Premium Support Agreement
Thank you for choosing premium technical support services from Wowza Media Systems, LLC (“Wowza”). This Premium Support Agreement (this “Agreement”) is a legally binding agreement between you (“Customer” or “You”) and Wowza that describes your rights to use technical support and related services provided by Wowza related to Wowza software products and services.
BY INDICATING THAT YOU AGREE TO THESE TERMS DURING PURCHASE OF THE PREMIUM SUPPORT SERVICES, OR BY REQUESTING OR USING THE PREMIUM SUPPORT SERVICES, 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 ANY PREMIUM SUPPORT SERVICES PROVIDED BY WOWZA. 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 Premium Support fees paid if you have not used or taken advantage of any Premium Support services from Wowza and request a refund from us promptly after agreeing to these terms and making payment to Wowza.
1. Technical Support Premium Services.
1.1 Wowza will provide Customer 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.
1.2 Wowza and Customer agree to work together reasonably and in good faith to facilitate timely and satisfactory delivery of the Premium Services by Wowza. Customer 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 and telephone or other “live” support is available, the manner of delivering the Premium Services, the personnel providing the Premium Services, 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.
1.3 If Customer 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.
1.4 Customer acknowledges and agrees that any audio-video content streamed to, from, or through any Wowza software product or service is the exclusive responsibility of Customer.
1.5 The Premium Services are provided pursuant to Wowza policies and procedures, some of which may be described on the Wowza Website and all of which may be updated from time to time by Wowza.
1.6 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; or (iv) trial, beta, pre-release, or preview versions of Wowza software or products or services.
1.7 Descriptions of the Premium Services provided on the Wowza Website and in other communications from Wowza are general descriptions only and are not intended to be “SLAs” or assurances or guarantees of availability, response, or resolution times; the failure of Wowza to meet any specific availability, response, or resolution commitment shall not be considered a breach of this Agreement and shall not provide the basis for a refund or credit to Customer from Wowza.
1.8 In providing the Premium Services, Wowza may need to download, install, and/or run software on Customer devices or systems. These may include, without limitation, software or services that allow Wowza to diagnose and resolve problems, remotely view or control Customer devices or systems, and modify their operation or configuration. Customer understands and consent’s to Wowza’s reasonable utilization of the foregoing technology. Customer acknowledges that Customer is solely and exclusively responsible for granting access to Customer devices or systems and for any effect or impact that doing so may have on such devices or systems. Wowza does not guarantee or represent that any connection to a Customer device or system will be secure. If Customer is not certain of the effect(s) that Wowza remotely viewing or controling a Customer device or system will have, Customer should NOT grant Wowza access to such device or system. WOWZA DISCLAIMS ANY LIABILITY WHATSOEVER ARISING FROM WOWZA REMOTELY VIEWING OR CONTROLLING A CUSTOMER DEVICE OR SYSTEM.
1.9 WOWZA MAY MAKE WRITTEN, AUDIO, AND/OR VIDEO RECORDS OR RECORDINGS OF THE PREMIUM SERVICES PROVIDED TO CUSTOMER AND INTERACTIONS BETWEEN CUSTOMER 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.
1.10 You agree to not expose Wowza or its employees providing the Premium Services to explicit, indecent, objectionable, adult, or illegal content, or to rude, harassing, or aggressive behavior or language.
2. Requirements to Receive Premium Support. In order to request and receive Premium Services, Customer must at all times during the Term (as defined below):
2.1 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;
2.2 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 Customer’s account if obtaining the Premium Services with regard to any Wowza Streaming Engine or Wowza Media Server License Key (Wowza may agree to waive this requirement upon request for Customers with many License Keys); “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;
2.4 be willing and able to use and make use of third party technologies employed by Wowza to provide the Premium Services (such as web-chat and videoconferencing services).
3. Software EULA; Premium versus Standard Maintenance and Support.
3.1 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 CUSTOMER.
4. Term; Automatic Renewal; Termination.
4.1 The initial term of this Agreement is the time period for which Customer 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.
4.2 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”). CUSTOMER AGREES TO BE AUTOMATICALLY CHARGED AND PAY THE THEN-CURRENT RATE FOR THE PREMIUM SERVICES FOR EACH SUCH RENEWAL TERM UNLESS CUSTOMER 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.
4.3 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.
4.4 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. Customer is not entitled to a pro-rata or other refund of Fees (as defined below) in the event this Agreement is terminated for Customer’s uncured breach.
4.5 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.
4.6 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 Customer.
4.7 Sections 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11 shall survive termination of this Agreement.
5. Fees. In exchange for the Premium Services provided by Wowza, Customer agrees to pay Wowza the fees set forth for such Premium Services on the Wowza Website (collectively, “Fees”).
5.1 All Fees are in U.S. Dollars. All Fees are completely nonrefundable.
5.2 Fees are due according to the timeframes and payment methods as stated on the Wowza Website.
5.3 Wowza may withhold the Premium Services if Customer is past due on any account with Wowza at any time. In addition, Wowza may suspend or terminate any Software license granted to Customer by Wowza if Customer fails to cure any nonpayment hereunder following fifteen (15) days notice by Wowza to Customer.
5.4 Amounts not paid when due will accrue interest at the lesser of 1.5% per month or the maximum rate permitted by law. Customer shall be responsible for reasonable costs of collection of past due amounts.
6. Non-Solicitation. During the Term and for one (1) year thereafter, Customer will not encourage or solicit any employee or consultant of Wowza to leave Wowza for any reason, provided this provision shall not prevent Customer from hiring a Wowza employee who responds to a general, non-specific, advertisement for employment by Customer.
7. Confidential Information of Wowza.
7.1 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.
7.2 “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.
7.3 Customer 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.
7.4 Customer 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, Customer shall notify Wowza of Customer’s intent to disclose Confidential Information and reasonably assist Wowza in any effort to prevent such disclosure.
7.5 Upon receipt of a written request from Wowza, Customer will return all Confidential Information disclosed to it by Wowza.
7.6 Customer will not use, repeat, perform, reverse engineer, copy, duplicate, modify, or create derivative works of any Confidential Information. Customer will not alter, remove, or obscure any proprietary notices contained in the Confidential Information. To the extent Customer obtains any rights in and to any Confidential Information or derivatives or improvements thereto, Customer hereby assigns all such rights to Wowza.
7.7 The Parties agree that any actual, threatened, or anticipated disclosure of Confidential Information by Customer 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 Customer waives any requirement that Wowza post a bond or other security in order to pursue injunctive relief.
7.8 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.
8. Disclaimer of Warranty and Limitations of Liability.
8.1 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.
8.2 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.
8.3 WOWZA’S TOTAL LIABILITY UNDER THIS AGREEMENT WILL NOT, IN ANY EVENT, EXCEED THE NET AMOUNT ACTUALLY RECEIVED BY WOWZA, IF ANY, FROM CUSTOMER FOR FEES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EARLIER OF THE DATE OF THE FIRST CLAIM ARISING OR YOU FIRST BECOMING AWARE OF SUCH CLAIM.
8.4 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.
9. Trademarks and Publicity.
9.1 Customer 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 Customer hereby agrees to not use Wowza trademarks without Wowza’s prior written consent. Notwithstanding the foregoing, Customer agrees that any use of Wowza trademarks, whether permitted or otherwise, shall inure to the sole benefit of Wowza.
9.2 Customer agrees that Wowza may use Customer’s name, organization name, logos, and other identifying information to identify Customer as a Wowza customer in marketing and similar efforts, such as marketing collateral, trade show signage, and website content. Customer agrees that such use of its name or logos shall be without royalty or other obligation to Customer by Wowza.
10. Indemnification. Customer 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.
11.1 This Agreement, along with referenced terms on the Wowza Website: (i) contains Wowza and Customer’s entire understanding with respect to the Premium Services and other subject matter hereof; (ii) sets forth Wowza’s entire liability and Customer’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 Customer with respect to the Premium Services and other subject matter hereof. Additional or different terms contained in any Customer or third-party document, including but not limited to purchasing documents, are hereby expressly objected to and rejected by Wowza.
11.2 This Agreement may be executed by Customer 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.
11.3 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.
11.4 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 Customer, 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.
11.5 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.
11.6 Customer 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 Customer.
11.7 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.
11.8 This Agreement shall not be construed to create any employment, partnership, joint venture, franchise, agency, or endorsement relationship between Customer and Wowza or construed to authorize either Party to enter into any commitment or agreement binding on the other Party.
11.9 The parties each represent and warrant they are authorized to enter into this Agreement and comply with its terms.
11.10 Except for Customer’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.
11.11 This Agreement will be governed by the laws of the State of Delaware without regard to its choice of law principles. Customer and Wowza agree to submit to the exclusive jurisdiction and venue of the applicable United States Federal District Court in Delaware 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.
11.12 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. Customer’s address for notices hereunder is the email address provided by Customer on the Wowza Website when purchasing the Premium Services or establishing Customer’s account with Wowza on the Wowza Website. Wowza’s address for notices hereunder is 7171 W. Alaska Drive, Lakewood, Colorado 80226 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.