NewTek MediaDS Sale Agreement

Introduction

Thank you for your interest in purchasing the NewTek™ MediaDS™ encoder from Wowza Media Systems, LLC (“Wowza”).  Here are some important notes regarding your purchase of the NewTek MediaDS encoder from Wowza: 

•    This NewTek MediaDS™ Hardware Sale Agreement exclusively governs your purchase of the MediaDS™ hardware from Wowza and is the exclusive set of terms which govern the relationship between you and Wowza regarding your purchase of the NewTek MediaDS hardware.  Wowza does not accept purchase order documents and expressly disclaims any terms contained therein.  
 
•    NewTek, Inc. (“NewTek”) is the manufacturer of and exclusive provider of warranties and support for the NewTek MediaDS™ hardware.  Wowza is a reseller of the Device.  

•    NewTek may provide additional terms that govern your relationship with NewTek, including your use of the NewTek MediaDS encoder and support for the NewTek MediaDS encoder; any NewTek-provided terms will control your relationship with NewTek but this NewTek MediaDS™ Hardware Sale Agreement will take precedence with regard to your relationship with Wowza.

•    NewTek MediaDS sales are “NCNR”, meaning once you have placed your order and submitted payment, your order is non-cancellable and non-returnable.  In addition, all orders are non-refundable.    

•    Wowza does not provide any warranty or support for the NewTek MediaDS encoder.  NewTek is the sole provider of a MediaDS warranty, and of MediaDS support.  All NewTek MediaDS encoder support inquiries should be directed to NewTek.

•    Wowza only sells the NewTek MediaDS device to non-consumer professional customers in the United States; the MediaDS is not intended for sale to consumers or for delivery outside of the United States.  If you are a consumer interested in the MediaDS device, please contact Wowza for more information.  Wowza does not permit customers to resell the NewTek MediaDS encoder to third parties.    


This NewTek™ MediaDS™ Hardware Sale Agreement (including the foregoing Introduction, this "Agreement"), is entered into between Wowza Media Systems, LLC, a Delaware Limited Liability Company (“Wowza”), and you (“You”).  Wowza and You may each be referred to herein as a “Party”, and together as the "Parties".
WHEREAS, Wowza is in the business of reselling MediaDS video encoder hardware; and
WHEREAS, You are a business desiring to obtain the MediaDS video encoder hardware for use in Your business; and 
WHEREAS, You desire to purchase from Wowza, and Wowza desires to sell to You the Device (defined below).
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth 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 Device; Prohibited Activities. 
(a)    Wowza shall sell to You and You shall purchase from Wowza the NewTek MediaDS™ video encoder hardware device (the "Device") in the quantities and at the Prices (as defined in Section 6) set forth in purchase documentation provided by Wowza and exclusively upon the terms and conditions set forth in this Agreement. All orders must be pre-paid by You in full and no order is binding upon Wowza until accepted by Wowza and full payment is received by Wowza.  
(b)    Except to the extent any of the following is prohibited by law, You will not Yourself, and will not encourage, assist, or permit any third party to: (i) resell, lease, loan, or otherwise transfer or share any right, title, or interest in or to the Device to a third party, whether for consideration or otherwise; (ii) export the Device outside of the United States; (iii) duplicate or arrange for the duplication or manufacture of the hardware or software that constitutes the Device, either during or following the term of this Agreement; (iv) copy, modify, decompile, disassemble, reverse engineer, or otherwise attempt to remove, discover, or derive the source code from the software contained in the Device; (v) unbundle, break apart, or repackage the Device or any of its physical or software components.  

2.    Delivery; Title; Risk of Loss.  
(a)    Wowza will use commercially reasonable efforts to deliver the Device to the carrier having responsibility for shipment of the Device ("Delivery Point") within a reasonable time following Your order placement and receipt of Your full payment by Wowza, subject to Wowza’s ability to procure Device units from NewTek.  Any delivery estimates or targets provided by Wowza are estimates only. Wowza shall not be liable for any delays, loss, or damage in transit.  You agree that time is not of the essence with regard to delivery of the Device.  
(b)    All prices are EXW.  Wowza shall deliver the Device to the Delivery Point.  Although shipping costs may be included in the Device price for Your convenience, You bear all shipping costs.
(c)    You shall bear all risk of loss or damage during shipment.  Title to the Device and all risk of damage or loss shall pass to You upon delivery of the Device by Wowza or its agents to the carrier having responsibility for shipment of the Device to You. 
(d)    If you have ordered more than one Device, Wowza may, in its sole discretion, without liability or penalty, make partial shipments of Devices to You. 
(e)    You are solely responsible for providing correct and accurate delivery instructions. If for any reason You fail to accept delivery of the Device or if Wowza or a carrier is unable to deliver the Device to You because You have not provided appropriate instructions, documents, licenses or authorizations: (i) You assume all risk of loss or damage to the Device as a result; (ii) the Device shall be deemed to have been delivered; and (iii) Wowza, at its option, may store the Device or cancel Your order.

3.    Non-Delivery. The quantity of any installment of Devices as recorded by Wowza on dispatch from Wowza's place of business is conclusive evidence of the quantity received by You on delivery unless You can provide conclusive evidence proving the contrary. Wowza shall not be liable for any non-delivery of Device (even if caused by Wowza's negligence) unless You give written notice to Wowza of the non-delivery within three (3) days of the date when the Device would in the ordinary course of events have been received. Any liability of Wowza for non-delivery of the Device shall be limited to delivering the Device within a reasonable time or adjusting the invoice respecting such Device to reflect the actual quantity delivered.

4.    Security Interest. As collateral security for the payment of the purchase price of the Device, You hereby grant to Wowza a lien on and security interest in and to all of the right, title and interest of Yours in, to and under the Device, 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 Colorado Uniform Commercial Code.

5.    Inspection and Rejection of Nonconforming Device.  
(a)    You shall inspect the Device upon receipt and within one (1) business day of receipt ("Inspection Period"). You will be deemed to have accepted the Device unless You notify Wowza in writing of any Nonconforming Device during the Inspection Period and furnish such written evidence or other documentation as reasonably requested by Wowza. "Nonconforming Device" means only the following: (i) product shipped is different than identified in this Agreement; or (ii) product's label or packaging incorrectly identifies its contents. 
(b)    If You timely notify Wowza of any Nonconforming Device, Wowza shall, in its sole discretion, (i) replace such Nonconforming Device with a conforming Device, or (ii) credit or refund the Price for such Nonconforming Device. You shall ship, at your expense and risk of loss, the Nonconforming Device to Wowza's facility located at 523 Park Point Drive, Suite 300, Golden Colorado 80401 (or other address Wowza may designate). If Wowza exercises its option to replace Nonconforming Device, Wowza shall, after receiving Your shipment of Nonconforming Device, ship to You, at Your expense and risk of loss, the replaced Device to the Delivery Point. 
(c)    You acknowledge and agree that the remedies set forth in Section 5(b) are Your exclusive remedies for the delivery of Nonconforming Device. Except as provided under Section 5(b), all sales of Device to You are made on a one-way basis and You have no right to return Devices purchased under this Agreement to Wowza or to NewTek.  

6.    Price. You shall purchase the Device from Wowza at the price(s) (the "Price") set forth in purchase documentation provided to You by Wowza. All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by You. You are responsible for all such charges, costs and taxes; provided, that, You shall not be responsible for any taxes imposed on, or with respect to, Wowza's income, revenues, gross receipts, personnel or real or personal property or other assets.

7.    Payment Terms. Your order is not accepted by Wowza until Wowza has successfully collected full payment from You.  You shall pay all invoiced amounts due to Wowza during the purchase process on the Wowza website. You shall make all payments hereunder by method approved by Wowza on the Wowza website and in US dollars. You shall reimburse Wowza for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees.

8.    No Setoff. You shall not, and acknowledge that You will have no right, under this Agreement, 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 You 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 You or any of Your affiliates, and Wowza or any of its affiliates, or otherwise.

9.    Warranties; Third-Party Products.  
(a)    Wowza is not the manufacturer of the Device and is merely reselling and delivering to the Delivery Point the Device.  WOWZA IS NOT ABLE TO PROVIDE, AND IS NOT PROVIDING, ANY WARRANTY FOR THE DEVICE AND IS NOT PROVIDING ANY SUPPORT (WHETHER COVERED BY A WARRANTY OR OTHERWISE) FOR THE DEVICE. All warranty issues, including claims by You under NewTek’s warranty for the Device (if any), should be directed to NewTek as provided by NewTek on their website or in Device documentation.   
(b)    WOWZA MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE DEVICE, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) 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.  NewTek (defined below, the Device manufacturer) may provide a warranty, but any such warranty is exclusively between You and NewTek. 
(c)    Products and software developed or manufactured by a third party ("Third-Party Product") may constitute, contain, be contained in, incorporated into, attached to, or packaged together with, the Device.  Third-Party Products may include software developed by Wowza. For the avoidance of doubt, WOWZA MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) 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. 

10.    Limitation of 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, AND/OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT WOWZA WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (D) 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 DEVICE SOLD HEREUNDER or $2,000, WHICHEVER IS LESS.

11.    Compliance with Law. You hereby represent and warrant that You are in compliance with and shall comply with all applicable laws, regulations and ordinances. You have and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that You need to carry out its obligations under this Agreement.

12.    Indemnification. You shall indemnify, defend, and hold harmless Wowza, its affiliates and subsidiaries, and each of their and its 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 Indemnified Party and awarded against Indemnified Party, relating to, arising out of, or resulting from any claim or damage arising out of or occurring in connection with this Agreement, the Device, or Your negligence, willful misconduct, or breach of this Agreement. You shall not enter into any settlement without Wowza's prior written consent.

13.    Termination. In addition to any remedies that may be provided in this Agreement, Wowza may terminate this Agreement with immediate effect upon written notice to You, if You: (i) fail to pay any amount when due under this Agreement or withhold, delay, or attempt to charge back any amount paid hereunder; (ii) have not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or (iii) become insolvent, file a petition for bankruptcy or commence or have commenced against You proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.  Upon termination of this Agreement, Wowza shall have the right to terminate any other agreement between You and Wowza, in Wowza’s sole discretion.    

14.    Cancellation. Wowza may terminate this Agreement, cancel all or part of any order You have placed, or both, in its sole discretion and without penalty to You in the event Wowza is unable to timely obtain Devices as determined by Wowza.  Wowza will promptly notify You in the event of such a cancellation and will refund amounts paid by You hereunder related to any cancelled payment.  Refund of amounts paid related to a cancelled order (or portion thereof) is Your sole and exclusive remedy in the event of a cancelled order.       

15.    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 You, 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, You 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 You at the time of disclosure; or (c) rightfully obtained by You on a non-confidential basis from a third party.

16.    Trademarks and Trade Names.  Wowza does not grant any rights in, and You agree you will have no rights to, any trademarks, tradenames, trade dress, and other intellectual property rights used, owned, or claimed by Wowza.  You agree to not challenge the validity of any of the foregoing and agree to not attempt to register or use any trade name, trademark, or trade dress that could result in a likelihood of confusion with any Wowza trademark, trade name, or trade dress.  NewTek and MediaDS are trademarks of NewTek.  Wowza may use your name, organization name, logos, and other identifying information to identify you as a Wowza customer in marketing and similar efforts; You agree such use shall be without royalty or other obligation to You.

17.    Entire Agreement; NewTek and Wowza; No License to the Device. 
(a)    This Agreement, including and together with the Introduction above, any related exhibits, Wowza purchase documentation, schedules, attachments, and appendices, constitutes the exclusive and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, purchase orders, representations, and warranties, both written and oral, regarding such subject matter.  ANY PURCHASE ORDER OR OTHER DOCUMENT PROVIDED BY OR RECEIVED FROM YOU SHALL BE FOR YOUR INTERNAL USE ONLY AND SHALL NOT BE APPLICABLE TO WOWZA NOR SHALL IT MODIFY THE TERMS OF THIS AGREEMENT OR GOVERN YOUR PURCHASE OR USE OF THE DEVICE.  WOWZA REJECTS ANY TERMS CONTAINED IN PURCHASE ORDERS OR SIMILAR DOCUMENTS RECEIVED FROM YOU.  In the event the foregoing sentence is held unenforceable by a court of competent jurisdiction, this Agreement will control and be given full force and effect in the case of any conflict between this Agreement and any other document.     
(b)    NewTek, Inc. (“NewTek”) is the manufacturer of the Device, is the sole provider of any warranties for the Device, and is the sole provider of support for the Device.  Wowza and NewTek are distinct entities.  Wowza and NewTek are not agents or representatives of the other.  Wowza may share order information or information about You with NewTek if requested by NewTek.     
(c)    This Agreement constitutes the sole and exclusive terms governing Your relationship with Wowza regarding purchase and delivery of the Device.  NewTek may request or require that You agree to additional terms in order to register, use, or obtain support for the Device (“NewTek Terms”).  NewTek Terms are solely applicable between You and NewTek; as between You and Wowza, this Agreement takes precedence over any conflicting NewTek Terms.  As between You and NewTek only, NewTek terms will take precedence over any conflicting terms herein.   
(d)    YOU MUST REGISTER YOUR DEVICE WITH NEWTEK AND COMPLY WITH OTHER REQUIREMENTS NEWTEK MAY IMPOSE IN ORDER TO ACTIVATE AND USE THE DEVICE.  Although Wowza software may be a component of the Device, Wowza does not have the right to provide a license or any rights in or to any software (in part or total) contained in the Device; NO LICENSE TO THE DEVICE OR TO SOFTWARE CONTAINED IN THE DEVICE IS PROVIDED BY THIS AGREEMENT.    

18.    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 other 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. 

19.    Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement must be in writing and, if to Wowza, addressed to the address set forth below (or to such other address that Wowza may designate from time to time).  Notices to You will be provided by Wowza to the email address associated with your Wowza account and Device purchase transaction. Unless otherwise agreed herein, all notices to Wowza must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a notice to Wowza 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.  For the avoidance of doubt, Wowza may provide notice to You by email. 
Notice to Wowza:    523 Park Point Drive
Suite 300
ATTN: Legal
Golden, Colorado 80401
with a copy (which shall not constitute notice) to: LegalNotices@wowza.com

20.    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. 

21.    Amendments. No amendment to or modification of this Agreement is effective unless it is in writing, identified as an amendment to this Agreement and signed by an authorized representative of each Party. 

22.    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.

23.    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 Your rights under Section 5 and Section 14 are Your exclusive remedies for the events specified therein.

24.    Assignment. You shall not assign, transfer, delegate or subcontract any of Your 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 You of any of Your obligations hereunder. Wowza may at any time assign, transfer, delegate or subcontract any or all of its rights or obligations under this Agreement without Your prior written consent.

25.    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. 

26.    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.

27.    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.

28.    Choice of Forum. 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 Colorado State or Federal Courts sitting in Denver County, Colorado. 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 Colorado State or Federal Courts 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.

29.    WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING EXHIBITS, SCHEDULES, ATTACHMENTS AND APPENDICES ATTACHED TO 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.

30.    Counterparts. This Agreement may be executed electronically, including by clicking a checkbox online, or 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 herein, a signed copy of this Agreement delivered by 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.

31.    Force Majeure. Any delay or failure of Wowza to perform its obligations under this Agreement will be excused to the extent that the delay or failure was caused directly by an event beyond Wowza’s control (which events may include natural disasters, embargoes, explosions, riots, wars, acts of terrorism, strikes, labor stoppages or slowdowns or other industrial disturbances, and shortage of adequate power or transportation facilities).

32.    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.