END USER LICENCE AGREEMENT (“EULA”)
SSIMWAVE develops, markets and owns certain video quality measurement, monitoring and optimization software (the “Software”) for license and use by customers in the media and entertainment industry, and the Customer desires to acquire a license for the use of the Software by it and its users.
ALL DEFINED TERMS IN THIS EULA THAT ARE NOT OTHERWISE DEFINED HEREIN SHALL HAVE THE MEANINGS GIVEN IN THE TERMS.
LICENSE AND USE OF SOFTWARE
- Grant of License. SSIMWAVE grants to the Customer a limited, non-exclusive, revocable, non-transferable, non-sublicensable license (the “License”) to access, execute and use the Software in object code form solely for its internal business purposes, subject to the limitations, restrictions and requirements specified herein. The License shall commence on the Effective Date and continue for such time period (the “Term”) as is specified in the Order Form signed by the parties prior to accessing the Software. The License shall include the right of Customer to use any Documentation that may be provided by SSIMWAVE to the Customer in any form.
- Restrictions on Use. The License for the use of the Software is subject to the following restrictions and limitations:
- Customer shall limit access to the Software and Documentation to the employees of the Customer who require such access for use of the Software and Documentation and have been authorized, and have been provided with a login, by SSIMWAVE to access the Software, as permitted herein;
- Customer shall not, directly or indirectly: (i) provide, disclose, sublicense, transfer, assign, distribute, rent, or otherwise permit any person to access, use, read, disseminate, transmit, “download” or reproduce the Software or Documentation; (ii) modify adapt, translate, change, customize, enhance, augment, partially delete or alter, or create derivative works based on the Software in any manner or to any extent whatsoever, whether in whole or in part; (iii) disassemble, decompile, reverse engineer, or otherwise in any manner deconstruct all or any part of the Software, or attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Software; (iv) use or access the Software to build or support, and/or assist a third party in building or supporting, products or services competitive to SSIMWAVE; (v) copy or transmit, in any form or by any means, electronic, mechanical, recording, or otherwise the Software, including onto any public or distributed network; (vi) upload, post, publish or otherwise transmit through the Software any viruses, Trojan horses, bugs or other harmful, disruptive or destructive files, or any material that acts as a passive or active information collection or transmission mechanism; (vii) alter any proprietary notices appearing in the Software; (viii) use the Software in violation of any applicable law or outside of the scope of the express rights granted herein; or (ix) knowingly or willfully use the Software in any manner that could damage, disable, overburden, impair or otherwise interfere with SSIMWAVE’s provision of the Software.
- Support and Maintenance. SSIMWAVE shall provide technical support for the Software throughout the Term: (1) during business days from 9:00 a.m. to 5:00 p.m. (EST) through the support portal and at the phone number, and (2) with target response times; all as outlined in the SLO attached as Schedule A. Customer acknowledges that the support will not be available during periods of system maintenance or Software upgrades or maintenance all as further outlined in the Terms. Support does not include services required as a result of (i) Customer misuse, improper use or alteration of the Software; (ii) any problem caused by modifications in any version of the Software not made or authorized by SSIMWAVE; or (iii) any problem resulting from Customer combining or merging the Software with any software not supplied by SSIMWAVE, or not identified by SSIMWAVE as compatible with the Software.
- Customer Responsibilities. In consideration of the grant of the License granted under this EULA, Customer agrees that it shall:
- provide SSIMWAVE with Feedback concerning the Software (including concerning the Software’s functionality and features and any fault, bugs, errors or other shortcomings of which Customer becomes aware);
- not make any report (whether written, oral or otherwise) nor publicize any performance data concerning its use or results, of the Software to any third party without the prior consent of SSIMWAVE;
- be responsible for its and all authorized users’ compliance with the EULA and the Terms, as may be updated, amended or modified from time to time;
- use commercially reasonable efforts to prevent unauthorized access to or use of the Software, and notify SSIMWAVE promptly of any such unauthorized access or use; and
- use the Software only in accordance with the EULA and all applicable laws and government regulations.
LICENSE FEES AND PAYMENT
- License Fees. SSIMWAVE will include in the Order Form any license and other fees associated with the use of the Software during the Term (the “License Fee”). The License Fee shall be calculated as negotiated by the parties and outlined in the Order Form. If the Customer exceeds any usage limits, such excess use shall be calculated at the rates as outlined in the Order Form, and payable by the Customer forthwith on receipt of an invoice from SSIMWAVE, based on SSIMWAVE’s payment terms. All License Fees are quoted in US dollars, are non-cancelable and non-refundable, and are exclusive of all taxes imposed by applicable law which shall be paid directly as and when due by the Customer (and Customer shall indemnify SSIMWAVE with respect to any non-payment thereof).
- Payment. License Fees shall be payable annually in advance by electronic funds transfer to SSIMWAVE, or as otherwise negotiated by the parties as outlined in the Order Form. All costs and expenses incurred by Customer with respect to the License, including without limitation any and all costs related to accessing the Software on the cloud, shall be the responsibility of the Customer. All License Fees and other amounts due and payable by the Customer shall be received by SSIMWIAVE within 30 days of the date of the invoice, unless otherwise directed by SSIMWAVE. Amounts not received when due are subject to a finance charge of 1.5% per month (18% per annum) on any outstanding balance from the date such payment is due until the date paid in full, or the maximum permitted by law, whichever is lower, plus all reasonable expenses of SSIMWAVE with respect to collection, which are in addition to all other rights of SSIMWAVE on default of the Customer as outlined in the Terms.
TERM AND TERMINATION
- Term. This EULA will commence as of the earlier of (i) the date set forth in the Order Form and (ii) when the Software is first accessed or used, and will be in effect during the period set forth in the Order Form, unless earlier terminated as set forth below. The Term will automatically renew for additional successive periods of one year, unless either party provides written notice of non-renewal at least sixty (60) days prior to the end of the then-current Term.
- Termination. The License may be terminated upon the occurrence of an event of termination as outlined in the Terms. Upon the expiration or termination of this EULA, the Customer agrees that the License shall immediately terminate and the Customer shall cease all use of the Software and Documentation, pay all Fees and release SSIMWAVE from further obligations, all as more particularly provided in the Terms.
- Ownership. Customer acknowledges and agrees that the Software, Documentation and all Intellectual Property therein (as further defined in the Terms) from time to time, shall remain the exclusive property of SSIMWAVE, and that the Customer acquires no rights whatsoever with respect thereto, other than the limited License granted herein.
- Quality Assessment Data. As a result of the Customer’s use of the Software under this EULA, SSIMWAVE will generate certain information, data, statistics, analyses, reports and other files or documentation regarding the use, performance and features of the Software which may include and incorporate anonymized, aggregated Customer Data combined with data from other sources (collectively, the “Quality Assessment Data”). Customer acknowledges and agrees that SSIMWAVE has the right to collect and derive anonymized, aggregated Quality Assessment Data, and any and all right, title and interest in and to the Quality Assessment Data, and all Intellectual Property therein, including as created by or resulting from SSIMWAVE’s use of Customer Data, shall be exclusively owned by SSIMWAVE. SSIMWAVE shall have the right to use any and all Quality Assessment Data for its general business purposes in its sole discretion, including for purposes of (i) further development, testing, operating and improvement of the Software, (ii) providing maintenance and support for the Software, (iii) use in studies, reports and programs, and promotional and marketing efforts, and(iv) trend analysis that may assist SSIMWAVE with respect to its services and general business purposes.
- Feedback. During or after the Term, the Customer may voluntarily provide suggestions, comments or other feedback (“Feedback”) relating to the Software which SSIMWAVE shall be free to use, disclose, reproduce, license or otherwise distribute and exploit in any manner as it may determine from time to time in its sole discretion, and all right, title and interest in and to the Feedback shall be exclusively owned by SSIMWAVE.
- Confidential Information. Each of the parties acknowledges that as a result of the License granted, it may receive Confidential Information from the other party. “Confidential Information” is as defined in the Terms, and for purposes of this EULA, includes Quality Assessment Data and Feedback (each as defined below. Each party confirms and agrees that no representation or warranty, express or implied, is being made by a disclosing party as to the accuracy or completeness of any Confidential Information supplied, and a disclosing party shall not have any liability to the receiving party relating to the use of any Confidential Information or any inaccuracies, errors or omissions.
- Use of Confidential Information. Each party shall be permitted to use the Confidential Information of the other party solely for purposes of the License. Each party shall hold in confidence the Confidential Information of the other party, protecting such Confidential Information with the same degree of care that it uses to protect its own confidential information, but in no case with less than reasonable care and ensure that such Confidential Information is not disclosed, published, released, transferred or otherwise made available in any form to, for the use or benefit of, any other person except as provided hereunder, without the disclosing party’s prior written approval; provided, however, that the either party may disclose the same to its Agents who require the Confidential Information for the purposes hereunder, provided they are bound in writing to confidentiality provisions as provided herein. Each party shall be fully responsible for ensuring that any persons to whom it discloses Confidential Information comply with the confidentiality obligations contained herein, and shall be liable for any breach of this EULA by such persons. Each party acknowledges and agrees that the Confidential Information of the other is the sole and exclusive and valuable property of the other party, and nothing herein grants a receiving party any rights in or to the disclosing party’s Confidential Information, except the limited right to review such Confidential Information for purposes of the License. The Confidential Information of a disclosing party shall be returned or destroyed by a receiving party immediately upon the request of the disclosing party for any reason and at any time. The parties agree that disclosure of the other’s Confidential Information would be detrimental to the interests and business of the other party, and that it shall notify the other immediately upon discovery of any unauthorized use or disclosure of any Confidential Information, and cooperate in every reasonable way to help regain possession of such Confidential Information and to prevent its further unauthorized use or disclosure. A receiving party shall have no obligations under this EULA with respect to any Confidential Information that is: (a) already known to the receiving party without breach of the terms hereof, (b) publicly known at the time of disclosure without breach of the terms hereof, (c) lawfully disclosed by a third party without restriction on disclosure or breach, (d) is approved for use or disclosure by written authorization of the disclosing party; or (e) is required to be disclosed by law or court order or governmental authority, provided that prompt notice is given to the disclosing party to attempt to limit or prevent such disclosure.
LIMITATION OF LIABILITY AND INDEMNITY
- Limitation of Liability. OTHER THAN SUCH LIMITED WARRANTY AS MAY BE PROVIDED IN THE TERMS, CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE SOFTWARE, DOCUMENTATION AND ALL RELATED INFORMATION, DATA, PRODUCTS AND/OR SERVICES OR ASSISTANCE PROVIDED BY SSIMWAVE TO CUSTOMER IN CONNECTION WITH THE SOFTWARE, IS PROVIDED FOR USE ON AN “AS AVAILABLE” AND “AS IS” BASIS WITHOUT ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY OR CONDITION OF ANY KIND OR NATURE WHATSOEVER, ALL OF WHICH ARE EXPRESSLY DENIED AND DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY LAW.CUSTOMER AGREES THAT SSIMWAVE SHALL NOT BE LIABLE TO CUSTOMER UNDER THIS EULA FOR ANY DAMAGES OF ANY KIND OR NATURE WHATSOEVER, INCLUDING WITHOUT LIMITATION, ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, ALL AS FURTHER DESCRIBED AND OUTLINED IN THE TERMS.THIS SECTION SHALL SURVIVE A FUNDAMENTAL BREACH OR BREACHES AND/OR FAILURE OF THE ESSENTIAL PURPOSE OF THE EULA.
- Customer indemnifies and saves harmless SSIMWAVE and its Agents from and against any and all loss, liability, claim, demand, cost, expense, damage (including reasonable legal fees) (“Claim”) arising directly or indirectly out of any claim, suit, action or judgment (commenced or threatened) brought against SSIMWAVE associated with Customer’s use of the Software or breach of the terms of this EULA or the Terms, any violation by the Customer of any provincial, state, federal or other laws and regulations, or any third party rights, or arising as a result of any third party alleging that the use of the Software by the Customer or its agents, other than in accordance with this EULA or the Terms, infringes, misappropriates or violates any Intellectual Property of the third party,which indemnity shall survive any termination or expiration of this EULA.
- SSIMWAVE indemnifies and saves harmless the Customer from any third party Claim brought against the Customer that any Software supplied hereunder and used in accordance with the provisions of this EULA, infringes a third party intellectual property right if notified promptly in writing of the claim and given full authority, information and assistance for the defense, and may, at its sole option and expense:
- procure for Customer the right to continue using the Software;
- replace the same with a product of similar functions and efficiency that is not subject to such an action; or
- modify the Software so that there is no longer any infringement or breach, provided that such modification does not adversely affect the functional capabilities as provided in the Documentation;
provided however that SSIMWAVE shall have no liability respecting any claim of infringement or breach to the extent such claim is based upon the combination, operation or use by the Customer of the Software with other equipment, software, apparatus, devices or things not supplied by SSIMWAVE or in a manner not substantially consistent with SSIMWAVE specifications and Documentation. This section states the entire liability of SSIMWAVE for any type of infringement or breach whatsoever of intellectual property rights of third parties resulting from or relating to the provision by SSIMWAVE of the Software.
- Entire Agreement. This EULA, together with the Terms, Documentation and any Order Form, constitutes the entire agreement between the parties pertaining to all the matters herein and supersedes all prior agreements, negotiations and discussions between the parties, whether oral or written and may only be amended or modified by written agreement executed by the parties. In the event of a conflict between the terms of this EULA, the Terms, Documentation, and the Order Form, the provisions of the Order Form shall prevail.
- Governing Law. This EULA shall be governed by and interpreted in accordance with the laws of the Province of Ontario and the laws of Canada as applicable. The parties irrevocably attorn to the non-exclusive jurisdiction of the courts within the Province of Ontario in respect of all matters and disputes arising hereunder.
- Notices. All notices given hereunder shall be in writing and made by delivery or courier, by mail or by facsimile or other electronic means (with confirmation of delivery) to the respective parties at their addresses above, as may be amended by either party, with deemed delivery as provided in the Terms.
- Customer Confirmation. The Customer acknowledges that it has carefully read and understood this EULA and the Terms, and has been advised to obtain independent legal advice before accepting, and has either done so, or chosen not to do so.
ANY ACCESS OR USE OF THE SOFTWARE BY THE CUSTOMER OR ANY USER INDICATES ACCEPTANCE OF ALL OF THE TERMS AND CONDITIONS OF THIS EULA.
SERVICE LEVEL OBJECTIVES (“SLO”)
The following table outlines SSIMWAVE’s SLO, based on priority level.
|Severity||First Response||Restoration||Permanent Fix||Severity Definition|
|High||1 hour||8 hours||7 days||A High severity issue is one that causes a complete failure with the Product being completely unusable and/or more than 10% of monitored “Services” being impacted and/or loss of redundancy of the Software. Additional examples include corruption of data contained within the Software, persistently intermittent service availability, widespread impairment of features and functionality used frequently by end users|
|Medium||2 hours||16 hours||30 days||A Medium severity issue is one that causes a failure, or a potential failure of a portion of a Software which leads to a partial degradation. Issues would include the inability to monitor between 5% to 10% of “Services”. Partial degradation can include occasionally intermittent service availability, or impairment of features or functionality that are ancillary to the primary service capability provided by the Software.|
|Low||1 business day||5 business days||60 days||A Low severity issue is one that causes a failure, or has the potential to cause a failure of a relatively small part of the Software. Issues assigned a Low severity will have relatively little impact on the end user. Minor issues would include a service which is dependent upon the Software not performing according to the business specification (the features or functionality are compromised in a manner that presents a slight inconvenience to the end users and/or include the inability to monitor less than 5% of “Services”)|
Supplier contacts for Support Services:
Phone Number: +1 (855) 899-4240