This Master Service Agreement (the “MSA” or “Terms of Service”) is by and between Telequid and the entity or individual (“Company”) identified in the order executed by Telequid and Company or identified in connection with the Telequid Account registration process (in each case, a “Platform Services Agreement” or “Order”), and governs Company’s use, and Telequid’s provision, of the Services. Each Order, and any exhibit or schedule to an Order, is subject to this Agreement and is incorporated herein by reference. If you are an individual and are entering into this Agreement on behalf of an entity, you represent and warrant that you have the authority to bind such entity to all of the terms and conditions of this Agreement.
TELEQUID RESERVES THE RIGHT, AT ITS SOLE DISCRETION, TO ALTER OR UPDATE THESE TERMS OF SERVICE AND/OR THE SERVICES AT ANY TIME WITH OR WITHOUT NOTICE INCLUDING, WITHOUT LIMITATION, FEATURES, SPECIFICATIONS, CAPABILITIES, FUNCTIONS, LICENSING TERMS, RELEASE DATES, GENERAL AVAILABILITY OR OTHER CHARACTERISTICS. BY CONTINUING TO USE THE SERVICES AFTER ANY SUCH CHANGES, YOU AGREE TO BE BOUND BY SUBSEQUENT CHANGES AND ACKNOWLEDGE THAT TELEQUID SHALL HAVE NO LIABILITY TO YOU AS A RESULT OF ANY SUCH CHANGES.
The “Services” means those online services that Company has licensed from Telequid, including Yuzzit and/or such other services as Telequid makes available to Company from time to time. The various services comprising the Services enable Company to upload, transcode, manage and distribute Company’s Content and all other products and/or services provided by or through Telequid and/or its Suppliers pursuant to a Contract including (but not limited to) technical support, engineering work, and/or any other professional services.
means all content, data, video, templates or information in any form that is uploaded to or made available in Company’s Account(s) by Company or on Company’s behalf. The Services does not include Company’s Content or the Content of any other Telequid customer. By using the online, user interfaces or APIs (collectively, the “U/I”) provided as part of the Services, Company may make choices about its Content, including, depending on the particular Services being used by Company, the presentation, management and distribution of Content. Company may change its selections as permitted by the Services. In all cases, however, Company’s most recent selections in the U/I, as reflected in Telequid’s database, shall be conclusive in the event of any dispute concerning Company’s selections.
means a single point of entry via the U/I through which Company, a Company’s representatives or employees or licensed third parties (collectively “Users”) access and use the Services.
means a temporary account provided to Company by Telequid or its Resellers that permits the Company, or its Users, as a potential customer to use the Services on a temporary trial basis for a limited time period.
means all fees relating to the Services including, without limitation, all fees set forth in an Order.
means Telequid’s cross-platform video player.
means, individually and collectively, Telequid’s licensors, suppliers, vendors, resellers, and partners.
Access to Company’s Services Account(s) shall be enabled by use of username(s) and password(s) (“Credentials”) selected by Company. Except where Telequid has actual notice of loss, theft or unauthorized use of Company’s Credentials,
(i) Company is responsible for all activity occurring in Company’s Account(s), and Company shall bear full responsibility and liability (and Telequid shall have no responsibility or liability) for failure to secure passwords or enforce proper utilization of credentials.
(ii) Telequid shall have the right, without further inquiry, to rely on the provision of Company’s Credentials as sufficient to authenticate Company’s use of the Services.
Telequid may from time to time offer free Services Accounts, such as trial Accounts. Unless otherwise specified during the Account registration process, the terms and conditions of this Agreement shall govern the use of such free Accounts. Telequid may terminate any free Account at any time without notice, in its sole discretion. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND IN CONNECTION WITH FREE ACCOUNTS.
Telequid may from time to time offer products or services that are not generally available to all Telequid customers (“Beta Services”). Unless otherwise indicated, all Beta Services will be offered at no cost and will be identified as “beta” or in a manner that indicates that the Beta Service is in limited release or pre-release. Such Beta Services are still in development and Telequid may change aspects of the Beta Services at any time, including prior to general release. Company will not be obligated or required to use any Beta Services. Telequid may cease offering any Beta Services, or cease offering such services at no cost, at any time and without notice, in its sole discretion. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, BETA SERVICES ARE PROVIDED “AS IS” AND WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND.
The Services automatically communicate with Telequid’s servers to check for automatic general release updates such as bug fixes, patches, enhanced functions, and/or security related patches for the particular Services purchased under the Contract(s). At no charge to Company, Telequid may require the installation of software updates deemed reasonably necessary to address errors, bugs or other performance issues in the Account (collectively, “Updates”). All Updates shall be deemed part of the Services and subject to the same terms and conditions of these Terms of Service. Telequid may (but is not required to) post notices from time to time on the Telequid website explaining Updates and provide instructions associated with such Updates.
(a) The Company undertakes not to :
(i) use the Services in any illegal or unlawful manner or for any illegal or unlawful purpose
(ii) perform any act which is intended to harm Telequid or the Services.
(b) Content: Company is solely responsible for all matters arising out of or in connection with the Content including, without limitation, ensuring that the Content does not include Prohibited Content (as defined in the AUP) and does not violate any third-party rights, as further described therein and elsewhere in these Terms of Service.
c) Telequid, its Suppliers and the Services are passive conduits of the Content and Telequid and its Suppliers have no obligation to undertake to pre-screen, edit, review, monitor or oversee Content submitted, uploaded, distributed, retrieved, or viewed in connection with use of the Services, and assumes no responsibility or liability relating thereto.
e) Company is responsible for Content provided by third parties that may contain errors or omissions, false or defamatory material, and/or material that is offensive, indecent, objectionable, and/or infringing. Under no circumstances will Telequid or its Suppliers be liable in any way for Content, including, but not limited to, for any defamation, infringement, falsehoods, errors or omissions in any such Content, or for any loss or damage of any kind incurred as a result of the use or publication of any such content posted, delivered, emailed or otherwise transmitted via the Services.
f) Company acknowledges that Telequid and its Suppliers are not responsible for preventing or identifying infringement of intellectual property rights or other violations associations with the Content, and Telequid and its Suppliers assume no responsibility for screening or monitoring for possible:
(i) infringement or enforcing rights of the Company or any third party rights with respect to Content;
(ii) unlawful, inappropriate or unpermitted use
(iii) libel, falsehoods, errors or omissions contained in Content
(iv) noncompliance with applicable laws, rules, or regulations, or court or regulatory agency orders.
(v) Company acknowledges and agree that by using the Services, Users may be exposed to Content that they deem offensive, indecent or objectionable and that Telequid does not guarantee that any Content will be to the satisfaction of Users.
Telequid will not review or screen Content on a regular basis for compliance with this Agreement or applicable law, and Telequid shall have no obligation to do so, provided, however, that in addition to any other rights Telequid may have, Telequid reserves the right to suspend Company’s access to and/or use of the Services, or any particular Content, to the extent that Telequid reasonably determines, in good faith, that such suspension is necessary to comply with applicable law (including without limitation a take-down notice under the Digital Millennium Copyright Act) or to prevent significant harm to any end user or the Services; provided further, however, that in such event, Telequid shall use commercially reasonable efforts to suspend only that portion of the Services, or the particular Content, as is reasonably necessary to prevent the occurrence or continuation of such violation and/or harm.
Company shall pay Telequid the fees set forth in each Order in accordance with the payment terms set forth in this Agreement and the Order. Company shall be responsible for and shall pay any applicable sales, use or other taxes or duties, tariffs or the like applicable to Company’s Orders (except for taxes on Telequid’s income). All payments shall be made without deduction for withholding taxes, or set-off. Late payments may be subject to fees at the rate of 1.5% per month or, if lower, the maximum rate allowed by law. If Company fails to pay applicable fees when payment is due, then in addition to any other rights Telequid may have, Telequid shall have the right to suspend delivery of all or a portion of the Services to Company, provided that Telequid has supplied Company prior notice and 5 days’ opportunity to cure. If Telequid pursues collection efforts against Company due to Company’s failure to pay fees due under this Agreement, Company shall pay Telequid’s reasonable costs of collection, including any attorneys’ fees related thereto.
Telequid agrees to:
(a) make the Services available to Company in accordance with any active Order and this Agreement
(b) perform any other obligations expressly identified in any current Order.
This Agreement commences on the Effective Date and shall remain in effect until all of Company’s Orders have expired or have been terminated in accordance with the terms of this Agreement (the “Term”). The “Effective Date” of this Agreement shall be the date specified in Company’s initial Order or, if such Order was submitted online, the date Company submits the online Order. If Company is using the Services pursuant to a trial Account and does not submit an Order prior to the conclusion of the trial period, this Agreement will terminate at the end of the trial period or, if later, the date Telequid closes such trial Account.
The initial term of each Order shall commence on the date specified in the Order or, if such Order was submitted online, the date Company submits the online Order (the “Order Effective Date”). Unless earlier terminated in accordance with this Agreement, each Order shall remain in effect for 1 year from the Order Effective Date (unless a different term is set forth in Company’s Order) (“Initial Term”), following which the Order shall automatically renew for successive 1-year periods on the first day following the end of the Initial Term (each, a “Renewal Term”) unless either party hereto has provided notice to the other of non-renewal at least 60 days in advance of the end of the Initial Term or, if applicable, the current Renewal Term. Notwithstanding the prior sentence, all Orders for free Accounts, unless earlier terminated by either Company or Telequid, shall not automatically renew, but shall remain in effect for the period of time indicated during the Account registration process. Fees for the Services shall automatically increase by 5% each year after the Initial Term.
Unless otherwise prohibited by law, either party may terminate this Agreement, including any outstanding Orders, if:
(a) if the other party is adjudicated bankrupt or otherwise seeks to avoid its performance obligations under applicable bankruptcy or insolvency laws;
(b) upon the occurrence of a material breach of this Agreement by the other party if such breach is not cured within 30 days after written notice identifying the matter constituting the material breach.
In the event of the termination or expiration of this Agreement, all licenses granted under this Agreement shall terminate automatically. Upon an early termination of this Agreement for any reason, all current Orders shall terminate and, unless such termination resulted from a material, uncured breach of this Agreement by Telequid, all fees and expenses payable under any such Orders shall become immediately due and payable. The parties agree that, in such a termination, Telequid’s damages may be difficult to ascertain, therefore the parties agree that Company shall pay to Telequid seventy-five percent (75%) of the remaining amounts payable under any terminated Orders as liquidated damages, and not as a penalty.
As between the parties, Telequid owns all right, title and interest in and to the Services. This Agreement does not convey to Company any ownership interest in or to the Services, but only a limited license to use the Services that is revocable as set forth in this Agreement. As between the parties, Company owns all right, title and interest in and to the Content. This Agreement does not convey to Telequid any ownership interest in or to the Content, but only a limited license to the Content that is revocable as set forth in this Agreement.
Telequid hereby grants Company a limited, revocable (for breach of the licensing terms or violation of applicable law), non-sublicensable, non-transferable (except as provided in Section 15.2), non-exclusive, worldwide license during the Term to use the applicable Services for which Company has submitted an Order or registered online. All rights not expressly granted to Company are reserved by Telequid. Except as expressly permitted by Telequid in writing, Company shall not:
(i) sublicense, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services or any part thereof in any way;
(ii) modify or make derivative works based upon the Services or reverse engineer, decompile or disassemble the Services.
Company hereby grants Telequid a limited, revocable (as set forth in this Agreement), non-transferable (except as provided in Section 15.2), non-exclusive, royalty-free, fully paid-up, worldwide license to perform all such acts with respect to the Content as are necessary for Telequid to provide, maintain, or troubleshoot the Services in accordance with this Agreement and Company’s selections made through the U/I. All rights not expressly granted to Telequid are reserved by Company.
Company hereby grants to Telequid an unlimited, irrevocable, perpetual, sublicensable, transferable, non-exclusive, royalty-free, fully paid-up, worldwide license to use and/or incorporate into Telequid’s services any feedback, suggestions and/or recommendations provided to Telequid by Company regarding the Services.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, TELEQUID MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND TO COMPANY, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, WORKMANLIKE QUALITY, NON-INFRINGEMENT, TITLE, SUITABILITY, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS ONLY. NO ADVICE OR INFORMATION OBTAINED BY COMPANY FROM TELEQUID SHALL CREATE ANY REPRESENTATION OR WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
Company represents and warrants that:
(a) it either owns fully and outright or otherwise possesses and has obtained all rights, approvals, licenses, consents and permissions as are necessary to perform its obligations hereunder, exercise its rights hereunder and to grant the licenses granted by it under this Agreement;
(b) the Content, and its use through the Services, as enabled by Company, directly or indirectly, does not, and shall not, infringe, violate or misappropriate any third party’s rights. Company shall:
(i) obtain all necessary consents, permissions, licenses and waivers from copyright owners, artist(s), actors, directors, performers, writers, producers, or any other individuals who appear in the Content or the results and proceeds of whose services are utilized in the Content;
(ii) obtain all required synchronization and master use licenses from the owners of the musical compositions and sound recordings incorporated in the content (or their designated representatives);
(iii) make any payments to any labor unions and guilds, to the extent required under applicable collective bargaining agreements or otherwise (e.g., residuals, re-use, rerun and other similar fees);
(iv) obtain public performance licenses from public performance rights collection organizations;
(v) take any other actions necessary in order to obtain the appropriate license to the Content.
(c) Company shall comply with all applicable laws, rules, regulations, and court or regulatory agency orders or actions;
(d) Company shall be solely responsible and liable for any Prohibited Content; and
(e) Company shall abide by these Terms of Service.
Each party agrees to indemnify, subject to Section 10, the other party and such other party’s officers, employees, directors, agents, affiliates, subsidiaries, successors and assigns from and against any and all damages, liabilities, loss, government fines, costs and expenses (including reasonable attorney’s fees and litigation expenses) arising out of a claim, action or demand brought by a third party for or alleging infringement or misappropriation of such third party’s intellectual property rights (each a “Claim”).
The indemnification obligations in this section are conditioned upon:
(a) written notice by the indemnified party to the indemnifying party promptly of the indemnified party’s receipt of any Claim for which indemnification is sought;
(b) indemnifying party shall select counsel and control any litigation and settlement; and
(c) such reasonable cooperation by the indemnified party in the defense as the indemnifying party may request.
Notwithstanding anything to the contrary contained herein, the indemnifying party shall not, without the prior written consent of the indemnified party, settle, compromise or consent to the entry of any judgment with respect to any pending or threatened Claim (i) if such action requires or contains an admission of guilt or liability of indemnified party and (ii) unless the settlement, compromise or consent provides for and includes an express, unconditional release of such Claim against the indemnified party.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND EXCEPT IN THE CASE OF COMPANY MISAPPROPRIATION OF TELEQUID INTELLECTUAL PROPERTY OR USE OF CONTENT, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER UNDER ANY THEORY OF LIABILITY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM THE PERFORMANCE OR FAILURE OF PERFORMANCE OF ANY PROVISION OF THIS AGREEMENT (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES), SUCH AS, WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS, EVEN IF A PARTY IS MADE AWARE THAT SUCH DAMAGES ARE LIKELY. EXCEPT IN THE CASE OF COMPANY (i) MISAPPROPRIATION OF TELEQUID INTELLECTUAL PROPERTY OR (ii) USE OF CONTENT, UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE, IN AGGREGATE, TO THE OTHER FOR DAMAGES (OR AMOUNTS) IN EXCESS OF THE GREATER OF (A) $10,000.00, OR (B) THE TOTAL FEES PAID AND/OR PAYABLE FOR THE APPLICABLE ORDER FOR THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE ACTION OR OMISSION GIVING RISE TO THE CLAIM HEREUNDER AROSE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE PRECEDING SENTENCE, IF COMPANY IS USING THE SERVICES VIA A FREE ACCOUNT, COMPANY’S MAXIMUM LIABILITY TO TELEQUID IN CONNECTION WITH SUCH FREE ACCOUNT SHALL NOT EXCEED AN AMOUNT EQUAL TO THE DAMAGES INCURRED BY TELEQUID.
Telequid may, from time to time, inform its customers of third-party services that can be used in connection with the Services. Company’s use of any third-party service in connection with the Services, and any terms, conditions, representations and/or warranties associated with such use, are solely between Company and such third-party service provider. Telequid makes no representation or warranty with regard to any such third-party service, even if such provider is certified by Telequid or selected as a premier provider (or similar designation) by Telequid, and Telequid shall not be responsible to Company in any manner for any such third-party service. Telequid does not, unless otherwise expressly set forth in writing, provide maintenance or support for third-party services.
Each party agrees not to disclose the other party’s Confidential Information without the other party’s prior written consent. “Confidential Information” includes, without limitation:
(a) all intellectual property;
(b) financial and business information (including pricing);
(c) any other information designated in writing as “Confidential.”
Confidential Information does not include (i) Content; (ii) information that has become publicly known through no breach by Company or Telequid of these confidentiality obligations; (iii) information that is independently and lawfully developed or obtained without access to Confidential Information, as evidenced in writing; (iv) information required to be disclosed by law; or (v) the fact that Company is a customer of Telequid.
Telequid shall have the right to identify Company as a customer, and to use Company’s logo in Telequid’s general marketing materials, and Company shall have the right to identify Telequid as the provider of the Services, and to use Telequid’s logo in connection with Company’s use of the Services.
All notices under this Agreement must be in writing and delivered either by hand, e-mail, certified mail (return receipt requested, postage pre-paid) or nationally recognized overnight delivery service (all delivery charges pre-paid) and addressed, if to Company, to the contact identified in Company’s most recent Order and, if to Telequid, to 142 rue Montmartre, 75002 PARIS, attn: CEO or email@example.com.
These Terms of Service constitute the complete and exclusive agreement between Company and Telequid with respect to its subject matter; provided, however, that if Company accept or enter into a Contract or some other written agreement with Telequid or its authorized agents (including its resellers) that expressly incorporates these Terms of Service by reference, then these Terms of Service shall be subject to such other agreement as set forth therein. If any provision of a Contract or these Terms of Service is held unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and such decision shall not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances. Notwithstanding anything to the contrary herein, if Company receives the Service through one of Telequid’s resellers instead of directly from Telequid, then Telequid has no direct liability to Company in connection with the Services.
Telequid and Company are independent contractors under this Agreement and nothing herein shall be construed to create a partnership, joint venture or agency relationship;
Neither party may assign performance of this Agreement or any of its rights or delegate any of its duties under this Agreement without the prior written consent of the other, except that each party may assign this Agreement without the other party’s prior written consent in the case of a merger, acquisition or other change of control, and in such event this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns;
This Agreement shall be governed by the laws of Paris, France and applicable to contracts entered into and wholly to be performed therein;
Any and all disputes arising out of or related to this Agreement or performance hereof shall be brought exclusively in the courts located in France and the parties hereby waive any objection thereto;
COMPANY AND TELEQUID EACH WAIVE ANY RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY AND ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT;
Notwithstanding any law providing a longer statute of limitations, any claim or cause of action arising out of or related to this Agreement and/or Company’s use of the Services must be filed within 1 year after such claim or cause of action arose, or such claim or cause of action shall be forever barred;
Each party shall comply with all applicable export control laws and regulations. Company specifically represents that
(i) it is not located in any country or jurisdiction that is subject to France economic sanctions, nor is it acting on behalf of the government of, or providing the Services to citizen that is a national of, any such country
The waiver by either party of a breach or a default of any provision shall not be construed as a waiver of any succeeding breach of the same or any other provision.
All terms of this Agreement which by their nature extend beyond the termination of this Agreement remain in effect until fulfilled and apply to respective successors and assigns;
This Agreement may be executed in counterparts, all of which are considered one and the same agreement, and becomes effective when one or more counterparts have been signed by each of the parties and delivered to the other party, or upon Company’s submission of an online Order (whichever occurs first). Delivery by facsimile or e-mail and online acceptance are all as effective as physical delivery of an originally executed copy hereof;
This Agreement, including any Orders entered into hereunder, constitutes the entire understanding of the parties hereto with respect to the matters contemplated hereby, supersedes all previous agreements between the parties concerning the subject matter hereof and cannot be amended except by a writing signed by authorized representatives of both parties;
No party hereto has relied on any statement, representation or promise of any party or representative thereof except as expressly set forth in this Agreement;
If any term, provision, covenant or condition of this Agreement is held invalid or unenforceable for any reason, the remainder of the provisions will continue in full force and effect as if this Agreement had been executed with the invalid portion eliminated. The parties further agree to substitute for the invalid provision a valid provision that most closely approximates the intent and economic effect of the invalid provision;
Services licensed to the U.S. government or any entity acting on its behalf shall be as a Commercial Item, as that term is defined at 48 C.F.R. §2.101, and licensed only with those rights as are granted to all other entities or individuals entering into an agreement to use the Services;
Any instruments, including purchase orders, work orders, acknowledgments and vendor registration forms not signed by both parties (“Instruments”) shall not add to, supersede or modify, the terms of this Agreement and in the event any term of an Instrument purports to add to, supersede or modify any term of this Agreement, such term of the Instrument shall be void and without effect;
For Company’s convenience only, Telequid may provide Company with a non-English translation of this Agreement. Any such non-English language version of this Agreement is for reference purposes. Company acknowledges and agrees that the English language version of this Agreement shall, in all instances, govern the parties’ relationship.