BUSINESS SERVICES AGREEMENT
THIS BUSINESS SERVICES AGREEMENT (THE “AGREEMENT”) IS A BINDING AGREEMENT BETWEEN VIDDLER, INC. (“VIDDLER”) AND THE
PERSON OR ENTITY (“CLIENT” OR “YOU”) ORDERING THE VIDDLER VIDEO SERVICE AND RELATED PROFESSIONAL AND OTHER SERVICES, AND
GOVERNS THE PROVISION AND USE OF SUCH PRODUCTS AND SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING ACCEPTANCE OR BY AGREEING TO AN ORDER FORM (DEFINED BELOW) THAT REFERENCES THIS AGREEMENT,
CLIENT AGREES TO THE TERMS OF THIS AGREEMENT. IF THE PERSON ACCEPTING THIS AGREEMENT IS ENTERING INTO IT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH
PERSON REPRESENTS AND WARRANTS THAT HE OR SHE HAS THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERMS “CLIENT” SHALL REFER TO SUCH
ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY OR DO NOT AGREE WITH THIS AGREEMENT, YOU MAY NOT USE VIDDLER’S PRODUCTS AND SERVICES.
This Agreement was last updated on April 22, 2015. It is effective between Client and Viddler as of the date of Client’s accepting this Agreement (the “Effective Date”).
“Content” means the videos and other content provided by Client for hosting and distribution by the System.
“Documentation” means any training or user manuals and other documentation for the System normally made available electronically by
“Order Form” means any written or electronic document mutually agreed to by Viddler and Client (including by exchange of emails) for the
provision of the System or one or more Services by Viddler to Client, including (without limitation) the online plan signup page (if You signup online) or
a mutually signed written proposal. Order Forms shall be deemed incorporated herein by reference.
“System” means Viddler’s proprietary web-based video platform (including any mobile app or other software offered by Viddler which is part
of or interfaces with the platform) licensed by Client as set forth in one or more Order Forms, as well as any updates, modifications, customizations or
improvements thereto as Viddler may provide to Client from time to time.
“Services” means any consulting, development, implementation, training or other professional services provided by Viddler to Client as set
forth in one or more Order Forms.
“Users” means the persons that Client has authorized to view or receive the Content through the System.
2.System & Services
Provision of the System.
Viddler shall use commercially reasonable efforts to make the System available to host and distribute the Content to Users in accordance with this
Agreement and the Documentation, except for periods of planned or emergency maintenance. You agree to provide Viddler with reasonable cooperation and
assistance reasonably required or requested by Viddler to provide You with the System and Services. Viddler makes no guarantees as to the uptime or
continuous availability of the System, and Viddler shall use commercially reasonable efforts to provide notice to You of any planned or emergency
maintenance that may cause the System to become unavailable.
Viddler hereby grants to You a limited, non-sublicensable, non-exclusive, non-transferable (except as expressly permitted in this Agreement) license to
access and use the System and the Documentation and to authorize Users to access and use the System, in all cases in accordance with this Agreement and the
or interest in the System is transferred to You or any User, except for the limited licenses granted in this Agreement. All such other rights are reserved
by Viddler and it suppliers and licensors.
You shall not, and shall cause the Users to not, (i) copy or modify the System for any purpose; (ii) reverse engineer, decompile, modify, translate,
disassemble or discover the source code for all or any portion of the System; or (iii) distribute, disclose, market, rent, lease, or make available on a
service-bureau basis or otherwise transfer the System or Documentation to any other person. You may make a reasonable number of copies of the Documentation
for your internal use.
Viddler shall perform the Services in a professional, workman-like manner. All Services are deemed to be accepted upon performance. Unless otherwise stated
in an Order Form, Services are performed on a time and materials basis at Viddler’s then current rates.
Changes to the System.
Viddler reserves the right to modify, expand, update, depreciate, remove or otherwise change portions of the System. Viddler may provide updates and
security and bug fixes to the System at no additional charge and may also offer new services and features for additional fees.
You are solely responsible for all Content, including without limitation all streaming media and application content, any third party content, and any
other material or information You upload or distribute using the System. You are solely responsible for maintaining backup copies of all Content. You (or
your suppliers) own all right, title and interest in the Content. You are responsible for providing Content in a format compatible with the System, as
described in the Documentation, at your own cost, unless You engage Viddler to perform such Services.
You hereby grant Viddler a sub-licensable, transferrable, worldwide, fully-paid license to reproduce, store, use, distribute, display, and modify the
Content for the sole purpose of fulfilling Viddler’s obligations under this Agreement. You also agree that Viddler may use your name, logo, and public
content as part of its marketing and advertising efforts, including (without limitation) featuring You on our corporate website and marketing and
advertising materials, and You grant Viddler a sub-licensable, transferrable, worldwide, fully-paid license to reproduce, store, use, distribute, display,
and modify the Content and your corporate name and logo for the purposes described in the foregoing sentence.
You are responsible for determining which Users have access to the Content on the System. You shall cause all Users to abide by the terms of this Agreement
You shall not remove any trademark, copyright or patent notices, any proprietary or restricted rights notices, or any other notices, terms, policies or
disclaimers that Viddler displays in connection with the System.
In consideration of the license rights and Services provided by Viddler, You shall pay to Viddler all current applicable fees and other amounts set forth
on the Order Form Such fees and other amounts due are non-refundable. If You pay by credit card, You will be billed automatically on a monthly basis. If
You pay via an invoice process, all fees and other amounts shall be due to Viddler Net 30 from your receipt of Viddler's invoices, unless otherwise stated
in the applicable Order Form. All amounts due to Viddler hereunder that are not paid when due shall accrue interest from the first day following the due
date until paid in full at the lesser of one and one-half percent (1-1/2%) per month or the maximum rate permitted by law. When amounts due are fifteen
(15) days or more past due, Viddler has the right to suspend the System and halt performing Services until your account is paid in full. You shall be
liable for any and all expenses incurred in connection with enforcing Viddler’s rights under this Agreement, including reasonable fees for attorneys,
paralegals and experts and any fees paid to or costs incurred with collection agencies.
You must provide Viddler with written notice of any disputed charges within thirty (30) days of your receipt of Viddler’s invoice; otherwise You shall be
deemed to have waived your right to dispute such charges. If a dispute is submitted on or before the due date for the applicable invoice, You agree to pay
the invoiced amount minus the disputed amount on or before the due date. The dispute notice shall set forth in reasonable detail the information concerning
the disputed charges and reasons for the dispute.
. You shall be responsible for paying all sales, use, value-added and other similar taxes in connection with the System and Services provided hereunder,
except for taxes assessed, levied or imposed solely based upon Viddler's property or income. Viddler may elect to include such taxes, duties and charges as
separately itemized charges in its invoices to You hereunder.
You shall not use the System in any situation where its failure or fault could lead to death or serious bodily injury of any person, or to physical or
environmental damage. For example, You shall not use, or permit any other person to use, the System in connection with aircraft or other modes of human
mass transportation, nuclear or chemical facilities, or Class III medical devices under the Federal Food, Drug and Cosmetic Act.
4. Warranties and Limitations of Liability.
Viddler warrants that it will use commercially reasonable efforts to cause the System to operate in substantial conformance with the Documentation. In the
event of any breach of the foregoing warranty, Viddler's sole obligation and liability and your exclusive remedy is that Viddler shall use commercially
reasonable efforts to remedy any such breach promptly after receipt of written notice. In any event, must be provided by You within thirty (30) days of the
beginning of the first occurrence of the breach.
You represent and warrant that You possess sufficient rights in the Content to grant the licenses in this Agreement. Furthermore You represent and warrant
that the Content will not (i) contain pornography or sexually explicit content, materials that promote or glorify violence, materials that are hateful or
discriminate on the basis of race, gender, age, sexual orientation, ethnicity, national origin, disability, marital or veteran status or any other
protected characteristic or status, or materials promoting criminal or illegal activities; (ii) contain viruses, spyware, malware or other harmful or
surreptitious software (which category shall include, without limitation, any code that is installed on a user’s computing device without his or her prior
affirmative informed consent or any code that is not easy to uninstall or that frustrates uninstallation efforts); (iii) infringe or violate the rights of
others (including copyright, trademark, trade secret, privacy and/or publicity rights) or any applicable legal or regulatory requirements; (iv) be
defamatory, libelous, obscene, offensive or harmful; (v) violate Viddler’s acceptable use policy that Viddler provides to You, as Viddler may update such
policy from time-to-time; or (vi) be inappropriate or objectionable or likely to cause Viddler civil, criminal, or reputational harm (as determined in
with all applicable laws and regulatory requirements posted on any website or domain through which You make the System available to end users. If You
accurately discloses the System’s collection, use, disclosure, and other privacy practices as documented in the System’s documentation and Viddler’s
EXCEPT AS EXPRESSLY PROVIDED HEREIN, VIDDLER DOES NOT MAKE ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND VIDDLER
SPECIFICALLY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW. VIDDLER EXPRESSLY DISCLAIMS ANY WARRANTY THAT SYSTEM OR SERVICES WILL BE FREE FROM ERRORS, DELAYS, INTERRUPTIONS,
VIRUSES OR MALICIOUS CODE OR WILL ALWAYS BE AVAILABLE, THAT ALL ERRORS WILL BE CORRECTED, OR THAT THE SERVICES OR SYSTEM WILL MEET YOUR REQUIREMENTS OR
WILL IMPROVE YOUR FINANCIAL RESULTS. NO CREDITS FOR FUTURE USE OF THE SERVICE WILL ACCRUE TO YOU FOR CONTRACTED-FOR BUT UNUSED SERVICES OR SYSTEM CAPACITY.
Limitations of Liability.
THE AGGREGATE LIABILITY OF VIDDLER FOR ANY AND ALL CLAIMS ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER SHALL NOT EXCEED THE
FEES PAID BY YOU PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH ANY THE LATEST CLAIM FIRST ARISES.
IN NO EVENT SHALL VIDDLER BE LIABLE FOR LOST PROFITS OR BUSINESS, LOSS OF GOODWILL, LOSS OF DATA, INTERRUPTION OF BUSINESS, OR FOR ANY EXEMPLARY, PUNITIVE,
SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF WHETHER SUCH DAMAGES ARISE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR
OTHERWISE AND REGARDLESS OF WHETHER VIDDLER IS ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES.
The parties specifically acknowledge that Viddler is not responsible for the accuracy or reliability of any of the Content or other data as processed by
the System. The parties acknowledge that the disclaimers and limitations set forth in this Section 4 are an essential element of agreement between the
parties and the parties would not have entered into this Agreement without such disclaimers and limitations.
You agree to defend, indemnify, and hold harmless Viddler, its corporate affiliates, and each of their shareholders, directors, officers, members, managers
and employees from and against any suits, claims, demands, costs, fines, penalties, fees, expenses (including reasonable attorneys fees), losses,
judgments, damages and awards incurred or sustained in connection with a third party’s claim, suit, or demand that arises out of or relates to (i) You or a
User allegedly or actually violating any applicable law, (ii) an alleged or actual breach of any of your representations, warranties, or obligations in
this Agreement, (iii) You or a User allegedly or actually breaching the Terms of Service, or (iv) You or a User’s willful misconduct or gross negligence.
In connection with a claim for indemnification under Section 5.1, Viddler shall: (i) provide You with prompt written notice of a third-party claim, suit or
demand indemnifiable under this Section 5 (a “Claim”); (ii) permit You to control the defense and settlement of the Claim (provided, however, that Viddler
may, at its sole expense, participate in such defense using counsel of its choice and provided that any such settlement containing an admission of
liability or an obligation of Viddler to perform or refrain from taking any action with be subject to Viddler’s prior written consent); (iii) refrain from
entering into any settlement or compromise of any such Claim without your approval; (iv) provide the You with reasonable information and assistance for the
defense or settlement of the Claim, at your expense; and (v) use commercially reasonable efforts to mitigate any loss, damage or costs related to the
Each party (as the “receiving party”) agrees not to disclose the other party’s (the “disclosing party”) Confidential Information (defined in Section 6.2
below), except to the receiving party’s authorized employees and contractors who are bound by written confidentiality obligations and who need to use or
have access to the disclosing party’s Confidential Information for the purposes contemplated by this Agreement. Furthermore, a receiving party agrees not
to use the disclosing party’s Confidential Information except to the extent necessary to perform its obligations or enforce its rights under this
Agreement. A receiving party shall use at least the same degree of care in protecting the disclosing party’s Confidential Information as such receiving
party generally exercises in protecting its own Confidential Information and shall inform its employees and contractors having access to the disclosing
party’s Confidential Information of its confidential nature. In no event shall a receiving party use less than a commercially reasonable degree of care in
protecting the disclosing party’s Confidential Information.
“Confidential Information” means documents, data, software and information which, when provided by the disclosing party to the receiving party: a) are
clearly identified as “Confidential” or “Proprietary” or are marked with a similar legend; b) are disclosed orally or visually, and identified as
Confidential Information at the time of disclosure and confirmed as Confidential Information in writing within ten (10) business days; or c) a reasonable
person would understand to be confidential or proprietary at the time of disclosure. The System and Documentation, as well as results of benchmark and
other tests run on the System by either party, are be deemed Viddler’s Confidential Information without any need for any markings or legends, and in
addition to the other restrictions in this Section 6, shall not be disclosed to any competitor of Viddler. Any Content uploaded by You to the System, which
is not publicly available, will be deemed to be your Confidential Information (unless otherwise excluded as Confidential Information under this Section
6.2). Notwithstanding the foregoing, the receiving party shall have no obligation of confidentiality with respect to any information which the receiving
party can demonstrate by written documentation: (a) is already known to the receiving party at the time of disclosure; (b) is or subsequently becomes
publicly available through no wrongful act of the receiving party; (c) is disclosed or provided to the receiving party by a third party without restriction
and without having violated any confidentiality agreement of any party; or (d) is developed independently by the receiving party without use of the
disclosing party’s Confidential Information. In addition, either party may disclose Confidential Information of the other to the extent required by law or
a judicial or regulatory order; provided, however, that the party subject to the requirement furnishes the other party with as much advance written notice
as possible under the circumstances and cooperates with its efforts to obtain a suitable protective order. If such an order is not obtained, or the party
owning the information waives the non-disclosure obligation, the other party may disclose that portion of the Confidential Information which, based on the
advice of counsel, is subject to the judicial, legal or regulatory disclosure requirement. Each party shall promptly notify the other of any suspected
unauthorized access, use, disclosure, alteration or loss of the other party’s Confidential Information of which it becomes aware and shall cooperate with
such other party’s reasonable requests in connection with investigating and remediating any such incident.
You agree that Viddler shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into any
Viddler products or services any suggestions, enhancement requests, recommendations or other feedback provided by You or the Users relating to the
operation of the System or Services.
7.Term and Termination.
The initial minimal term shall be 24 months. Thereafter, this Agreement will automatically renew for successive one-year terms under Viddler's then-current
fee schedule for the System and Services, a copy of which will be provided to You upon request.
Termination For Convenience.
At any time during the term of this Agreement, either party may terminate this Agreement for convenience upon 60 days’ prior written notice. If You
terminate this agreement, then You agree to pay Viddler an early terminate fee equal to fifty percent of the remaining fees for the then-current term (in
addition to the fees for the services performed during the notice period). Viddler may invoice (or charge You, if You pay your fees by credit card) such
early terminate fee immediately upon its receipt of the termination notice.
Termination for Material Breach & Suspension.
Each party shall have the right to immediately terminate this Agreement by delivering written notice thereof to the other party if the other party breaches
any material term or condition of this Agreement and does not cure the breach within thirty (30) days following its receipt of written notice thereof from
the other party. Your use of the System and Viddler’s performance of the Services may be immediately or suspended by Viddler upon notice to You if Viddler
determines in its sole, good-faith discretion that You breached the terms of this Agreement, or permitted a User to do so.
Effect of Termination.
Upon the expiration or sooner termination of this Agreement, all your license rights under this Agreement shall automatically and immediately cease and You
shall cease all uses of the System, delete all computer programs and files relating to the System from your computer systems and mobile devices and return
to Viddler or destroy all Documentation in its possession or control. The following shall survive the expiration or sooner termination of this Agreement:
Sections 2.3, 3.5-3.7, 4, 5, 6, and 8; any payment obligations accruing prior to the date of such expiration or termination; and any other provisions
herein expressly surviving such expiration or termination or necessary to interpret the respective rights and obligations of the parties hereunder.
In making this Agreement, the parties are acting and shall act as independent contractors. Neither party is, nor will be deemed to be, an agent, legal
representative, joint venturer or partner of the other party for any purpose.
No Third-Party Beneficiaries.
There are no third-party beneficiaries to this Agreement.
In the event that either party is unable to perform its obligations under this Agreement (other than the obligation to pay amounts due and owing hereunder)
because of acts of God, strikes, equipment or transmission failure, failure of suppliers, malicious acts of third parties or other causes reasonably beyond
its control, such party shall not be liable to the other party for any damages resulting from such failure to perform or otherwise from such causes.
This Agreement and its subject matter shall be governed in accordance with the law of the Commonwealth of Pennsylvania, without reference to its conflict
of laws principles.
All disputes between the parties pursuant to this Agreement or that arise under this Agreement shall be submitted to one arbitrator in binding arbitration
administered by the American Arbitration Association under its Commercial Arbitration Rules and its Optional Rules for Emergency Measures of Protection.
Such arbitration shall be held in Delaware. Evidence and argument may be entered in person or by telephone, fax, postal mail, electronic mail, and any
other methods of communication approved by the arbitrator, who shall hear all testimony and render a written award within one hundred eighty (180) days of
the arbitrator's appointment. Judgment upon the award may be entered and enforced in any court of competent jurisdiction.
You may not assign any of your rights or privileges or delegate any of your duties or obligations in this Agreement to any third party without the prior
written consent of Viddler. Viddler may assign this Agreement upon providing written notice to You and subcontract to others its obligations in the
performance of the Services or providing the System.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.
All notices required to be in writing shall be delivered by hand, sent by recognized overnight courier (such as Federal Express, Airborne or UPS), or
mailed by certified or registered mail, return receipt requested, postage pre-paid. Notices to Viddler shall be sent to Viddler, Inc., 520 Evans St, Suite
1, Bethlehem, PA 18015 USA, or any other address specified by Viddler. You shall alert Viddler of any change to the mail address given while signing up for
a Business Services Agreement.
agreement between the parties concerning the subject matter hereof and supersedes all prior understandings and agreements between the parties, whether
Any of the provisions of this Agreement which is determined to be invalid or unenforceable in any jurisdiction shall be ineffective to the extent of such
invalidity or unenforceability in such jurisdiction, without rendering invalid or unenforceable the remaining provisions hereof or affecting the validity
or unenforceability of any of this Agreement in any other jurisdiction.
A waiver by either party of a breach or violation of any provision of this Agreement will not constitute or be construed as a waiver of any subsequent
breach or violation of that provision or as a waiver of any breach or violation of any other provision of this Agreement.
The headings contained in this Agreement are for convenience only and shall not affect meaning or interpretation of this Agreement.
Revisions to this Agreement.
This Agreement may be revised at any time and from time to time by updating this posting. You should visit this page from time to time to review the then
terms because they are binding on You. Certain provisions of this Agreement may be superseded by legal notices or terms located on particular pages of
Viddler’s website Continued use of the System after a change shall constitute your acceptance of the change.