Terms of service

Last Updated: January 24, 2022  

Please read these Terms of Service carefully before any Use of the Products. Your Use constitutes an unconditional agreement to be bound by these Terms of Service. IF YOU DO NOT ACCEPT THE TERMS OF SERVICE YOU ARE PROHIBITED FROM USING THE PRODUCTS.

The Products are available in different Editions Packages and Addons, including unpaid and paid options. Certain rights, obligations and restrictions vary by Edition. Unless otherwise stated, terms apply to all Editions.

Definitions

1. Adaptation means any work that modifies, adds to, deletes from, edits, affects the function of or is based on a Product or any previous Adaptation thereof, including all derivative works of a Product as such term is defined by the Copyright Act. Websites on which Products are used solely to facilitate Content playback and streaming (but not Software as a Service) are not Adaptations hereunder.
2. Addon means any additional service that You elect to obtain in relation to (i) transcoding Your signal, (ii) acquiring the CDN service, (iii) obtaining additional storage capacity, (iv) taking on additional Subscriptions per channels or adding Services to Your Edition.
3. CDN means the Content delivery network or Content distribution network which is a geographically distributed network of proxy servers and their data centers managed and operated by the Company with the aim to provide high availability and high performance by distributing the service spatially relative to end-users requiring live streaming media, or on-demand streaming media, as the case may be.
4. Claims means claims, suits, demands and actions by third parties.
5. Company means White Peaks Solutions, LTD an England and Wales Company, and any other affiliate, parent or sister company including
6. Content means media including videos, images, graphics, animations, sounds, text and music and any related submissions (e.g., viewer comments) hosted, streamed, or Played through the Products.
7. Demonstration Edition (or Demo) means any Edition of the Products for which Fees are not required and that can be used for demonstration purpose.
8. Documentation means any technical or other specifications or documentation that Company may provide to Publisher for use in connection with Products including but not limited to the APIs and other related information published from time to time.
9. Data means all transactional and Content data obtained by, processed by or provided to the Company through the Use of Products. Data may include metadata (such as title, author, description and other information pertaining to Content), IP addresses, mobile device identifiers, URLs, browser and operating system. Company’s use of Data is limited to that which is permitted by applicable law, the Privacy Policy  and these Terms of Service.
10. Distribute means to sell, transfer, assign, circulate, disseminate, distribute or make available to any third party, or the facilitation of the foregoing.
11. Edition means a particular edition of KWIKmotion™ as further detailed herein from section q to x, including the Demonstration Edition, the Video Basic Edition, the Live Basic Edition and the Live Advanced Edition.
12. Effective Date means the earliest date a Product is Used by Publisher unless otherwise provided on an applicable Order Form.
13. End User means an individual or entity (other than Company, Publisher or their agents acting on their behalf) that accesses or Uses Publisher’s Content or Adaptations.
14. Fee means the amount payable to the Company for Use of a Product.
15. GDPR means the General Data Protection Regulation as enacted by the European Union referenced EU2016/679 as amended from time to time.
16. KWIKanalytics Advanced means the tool made available to the Publisher as part of a specific Edition, that processes data the Publisher collects, and stored on the Company’s (or related parties) servers and which can be displayed on the Portal or generated in excel or PDF reports.in relation to a Third Party’s activities on Publisher’s Platform, and more specifically:

In relation to LIVE:   Real time active users and nature of the Content, Location (cities, countries, continent), operating systems, browsers, ASN numbers, average watch per day/month/year.

In relation to VOD:   Real time active users and nature of the Content, Location, operating systems, browsers, ASN numbers, average watch per day/month/year ads fired.

1. KWIKplayer BASIC means Publisher-hosted and cloud-hosted versions of the KWIKmotion™ software and any, features, plug-ins and updates (other than new major versions) provided by Company therefor.
2. KWIKanalytics Basic means the tool provided to the Publisher as part of an Edition which enables the Publisher to process data the Publisher collects, which is stored with the Company in relation to a Third Party’s activities on Publisher’s Content and includes notably, the number of viewers, the Content consumed by the viewers, the duration of the views, the geographic location of the viewer (country only), the bandwidth consumption.
3. KWIKmotion™ CUSTOM PLAYER means the Publisher editable and customizable version of the KWIK BASIC Player with added functionalities including editable control and menu bar, insertion of Publisher’s logo and custom cascading style sheets (CSS).
4. KWIKmotion™ DVR Live means the tool made available to the Publisher under an Edition (or an Addon) that allows the Publisher to proceed with the instant clipping, editing, publishing and sharing one ore more segments deployed form the Transcoder originally in a live feed but stored on the KWIKmotion™’s servers for a period not exceeding 24 hours.
5. KWIKmotion™ LIVE means the broadcasting of Publisher’s stream over the internet
6. KWIKmotion™ Library Storage means storing Publisher’s Content (videos/clips) on KWIKmotion’s™ servers for the duration of the Subscription, unless removed earlier by the Publisher.
7. KWIKmotion™ VOD means the video on demand platform that allows the Publisher to upload and manage the Publisher’s Content and distribution thereof to their target audiences.
8. Licensing Key means certain code in the Products that permits Company to verify that Use of a Product is authorized. The Licensing Key does not gather personally identifiable information and its functions are more fully described in these Terms of Service.
9. Licensed Editions means the KWIKmotion™ Edition including Addons currently subscribed or subsequently added on.
10. License Scope means the Products and/or Addons authorized for a particular Edition, including advertising, the maximum volume of data, maximum number of domains, maximum Plays, maximum API requests, authorization to Use KWIKmotion™.
11. Losses means damages, losses, costs and liabilities (including reasonable attorney and professional fees) arising from a Claim.
12. Monthly Usage Limits means the maximum monthly volume, as applicable, of and the CDN usage, the bandwidth overage as well as API requests for the applicable Edition, as set forth in the License Scope. If a partial month of Use is authorized, Monthly Usage Limits for such month will be prorated based on the number of days in such month.
13. Operating System means Windows Systems, Apple iOS and/or Google Android, Linux based systems, as well as any current operating system that has streaming capabilities for the supported protocols.
14. Order Form is an agreement between Company and Publisher setting forth the pricing of the Products, the Editions and includes any contemporaneous Addendum thereto. The Publisher shall complete the Order Form available on the Company’s portal or reseller’s and ask the Company to provide a quotation for the price. The Company will send to the Publisher the Order Form together with the total price for the Publisher’s approval.
15. Overages means amounts payable to the Company for Use of one or more Products in excess of the Monthly Usage Limits. Except as set forth on an applicable Order Form, Overages are calculated on a calendar-month basis  at the Company’s then-applicable overage rates.
16. Play means each instance of Content streamed, in whole or in part, through the Products.
17. Portal means an on-line control panel that provides certain functionality including account monitoring, player configuration, video capturing, Video management, Video editing, user management and statistics reporting
18. Products means the Licensed Programs and Services including subscribed Addons (as applicable to the relevant Edition).
19. Prohibited Content means any Content that (i) infringes any copyright, trademark, patent, trade secret, right of publicity or other right of any person or entity, (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive, tortious, obscene, offensive, vulgar, pornographic, profane or is otherwise inappropriate as determined by the Company in its sole discretion, (iii) contains any virus, worm, malicious code, Trojan horse, time bomb, spyware, malware or other computer code, file or program designed, intended or likely to disrupt, damage, limit or interfere with the proper function of any software, hardware or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of the Company or any person or entity, (iv) encourages illegal activity or (v) falsely suggests or implies sponsorship or endorsement by the Company.
20. Publisher or You means you and any entity on whose behalf you Use Products.
21. Publisher Information means personal and non-personal information about Publisher including but not limited to Publisher’s name, address, email address, telephone number, likeness, and, if Publisher transacts business with the Company, financial information such as payment method (valid credit card number, type, expiration date or other financial information).
22. Purpose means (i) Use to facilitate Content playback and streaming on Publisher’s website(s) and/or Publisher’s application and/or any other medium Publisher may so determine from time to time to the exclusion of any Prohibited Content , in each case, if and to the extent within the applicable License Scope.
23. Sensitive Data means online account access credentials; a first name or initial and last name; a Social Security number; a driver’s license number or other state or government identification number; medical or health insurance information; personal biometric data; an account number, debit card number, or credit card number in combination with any required security code, access code, or password that would permit access to or use of such account or card; or special categories of personal data, as referenced in Article 9 of the GDPR.
24. Service Analytics means a functionality of KWIKmotion™ that facilitates statistics, data gathering and reporting. Service Analytics collects only non-personally identifiable information (e.g., browser type, Internet Service Provider, operating system, anonymized IP addresses, device IDs) as more fully described in the Privacy Policy and these Terms of Service.
25. Services means services provided to Publisher under these Terms of Service, including the Editions of KWIKmotion™, the APIs, hosting and streaming functionality, the Portal and maintenance and support services.
26. Taxes means all taxes, levies, duties, tariffs, imposts, deductions, charges or withholdings and all related liabilities, including interest, penalties or additions thereto.
27. Terms of Service or TOS means this document, including any applicable, mutually ratified Order Form and/or Addendum, which shall be incorporated into these Terms of Service.
28. Transcoding means the process of converting a Publisher’s media file or stream from one format to another, making videos viewable across different platforms.
29. Use means operating, accessing, downloading, installing, integrating or providing Content through a Product or Adaptation.
    
    
    

Publisher License

Subject to the terms and conditions of these Terms of Service and Publisher’s observance thereof, Company hereby grants to Publisher and Publisher hereby accepts a non-exclusive, non-transferable, non-sublicensable, limited right and license, solely for the Purpose, to (a) Use, access and install the Products, (b) make and distribute Documentation internally,.

Furthermore, subject to the terms and conditions of these Terms of Service and Publisher’s observance thereof, Company hereby grants to Publisher and Publisher hereby accepts a non-exclusive, non-transferable, non-sublicensable, limited right and license for the Addons to be embedded onto the licensed Products.

License Scope

The License Scope varies by Edition and related Addon and the licenses granted hereunder are limited accordingly. Unless otherwise provided, licenses are personal to Publisher for its own Use. If you would like more information about upgrading to another Edition, please contact us at sales@kwikmotion.com

Editions have the following License Scope (volume per month where applicable): 

In order to ensure maximum performance and protect the experience of all users, requests to the KWIKmotion™ API, the Company shall immediately suspend any Publisher account which exceeds 40,000 connection request per day. The Publisher may monitor the API requests on the following page developer.kwikmotion.com.

Publishers using the Demonstration Edition may not modify or customize any menu and THE CONTENT OF THE DEMONSTRATION ACCOUNT WILL RESET EVERY 24 HOURS.

Advertisements

All Editions of KWIKmotion™ are designed to allow the insertion of adverts and their management thereof, either through Addons or via third party ad server integration.

In the case of a third party ad server integration, Publisher is required to insert provisions in his terms and conditions as well as the relevant privacy policy, stating that the data collected will be processed under the terms and conditions of the thrid party advertisement provider.

KWIK reporter

It is an Addon applicable to any Publisher wishing to allow to determined users the ability to send, through a standalone application (that the user would download from the relevant application store) either a stream of a recorded video from their smartphones or tablets directly to a folder in the Publisher’s Library stored with the Company.

If a Publisher opts for such Addon, the minimum subscription will cover 5 KWIKreporter, with increments of 5 that will apply to each additional License.

Company will, to the extent possible, ensure that the version of Kwik reporter is constantly maintained and supported so as to be compatible with the latest releases of Operating Systems. Publisher understands that there may be times where the development required will take some time during which the user will experience certain disturbance, and to this end, Publisher will take all the measures to keep informed the users of the technical trouble they may face.

The Publisher will remain liable for any Prohibited Content uploaded using KWIK reporter and will take all the necessary measures under his own terms and conditions so that he will be in a position to take down any Prohibited Content if so instructed by the Company or by any judiciary authority having competence.

Registration

Publisher is strictly prohibited from providing false or misleading sign-up information, including using a name, address or email address owned or controlled by another person without appropriate authorization. Company reserves the right to refuse registration or cancel any account that it reasonably believes is in violation of the foregoing. Publisher shall be responsible for maintaining the secrecy of its password and is liable for all activities that occur on its account. Publisher agrees to immediately notify the Company of any unauthorized use of Publisher’s username, password or other breach of account security.

Adaptations

Publisher is authorized to make Adaptations reasonably necessary to exercise its rights under these Terms of Service. All Adaptations created by Publisher are strictly for Use in connection with the Purpose. Publisher is solely responsible to ensure that its Adaptations (except the Products incorporated therein) comply with all applicable laws and regulations and do not infringe the intellectual property rights of any third party. Company reserves the right to prohibit the Use or Distribution of any Adaptation that it reasonably believes violates or is likely to violate such laws, regulations or rights and if Publisher fails to cure the foregoing within fifteen (15) days after written notice thereof.

Beta Products

For the purposes of these Terms of Service, “Beta Products” means products, features, programs or services identified by Company as beta products, or which are made available by Company to Publisher and which are not yet generally available. If Publisher Uses any Beta Products, Publisher’s Use of any such Beta Product(s) constitutes unconditional agreement to be bound by, and such Use shall be subject to, the relevant terms and conditions with respect to such Beta Product(s).

Distribution

Except pursuant to the Purpose or as otherwise specifically set forth herein, Publisher shall not Distribute, re-license, sell, lease, transfer, encumber, assign or make available for public use the Products or any Adaptation thereof. Any attempt to take any such actions is void and constitutes a material breach of these Terms of Service.

Term

These Terms of Service shall become effective on the Effective Date. For all Editions, these Terms of Service shall remain effective for a period of one (1) year (the “Initial Term”) and, upon the conclusion of the Initial Term, shall automatically renew for additional successive one (1) year terms (each a “Renewal Term” and together with the Initial Term and any Negotiation Period(s), the “Term”).

Either party may elect to not renew these Terms of Service by notifying the other prior to the expiration of the then-current Initial Term or Renewal Term. Publisher hereby acknowledges that it will not receive notice of a renewal cancellation date or automatic renewal and expressly waives any right to claim or require the implementation thereof under any applicable rule, regulation or ordinance.

If Company has provided notice of non-renewal to an Edition, Publisher in accordance with the above mechanism, and the parties are negotiating in good faith to agree a new Order Form, and Publisher continues to Use the products beyond the effective date of expiration without such new Order Form having been executed by a duly authorized representative of each party, Publisher will be deemed to have renewed for a one (1) month term (a “Negotiation Period”); provided that Company may in its sole discretion notify Publisher that such Negotiation Period will not occur, in which case these Terms of Service will expire as provided herein. Publisher will for the Negotiation Period be invoiced, and will pay in accordance with the payment terms herein, the monthly Fees provided on the applicable Order Form, and the License Scope for Content Plays, Hosting and Streaming will be monthly as provided on such Order Form. The Negotiation Period will not renew without the written consent (email sufficing) of Company. The foregoing shall not affect either party’s rights to terminate these Terms of Service as provided herein.

Termination

These Terms of Service are subject to termination by Company immediately and/or Publisher’s account may be suspended if (a) Publisher fails to timely pay a Fee or Overages, (b) Publisher violates any term of these Terms of Service, (c) Publisher becomes insolvent, declares bankruptcy or a receiver or trustee is appointed for Publisher, (d) Publisher is or becomes engaged in a business that is competitive with the Company’s business, or (e) Publisher exceeds the License Scope permitted for its Edition and Publisher fails to cure any of the foregoing within seven (7) days of notice thereof.

In the event of any termination by the Company pursuant to (a) – (e) above, the Company is under no obligation to provide a refund for the Fees received from Publisher or apply such fees to future services. In the event of the Company’s termination for convenience, Publisher shall, on its request, be given a pro rata refund of unused pre-paid Fees. In the event Publisher switches to a different Edition, any pre-paid Fee balance shall be applied towards the Fees due for such Edition until exhausted; no refund shall be available for Publishers switching from a Demonstration Edition.

Effect of Termination

Upon expiration or termination of these Terms of Service for any reason, Publisher shall immediately cease Using the Products and uninstall, delete and destroy any copies of the Licensed Programs under its control.

Without limiting the foregoing, if Publisher fails to cease Use of the Products or Services following expiration or termination, Publisher will continue to pay the Fees and Overages. To the extent that such continued use is due to Products no longer under Publisher’s control, such Fees shall be pro rata based on the volume of ongoing Use, until such Use ceases.

Upon expiration or termination, Company may delete any Content, information, files or materials in or related to Publisher’s account, and Company will have no obligation whatsoever to save or make any such Content, information, files or materials available to Publisher or any other party. Publisher agrees that Company will have no liability whatsoever to Publisher or any other party related to termination of access to Publisher’s account or as a result of the deletion or loss of any Content, information, files or materials in or related to Publisher’s account.

Upon expiration or termination, all rights, obligations and licenses of the parties shall cease, except that all obligations that accrued prior to the effective date of expiration or termination and remedies for breach of these Terms of Service shall survive. The provisions of the Sections titled Effects of Termination, Intellectual Property, Privacy, Fees and Payment, Content, Representations and Warranties, Disclaimer, Limitation of Liability, Basis of the Bargain, Indemnity, Audit, Confidential Information, Severability, Choice of Law and Jurisdiction, Injunctive Relief, Complete Agreement and Waiver of Breach shall also survive.

Maintenance and Support

Company will provide technical support and maintenance for the Products in its sole discretion under the terms of the Service Level Agreement which is found at SLA,
except as otherwise provided in a paid support package set forth on an applicable Order Form, and Company shall have no obligation to provide additional technical support, maintenance, updates or enhancements to the Products or to provide customer service or support to Publisher’s End Users. All installation and maintenance of Products by Publisher shall be at the sole expense of Publisher. Company is not responsible for performance issues caused by low-performance End-User computers, low-bandwidth End-User Internet connections, periodic network congestion among network providers, low-bandwidth connectivity from redirected image and video sources, improperly configured campaigns and low-bandwidth connectivity from any Publisher Content servers. In the event Company identifies slow performance due to its system, Company shall use commercially reasonable efforts to restore the Services to acceptable performance levels. Publisher’s sole remedy for any disruption or failure to provide support shall be a pro rata refund of the Fee paid by Publisher for the relevant period.

Intellectual Property

The Company shall retain all intellectual property rights pertaining to the Products, including but not limited to copyright, trademark and patent rights and all rights not expressly granted herein are reserved. If Publisher creates an Adaptation, Publisher shall obtain all intellectual property rights in and to the elements of such Adaptation created by Publisher and the Company shall retain all intellectual property rights in and to any elements of the Products incorporated in such Adaptation. Publisher is prohibited from creating any Adaptation that in any manner infringes the patents, trademarks, copyrights, trade secret rights or other rights of the Company or any third party.

Privacy

Exercise of the rights and licenses granted hereunder shall be subject to the Company’s Privacy Policy, currently located at Privacy Policy  which is incorporated by reference herein. Publisher shall place prominently and maintain on all locations on which it Uses the Products, and comply with, a privacy statement or policy that adheres to or exceeds applicable law, regulations and industry self-regulatory programs. For the avoidance of doubt, the Publisher shall expressly include in his privacy policy a statement about the third parties cookies and refer expressly to the Company’s privacy policy for the treatment of cookies.

Service Analytics powers the Products’ data and statistics reporting functionality which is an aggregate data compiled and obtained from various log files on the CDNs used as well as additional data gathered from KWIKMotion™ (including Publisher’s KWIKPlayer Portal) in accordance with the Company’s Privacy Policy and United States and European Union privacy laws. The Products also utilize a Licensing Key to verify compliance with these Terms of Service (e.g., the Edition being Used). Service Analytics and the Licensing Key do not collect personally identifiable information. Service Analytics may collect non-personally identifiable information and metadata and Publisher grants Company a limited, royalty-free license to collect and use such information and metadata to facilitate the operation of Products and for its internal business purposes. Publisher will register all video Content with a Media ID in accordance with the Documentation and will initiate all Plays using the applicable Media ID. Publisher is strictly prohibited from removing, altering, disabling or circumventing the Licensing Key or Service Analytics or otherwise interfering with the operation thereof.

Company may use Publisher Information and Data to: deliver the Products; manage Publisher’s account; provide customer support; communicate with Publisher by email, postal mail, telephone and/or mobile devices; develop and display content and advertising tailored to your interests; enforce our Terms of Service; manage our business; and perform functions otherwise described to you at the time of collection. As part of Company’s continued development and improvement of the Products, Publisher authorizes Company to periodically conduct limited testing through the Products.

Data Transfer

Publisher acknowledges that all data processed by Company pursuant to the provision of the Products is stored on servers located in various countries in the world under the Company’s CDN (or third party CDN) including the United States. To the extent that the provision of the Products involves any transfers of data that includes personal data that is subject to data transfer restrictions or requirements under applicable laws and regulations, including but not limited to Directive 95/46/EC or any successor legislation: (a) Company shall use and disclose the information only for the purposes permitted by these Terms of Service; and (b) Company will provide at least the same level of protection for the information as is available under the EU Privacy Shield frameworks. If Company determines that it can no longer provide such level of protection as necessary for Company’s provision of the Products to Publisher: (x) Company will promptly notify Publisher of this determination; (y) Publisher shall have the right to terminate these Terms of Service without penalty upon notice to Company; and (z) Company will cease processing the information or take other reasonable and appropriate steps to remediate the situation. Publisher authorizes Company to provide these Terms of Service to the Department of Commerce upon its request (as required under the Accountability for Onward Transfer Principle of the Privacy Shield).

Integrations

To the extent Publisher accesses or uses integrations with third-party services made available by Company or through the Products (e.g. services for the provision of advertising), Publisher shall be responsible for its obligations to any such third parties, and Company makes no representation as to the continued access or availability of any such third-party services and shall have no liability related to or arising from such third-party services.

Fees and Payment

Fees are provided on an applicable and executed Order Form. Company may modify the Fees prior to the commencement of each Renewal Term, provided, Company shall provide the Publishers with the updated pricing at least forty-five (45) days prior to commencement of the applicable Renewal Term. For the avoidance of doubt, the access by Publisher to KWIKmotion™ means acceptance of the terms of the Order Form.

Publisher agrees to timely pay in U.S. Dollars all Fees and Overages due during the Term. Company may invoice Publisher prior to the Effective Date. Company reserves the right to withhold or suspend Publisher’s access to Products or Editions if Fees or Overages are not timely paid and/or until Fees or Overages have been paid for the applicable period. Such suspension shall not affect Publisher’s duty to pay all Fees or Overages due under any Order Form or Addendum or constitute termination of these Terms of Service absent Company’s notice of termination pursuant to the Termination section hereof. Past-due Fees and Overages shall incur interest at a rate of one-and-one-half percent (1.5%) per month or the maximum rate allowed by law, whichever is lesser. Publisher shall be liable to, and fully reimburse, Company for all costs (including attorney’s fees) incurred in connection with Company’s collection of past-due Fees and Overages. All Fees are non-refundable except as otherwise provided in these Terms of Service. Publisher shall be responsible to pay all Taxes (except Company’s corporate taxes) and all other charges (for example, currency exchange settlements) due in connection with the Fees and Overages and Publisher’s use of the Products.

Periodic (e.g., quarterly or annual) Fees are billed in advance and payment is due upon receipt of invoice. Starter Edition, Business Edition, Premium Edition and Platinum Edition Publishers, as well as Enterprise Edition Publishers without an Order Form, must provide a valid form of payment (e.g., credit card, debit card, PayPal account) and accurate billing information. Publisher hereby authorizes Company to charge all Fees and Overages incurred to the designated payment form and acknowledges that periodic Fees and Overages may be charged automatically and without separate authorization.

Related Videos

Related videos is not an optional feature of KWIKmotion™. By electing to Use related videos features, Publisher acknowledges that recommendations of recommended content are automatically generated on Publisher’s platform and Company has no role or duty to ensure the relevance of  any recommended content, as the Content is provided AS-IS and Company disclaims any and all responsibility for the relevance or nature of Recommended Content.

Content

The Publisher confirms that the Content to be published using KWIKmotion™ is either the Publisher’s ownership (or otherwise that the Publisher has the right/license over such Content) and that the Publisher has all the rights to publish it on using Kwikmotion™, and that to the best of Publisher’s knowledge such publication does not infringe any licenses granted to third parties including but not limited to satellite or network broadcasters, pay per view television and other channels. For the purpose of these terms and in relation to any claim of infringement that may be received by the Company, Publisher will promptly provide the Company, at the Company’s first request with any such documentation evidencing ownership and/or license as it may be required from time to time, and Provider understands that the Company may be compelled to suspend the Use for such period of time until he receives sufficient evidence of ownership and/or license of the Content.

Furthermore, uploading Content, Publisher agrees to and hereby does grant, and does represent and warrant that it has the right to grant, the Company a limited, royalty-free, fully paid up, license to process, store, host, stream, deliver and Use such Content solely in connection with the operation and provision of the Products to Publisher.

Publisher is solely responsible for any Content or other material that Publisher posts, uploads, submits or Distributes. Any Content that violates the terms of this Section is subject to removal on written notice to Publisher. Publisher is prohibited from posting, uploading, submitting or Distributing Prohibited Content.

Publisher is responsible for taking its own steps to backup its Content, and Company recommends the Publisher routinely archive its Content. Company disclaims any responsibility for deleted, lost, corrupted or inaccessible Content, regardless of whether Company hosts such Content.

Restrictions on Use

Publisher shall not (i) interfere or attempt to interfere with the proper operation of the Products or any activities conducted through the Products or disable or bypass any measures that Company may use to prevent or restrict access to any Product, (ii) use any robot, spider or other device to retrieve, index, scrape, data mine or in any way gather information, Content or other materials from the Products, (iii) decipher, decompile, disassemble, reverse engineer, simulate, derive or attempt to discover any source code or underlying structure, ideas or algorithms from the Products, Data or Documentation or use any of the foregoing to create any software or service similar to the Products, (iv) create any derivative work or modification of the Products other than Adaptations permitted by these Terms of Service, (v) license, sublicense, copy, display, sell, pledge, encumber, assign, loan, rent, lease, Distribute, transfer or similarly exploit the Products, except as expressly set forth in these Terms of Service, (vi) remove, obscure or alter any proprietary notices on any Product (or any portion thereof), (vii) use any Product for any benchmarking purposes; or for application service provider, timesharing, service bureau or competitive purposes; or any purpose other than as contemplated by these Terms of Service or (viii) use any Product other than in accordance with these Terms of Service and all applicable laws and regulations.

Content transcoded via the Products may only be delivered via the Products. Downloading transcoded content for delivery via other mechanisms or CDN fronting the Products’ delivery functionality is strictly prohibited and may result in additional Fees and Overages, account suspension, and/or termination. In the case of excessive transcoding, Publisher agrees to pay for transcoding at Company’s then-applicable rates.

Representations and Warranties

Publisher represents and warrants that (i) if Publisher is an individual, Publisher is at least eighteen (18) years old, (ii) if Publisher is an entity, its consent to these Terms of Service has been duly ratified, (iii) all information provided during the registration process is true, accurate and complete, and Publisher will promptly update Publisher’s registration information with any changes thereto, (iv) it is not a resident of (and will not Use the Products in) a country that the United States government has embargoed for Use of the Products, nor is it named on the U.S. Treasury Department’s list of Specially Designated Nationals or any other applicable trade sanctioning regulations, (v) its Content conforms to the standards set forth in the Sections of these Terms of Service titled Content and Restrictions on Use, (vi) its Adaptations shall not infringe the intellectual property rights of any third party, (vii) its Adaptations shall not violate any law or regulation in any jurisdiction where they are Used or Distributed, including privacy and data collection laws, (viii) its Use of Products is in compliance with all applicable laws and regulations, (ix) it has obtained all necessary consents and permissions under applicable laws from individuals and other persons for its performance of this Agreement and its Use of the Products, including without limitation for all features and operations of the Products, (x) it has obtained and will maintain on an ongoing basis a valid legal basis to collect, process and transfer to Company Data, as required under applicable law, rules and regulations, (xi) none of its Content and none the websites or applications on which its Content appears are directed to anyone under the age of 13 and (xii) except for Publisher Information, it will not share, pass or transfer any Sensitive Data to Company.

Limited Product Warranty

The Company warrants that it will provide the Products (except Demonstration Editions) in a manner consistent with general industry standards reasonably applicable to the provision thereof. The Company does not warrant that the Products will be error-free or that any errors in the Products will be corrected.

Disclaimer

EXCEPT AS OTHERWISE PROVIDED AND TO THE MAXIMUM EXTENT ALLOWED BY LAW, THE PRODUCTS AND RECOMMENDED CONTENT ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS OTHERWISE PROVIDED, USE OF THE PRODUCTS IS AT PUBLISHER’S OWN RISK AND PUBLISHER IS SOLELY RESPONSIBLE FOR DETERMINING THE APPROPRIATENESS OF EXERCISING THE RIGHTS GRANTED UNDER THIS AGREEMENT AND ASSUMES ALL RISKS ASSOCIATED THEREWITH, INCLUDING BUT NOT LIMITED TO THE RISKS AND COSTS OF PROGRAM ERRORS, COMPLIANCE WITH APPLICABLE LAWS, DAMAGE TO OR LOSS OF DATA, PROGRAMS OR EQUIPMENT, SUITABILITY FOR HOSTING AND UNAVAILABILITY OR INTERRUPTION.

Limitation of Liability

EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW OR TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF ITS LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE, IN NO EVENT SHALL THE COMPANY BE LIABLE UNDER ANY EQUITY, COMMON LAW, CONTRACT, ESTOPPEL, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER THEORY (REGARDLESS OF THE FORM OF ACTION) (A) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING LOSS OF PROFITS, REVENUES, SAVINGS, CUSTOMERS, OPPORTUNITIES OR GOODWILL), (B) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL OR (C) FOR ANY LOSS, CORRUPTION OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE COMPANY’S CUMULATIVE AGGREGATE LIABILITY ARISING OUT OF THESE TERMS OF SERVICE FROM ANY CAUSE OF ACTION WHATSOEVER EXCEED THE TOTAL FEES PAID BY PUBLISHER TO THE COMPANY PURSUANT TO THESE TERMS OF SERVICE DURING THE SIX (6) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.

EACH PARTY AGREES AND DOES WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT AGAINST THE OTHER PARTY FOR ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THESE TERMS OF SERVICE. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST COMPANY MORE THAN ONE YEAR AFTER THE DATE OF RELATED SERVICES UNDER THESE TERMS OF SERVICES.

Indemnity

Except as otherwise set forth in these Terms of Service, Publisher will indemnify, defend and hold harmless the Company and its employees, officers and agents from and against all Claims, and for all resulting Losses (including attorney’s fees) that result or arise from Claims, which in whole or in part, pertain to any Publisher Adaptation or arise from Publisher’s Use, reproduction, Distribution or other exploitation of the Products, any breach of Publisher’s representations and warranties or violations of Publisher’s obligations under the Section titled Restrictions on Use. Publisher will pay all amounts agreed to in a monetary settlement of the Claims and all Losses that result or arise from the Claims. Notwithstanding the foregoing, Publisher shall have no duty to indemnify or defend the Company from Claims which primarily allege that Products, as provided to Publisher by the Company and used in accordance with the terms hereof, infringe the copyright, patent or trademark rights of a third party.

Audit

Publishers whose Fees are based in whole or in part on Publisher-hosted Licensed Programs shall keep complete and accurate records of all Use during the Term and for two (2) years thereafter. Company may periodically conduct audits of such Publishers solely to confirm the accuracy of Fees paid and compliance with the applicable License Scope. Such audits shall be conducted no more than one (1) time per year, by an independent certified public accountant, at the place of business where Publisher customarily keeps such records, during normal business hours, and upon fifteen (15) days’ advance written notice. Company shall bear the full cost of all audits, provided, if an audit reveals that Fees or Overages have been underpaid or the License Scope has been exceeded by at least five percent (5%), Publisher shall, in addition to payment of any underpaid Fees and Overages and any other remedies due under these Terms of Service, reimburse Company for its professional fees and out-of-pocket expenses incurred in conducting such audit.

Confidential Information

Publisher acknowledges that it may have access to certain confidential information of the Company, such as information concerning its business, plans, customers, technology and products (“Confidential Information”). Confidential Information will include all information in tangible or intangible form that is marked or designated as confidential or that, under the circumstances of its disclosure, should reasonably be considered confidential. “Confidential Information” shall not include (a) information that becomes known to the general public without breach of the nondisclosure obligations of these Terms of Service; (b) information that is already known to Publisher at the time that it is disclosed to the receiving party; (c) information that is obtained from a third party without breach of a nondisclosure obligation and without restriction on disclosure; and (d) information that has been independently developed by Publisher without reference to any of the disclosing party’s Confidential Information.

Publisher agrees that it will not use Confidential Information in any way for its own account or the account of any third party, except as expressly permitted by, or required to achieve the purposes of, these Terms of Service, nor will it disclose to any third party (except as required by law or its attorneys, accountants and other advisors as reasonably necessary) any of the Confidential Information and it will take reasonable precautions to protect the confidentiality of such information, at least as stringent as it takes to protect its own Confidential Information. Upon termination or expiration of these Terms of Service for any reason, Publisher will return or destroy, at the Company’s request, all Confidential Information and all documents or media containing any such Confidential Information and any and all copies or extracts thereof.

Publicity

Company shall be permitted to publicly identify Publisher as a user of the Products, including on Company’s websites and marketing materials. Publisher hereby grants Company a non-exclusive, non-transferable, non-sublicensable, royalty-free license during the Term to use Publisher’s name and marks solely for this purpose. Company agrees to state on all materials using Publisher’s marks that such marks are property of Publisher and to include the trademark registration symbol if applicable. All goodwill arising out of any use of any of the Publisher’s marks by Company will inure solely to the benefit of Publisher.

Company may display the words “Powered by KWIKmotion™” and the KWIKplayer version number in the menu that appears when an End User right clicks (or other equivalent action) on a video. Publisher is prohibited from disabling this feature unless otherwise provided on an applicable Order Form.

Severability

If for any reason a court of competent jurisdiction finds any provision of these Terms of Service, or portion thereof, to be unenforceable, that provision of the Terms of Service shall be enforced to the maximum extent permissible so as to effectuate the intent of the parties, and the remainder of these Terms of Service shall continue in full force and effect.

Choice of Law and Jurisdiction

These Terms of Service shall be governed by and construed in accordance with the laws of England & Wales and also in reference to the provisions of the United Nations Convention on Contracts for the International Sale of Goods. Each party irrevocably consents to the exclusive jurisdiction, forum and venue of the courts of London, United Kingdom over any and all claims, disputes, controversies or disagreements between the parties or any of their respective subsidiaries, affiliates, successors and assigns under or related to these Terms of Service or the subject matter thereof.

Injunctive Relief

Publisher acknowledges and agrees that unauthorized Use of the Products or disclosure of Confidential Information may cause the Company irreparable harm for which its remedies at law may be inadequate. Publisher hereby agrees that the Company will be entitled, in addition to any other remedies available to it at law or in equity, to obtain immediate injunctive relief to prevent such unauthorized actions.

Complete Agreement

These Terms of Service constitute the entire agreement between the Company and Publisher with respect to the subject matter hereof and supersedes all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. ANY PURCHASE ORDER OR OTHER SIMILAR DOCUMENT PROVIDED BY OR RECEIVED FROM A PARTY SHALL NOT MODIFY THESE TERMS OF SERVICE OR GOVERN PUBLISHER’S USE OF THE PRODUCTS UNLESS EXECUTED BY BOTH PARTIES’ DULY AUTHORIZED REPRESENTATIVES. EACH PARTY REJECTS ANY TERMS CONTAINED IN PURCHASE ORDERS OR SIMILAR DOCUMENTS PROVIDED BY THE OTHER PARTY, AND ANY SUCH TERMS SHALL BE VOID AND HAVE NO LEGAL EFFECT. RESTRICTIVE ENDORSEMENTS OR OTHER STATEMENTS ON CHECKS ACCEPTED BY COMPANY SHALL NOT BE ENFORCEABLE.

Modification

The Company may modify the terms of these Terms of Service in its sole discretion and such modifications shall take effect and be binding on Publisher on the earliest date on which they are posted to the Company’s publicly available website or delivered to Publisher via electronic or physical delivery. No one other than the Company has the right to modify these Terms of Service. Notwithstanding the foregoing, no modification or amendment to a mutually ratified Addendum or Order Form shall be effective unless in writing and executed by a duly authorized representative of each party.

No Assignment

Publisher may not assign or transfer this agreement to any third party without the Company’s express written consent. Any assignment or transfer made in the absence of such consent shall be void and in the event of such unauthorized assignment or transfer the Company may immediately terminate these Terms of Service.

Waiver of Breach

No term or provision of these Terms of Service shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the Company. Any consent by the Company to, or waiver of, a breach by Publisher whether expressed or implied, shall not constitute consent to, waiver of, or excuse for, any other breach or any subsequent breach, except as may be expressly provided by the Company.