PINEAPPLE ACADEMY SERVICES AGREEMENT
Last Updated: 08/22/2024
This Services Agreement (“Agreement”) is between Pineapple Academy, Inc., a Delaware corporation, with an address at 209 W 19th Terrace Kansas City, Missouri 64108 (“PA”), and the customer identified on the Proposal (“Customer”).
1. DEFINITIONS
“Content” means any content, including but not limited to video and audio (including sound or voice recordings and musical recordings embodied in the video or audio), images, data, text, and any other works of authorship or other works Posted to the Service.
“Content Creator” means a Customer who may Post Content on the Service, as further set forth in a Proposal.
“Content Criteria” means the criteria set forth at pineappleacademy.com/content-criteria, as updated from time to time or further set forth in a Proposal.
“Content Reseller” means a Customer who may make Content available to Content Reseller’s customers.
“Hosting Fees” means fees for Posting Content on the Service, in the amounts and frequency set forth on Proposal, as updated from time to time.
“Materials” means the visual interfaces, graphics, design, compilation, information, data, computer code (including source code and object code), products, software, services, and all other elements of the Service provided by PA, including any Content provided by us.
“Off-Platform Hosting” means hosting and distributing Content on one or more third party services.
“Outbound Content Addendum” means the addendum attached hereto containing additional terms for Content Resellers.
“Post” means submit, upload, publish, or otherwise make available.
“Proposal” means PA’s ordering document specifying the level of access to the Service that Customer will receive.
“Revenue Share” means a percentage of the total net revenues of the fees paid to PA which are attributable to Viewed Time of a Content Creator’s Content by Third-Party Users.
“Service” means PA’s proprietary hosting platform for e-learning courses.
“Subscription Start Date” means the date Customer receives access to the Service as set forth in the Proposal.
“Third-Party Users” means users of the Service (or in the case of Off-Platform Hosting, a third party service) who are not Customer’s employees, representatives, agents, or contractors.
“Usage Data” means information generated from the use of the Service, such as technical logs, duration of streams and number of impressions generated by the streams of Content, and data and learnings about Customer’s use of the Service, including use of the Service by Customer’s employees, representatives, agents, or contractors.
“Viewed Time” mean the number of times a user, including any Third-Party User, accesses Content either on the Service or via a Content Reseller.
2. SERVICE
2.1. Permitted Use by Customers. During the Term (as defined in Section 7.1), subject to Customer’s complete and ongoing compliance with this Agreement, PA grants Customer a limited, non-exclusive, non-transferable, non-sublicensable license to access and use the Service, including any Materials provided by PA. Customer will be able to share any Content as described in the license restrictions column in the Proposal.
2.2. Content Creators. If Customer is a Content Creator then, in addition to the rights granted in Section 2.1, it may also choose to make Content available on the Service during the Term so long as Customer remains a Content Creator. Subject to Content Creator’s complete and ongoing compliance with this Agreement, PA grants Content Creator a limited, non-exclusive, non-transferable, non-sublicensable license to Post Content during the Term.
2.3. Content Resellers. If Customer is a Content Reseller then, in addition to the rights granted in Section 2.1, it may also choose to make available Content to Content Reseller’s customers solely during the Term so long as Customer remains a Content Reseller. Content Resellers use of the Service and ability to make Content available is subject to the terms and conditions of this Agreement and the Outbound Content Addendum, which is hereby incorporated by reference into this Agreement.
2.4. Professional Services. If Customer requires any additional support or professional onboarding services from PA, PA may, but is not obligated to, provide such support at PA’s then-current rates.
2.5. Customer’s Responsibilities. Only Customer and its employees, contractors, or other representatives that Customer allows to use the Service, using the mechanisms designated by PA (“Log-in Credentials”), may access, and use the Service. Customer must keep all Log-in Credentials confidential and not share them with anyone else. Customer has and will retain sole responsibility for: (i) all information, instructions, and materials provided by or on Customer’s behalf in connection with the Service, including Content; (ii) the security and use of Log-in Credentials; (iii) compliance with this Agreement by its employees, contractors, or other representatives; and (iv) all access to and use of the Service and Materials directly or indirectly by or through Log-in Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use. If Customer requests information regarding its employees’, contractors’, or other representatives’ use of the Service from PA (e.g., records of Content viewed on the Service), Customer represents and warrants to PA that it has the legal authority to collect such information and has provided any and all legally required notices to, or obtained any and all legally required consent from, Customer’s employees, contractors, or other representatives regarding such collection.
2.6. Restrictions. Except as permitted in this Agreement or to the extent permitted under applicable law, Customer may not (and will not permit anyone else to): (i) provide access to, sublicense, reproduce, distribute, publicly display, publicly perform, or create derivative works of the Service or Materials; (ii) use the Service or Materials to develop a similar or competing (in whole or in part) product, content or service; (iii) make modifications to the Service; (iv) make any representation or warranty about the Content not expressly authorized in this Agreement or by PA in writing; (v) reverse engineer, decompile, disassemble, or seek to access the source code or non-public APIs to the Service; (vi) remove or obscure any proprietary notices in the Service; (vii) interfere with or circumvent any feature of the Service, including any security or access control mechanism or conduct any security or vulnerability test of the Service; (viii) transmit any viruses or other harmful materials to the Service; (ix) take any action that risks harm to others or to the security, availability, or integrity of the Service; or (x) access or use the Service or Materials in a manner that violates any law.
2.7. Corrective Action. If Customer becomes aware of any actual or threatened activity prohibited by this Agreement, Customer will immediately: (i) take all reasonable and lawful measures within its respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Service and destroying any data to which any of them have gained unauthorized access); and (ii) notify PA of any such actual or threatened activity.
3. OWNERSHIP; PROPRIETARY RIGHTS
3.1. PA Materials and the Service. Except for Customer’s use rights in this Agreement, as between the parties, PA and its third-party licensors retain all intellectual property rights and other rights in the Service, Materials, Usage Data, and PA technology, templates, formats, and dashboards, including any modifications or improvements to these items made by PA. If Customer provides PA with feedback or suggestions regarding the Service or other PA offerings, PA may use the feedback or suggestions without restriction or obligation. For the avoidance of doubt, PA’s ownership under this Section 3.1 does not extend to Content Posted by Customer.
3.2. Content. If Customer is a Content Creator, then subject to Content Creator’s compliance with this Agreement, Content Creator may Post Content for users of the Service if permitted by the Proposal. Content Creator will identify any Content that may be accessed and streamed by Third-Party Users. During the Term, all of Content will comply with all Content Criteria. Except for the licenses granted in this Agreement, Content Creator retains all intellectual property rights that Content Creator may hold in Content.
3.3. Limited License Grant to PA. If Customer is a Content Creator, then Content Creator hereby grants to PA a worldwide, non-exclusive right and license (with the right to sublicense through multiple tiers) to host, store, transfer, publicly display, publicly perform (including by means of a digital audio transmission), communicate to the public, reproduce, modify for the purpose of formatting for display, create derivative works (as authorized in this Agreement) and distribute Content, in whole or in part, in any media formats and through any media channels, in each instance whether now known or hereafter developed, including, but not limited to, (i) hosting and distributing Content via the Service or Off-Platform Hosting (if permitted); and (ii) in connection with PA’s marketing and advertising of the Service. All of the rights Content Creator grants in this Agreement to Post Content via the Service are provided on a through-to-the-audience basis, meaning the owners or operators of external services will not have any separate liability to Content Creator or any other third party for Content Posted or otherwise used on external services via the Service. Content Creator agrees to pay all monies owing to any third party resulting from Posting Content and from PA’s exercise of the license set forth in this Section.
3.4. Usage Data. PA may use Usage Data for its own internal business purposes, such as to: (i) track use of Service for billing purposes; (ii) provide support for Service; (iii) monitor the performance and stability of the Service; (iv) prevent or address technical issues with the Service; (v) to improve Service, its other products and services, and to develop new products and services; and (vi) for all other lawful business practices, such as analytics, benchmarking, and reports. Customer will not interfere with the collection of Usage Data. Customer agrees that PA’s processing of any “personal information” or “personal data” (as such or equivalent terms are defined by applicable law) associated with Usage Data will be governed by PA’s published Privacy Policy (available at https://pineappleacademy.com/en/privacy-policy), which PA may update from time to time.
4. MONITORING AND TAKING DOWN CONTENT
4.1. Monitoring Content. PA does not control and does not have any obligation to monitor or edit: (i) Content made available by you; (ii) any Content made available by third parties; or (iii) the use of the Service by its users. If at any time PA chooses to monitor Content, then PA still assumes no responsibility or liability for such Content or any loss or damage incurred as a result of the foregoing. PA may (at any time and without prior notice): (a) screen, remove, edit, or block any of Content that in PA’s sole judgment violates this Agreement, may violate the rights of third parties, or is otherwise objectionable; and (b) investigate any allegation that Content does not conform to the Content Criteria or this Agreement, and determine in PA’s sole discretion whether to remove such Content. Customer agrees to waive, and hereby does waive, any legal or equitable right or remedy Customer has or may have had against PA with respect to Content.
4.2. Take Down. PA reserves the right to take-down any of Content from the Service and, in the case of Off-Platform Hosting, from any third party service if: (i) it determines Content violates this Agreement, including the representations and warranties contained in 9.2; (ii) this Agreement has been terminated pursuant to Section 7.2; or (iii) PA has suspended Customer’s access to the Service pursuant to Section 7.3. PA may block, filter, mute, remove or disable access to any of Content uploaded to or transmitted through the Service without any liability to Customer or to any other users of the Service.
5. FEES AND PAYMENTS
5.1. Fees. Customer will pay PA all of the amounts set forth in the Proposal, including any applicable Hosting Fees, License Fees or other professional services fees, in accordance with this Agreement, including the Outbound Content Addendum, if applicable. PA will invoice Customer for the amounts owed to PA and Customer will make all payments to PA within thirty (30) days. PA may, but is not obligated to, waive the Hosting Fees for so long as Content Creators make Content available to Third-Party Users.
5.2. Taxes. All amounts payable by Customer under this Agreement, including any Hosting Fees or License Fees as set forth and defined in the Outbound Content Addendum, are exclusive of taxes and similar assessments. PA may invoice Customer for, and Customer will pay, all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder. Without limiting the foregoing, Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on PA’s income.
5.3. Fee Increases. PA may increase the Hosting Fees by providing written notice to Customer at least sixty (60) days prior to the effective date of such increase.
5.4. No Deductions or Setoffs. All amounts payable to PA under this Agreement will be paid by Customer to PA in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable law). If Customer fails to make any payment when due, then, in addition to all other remedies that may be available, PA may set off any Revenue Share payments by the amounts of any then-outstanding Hosting Fees.
5.5. Free Trials. PA may make the Service (or certain features or functions thereof) available to Customer to try at Customer’s option at no additional charge as a free trial, beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar designation (“Free Trial”). Customer acknowledges and agrees that its use of Free Trial is subject to this Agreement, provided that notwithstanding anything to the contrary in this Agreement: (i) PA may terminate Customer’s access to Free Trial in its sole discretion at any time, without liability to Customer; and (ii) the Free Trial is provided “AS-IS” without any warranty and PA shall have no indemnification obligations nor liability of any type with respect to the Free Trial unless such exclusion is not enforceable under applicable law, in which case PA’s liability with respect to the Free Trial will not exceed $100.00.
6. REVENUE SHARING
6.1. Third Party Access to Content. When Posting Content, Content Creators will indicate whether any or all Content may be (i) accessed and viewed by Third-Party Users; (ii) made available for Off-Platform Hosting; or (iii) made available for the Revenue Share. If Content Creator chooses to not make certain Content available for Revenue Share, Content Creator will not be eligible for the Revenue Share for such Content as set forth in this Section 6.
6.2. Payment Terms. PA will pay Content Creator a Revenue Share of 50% based on the amount of Viewed Time that Content eligible for the Revenue Share receives from Third-Party Users, as further described in this Section. PA will pay Content Creator revenues owed to Content Creator pursuant to the Revenue Share within sixty (60) days after the end of the calendar month in which PA accrues such revenue, so long as Content Creator’s earned balance is at least US $100 (“Minimum Payment Amount”) at the time payment is due. Content Creator is not entitled to earn or receive any revenues in connection with Content Creator’s Content in any of the following circumstances: (i) if one or more third parties claim rights to certain elements of such Content except in cases where PA’s policies or systems support sharing a portion of the revenues with Content Creator, as determined by PA; (ii) if monetization is disabled on such Content by either Content Creator; or (iii) Content Creator’s participation in PA’s content sharing program is suspended or terminated for any reason. PA will use reasonable efforts to notify Content Creator if any of these circumstances should occur. Notwithstanding the above, sixty (60) days after each quarter, PA will pay Content Creator any undisputed amounts accrued during the preceding quarter regardless of whether such payments exceed the Minimum Payment Amount.
6.3. Reporting. PA may provide or make available to Content Creator information about Content Creator’s Revenue Share payments for a particular month or otherwise allow Content Creator to track Content Creator’s revenue details on the Service. PA may also provide Content Creator electronic reports of Content Creator’s Revenue Share details at PA’s sole discretion or upon reasonable request.
6.4. Performance Disclaimers. PA has no control over the number of impressions Content generates, and PA does not in any way guarantee the performance of any Content, including the amount of revenue any Content will generate or that Content will generate revenue at all.
7. TERM AND TERMINATION
7.1. Term. This Agreement shall commence as of the Subscription Start Date and shall continue for the period specified in the Proposal, or for one (1) year as of the first date Customer accessed the Service if no Subscription Start Date and period was specified in the Proposal (the “Initial Term”) and will automatically renew for terms of the same duration, unless either party provides a written notice of nonrenewal at least (i) ninety (90) days, if the Initial Term was longer than one (1) month, or (ii) thirty (30) days, if the Initial Term was one (1) month, in either case, prior to the end of the then-current term (each, a “Renewal Term” and together with the Initial Term, the “Term”), unless earlier terminated.
7.2. Termination. Either party may terminate this Agreement, effective upon written notice to the other party (the “Defaulting Party”), if the Defaulting Party (i) materially breaches this Agreement and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach; or (ii) either (a) becomes insolvent or admits its inability to pay its debts generally as they become due; (b) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven (7) business days or is not dismissed or vacated within forty-five (45) days after filing; (c) is dissolved or liquidated or takes any corporate action for such purpose; (d) makes a general assignment for the benefit of creditors; or (e) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
7.3. Suspension. PA may immediately suspend Customer’s access to any or all of the Service (including access to Materials) and remove any of Content from the Service according Section 4.2 if: (i) Customer breaches Section 2.6; (ii) Customer’s fees are 30 days or more overdue; (iii) changes to laws or new laws require that PA suspend the Service or otherwise may impose additional liability on the part of PA; or (iv) Customer’s actions risk harm to any of PA’s other customers or the security, availability, or integrity of the Service. Where practicable, PA will use reasonable efforts to provide Customer with prior notice of the suspension (email sufficing). If the issue that led to the suspension is resolved, PA will restore Customer’s access to the Service(s).
7.4. Effects of Termination.
7.4.1. Tail Period. If PA is obligated to pay any Revenue Share to Content Creators pursuant to Section 5, the license granted to PA pursuant to Section 3.3 will continue for one (1) year after termination or expiration of this Agreement for any reason (the “Tail Period”). Upon expiration of the Tail Period, PA will delete Content from the Service and, in the case of any Off-Platform Hosting, all third party services, except as expressly permitted in Section 3.4.
7.4.2. Survival. Upon the effective date of expiration or termination of this Agreement, (i) Customer’s license rights will terminate and Customer must immediately cease using the Service; (ii) Customer will no longer be authorized to access the Service or Content; (iii) all amounts owed, including Hosting Fees and Revenue Shares, will become due and payable and (iv) all liabilities incurred prior to termination and Sections 1, 2.6, 3.1, 3.4, 7.4, 8, 9.3, 10, 11, and 12 of this Agreement and Section 4.4 of the Outbound Content Addendum will survive.
8. CONFIDENTIALITY. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) may disclose business, technical or financial information relating to the Disclosing Party’s business under this Agreement (“Confidential Information”). The Receiving Party will (i) not access or use Confidential Information other than in connection with exercise of its rights or perform its obligations under and in accordance with this Agreement; (ii) hold the Confidential Information in strict confidence and protect it from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; (iii) not disclose or permit access to Confidential Information other than to its employees who: (a) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (b) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 8; and (c) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 8. For the avoidance of doubt, performance data regarding a training gathered during delivery of Content (e.g., number of impressions, interactions, etc.) shared with Customer by PA will be deemed PA’s Confidential Information. The foregoing shall not apply with respect to any information which the Receiving Party can document: (w) was or becomes generally available to the public through no fault of the Receiving Party; (x) was rightfully in the Receiving Party’s possession (or known by the Receiving Party) without any confidentiality obligations prior to receipt from the Disclosing Party; (y) was rightfully disclosed to it without restriction by a third party; or (z) was developed independently by the Receiving Party without reference to Confidential Information of the Disclosing Party. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange, or as necessary to establish the rights of either party under this Agreement; provided, however, that Customer will stipulate to any orders necessary to protect such information from public disclosure.
9. REPRESENTATIONS AND WARRANTIES
9.1. Mutual Warranties. Each party represents and warrants to the other that: (i) this Agreement has been duly accepted and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (ii) no authorization or approval from any third party is required in connection with such party’s acceptance, delivery, or performance of this Agreement; (iii) the acceptance, delivery, and performance of this Agreement does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound; and (iv) it will at all times comply with all applicable laws, statutes, ordinances, and regulations.
9.2. By Content Creators. If Customer is a Content Creator, Content Creator represents and warrants to PA that:
9.2.1. it is the creator and owner of Content that it Posts to the Service, or has the necessary licenses, rights, consents, and permissions to authorize PA and users of the Service to use such Content as necessary to exercise the licenses granted by Content Creator pursuant to this Agreement;
9.2.2. Content Creator’s Content, and the Posting or other use of the foregoing as contemplated by this Agreement, does not and will not: (i) infringe, violate, misappropriate, or otherwise breach any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property, contract, or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause PA to violate any law or regulation or require PA to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties;
9.2.3. Content Creator’s Content complies with all Content Criteria;
9.2.4. Content Creator’s Content will not contain any defamatory or disparaging remarks, comments, or statements (including without limitation the repetition or distribution of derogatory rumors, allegations, or negative reports) concerning PA, its affiliates, partners and customers;
9.2.5. Content Creator’s Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate; and
9.2.6. If Content Creator advertises or otherwise indicates that Content Creator’s Content is appropriate for or to be used for a particular training, certification or licensing, it meets all the training, certification or licensing criteria.
9.3. DISCLAIMER OF WARRANTIES
9.3.1. THE SERVICE AND ANY MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE THAT ARE PROVIDED BY PA ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. PA DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE, THE CONTENT, AND ANY MATERIALS AVAILABLE THROUGH THE SERVICE, INCLUDING: (i) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (ii) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. PA DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH (OR POSTED TO) THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND PA DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
9.3.2. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM THE SERVICE, THE CONTENT, ANY MATERIALS AVAILABLE THROUGH THE SERVICE OR FROM ANY PA ENTITIES WILL CREATE ANY WARRANTY REGARDING ANY OF THE PA ENTITIES OR REGARDING THE SERVICE THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT. CUSTOMER UNDERSTANDS AND AGREES THAT CUSTOMER USES ANY PORTION OF THE SERVICE AT CUSTOMER’S OWN DISCRETION AND RISK, AND THAT PA IS NOT RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S PROPERTY (INCLUDING CUSTOMER’S COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING CONTENT POSTED TO THE SERVICE.
9.3.3. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION 9.3 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. PA does not disclaim any warranty or other right that PA is prohibited from disclaiming under applicable law.
10. INDEMNITY
10.1. Indemnification by Customer. To the fullest extent permitted by law, Customer is responsible for Customer’s use of the Service, and Customer will defend and indemnify PA, its affiliates and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, the “PA Entities”) from and against every claim brought by a third party (a “Claim”), and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs (“Losses”), arising out of or connected with: (i) Customer’s unauthorized use of, or misuse of, the Service; (ii) Customer’s breach of its representations or warranties, or any applicable laws or regulations; (iii) any alleged or actual violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right, by Customer or its Content; (iv) any alleged or actual violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right caused by Customer’s unauthorized access, use, copying, modification, or other exploitation of the Service, Materials, Content, or the PA Trademarks not permitted under this Agreement; (v) any dispute or issue between Customer and any third party; and (vi) if Customer is a Content Reseller: Content Reseller’s material breach of any portion of the Outbound Content Addendum. PA reserves the right, at PA’s expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer (without limiting Customer’s indemnification obligations with respect to that matter), and in that case, Customer agree to cooperate with PA’s defense of those claims.
10.2. Indemnification by PA. To the fullest extent permitted by law, PA will defend and indemnify Customer, Customer’s affiliates and Customer’s respective shareholders, directors, managers, members, officers, employees, consultants, and agents from and against every Claim, and any Losses, arising out of or connected with: (i) PA’s unauthorized use, or misuse, of Content; (ii) PA’s violation of any applicable laws or regulations; (iii) any violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right from the use of the Service; or (iv) any dispute or issue between PA and any third party. Customer may, at Customer’s expense, assume the exclusive defense and control of any matter otherwise subject to indemnification by PA (without limiting PA’s indemnification obligations with respect to that matter), and in that case, PA agrees to cooperate with Customer’s defense of those claims. PA’s obligations in this Section 10 do not apply: (a) to infringement or misappropriation resulting from Content; (b) to unauthorized use of Service; or (c) if Customer settles or makes any admissions about a claim without PA’s prior consent.
10.3. Mitigation. In response to an actual or potential infringement or misappropriation claim or otherwise relating to violation of intellectual property rights, if required by settlement or injunction or as PA determines necessary to avoid material liability, PA may at its option: (i) procure rights for Customer’s continued use of the applicable Service; (ii) replace or modify the allegedly infringing portion of the applicable Service to avoid infringement or misappropriation without reducing the Service’s overall functionality; or (iii) terminate this Agreement and refund to Customer any pre-paid, unused fees for the terminated portion of the Term.
10.4. Exclusive Remedy. This Section 10 sets out Customer’s exclusive remedy and PA’s entire liability regarding infringement or misappropriation of third-party intellectual property rights.
11. LIMITATION OF LIABILITY
11.1. EXCEPT FOR (i) EITHER PARTY’S BREACH OF SECTION 8, EITHER PARTY’S OBLIGATIONS UNDER SECTION 10 OR EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; AND (ii) CUSTOMER’S BREACH OF SECTION 2.6 (THE “EXCLUDED CLAIMS”), TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
11.2. 11.2. EXCEPT FOR THE EXCLUDED CLAIMS, TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER PARTY FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, WILL NOT EXCEED (i) THE TOTAL AMOUNTS PAID OR PAYABLE BY CUSTOMER TO PA IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR (ii) $1,000, WHICHEVER IS GREATER. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
12. MISCELLANEOUS
12.1. General Terms. Customer may not assign or transfer this Agreement or Customer’s rights under this Agreement, in whole or in part, by operation of law or otherwise, without PA’s prior written consent. PA may assign this Agreement and all rights granted under this Agreement, including with respect to any Content, at any time without notice or consent. The failure to require performance of any provision will not affect PA’s right to require performance at any other time after that, nor will a waiver by PA of any breach or default of this Agreement, or any provision of this Agreement, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of Section headers in this Agreement is for convenience only and will not have any impact on the interpretation of any provision. Throughout this Agreement the use of the word “including” means “including but not limited to.” If any part of this Agreement is held to be invalid or unenforceable, then the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
12.2. Relationship. The relationship between the parties hereto shall be that of independent contractors. Neither party is and neither party shall represent itself to be the agent, employee, franchise, joint venturer, officer or partner of the other party. Nothing herein contained shall be construed to place the parties in the relationship of partners or joint venturers, and neither party shall have the power to obligate or bind the other party in any manner whatsoever.
12.3. Force Majeure. Excluding payment obligations, neither party will be liable for delay or default in the performance of its respective obligations under this Agreement if such delay or default is caused by conditions beyond such party’s reasonable control, including, but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, labor disputes, pandemic or public health emergency, or material modification or shutdown of third party services that PA uses to provide the Service through no fault of PA (“Force Majeure Event”). If a Force Majeure Event has continued for more than 60 days, the non-impacted party has the right to terminate this Agreement without penalty upon notice to the impacted party.
12.4. Amendments. Any amendments, modifications, or supplements to this Agreement must be in writing and signed by each party’s authorized representatives or, as appropriate, agreed through electronic means. Notwithstanding the foregoing, upon notice to Customer, PA may modify its policies to reflect new features or changing practices, but the modifications will not materially decrease PA’s overall obligations during the Term. The terms in any Customer purchase order or business form will not amend or modify this Agreement and are expressly rejected by PA unless contained in a Proposal; any of these Customer documents are for administrative purposes only and have no legal effect.
12.5. Subcontractors. PA may use subcontractors and permit them to exercise PA’s rights, but PA remains responsible for their compliance with this Agreement and for its overall performance under this Agreement.
12.6. Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by email, certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth on the Proposal and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given the next business day following the date of email, two business days following the date of mailing, or one business day following delivery to a courier.
12.7. Governing Law. This Agreement is governed by the laws of the State of California without regard to conflict of law principles. Customer agrees any action at law or in equity arising out of or relating to this Agreement shall be filed only in the state and federal courts residing in San Francisco County, California, and Customer hereby irrevocably and unconditionally consents and submits to the exclusive jurisdiction of such courts over any suit, action, or proceeding arising out of or relating to this Agreement. PA makes no representation that Service are is appropriate or available for use in locations outside of the United States of America.
12.8. Counterparts. The Proposal may be executed in any number of identical counterparts, notwithstanding that the parties have not signed the same counterpart, with the same effect as if the parties had signed the same document. All counterparts will be construed as and constitute the same agreement. The Proposal may also be executed and delivered electronically and such execution and delivery will have the same force and effect of an original document with original signatures.
12.9. Entire Agreement. This Agreement, including all attachments and exhibits, is the final and complete expression of the agreement between these parties. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be modified only by a written agreement signed by an authorized agent of the party against whom enforcement is sought.
OUTBOUND CONTENT ADDENDUM
This Outbound Content Addendum will apply if Customer is a Content Reseller which will make available Content to its customers. This Outbound Content Addendum is incorporated into and subject to the Agreement. In the event of a conflict between this Outbound Content Addendum and the Agreement, the Outbound Content Addendum will control. Capitalized terms used but not defined in this Outbound Content Addendum will have the meaning(s) ascribed thereto in the Agreement.
1. DEFINITIONS
1.1 “License Fees” means the fees owed by Content Reseller to PA based on how much Viewed Time that Content receives in any month, as further described in Section 3.3.
1.2 “PA Trademark” means any word, name, symbol, color, designation or device or any combination thereof, owned or controlled by PA, that functions as a source identifier, including any trademark, trade dress, brand mark, service mark, trade name, brand name, logo or business symbol, whether or not registered.
2. LICENSE GRANTS; DELIVERY
2.1 License to Content. PA hereby grants to Content Reseller a worldwide, non-exclusive license to make (directly and indirectly through intermediaries) certain Content currently available on the Service to Content Reseller’s customers and end users during the Term. This license includes (i) the right to transmit, communicate, and broadcast the Content by “streaming”; (ii) reproduce, perform, and publicly display the Content; (iii) market the Content using references to and excerpts from the Content; and (iv) sublicense these rights to third parties acting on Content Reseller’s behalf so long as Content Reseller remains responsible for each sublicensee’s compliance with the terms of this Outbound Content Addendum.
2.2 License to PA Trademarks. PA hereby grants to Content Reseller a worldwide, non-exclusive license during the Term to use PA Trademarks solely to identify and market the Content. All representations of PA Trademark that Content Reseller intends to use will first be submitted to PA for approval of design, color, and other details, or will be exact copies of those used by PA. All uses of PA Trademarks and related goodwill will inure solely to PA and Content Reseller will obtain no rights with respect to any PA Trademarks, except for the limited license granted in this Section 2.2.
2.3 Reservation of Rights. PA retains all right, title, and interest, including any intellectual property rights, in and to the Content, PA Trademarks, or any other PA products and services. The Content and PA Trademarks are licensed, not sold, by PA to Content Reseller. Content Reseller will not have any rights in or to the Content or PA Trademarks except as expressly granted in this Outbound Content Addendum. PA reserves to itself all rights to the Content and PA Trademarks not expressly granted to Content Reseller in accordance with this Outbound Content Addendum.
2.4 Initial Delivery. Within five (5) business days after the Subscription Start Date, PA will provide to Content Reseller access to the Content. PA will provide reasonable assistance to, and consult with, Content Reseller as needed to enable Content Reseller to utilize the Content. PA will continue to support the Content in accordance with this Section 2.4 during the Term.
2.5 Withdrawal of Content. Content Reseller acknowledges that Content may include third-party materials not created by PA. During the Term without notice or liability to Content Reseller, PA may withdraw any and all Content at any time for any reason, including, if Content is no longer available to PA for any reason or if PA determines, in its sole discretion, that the Content infringes or may infringe any third party’s rights or contains any harmful or illegal content. Any withdrawal of Content by PA will not be deemed a material breach of the Agreement or this Outbound Content Addendum.
2.6 Content Reseller’s customers. Prior to making any Content available to any of Content Reseller’s customers, Content Reseller will ensure that Content Reseller’s customers are bound by obligations that are as protective of the Content as those contained in this Outbound Content Addendum and the Agreement.
3. FEES AND PAYMENT TERMS
3.1 Advance Payment. Content Reseller will pay to PA an initial payment upon the Subscription Start Date (“Advance Payment”) set forth if such Advance Payment is set forth in the Proposal. The Advance Payment will be subtracted from the License Fees owed to PA until the Advance Payment has been recouped by Content Reseller.
3.2 License Fees. Content Reseller will pay the License Fees owed to PA within thirty (30) days of the end of the applicable month for which the License Fees are owed.
3.3 Viewed Time. License Fees are calculated upon how many seconds any Content receives in a contracted period; provided that each individual may replay any Content on the same hour without increasing the total Viewed Time.
4. TERM AND TERMINATION
4.1 Term. This Outbound Content Addendum will commence upon the Subscription Start Date and will continue for the Term set forth in the Proposal.
4.2 Termination. This Outbound Content Addendum will terminate when the Agreement terminates or otherwise expires or if Customer is no longer a Content Reseller under any active Proposal. PA can terminate this Outbound Content Addendum without cause upon thirty (30) days’ prior written notice to Content Reseller, subject to Section 4.3. If either party fails to perform any of its material obligations under this Outbound Content Addendum, the other party may terminate this Outbound Content Addendum by giving thirty (30) days’ prior written notice, provided that the matters set forth in such notice are not cured to the other party’s reasonable satisfaction within the 30-day period.
4.3 Wind-Down. In the event the Agreement or this Outbound Content Addendum expires or is terminated for any reason other than breach, subject to Section 2.5, PA will continue to make the Content available to Content Reseller under the terms and conditions of the Agreement until the earlier of (i) one (1) year after the effective date of expiration or termination or (ii) until Content Reseller has concluded any obligations with its existing customers (“Wind-Down Period”). Content Reseller may not provide Content to new Content Resellers or renew any subscriptions to its current Content Resellers after the expiration or termination of this Agreement. If either party terminates the Agreement for breach, PA has no obligation to provide a Wind-Down Period. The Wind-Down Period will immediately end if Content Reseller violates any provision of the Agreement.
4.4 Effect of Termination. Termination of this Outbound Content Addendum does not terminate the Agreement. Subject to Section 4.3, upon the effective date of termination or expiration, Content Reseller will cease streaming or otherwise accessing or making the Content available. All rights and duties of the parties under this Outbound Content Addendum will terminate upon termination or expiration of this Outbound Content Addendum; except that (i) termination will not relieve either party of obligations or liabilities incurred prior to the effective date of the termination; and (ii) all definitions and Sections 2.3 and 4.4, will survive termination or expiration.