Terms of Service
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, including unpaid and paid options. Certain rights, obligations and restrictions vary by Edition. Unless otherwise stated, terms apply to all Editions.
Adaptationmeans 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. Examples of Adaptations may include SDK Applications, JW Showcase Implementations, OEM implementations and plug-ins. Websites on which Products are used solely to facilitate Content playback and streaming (but not Software as a Service) are not Adaptations hereunder.
Claimsmeans claims, suits, demands and actions by third parties.
Companymeans LongTail Ad Solutions, Inc. d/b/a JW Player.
Contentmeans 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.
Dashboardmeans an on-line control panel that provides certain functionality including account monitoring, player configuration, video management and statistics reporting.
Documentationmeans any technical or other specifications or documentation that Company may provide to Publisher for use in connection with Products.
Distributemeans to sell, transfer, assign, circulate, disseminate, distribute or make available to any third party, or the facilitation of the foregoing.
Editionmeans a particular edition of JW Player, including the Unpaid Edition, Premium Edition, Platinum Edition, Enterprise Edition and Trial Edition.
Effective Datemeans the earliest date a Product is Used by Publisher unless otherwise provided on an applicable Order Form.
End Usermeans an individual or entity (other than Company, Publisher or their agents acting on their behalf) that accesses or Uses Publisher’s Content or Adaptations.
Feemeans the amount payable to the Company for Use of a Product.
JW Platformmeans certain advanced video content management features previously offered as part of the Bits On The Run product.
JW Playermeans Publisher-hosted and cloud-hosted versions of the JW Player software and any, features, plug-ins and updates (other than new major versions) provided by Company therefor.
JW Showcasemeans that certain web app builder for publishing JW Player-hosted video content.
JW Showcase Implementationsmeans implementations created with JW Showcase.
Licensing Keymeans 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.
Licensed Programsmeans Publisher-hosted versions of JW Player, the SDKs, and JW Showcase.
License Scopemeans the features authorized for a particular Edition, including advertising, the maximum volume of data, maximum number of domains, maximum Plays, maximum API requests, authorization to Use the SDKs, JW Showcase, OEM and JW Platform.
Lossesmeans damages, losses, costs and liabilities (including reasonable attorney and professional fees) arising from a Claim.
OEMmeans incorporation of a Product into any goods or services including SDK Applications, Software as a Service and other goods and services. Publisher’s websites are not OEM except to the extent a Product is incorporated into Software as a Service provided thereon.
Operating Systemmeans Apple iOS and/or Google Android.
Order Formis an agreement between Company and Publisher setting forth custom pricing and terms for the use of Products and includes any contemporaneous Addendum thereto. In the event of any conflict between the terms of an Order Form and these Terms of Service, the Order Form shall take precedence.
Playmeans each instance of Content streamed, in whole or in part, through the Products.
Productsmeans the Licensed Programs and Services (as applicable to the relevant Edition).
Prohibited Contentmeans 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.
Youmeans you and any entity on whose behalf you Use Products.
Publisher Informationmeans 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).
Purposemeans (i) Use to facilitate Content playback and streaming on Publisher’s websites, (ii) Use of the SDKs to develop and Distribute SDK Applications, (iii) Use of JW Showcase to implement and Distribute JW Showcase Implementations, and (iv) other OEM Use, in each case, if and to the extent within the applicable License Scope.
Recommended Contentmeans Content of Company or Recommended Content Partners that is recommended, displayed and/or played by Related Videos.
Recommended Content Partnermeans a third party that provides Recommended Content.
Related Videosmeans a feature of JW Player that, when enabled, automatically displays and/or plays recommended related Content following the playback of certain Publisher Content.
SDKmeans the JW Player Software Development Kits for Android and iOS, including all components thereof (Documentation, code, tools, libraries, data, files and materials) and all updates thereto.
SDK Applicationsmeans application software for Operating Systems, created with the SDK and incorporating Products.
Servicesmeans services provided to Publisher under these Terms of Service, including cloud-hosted versions of JW Player, the SDKs and JW Showcase provided as software as a service (SaaS), hosting and streaming functionality, the Dashboard, Related Videos and maintenance and support services.
Taxesmeans all taxes, levies, duties, tariffs, imposts, deductions, charges or withholdings and all related liabilities, including interest, penalties or additions thereto.
Terms of Serviceor
TOSmeans this document, including any applicable, mutually ratified Order Form and/or Addendum, which shall be incorporated into these Terms of Service.
Unpaidmeans any Products for which Fees are not required.
Usemeans operating, accessing, downloading, installing, integrating or providing Content through a Product or Adaptation.
These Terms of Service apply to JW Player versions numbered 8.0-8.99 only. All
other versions are excluded and subject to other licenses. For Terms of Service applicable to JW Player versions numbered 7.0-7.99, please see JW7 Terms of Service (the “Standard JW7 Terms of Service”). Publisher’s rights and licenses to Use Products are limited to the Editions for which it has enrolled, is eligible and has paid all Fees (for paid Editions) in accordance with these Terms of Service. Any Use of the Products other than as permitted by these Terms of Service is strictly prohibited. The Company reserves all rights and licenses not expressly granted hereunder.
Enterprise Edition Publishers under the Standard JW7 Terms of Service may elect and shall be deemed to upgrade to the then-current JW Player version 8.x and shall be subject to these Terms of Service by Using such version 8.x, provided, (a) Publisher’s Use of JW Player version 7.x is not pursuant to any mutually agreed document that materially alters the terms of the Standard JW 7 Terms of Service; and (b) Publisher is not in breach of any of its obligations to Company. By electing such upgrade, Publisher acknowledges that its Order Form (including any Plays or volumes set forth therein) remains operative throughout the remainder of the Term and such upgrade does not create any duplicative right.
The License Scope varies by Edition 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 the Enterprise Edition, please contact us at www.jwplayer.com/contact-us/ or sales (at) jwplayer.com.
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) Use, access, integrate and install the SDKs, (c) make and distribute Documentation internally, (d) publicly Distribute SDK Applications for the Operating Systems, (e) Use JW Showcase, and (f) operate and allow End Users of SDK Applications and JW Showcase Implementations to operate JW Player incorporated into such SDK Applications and JW Showcase Implementations.
Use of the Unpaid Edition or Premium Edition in connection with advertising of any kind is prohibited. Except for Publishers with Enterprise or Trial Editions, Publishers are limited to one (1) account.
Editions have the following License Scope (volume per month where applicable):
|Hosting:||5 GB||50 GB||150 GB||Custom*||150 GB|
|Streaming:||25 GB||250 GB||500 GB||Custom*||500 GB|
|JW Showcase:||Publisher-hosted||Publisher-hosted||Publisher-hosted||Publisher-hosted and cloud-hosted||Publisher-hosted and cloud-hosted|
* License Scope for the Enterprise Edition shall be as explicitly provided on an applicable Order Form, and where License Scope items are provided on the applicable Order Form but limits are not explicitly set, Content Plays shall be limited to 200,000, Videos shall be limited to 1500, Hosting shall be limited to 150 GB, Streaming shall be limited to 500 GB and Ad Plays shall be limited to 100,000.
In order to ensure maximum performance and protect the experience of all users, requests to the JW Platform API (presently accessed via api.jwplatform.com) may not exceed sixty (60) per minute. For the avoidance of doubt, this does not limit Publisher’s Plays per minute and reflects a number of requests unlikely to be reached through normal Use, the excess of which would be abusive. In addition to any other remedies provided by these Terms of Service, the Company reserves the right to immediately suspend accounts that exceed the maximum API requests set forth herein and to terminate, block and/or blacklist such accounts if Company believes in its reasonable discretion that such excess is due to Publisher’s abusive behavior.
Publishers who have not purchased the Platinum Edition, Trial Edition or ads-enabled Enterprise Edition are strictly prohibited from using the Products in any manner to display advertisements. Such prohibition includes actions such as (i) the making or use of any Adaptation that enables any type of advertisement to be shown in, on or around the Products (e.g., a skin), (ii) interoperation of the Products with any software that serves advertisements and (iii) adding advertisements to a playlist.
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 and OEM
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.
OEM implementation is authorized only in connection with the Enterprise Edition if provided on the applicable Order Form. Unpaid Edition, Premium Edition, Platinum Edition and Trial Edition Publishers are strictly prohibited from incorporating a Product into any goods or services
Company may update the SDKs at any time and is under no obligation to provide notice thereof. Updates may have features or functionality that differ from that of the current SDKs. Company may identify certain updates as being critical (e.g., updates that address significant security issues) by written notice (including e-mail to the address provided by Publisher). Publisher shall incorporate such critical updates into its SDK Applications and, if such SDK Applications have been Distributed, shall use its best efforts to provide a public update thereto. Company shall not be liable for, and Publisher shall indemnify and hold Company harmless for, Losses due to Publisher’s failure to take the foregoing steps with respect to a critical update.
Publisher acknowledges that development for each Operating System may be subject to the applicable Operating System provider’s own rules, regulations, standards and requirements and that Company has no control or responsibility therefor. Publisher is solely responsible for its compliance with the foregoing and Company makes no representations or warranties of compatibility with any Operating System.
Company may update JW Showcase at any time and is under no obligation to provide notice thereof. Updates may have features or functionality that differ from that of the current JW Showcase. Company may identify certain updates as being critical (e.g., updates that address significant security issues) by written notice (including e-mail to the address provided by Publisher). Publisher shall incorporate such critical updates into its JW Showcase Implementations. Company shall not be liable for, and Publisher shall indemnify and hold Company harmless for, Losses due to Publisher’s failure to take the foregoing steps with respect to a critical update.
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.
These Terms of Service shall become effective on the Effective Date. For all Editions other than the Trial Edition, 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, the “Term”). The Trial Edition’s Term shall be mutually agreed by Publisher and Company and set forth on an applicable Order Form.
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. Notice for the Enterprise Edition must be provided in writing no later than thirty (30) days prior to such expiration. Publisher hereby acknowledges that it will not receive notice of a renewal cancellation date or automatic renewal and expressly waives the application of New York General Obligations Law Section 5-903, and any similar laws, to the renewal of these Terms of Service.
These Terms of Service are subject to termination by Company immediately if (a) Publisher fails to timely pay a Fee, (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.
Enterprise Edition Terms of Service shall not be terminable for convenience by either party. Company may terminate Unpaid Edition, Premium Edition, Platinum Edition and Trial Edition Terms of Service for its convenience on seven (7) days notice.
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 cancellation 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 to an Unpaid Edition.
Effects of Termination
Upon 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. In the event any Products are no longer under Publisher’s control (such as SDK Applications already in the marketplace), Publisher shall use its best efforts to cause use of such Products to promptly cease, including updating SDK Applications and other OEM uses.
Without limiting the foregoing, if Publisher fails to cease Use of the Products or Services following termination, Publisher will continue to pay the Fees. 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 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 termination, all rights, obligations and licenses of the parties shall cease, except that all obligations that accrued prior to the effective date of 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
Support Documentation is located at https://support.jwplayer.com/. Company will provide technical support and maintenance for the Products in its sole discretion unless otherwise provided, 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. Legacy support for JW Player version 6.xx and earlier is no longer offered.
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.
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.
Fees and Payment
Fees are published athttps://www.jwplayer.com/pricing/ or provided on an applicable Order Form. Company may modify the Fees prior to the commencement of each Renewal Term, provided, Company shall provide Enterprise Edition Publishers updated pricing at least forty-five (45) days prior to commencement of the applicable Renewal Term.
Publisher agrees to timely pay in U.S. Dollars all Fees due during the Term. Company reserves the right to suspend Publisher’s access to Products or Editions if Fees are not timely paid. Such suspension shall not affect Publisher’s duty to pay all Fees 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 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. 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 Publisher’s use of the Products.
Periodic (e.g., quarterly or annual) Fees are billed in advance and payment and is due on receipt of invoice. Premium Edition and Platinum Edition Publishers must provide a valid form of payment (e.g., credit card, debit card, PayPal account) and accurate billing information, do hereby authorize the Company to charge all Fees incurred to the designated payment form and acknowledge that periodic Fees may be charged automatically and without separate authorization.
Related Videos is an optional feature of JW Player that is available to all Editions. By electing to Use Related Videos, Publisher automatically grants Company a limited, royalty-free license to perform analysis of Publisher’s Content solely in connection with Related Videos’ operation and authorizes Company to deliver Recommended Content to Publisher and End Users based thereon. Publisher may, for an additional Fee, determine all Recommended Content delivered to its End Users. Otherwise, Related Videos will deliver Recommended Content from Company and/or Recommended Content Partners. Publisher acknowledges that Recommended Content is automatically generated and, while Company will use reasonable efforts to ensure the relevance of its Recommended Content and that provided by Recommended Content Partners, all Recommended Content is provided AS-IS and Company disclaims any and all responsibility for the relevance or nature of such Recommended Content.
By 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, (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 or derive any source code or algorithms from the Products 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 or (v) license, sublicense, sell, encumber, rent, lease, Distribute, transfer or similarly exploit the Products.
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, 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) it is not a resident of (and will not Use the Products in) a country that the U.S. 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, (iv) all its Content conforms to the standards set forth in the Sections of these Terms of Service titled Content and Restrictions on Use, (v) all information provided during the registration process is true and accurate, (vi) its Adaptations do not infringe the intellectual property rights of any third party, (vii) its Use of Products is in compliance with all applicable laws and regulations and (viii) it has obtained all necessary consents and permissions under applicable laws from individuals and other persons for its Use of the Products, including without limitation for all features and operations of the Products.
Limited Product Warranty
The Company warrants that it will provide the Products (except Unpaid 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.
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.
Basis of the Bargain
THE PARTIES AGREE THAT THE SECTIONS ON DISCLAIMER AND LIMITATION OF LIABILITY HEREIN FAIRLY ALLOCATE THE RISKS BETWEEN THE PARTIES AND ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES SUCH THAT THE PARTIES WOULD NOT HAVE ENTERED INTO THESE TERMS OF SERVICE WITHOUT SUCH SECTIONS.
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 Publishers 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.
Hosting and Streaming Services shall be subject to the Company’s published DMCA policy, which is incorporated by reference herein and presently available at https://www.jwplayer.com/dmca/.
Enterprise Edition and Platinum Edition 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 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 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.
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.
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.
The parties hereto are independent contractors and nothing herein constitutes or creates an employer-employee, agency, joint venture or representative relationship between the parties.
Publisher agrees and certifies that it will not export or re-export, directly or indirectly, the Products contrary to the laws of the United States or any other country from or to which such export or re-export may occur.
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 the State of New York (except that body of law controlling conflict of laws) and specifically excluding from application to this Agreement that law known as 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 Commercial Division of the Supreme Court of the State of New York, New York County and the United States District Court for the Southern District of New York 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.
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.
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.
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.
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.
Last Revised: September 6, 2017