Professional Services Agreement
Thank you for your interest in purchasing professional services from Wowza Media Systems, LLC, a Delaware limited liability company (“Wowza”). This Professional Services Agreement (this “Agreement”) is a legally binding contract between You (“You” or “Customer”, and together with Wowza, the “Parties”, and each, a “Party”) and Wowza that describes the sole and exclusive terms under which Wowza is willing to sell and provide you professional services, as described more fully in the Order Form signed by you.
Before you sign an Order Form provided to you, please read this Agreement carefully in its entirety. IF YOU DO NOT AGREE TO EACH AND EVERY TERM AND CONDITION OF THIS AGREEMENT, YOU MAY NOT PURCHASE PROFESSIONAL SERVICES FROM WOWZA. IF YOU DO NOT AGREE WITH EACH AND EVERY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT SIGN THE ORDER FORM OR INDICATE YOUR AGREEMENT TO THESE TERMS. BY PURCHASING PROFESSIONAL SERVICES FROM WOWZA YOU ARE SIGNIFYING YOUR ACCEPTANCE TO THIS AGREEMENT, AND YOU ACKNOWLEDGE AND AGREE THAT: (1) YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (2) YOU AGREE TO BE BOUND BY EACH AND EVERY TERM OF THIS AGREEMENT; (3) IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR ENTITY, YOU HAVE THE POWER AND AUTHORITY TO DO SO AND TO BIND SUCH COMPANY OR ENTITY; AND (4) REGARDLESS OF ANY PURCHASE ORDER OR OTHER DOCUMENT PROVIDED BY YOU TO WOWZA, YOU AGREE THAT THIS AGREEMENT IS THE EXCLUSIVE TERMS AND CONDITIONS GOVERNING YOUR PURCHASE OF PROFESSIONAL SERVICES FROM WOWZA.
WHEREAS, Wowza has developed software, technology, hardware, services and other products for streaming media over the internet and markets these software products under the Wowza brand (collectively “Software”); and
WHEREAS, Customer seeks to receive, and Wowza agrees to provide, professional consulting and coaching services related to the Software, including but not limited to assessment, diagnostic, and best practices benchmarking, consulting, and coaching services (collectively, “Services”) and pursuant to the these terms and conditions.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
1. Professional Services.
(a) Wowza will provide Customer with a specified number of hours of the Services, as either specified in an Order Form or as otherwise agreed by Wowza and Customer. Additional Order Forms referencing this Agreement or professional services are also incorporated herein.
(b) The Parties may elect to specifically define a set of deliverables that will constitute the Services or may agree that Wowza will provide general professional services and coaching related to the Software (which shall be presumed to be the case if no specific definition of deliverables is provided in an Order Form). Regardless of the foregoing, however, Wowza is only obligated to provide Services up to the number of hours specified in an Order Form. Wowza may decline to provide additional Services once the number of hours of Services agreed to in an Order Form are provided.
(c) Wowza and Customer agree to work together in good faith to ensure that the Services are delivered in a timely and satisfactory manner. Wowza shall determine the manner of delivering the Services in its sole discretion, including the days and times the Services are provided, the manner of delivering the Services, the personnel providing the Services, and the resources to be utilized in providing and delivering the Services.
(d) Customer shall have an acceptance period of five (5) business days after delivery of any Services or deliverable, during which time Customer must notify Wowza in writing of any deficiencies in such Service or deliverable. Wowza will use commercially reasonable efforts to promptly cure any such deficiencies following such notice and resubmit the deliverable to Customer for testing within five (5) business days of resubmission by Wowza. This process shall be repeated as necessary and appropriate. If Customer fails to reject any Service or deliverable within the applicable acceptance period and in the manner described, such Service or deliverable shall be deemed accepted at the end of the applicable acceptance period.
(e) If Customer is signing an Order Form on behalf of a client who will ultimately receive the Services or deliverables (as defined in the Order Form), then Customer is agreeing that: (i) Customer’s client shall be bound by the same obligations and restrictions as set out in this Agreement; (ii) Customer shall ultimately be responsible and liable to ensure that Customer’s client does not violate the terms of this Agreement; (iii) failure to make payment of any fees by Customer will result in Services or deliverables not being performed for the client; (iv) Wowza is not responsible or liable for any representation, warranty or agreement which may have been made between Customer and client; and (v) Customer represents and warrants that they have the authority to bind their client to all applicable terms included in this Agreement.
(e) Customer acknowledges and agrees that any audio-video content streamed to, from, or through the Software is entirely the responsibility of Customer.
2. Wowza License. In order to request and receive Services, Customer must at all times during the Term (as defined below): (i) be a valid Software licensee, purchaser, or authprized user; (ii) be current on all accounts with Wowza; and (iii) be in compliance with all agreements between Wowza and Customer, including license agreements.
4. Term and Termination.
(a) This Agreement commences on the earlier of the last date this Agreement was signed, the date an Order Form was executed, or the date that Wowza began providing Services (“Effective Date”) and, unless terminated earlier as provided herein, continues so long as any Order Form is in effect and has not been completed (“Term”);
(b) 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’ notice from the non-breaching Party;
(c) Wowza may terminate this Agreement, and provide a pro-rata refund of Fees paid for Services not provided, upon fifteen (15) days’ notice to Customer;
5. Fees and Expenses. In exchange for the Services, Customer agrees to pay Wowza the fees in the amount set forth in an Order Form, along with Wowza’s reasonable and actual costs incurred in conjunction with Wowza’s performance of the Services (collectively, “Fees”).
(a) All Fees are in U.S. Dollars. All Fees are completely nonrefundable.
(b) Unless stated otherwise in a SOW, a SOW’s total Fees are due upon execution by Customer of such Order Form.
(c) No Setoff. Customer shall not, and acknowledges that it will have no right under this Agreement or any other agreement, document or law, to withhold, offset, recoup or debit any amounts owed (or to become due and owing) to Wowza or any of its affiliates, whether under this Agreement or otherwise, against any other amount owed (or to become due and owing) to it by Wowza or its affiliates, whether relating to Wowza’s or its affiliates’ breach or non-performance of this Agreement or any other agreement between Customer or any of its affiliates, and Wowza or any of its affiliates, or otherwise.
(d) Wowza may withhold providing the 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.
(e) Customer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse Wowza for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.
6. Non-Diversion; Non-Solicitation.
(a) During the Term and for twelve (12) months thereafter, Customer will not, for itself or any third party, directly or indirectly divert or attempt to divert from Wowza any business of any kind in which Wowza is engaged including the solicitation of or interference with any of Wowza’s customers, clients, or vendors.
(b) During the Term and for two (2) year thereafter, Customer will not encourage or solicit any employee, contractor, or consultant of Wowza with whom Customer directly intereacted to leave Wowza for any reason.
7. Confidential Information: Definitions. As used herein, “Confidential Information” shall include “Wowza Confidential Information” and “Customer Confidential Information,” as each is defined below.
(a) “Wowza Confidential Information” means any competitively sensitive or secret business, financial, marketing, or technical information disclosed by Wowza, its officers, employees, contractors, or agents. Wowza Confidential Information shall include: (i) any and all ideas, concepts, know-how, methodology, techniques, structures, information, materials, procedures, training materials, and training aids related to the Software or Services, including any software products and services, in various stages of research and development; (ii) other intellectual property of Wowza; (iii) other nonpublic information relating to Wowza’s technology, customers, business plans, promotional and marketing activities, finances, and other business affairs; (iv) third-party information that Wowza is obligated to keep confidential; (v) the terms of this Agreement; and (vi) any other information either designated by Wowza as confidential or that a reasonable businessperson would conclude to be sensitive, proprietary, confidential, or a trade secret.
(b) “Customer Confidential Information” means any competitively sensitive or secret business, financial, marketing, or technical information disclosed by Customer, its officers, employees, contractors, or agents to Wowza; provided that such information is either marked “Confidential” (or similar) at the time of disclosure to Wowza.
8. Confidential Information: Obligations.
(a)Customer agrees that it will: (i) use Wowza Confidential Information received by it solely for purposes of utilizing Wowza software as permitted under the Software’s applicable license agreement; (ii) maintain the confidentiality of the Wowza Confidential Information using at least as great a degree of care as it uses to maintain the confidentiality of its own 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 Wowza Confidential Information and only disclose Wowza Confidential Information to employees and contractors who are subject to a written confidentiality agreement that protects the Wowza Confidential Information at least to the same extent as this Agreement; and (iv) not use, export, or re-export Wowza Confidential Information except in compliance with applicable laws, rules, and regulations of the United States and other nations.
(b) Wowza agrees that, subject to Section 8(c), it will: (i) use Customer Confidential Information received by it solely for purposes of providing the Services; (ii) maintain the confidentiality of the Customer Confidential Information using at least as great a degree of care as it uses to maintain the confidentiality of its own 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 Customer Confidential Information and only disclose Customer Confidential Information to employees and contractors who are subject to a written confidentiality agreement that protects the Customer Confidential Information at least to the same extent as this Agreement; and (iv) not use, export, or re-export Customer Confidential Information except in compliance with applicable laws, rules, and regulations of the United States and other nations.
(c) In connection with Wowza providing the Services, Wowza may become aware of ideas, concepts, practices, techniques, methodology, and technology of Customer (collectively, “Ideas”). Wowza may learn of Ideas directly from Customer or as a result of providing the Services. Notwithstanding anything to the contrary herein (including Section 8(b)), and regardless of how Wowza becomes aware of an Idea, Customer grants Wowza an irrevocable, perpetual, worldwide, fully-paid, royalty-free, sub-licensable, transferable license to use, copy, modify, create derivative works based upon, and otherwise exploit any Idea in any manner without obligation of any kind to Customer.
(d) The Parties may disclose Confidential Information of the other 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, the Party contemplating disclosure of the other Party’s Confidential Information shall notify the other Party of its intent to disclose the Confidential Information of the other and reasonably assist the other Party in any effort to prevent such disclosure.
(e) Upon receipt of a written request from one Party, the other Party will return all Confidential Information of the other Party to the disclosing Party.
(f) Customer will not use, repeat, perform, reverse engineer, copy, duplicate, modify, or create derivative works of the Wowza Confidential Information. Customer will not alter, remove, or obscure any proprietary notices contained in the Wowza Confidential Information. To the extent Customer obtains any rights in and to any of the Wowza Confidential Information or derivatives or improvements thereto, Customer hereby assigns all such rights to Wowza.
(g) The Parties agree that any actual, threatened, or anticipated disclosure of Wowza 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 Wowza Confidential Information and Customer waives any requirement that Wowza post a bond or other security in order to pursue injunctive relief.
(h) Confidential Information is the exclusive intellectual property of its owner or its owner’s licensors and is protected by copyright laws and international treaties as well as other intellectual property laws and treaties. Confidential Information owners retain all right, title, and interest in and to their Confidential Information, and all copies thereof, and in all related copyrights, patents, trademarks, and any other intellectual and industrial property and proprietary rights, including any registrations, applications, renewals, and extensions of such rights.
(i) Unless agreed to separately in writing by Wowza, Customer will not provide, transfer or otherwise make known any source code to Wowza. Source code provided, transferred or made known to Wowza in violation of this Section 8(i), will not be considered Confidential Information or receive any protection pursuant to the terms of this Agreement.
9. Disclaimer of Warranty.
(a)TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WOWZA PROVIDES THE 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 SERVICES WILL MEET CUSTOMER’S NEEDS, THAT THE SERVICES WILL BE ERROR-FREE, OR THAT THE SERVICES WILL BE PROVIDED WITHOUT INTERRUPTION OR DELAY..
(c)Notwithstanding anything to the contrary herein or in any Order Form, Wowza is exclusively providing Customer with technical assistance related to the Software. Customer acknowledges and agrees that Wowza is not qualified to, and is not, providing any licensing or legal advice of any kind. Recommendations made by Wowza, if any, are mere technological recommendations, and are not made on the basis of licensing or legal issues; recommended solutions may require licenses or other agreements with third parties.
10. Ownership of Work Product.
(a) “Work Product” means: (i) all deliverables and Services (as described in the SOW); (ii) all Intellectual Property, in any stage of development, that Wowza creates, develops, or reduces to practice in connection with performing the Services; and (iii) all tangible and intangible embodiments, including without limitation, models, presentations, prototypes, reports, drafts, samples, reports, and summaries, of the Services, deliverables, and items of each Intellectual Property.
(b) “Intellectual Property” means: all algorithms, application programming interfaces (APIs), apparatus concepts, Confidential Information, data, databases and data collections, designs, diagrams, documentation, drawings, flow charts, formulae, ideas and inventions (whether or not patentable or reduced to practice), know-how, materials, marketing and development plans, marks, including without limitation, brand names, product names, logos, and slogans, methods, models, net lists, network configurations and architectures, procedures, processes, protocols, schematics, software code, in any form including source code and executable or object code; specifications, subroutines, techniques, test vectors, tools, uniform resource identifiers including uniform resource locaters (URLs), user interfaces, web sites, works of authorship, and other forms of technology.
(c) “Intellectual Property Rights” means all past, present, and future rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (i) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask work rights; (ii) trademark and trade name rights and similar rights; (iii) trade secret rights; (iv) patent and industrial property rights; (v) other proprietary rights in Intellectual Property of every kind and nature; and (vi) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in this Section 10(c).
(d) Ownership. Wowza will solely and exclusively own throughout the world in perpetuity the Work Product, including without limitation, all Intellectual Property and Intellectual Property Rights thereto and the right to use the Work Product as Wowza shall determine in any and all media and forms. Customer has no right to use the Work Product except as may be explicitly stated in an Order Form.
(e) No Work Made for Hire. The Parties do not intend for the Work Product (which, for the avoidance of doubt, includes Services and deliverables) to be, and agree that the Work Product shall not be, “work made for hire” under applicable law. If for any reason it is determined that the Services or deliverables do constitute a “work made for hire” under applicable law, Customer hereby sells, assigns, and transfers to Wowza and its successors and assigns all right, title, and interest in and to such Work Product, including without limitation, all Intellectual Property Rights therein and all current and future income, royalties, damages, claims, and payments related thereto.
11. Trademarks and Publicity.
(a) 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. Customer 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.
(b) 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.
12. Limitation of Wowza Liability.
(a) IN NO EVENT SHALL WOWZA BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, WOWZA BE LIABLE FOR ANY LOST PROFITS OR LOST BUSINESS OPPORTUNITIES, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, OR IN CONNECTION WITH THE SERVICES OR ANY BREACH OF THIS AGREEMENT, REGARDLESS OF: (i) WHETHER SUCH DAMAGES WERE FORESEEABLE; (ii) WHETHER OR NOT WOWZA WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (iii) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED; AND (iv) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) 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. THE FOREGOING LIMITATIONS 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.
(c) Any claim by Customer against Wowza for damages of any kind related to this Agreement must be brought by Customer against Wowza within one hundred eighty (180) days of the date of the incident giving rise to such claim. Customer’s failure to timely bring a claim pursuant to this section waives any such claim
13. Entire Agreement.
(a) This Agreement, including and together with any related Order Form(s), sets forth Wowza’s entire liability for and Customer’s exclusive remedies regarding, this Agreement and the Services, and constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.
(b) ANY PURCHASE ORDER OR OTHER DOCUMENT PROVIDED BY OR RECEIVED FROM CUSTOMER SHALL BE FOR CUSTOMER’S INTERNAL USE ONLY AND SHALL NOT BE APPLICABLE TO WOWZA NOR SHALL IT MODIFY THE TERMS OF THIS AGREEMENT OR GOVERN CUSTOMER’S PURCHASE OF THE SERVICES. WOWZA REJECTS ANY TERMS CONTAINED IN PURCHASE ORDERS OR SIMILAR DOCUMENTS.
14. Survival. Subject to the limitations and other provisions of this Agreement: (a) the representations and warranties of the Parties contained herein shall survive the expiration or earlier termination of this Agreement; and (b) any provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of this Agreement.
15. Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement must be in writing and addressed: (i) if to Wowza, at the address provided below; or (ii) if to Customer, at the address or email address provided by Customer to Wowza in the Order Form (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Wowza may also provide any notice to Customer hereunder by electronic mail. Except as otherwise provided in this Agreement, a notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the notice has complied with the requirements of this Section.
Notice to Wowza: Wowza Media Systems, LLC
ATTN: Legal Notices
7171 W. Alaska Drive
Lakewood, Colorado 80226
With a copy to: LegalNotices@wowza.com
16. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to—and a court of competent jurisdiction may if the parties are unable to agree—modify this Agreement to affect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
17. Amendments. No amendment to or modification, rescission, termination or discharge of this Agreement or any term is effective unless it is in writing, identified as an amendment to this Agreement and signed by an authorized representative of each Party.
18. 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.
19. 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.
20. Assignment. Customer shall not assign, transfer, delegate or subcontract any of its rights or obligations under this Agreement without the prior written consent of Wowza. Any purported assignment, transfer, delegation or subcontract in violation of this Section shall be null and void. No assignment, transfer, delegation or subcontract shall relieve Customer of any of its obligations hereunder. Wowza may at any time assign, transfer, delegate or subcontract any or all of its rights or obligations under this Agreement without Customer’s prior written consent and without providing notice to Customer.
21. 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.
22. 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.
23. 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 Delaware, 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 Delaware.
24. Choice of Forum.
(a) Choice of Forum for United States Customers. Except as provided in (b), below, each Party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments and appendices attached to this Agreement, and all contemplated transactions, including contract, equity, tort, fraud and statutory claims, in any forum other than the United States District Court located in Delaware or, if such court does not have subject matter jurisdiction, the courts of the State of Delaware, and any appellate court from any thereof. Except as provided in (b), below, each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation or proceeding only in the United States District Court located in Delaware or, if such court does not have subject matter jurisdiction, the courts of the State of Delaware. Each Party agrees that a final judgment in any such action, litigation or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
(b) Choice of Forum for Non-United States Customers. IF CUSTOMER RESIDES (IF CUSTOMER IS AN INDIVIDUAL) OR IS DOMICILED (IF CUSTOMER IS AN ENTITY) OUTSIDE OF THE UNITED STATES OF AMERICA, ANY CLAIM OR DISPUTE BROUGHT BY CUSTOMER AND ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PROVISION OF PROFESSIONAL SERVICES SHALL BE SUBMITTED TO BINDING ARBITRATION IN DELAWARE, USA UNLESS WOWZA AGREES IN WRITING TO WAIVE SUCH REQUIREMENT, IN WHICH CASE SECTION (A), ABOVE, WILL CONTROL. SUCH ARBITRATION SHALL BE BEFORE AN ARBITRATOR-MEMBER OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) TO BE MUTUALLY AGREED TO BY THE PARTIES, OR, IN THE EVENT THE PARTIES CANNOT AGREE ON A SINGLE SUCH ARBITRATOR-MEMBER, TO A PANEL OF THREE ARBITRATOR-MEMBERS SELECTED IN ACCORDANCE WITH THE RULES OF THE AAA. THE DISPUTE SHALL BE SETTLED IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES OF THE AAA AND THE DECISION OF THE ARBITRATOR(S) SHALL BE FINAL AND BINDING UPON THE PARTIES AND JUDGMENT MAY BE OBTAINED THEREON IN A COURT OF COMPETENT JURISDICTION. SUBJECT TO THE LIMITATIONS OF LIABILITY CONTAINED HEREIN, THE PREVAILING PARTY SHALL BE ENTITLED TO RECOVER FROM THE OTHER PARTY THE FEES AND EXPENSES OF THE ARBITRATION AS WELL AS REASONABLE ATTORNEYS’ FEES, COSTS AND EXPENSES INCURRED BY THE PREVAILING PARTY. THE CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS SHALL APPLY TO THIS AGREEMENT IF CUSTOMER RESIDES OR IS DOMICILED OUTSIDE OF THE UNITED STATES.
25. Force Majeure. Any delay or failure of Wowza to perform its obligations under this Agreement will be excused to the extent the delay or failure was caused directly by an event beyond Wowza’s reasonable control (which events may include natural disasters, embargoes, explosions, riots, wars, acts of terrorism, strikes, labor stoppages or slowdowns, supplier delays, or other industrial disturbances, and shortage of adequate power or transportation facilities).
26. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, franchise, business opportunity, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever. No relationship of exclusivity shall be construed from this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date the Parties completed the Shopping Cart purchase transaction and indicated their acceptance of this Agreement.