These Terms and Conditions apply to and are incorporated by reference into the services offered by and between Alenka Media (represented by Alenka Media Inc., Alenka Media B.V. and Alenka Media Pvt. Ltd., and any of their subsidiaries as identified on the Agreement) and the Customer (as identified on the Agreement) and set forth the terms and conditions under which Alenka Media will provide the Customer with access to certain applications and user documentation that Alenka Media makes available in hard copy or electronic form to its general customer base in conjunction with the licensing of such Applications (“Documentation”). The Applications and the Documentation will hereinafter collectively be referred to as the “Software.”
Alenka Media and Customer hereby agree as follows:
1. LICENSE GRANT AND RIGHT OF USE
1.1. License Grant. Subject to all limitations and restrictions contained herein and the Agreement, Alenka Media grants Customer a term subscription, software as a service (‘SaaS’), nonexclusive, and nontransferable right to access and operate the object code form of Applications (and use its Documentation) as hosted by Alenka Media and solely to perform those functions described in the Documentation. For clarity, an “Application” means Alenka Media’s proprietary software that is specifically licensed to Customer pursuant to a Subscription.
1.2. Use. Customer will have a limited right and license to use the Application solely for its internal business purposes, to perform the functions described in the Documentation. Customer shall not allow any operation that is not fully owned by Customer to frame, syndicate, distribute, replicate, or copy any portion of Customer’s access to the Application and Alenka Media’s web site that provides direct or indirect access to the Application. Unless otherwise expressly permitted by Alenka Media, Customer shall not permit any subsidiaries, affiliated companies, or third parties to access the Software.
1.3. License Type. Unless otherwise specifically stated in the Agreement, the type of license granted is a per player license. Customer shall ensure that the number of active players is equal to or less than the number of licenses for which the Customer has subscribed. Customer is responsible for ensuring that access to an Account is not shared. Only one location may authenticate to one player.
1.4. Additional Restrictions. In no event will Customer disassemble, decompile, or reverse engineer the Application or Confidential Information (as defined herein) or permit others to do so. Disassembling, decompiling, and reverse engineering include, without limitation: (i) converting the Application from a machine-readable form into a human-readable form; (ii) disassembling or decompiling the Application by using any means or methods to translate machine-dependent or machine-independent object code into the original human-readable source code or any approximation thereof; (iii) examining the machine-readable object code that controls the Application’s operation and creating the original source code or any approximation thereof by, for example, studying the Application’s behaviour in response to a variety of inputs; or (iv) performing any other activity related to the Application that could be construed to be reverse engineering, disassembling, or decompiling. To the extent any such activity may be permitted pursuant to written agreement, the results thereof will be deemed Confidential Information subject to the requirements of these Terms. Customer may use Alenka Media’s Confidential Information solely in connection with the Application and pursuant to the terms of these Terms.
1.5. Authorised Users. Unless otherwise specifically provided in the Agreement, “Authorised Users” will only consist of: (i) employees of Customer, and (ii) subject to Section 5 (Confidentiality), third party contractors of Customer who do not compete with Alenka Media (“Permitted Contractors”). Permitted Contractors may Use the Software only at Customer’s place of business or in the presence of Customer personnel. Customer is fully liable for the acts and omissions of Permitted Contractors under these Terms and applicable Agreement.
1.6. Customer License Grant. Customer grants to Alenka Media a non-exclusive, royalty-free license to access, use, reproduce, modify, perform, display and distribute Customer data as is reasonable or necessary for Alenka Media to perform or provide the Application.
1.7. Third Party Software. The Services may contain third party software that require notices and/or additional terms and conditions. Such required third party software notices and/or additional terms and conditions may be requested from Alenka Media and are made a part of and incorporated by reference into these Terms. By accepting these Terms, Customer is also accepting the additional terms and conditions, if any, set forth therein.
2.1. Fees. Customer shall pay Alenka Media the fees indicated on the Agreement. Unless otherwise provided in an Agreement, all fees are to be paid to Alenka Media in advance, prior to the start of service. Any late payment will be subject to any costs of collection (including reasonable legal fees) and will bear interest at the rate of one and one-half percent (1.5%) per month (prorated for partial periods) or at the maximum rate permitted by law, whichever is less. If Customer has set up a direct debit, Alenka Media will not debit Customer’s designated account before seven (7) days have elapsed from the date of the invoice. If Customer is delinquent on a payment of fees for fifteen (15) days or more, Alenka Media may suspend access to the Application. Complaints concerning invoices must be made in writing to email@example.com within thirty (30) days from the date of the invoice. Invoices will be sent by electronic delivery unless requested otherwise by Customer, for which additional fees will apply.
2.2. Taxes. The license, service fees, and other amounts required to be paid hereunder do not include any amount for taxes or levy (including interest and penalties). Customer shall reimburse Alenka Media and hold Alenka Media harmless for all sales, use, VAT, GST, excise, property or other taxes or levies which Alenka Media is required to collect or remit to applicable tax authorities. This provision does not apply to Alenka Media’s income or franchise taxes, or any taxes for which Customer is exempt, provided Customer has furnished Alenka Media with a valid tax exemption certificate.
3.1. Service Availability. Alenka Media will use reasonable efforts to achieve Alenka Media’s availability goals described in the ‘Service Level Agreement.’ Customers may request a copy of this Service Level Agreement by email to Alenka Media.
3.2. Support Services. Upon payment of the relevant fees, Customer may receive certain support services for the Application pursuant to the ‘Support Agreement.’
4.1. Reservation of Rights. By signing the Agreement, Customer irrevocably acknowledges that, subject to the licenses granted herein, Customer has no ownership interest in the Software or Alenka Media materials provided to Customer. Alenka Media will own all right, title, and interest in such Software and Alenka Media materials, subject to any limitations associated with intellectual property rights of third parties. Alenka Media reserves all rights not specifically granted herein.
4.2. Marks and Publicity. Alenka Media and Customer trademarks, trade names, service marks, and logos, whether or not registered (“Marks”), are the sole and exclusive property of the respective owning party, which owns all right, title and interest therein. Alenka Media may: (i) use the Customer’s name and/or logo within product literature, press release(s), social media, and other marketing materials; (ii) quote the Customer’s statements in one or more press releases; and/or (iii) make such other use of the Customer’s name and/or logo as may be agreed between the parties. Additionally, Alenka Media may include Customer’s name and/or logo within its list of customers for general promotional purposes. Alenka Media shall comply with Customer’s trademark use guidelines as such are communicated to the Alenka Media in writing and Alenka Media shall use the Customer’s Marks in a manner which is consistent with industry practice. Neither party grants to the other any title, interest or other right in any Marks except as provided in this Section.
5.2. Confidentiality of Software. All Confidential Information in tangible form will be marked as “Confidential” or the like or, if intangible (e.g., orally disclosed), will be designated as being confidential at the time of disclosure and will be confirmed as such in writing within thirty (30) days of the initial disclosure. Notwithstanding the foregoing, the following is deemed Alenka Media Confidential Information with or without such marking or written confirmation: (i) the Software and other related materials furnished by Alenka Media; (ii) the oral and visual information relating to the Application; and (iii) these Terms.
5.3. Exceptions. Without granting any right or license, the obligations of the parties hereunder will not apply to any material or information that: (i) is or becomes a part of the public domain through no act or omission by the receiving party; (ii) is independently developed by the other party without use of the disclosing party’s Confidential Information; (iii) is rightfully obtained from a third party without any obligation of confidentiality; or (iv) is already known by the receiving party without any obligation of confidentiality prior to obtaining the Confidential Information from the disclosing party. In addition, neither party will be liable for disclosure of Confidential Information if made in response to a valid order of a court or authorized agency of government, provided that notice is promptly given to the disclosing party so that the disclosing party may seek a protective order and engage in other efforts to minimize the required disclosure. The parties shall cooperate fully in seeking such protective order and in engaging in such other efforts.
5.4. Ownership of Confidential Information. Nothing in these Terms will be construed to convey any title or ownership rights to the Software or other Confidential Information to Customer or to any patent, copyright, trademark, or trade secret embodied therein, or to grant any other right, title, or ownership interest to the Alenka Media’s Confidential Information. Neither party shall, in whole or in part, sell, lease, license, assign, transfer, or disclose the Confidential Information to any third party and shall not copy, reproduce or distribute the Confidential Information except as expressly permitted in these Terms. Each party shall take every reasonable precaution, but no less than those precautions used to protect its own Confidential Information, to prevent the theft, disclosure, and the unauthorized copying, reproduction or distribution of the Confidential Information.
5.5. Non-Disclosure. Each party agrees at all times to use all reasonable efforts, but in any case no less than the efforts that each party uses in the protection of its own Confidential Information of like value, to protect Confidential Information belonging to the other party. Each party agrees to restrict access to the other party’s Confidential Information only to those employees or Subcontractors who: (i) require access in the course of their assigned duties and responsibilities; and (ii) have agreed in writing to be bound by provisions no less restrictive than those set forth in this Section.
5.6. Injunctive Relief. Each party acknowledges that any unauthorized disclosure or use of the Confidential Information would cause the other party imminent irreparable injury and that such party will be entitled to, in addition to any other remedies available at law or in equity, temporary, preliminary, and permanent injunctive relief in the event the other party does not fulfil its obligations under this Section.
5.7. Suggestions/Improvements to Software. Notwithstanding this Section, unless otherwise expressly agreed in writing, all suggestions, solutions, improvements, corrections, and other contributions provided by Customer regarding the Software or other Alenka Media materials provided to Customer will be owned by Alenka Media, and Customer hereby agrees to assign any such rights to Alenka Media. Nothing in these Terms will preclude Alenka Media from using in any manner or for any purpose it deems necessary, the know-how, techniques, or procedures acquired or used by Alenka Media in the performance of services hereunder.
6.1. No Malicious Code. To the knowledge of Alenka Media, the Application does not contain any malicious code, program, or other internal component (e.g. computer virus, computer worm, computer time bomb, or similar component), which could damage, destroy, or alter the Application, or which could reveal, damage, destroy, or alter any data or other information accessed through or processed by the Application in any manner. This warranty will be considered part of and covered under the provisions of these Terms. Customer must: (i) notify Alenka Media promptly in writing of any nonconformance under this warranty; (ii) provide Alenka Media with reasonable opportunity to remedy any nonconformance under the provisions of these Terms; and (iii) provide reasonable assistance in identifying and remedying any nonconformance.
6.2. Authorized Representative. Customer and Alenka Media warrant that each has the right to enter into these Terms and that these Terms and the Agreements executed hereunder will be executed by an authorized representative of each entity.
6.3. Services Warranty. Alenka Media warrants that all services performed hereunder shall be performed in a workmanlike and professional manner.
6.4. Disclaimer of Warranties. any and all of software, services, confidential information and any other technology or materials provided by Alenka Media to the Customer are provided “as is” and without warranty of any kind. Except as otherwise expressly stated in Section 6 of these terms. Alenka Media makes no other warranties, express or implied, including express or implied warranties of merchantability, fitness for a particular purpose, and noninfringement. Neither Alenka Media (nor any of its subsidiaries, affiliates, suppliers or licensors) warrants or represents that the software or services will be uninterrupted, error-free, or secure. customer acknowledges that there are risks inherent in internet connectivity that could result in the loss of customer’s privacy, data, confidential information, and property.
6.5. Modifications. Notwithstanding anything to the contrary in this Section, any and all warranties under these Terms are VOID if Customer has made changes to the Software or has permitted any changes to be made other than by or with the express, written approval of Alenka Media.
7.1. Alenka Media Indemnity. Alenka Media will defend at its expense any cause of action brought against Customer, to the extent that such cause of action is based on a claim that the Application, as hosted by Alenka Media to Customer, infringes a patent, copyright, or trade secret of a third party. Alenka Media will pay those costs and damages finally awarded against Customer pursuant to any such claim or paid in settlement of any such claim if such settlement was approved in advance by Alenka Media. Customer may retain its own counsel at Customer’s own expense.
7.2. No Liability. Alenka Media will have no liability for any claim of infringement based on: (i) Software which has been modified by parties other than Alenka Media where the infringement claim would not have occurred in the absence of such modification; (ii) Customer’s use of the Software in conjunction with data where use with such data gave rise to the infringement claim; or (iii) Customer’s use of the Software outside the permitted scope of these Terms.
7.3. Remedies. Should the Software become, or in Alenka Media’s opinion is likely to become, the subject of a claim of infringement, Alenka Media may, at its option, (i) obtain the right for Customer to continue using the Software, (ii) replace or modify the Software so it is no longer infringing or reduces the likelihood that it will be determined to be infringing, or (iii) if neither of the foregoing options is commercially reasonable, terminate the access and Use of the Software. Upon such termination, Customer shall cease accessing the Software and Alenka Media will refund to Customer, as Customer’s sole remedy for such license termination, the subscription fees paid by Customer for the terminated license for the past twelve (12) months. This Section 7 states the entire liability of Alenka Media with respect to any claim of infringement regarding the application.
7.4. Customer Indemnity. Customer agrees to defend, indemnify, and hold Alenka Media and its officers, directors, employees, consultants, and agents harmless from and against any and all damages, costs, liabilities, expenses (including, without limitation, reasonable attorneys’ fees), and settlement amounts incurred in connection with any claim arising from or relating to Customer’s: (i) breach of any of its obligations set forth in Section 10 (Customer Obligations); (ii) Customer’s gross negligence or wilful misconduct; (iii) actual or alleged use of the Application in violation of these Terms or applicable law by Customer or any Authorized Users; (iv) any actual or alleged infringement or misappropriation of third party intellectual property rights arising from data provided to Alenka Media by the Customer or otherwise inputted into the Application, whether by the Customer, an Authorized User or otherwise including Customer Work Product (as defined below); and/or (v) any violation by Customer or its Authorized Users, of any terms, conditions, agreements or policies of any third party Alenka Media. “Customer Work Product” means that data and those forms developed or acquired by Customer for internal business purposes independent from Alenka Media or the Application.
7.5. Indemnification Procedures. Each indemnifying party’s obligations as set forth in this Section are subject to the other party: (i) giving the indemnifying party prompt written notice of any such claim or the possibility thereof; (ii) giving the indemnifying party sole control over the defence and settlement of any such claim; and (iii) providing full cooperation in good faith in the defence of any such claim.
8. LIMITATION OF LIABILITY
8.1. Liability Cap. To the maximum extent permitted by applicable law, in no event will Alenka Media be liable under any theory of liability, whether in an equitable, legal, or common law action arising hereunder for contract, strict liability, indemnity, tort (including negligence), attorneys fees and costs, or otherwise, for damages which, in the aggregate, exceed the amount of the fees paid by customer for the services which gave rise to such damages.
8.2. Disclaimer of Damages. To the maximum extent permitted by applicable law, in no event will Alenka Media be liable for any special, incidental, indirect, exemplary, punitive, or consequential damages of any kind and however caused including, but not limited to, attorneys fees and costs, business interruption or loss of profits, business opportunities, or goodwill.
8.3. The foregoing limitations apply even if notified of the possibility of such damage and notwithstanding the failure of essential purpose of any remedy.
9. TERM AND TERMINATION
9.1. Subscription Term. The term of these Terms will continue until the termination of the last paid subscription.
9.2. Termination by Alenka Media. These Terms and any license created hereunder may be terminated by Alenka Media: (i) if Customer fails to make any payments due hereunder within fifteen (15) days of the due date; (ii) on thirty (30) days written notice to Customer if Customer fails to perform any other material obligation required of it hereunder, and such failure is not cured within such thirty (30) day period; or (iii) Customer files a petition for bankruptcy or insolvency, has an involuntary petition filed against it, commences an action providing for relief under bankruptcy laws, files for the appointment of a receiver, or is adjudicated a bankrupt concern.
9.3. Termination by Customer. These Terms may be terminated by Customer on thirty (30) days written notice to Alenka Media if Alenka Media fails to perform any material obligation required of it hereunder, and such failure is not cured within thirty (30) days from Alenka Media’s receipt of Customer’s notice or a longer period if Alenka Media is working diligently towards a cure.
9.4. Effect of Termination. Upon termination of these Terms, Customer shall no longer access the Software and Customer shall not circumvent any security mechanisms contained therein.
9.5. Other Remedies. Termination of Terms will not limit either party from pursuing other remedies available to it, including injunctive relief, nor will such termination relieve Customer’s obligation to pay all fees that have accrued or are otherwise owed by Customer under these Terms.
10. CUSTOMER OBLIGATIONS
10.1. Customer agrees that no employees of Alenka Media will be required to individually sign any agreement in order to perform any services hereunder including, but not limited to, access agreements, security agreements, facilities agreements or individual confidentiality agreements.
10.3. The Customer shall be obliged to inform its Authorized Users before the beginning of use of the Software about the rights and obligations set forth in these Terms. The Customer will be liable for any violation of obligations by its Authorized Users or by other third parties who violate obligations within the Customer’s control.
10.4. The Customer shall be obliged to keep the login names and the passwords required for the use of the Application confidential, to keep it in a safe place, and to protect it against unauthorized access by third parties with appropriate precautions, and to instruct its Authorized Users to observe copyright regulations. Personal access data must be changed at regular intervals.
10.5. Before entering its data and information, the Customer shall be obliged to check the same for viruses or other harmful components and to use state of the art anti-virus programs for this purpose. In addition, the Customer itself shall be responsible for the entry and the maintenance of its data.
10.6. Alenka Media has the right (but not the obligation) to suspend access to the Application or remove any data or content transmitted via the Application without liability (i) if Alenka Media reasonably believes that the Application is being used in violation of these Terms or applicable law, (ii) if requested by a law enforcement or government agency or otherwise to comply with applicable law, provided that Alenka Media shall use commercially reasonable efforts to notify Customer prior to suspending the access to the Application as permitted under these Terms, or (iii) as otherwise specified in these Terms. Information on Alenka Media’s servers may be unavailable to Customer during a suspension of access to the Software. Alenka Media will use commercially reasonable efforts to give Customer at least twelve (12) hours’ notice of a suspension unless Alenka Media determines in its commercially reasonable judgment that a suspension on shorter or contemporaneous notice is necessary to protect Alenka Media or its customers.
11.1. Assignment. Customer may not assign these Terms or otherwise transfer any license created hereunder whether by operation of law, change of control, or in any other manner, without the prior written consent of Alenka Media. Any purported assignment of these Terms, or any license or rights in violation of this Section will be deemed void. Alenka Media may assign, in whole or in part, its rights, interests, and obligations hereunder without limitation.
11.2. Third Parties. Alenka Media will have the right to use third parties, including, but not limited to, employees of Alenka Media’s affiliates and subsidiaries (“Subcontractors”) in performance of its obligations and services hereunder and, for purposes of these Terms, all references to Alenka Media or its employees will be deemed to include such Subcontractors.
11.3. Technical Data. Customer shall not provide to Alenka Media any technical data as that term is defined in the International Traffic in Arms Regulations (“ITAR”) at 22 CFR 120.10.
11.4. Compliance with Laws. Both parties agree to comply with all applicable laws, regulations, and ordinances relating to such party’s performance under these Terms.
11.5. Survival. The provisions set forth in Sections 2, 4, 5, 6.4, 8, 9.3, 9.4 and 11 of these Terms will survive termination or expiration of these Terms and any applicable license hereunder.
11.6. Notices. Any notice required under these Terms shall be given in writing and will be deemed effective upon delivery to the party to whom addressed. All notices shall be sent to the applicable address specified on the Agreement or to such other address as the parties may designate in writing. Any notice of material breach will clearly define the breach including the specific contractual obligation that has been breached.
11.7. Force Majeure. Alenka Media will not be liable to Customer for any delay or failure of Alenka Media to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of Alenka Media. Such causes will include, but are not limited to, acts of God, floods, fires, loss of electricity or other utilities, or delays by Customer in providing required resources or support or performing any other requirements hereunder.
11.8. Restricted Rights. Use of the Software by or for the United States Government is conditioned upon the Government agreeing that the Software is subject to Restricted Rights as provided under the provisions set forth in FAR 52.227-19. Customer shall be responsible for assuring that this provision is included in all agreements with the United States Government and that the Software, when accessed by the Government, is correctly marked as required by applicable Government regulations governing such Restricted Rights as of such access.
11.9. Entire Agreement. These Terms together with the documents listed in the applicable Agreement constitute the entire agreement between the parties regarding the subject matter hereof and supersedes all proposals and prior discussions and writings between the parties with respect to the subject matter contained herein. Any signed copy of these Terms made by reliable means will be considered an original.
11.10. Modifications. The parties agree that these Terms cannot be altered, amended or modified, except by a writing signed by an authorized representative of each party.
11.11. Non-solicitation. During the term of these Terms and for a period of two (2) years thereafter, Customer agrees not to hire, solicit, nor attempt to solicit, the services of any employee or Subcontractor of Alenka Media without the prior written consent of Alenka Media. Customer further agrees not to hire, solicit, nor attempt to solicit, the services of any former employee or Subcontractor of Alenka Media for a period of one (1) year from such former employee’s or Subcontractor’s last date of service with Alenka Media. Violation of this provision will entitle Alenka Media to liquidated damages against Customer equal to two hundred percent (200%) of the solicited person’s gross annual compensation.
11.12. Headings. Headings are for reference purposes only, have no substantive effect, and will not enter into the interpretation hereof.
11.13. No Waiver. No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy.
11.14. Severability and Reformation. Each provision of these Terms is a separately enforceable provision. If any provision of these Terms is determined to be or becomes unenforceable or illegal, such provision will be reformed to the minimum extent necessary in order for these Terms to remain in effect in accordance with its terms as modified by such reformation.
11.15. Independent Contractor. Alenka Media is an independent contractor and nothing in these Terms will be deemed to make Alenka Media an agent, employee, partner, or joint venturer of Customer. Neither party will have authority to bind, commit, or otherwise obligate the other party in any manner whatsoever.
11.16. Governing Law; Attornment to British Columbia. This Agreement shall be governed by and construed in accordance with the laws of British Columbia and the laws of Canada applicable therein. Any and all disputes arising under this Registration Rights Agreement, whether as to interpretation, performance or otherwise, shall be subject to the exclusive jurisdiction of the courts of the Province of British Columbia and each of the parties hereto hereby irrevocably attorns to the jurisdiction of the courts of such province.
11.17. Dispute Resolution. Negotiations: Where there is a dispute, controversy, or claim arising under, out of, or relating to these Terms, the aggrieved party shall notify the other party in writing of the nature of such dispute with as much detail as possible about the alleged deficient performance of the other party. A representative from senior management of each of the parties shall meet in person or communicate by telephone within five (5) business days of the date of the written notification in order to reach an agreement about the nature of the alleged deficiency and the corrective action to be taken by the respective parties. Mediation: Any dispute, controversy, or claim arising under, out of, or relating to these Terms and any subsequent amendments of these Terms, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach, or termination, as well as non-contractual claims, and any claims with respect to the validity of this mediation agreement (hereinafter the “Dispute”), shall be submitted to mediation in accordance with the then-current WIPO Mediation Rules. The language to be used in the mediation will be English. Opportunity to Cure: Notwithstanding anything contained hereunder, Customer agrees and acknowledges that no dispute resolution or litigation will be pursued by Customer for any breach of these Terms until and unless Alenka Media has had an opportunity to cure any alleged breach. Customer agrees to provide Alenka Media with a detailed description of any alleged failure and a description of the steps that Customer understands must be taken by Alenka Media to resolve the failure. Alenka Media shall have sixty (60) days from Alenka Media’s receipt of Customer’s notice to complete the cure. Injunctive Relief. The parties agree that it will not be inconsistent with their duty to mediate to seek injunctive or other interim relief from a competent court. The parties, in addition to all other available remedies, shall each have the right to initiate an action in any court of competent jurisdiction in order to request injunctive or other interim relief with respect to a violation of intellectual property rights or confidentiality obligations. The choice of venue does not prevent a party from seeking injunctive or any interim relief in any appropriate jurisdiction.
Updated: January 1, 2021.