licensee’s name, organization name, logos, and other identifying information to identify Licensee as a Wowza customer in marketing and similar efforts, such as marketing collateral, trade show signage, and website content. Licensee agrees that such use of its name or logos shall be without royalty or other obligation to Licensee by Wowza.
27. Indemnification. Licensee agrees to defend, indemnify, and hold harmless Wowza, its affiliates, and each of their respective officers, directors, shareholders, unitholders, members, employees, agents, advisors, and representatives, against all liabilities, costs, and expenses, including reasonable attorneys fees, related to or arising out of the Premium Services.
28.1 This Agreement, along with referenced terms on the Wowza Website: (i) contains Wowza and Licensee’s entire understanding with respect to the Premium Services and other subject matter hereof; (ii) sets forth Wowza's entire liability and Licensee’s exclusive remedy with respect to the Premium Services and other subject matter hereof; and (iii) supersedes any prior or contemporaneous agreements, representations, understandings, promises, descriptions, purchase orders, communications, or proposals, whether oral or written, between Wowza and Licensee with respect to the Premium Services and other subject matter hereof. Additional or different terms contained in any Licensee or third-party document, including but not limited to purchasing documents, are hereby expressly objected to and rejected by Wowza.
28.2 This Agreement may be executed by Licensee indicating its acceptance of these terms during the purchasing of Premium Services on the Wowza Website, or by facsimile or electronic signature if permitted by Wowza, and in such case in counterparts, each of which, when taken together, will constitute one and the same Agreement.
28.3 Wowza may update this Agreement and the Wowza Website from time to time. In the event of a material change to this Agreement, Wowza will provide you notice of such change via email and such change will take effect upon such notice to you.
28.4 Headings under this Agreement are intended only for convenience and shall not affect the interpretation of this Agreement. References herein to the singular include the plural, and vice versa. If an ambiguity or question of intent or meaning arises with respect to any provision of this Agreement, this Agreement will be construed as being drafted jointly by Wowza and Licensee, and no presumption or burden of proof will arise favoring or disfavoring either Party by virtue of authorship of any of the provisions of this Agreement.
28.5 No failure of either Party to exercise or enforce any of its rights under this Agreement will act as a waiver of those rights. This Agreement may only be modified, or any rights under it waived, by a written document executed by the party against which it is asserted.
28.6 Licensee shall not assign this Agreement or any interest in this Agreement without the prior written consent of Wowza. Wowza may assign this Agreement or any interest in this Agreement, in whole or in part, without the consent of Licensee.
28.7 If any provision of this Agreement is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this Agreement will not be affected.
28.8 This Agreement shall not be construed to create any employment, partnership, joint venture, franchise, agency, or endorsement relationship between Licensee and Wowza or construed to authorize either Party to enter into any commitment or agreement binding on the other Party.
28.9 The parties each represent and warrant they are authorized to enter into this Agreement and comply with its terms.
28.10 Except for Licensee’s obligations to pay Fees and other amounts due under to this Agreement, neither Party shall be in default by reason of any failure in performance of this Agreement if such failure arises, directly or indirectly, out of causes beyond the direct control or foreseeability of such party, including without limitation default by subcontractors or suppliers, acts of God or of the public enemy, terrorist acts, United States or foreign governmental acts, fire, flood, epidemic, strikes, or freight embargoes.
28.11 This Agreement will be governed by the laws of the State of New York without regard to its choice of law principles. Licensee and Wowza agree to submit to the exclusive jurisdiction and venue of the United States Federal District Court for the District of Colorado in connection with any dispute arising out of this Agreement. The United Nations’ Convention for the International Sale of Goods shall not apply to this Agreement.
28.12 Any notice required by this Agreement to any Party shall be in writing and in English, addressed as set forth in this Section, and deemed to be sufficient and effective: (i) upon sending if given in writing by certified U.S. mail, postage prepaid, return receipt requested, or by overnight delivery by an internationally recognized carrier; or (ii) upon sending if given in writing by email and acknowledged by the receiving Party or followed within five (5) business days by a writing delivered as stated in subsection “(i)”, above. Licensee’s address for notices hereunder is the email address provided by Licensee on the Wowza Website when purchasing the Premium Services or establishing Licensee’s account with Wowza on the Wowza Website. Wowza’s address for notices hereunder is 523 Park Point Drive, Suite 300, Golden, Colorado 80401 USA, ATTN: Legal Department; with a copy to LegalNotices@wowza.com. Either party may update their address for notices hereunder by notifying the other party as provided in this section.