These Terms of Service shall be part of a legal agreement (the “Agreement”) between the entity agreeing to these terms (and its Affiliates) (“Customer”) and DLVR, Inc. (and its Affiliates) (“DLVR” or “Company”) to be executed between the parties that incorporates these Terms of service.
DLVR’s Service Level Agreement (“SLA”): The Service Level Agreement, measurements, reports, credits and remedies related to the Services are located at https://www.dlvr.com/legal/sla
DLVR’s ACCEPTABLE USE policy (“AUP”): By using the products and/or services of DLVR, you agree to abide by the specified provisions of DLVR’s Acceptable Use Policy (“AUP”) described in Section II located at https://www.dlvr.com/legal/aup. It is DLVR’s policy to post any changes we make to the AUP and provide a notice that the AUP has been updated on . Continued use of DLVR’s products and/or services constitutes acceptance of the AUPs, as modified. The AUP was last revised on September 1, 2020 and will be effective on October 1, 2020.
Customer may obtain DLVR Services, support and/or other services (collectively “Services”) from DLVR subject to the terms of the Agreement.
1. Definitions. The following words and phrases have the meanings ascribed to them below. Other words and phrases may be defined elsewhere in the Agreement.
“Administrative Users” means an employee, contractor, consultant or agent of Customer authorized to access and use DLVR Services.
“Administrative User Credentials” means the user identification, log-in password or other security and authentication credentials necessary for Administrative Users to access and use the Services.
“Affiliate(s)” means an entity that, from time to time, directly or indirectly controls, is controlled by, or is under common control with a party, or that is a successor (including, without limitation, by change of name, dissolution, merger, consolidation, reorganization, sale or other disposition) to any such entity or its business and assets. An entity will be deemed to control another entity if it has the power to direct or cause the direction of the management or policies of such entity, whether through the ownership of voting securities, by contract or otherwise.
“Agreement” means the Order Form, these Terms of Service, the Acceptable Use Policy and any other exhibits or attachments specifically referenced or attached herein or in the Order Form.
“AUP” or “Acceptable Use Policy” means DLVR’s acceptable use policy attached as Exhibit A, as it may be updated from time to time by DLVR, which document, as updated from time to time, is incorporated herein.
“Customer Content” means all data, including, but not limited to, streaming video content and video stream control data, and including any third party content, that comprises video streams that Customer identifies for DLVR Services.
“Customer Service Provider(s)” or “CSP(s)” means service providers or service facilities identified and independently provisioned by Customer, which DLVR may utilize in conjunction with the DLVR Services to manage, measure, and optimize the delivery of Customer Content to End Users. Customer Service Providers may include Content Delivery Networks (CDNs), other providers of cloud services or computing or communications services, or other vendors selected and provisioned by Customer, as well as Customer-owned facilities or infrastructure.
“Quality of Experience Data” or “QoE Data” means usage and performance data and statistics derive and generated by the DLVR Services that measure, analyze and/or illustrate the performance and effectiveness of Services and/or the services of CSPs associated with Services. Company may combine QoE Data to assess and improve performance of its Services and to provide Customer with analytics and performance and usage data solely related to the Services provided to Customer. Company may use and disclose to other customers, potential customers and other third parties aggregate non-personally identifiable QoE Data to improve and demonstrate the performance of its services provided that such QoE Data does not include personal data, cannot be used directly or indirectly to identify an individual, and will not in any way be attributed to Customer or its end users. QoE Data constitutes Company’s sole and exclusive property.
“DLVR Services” means services provided by DLVR to manage, measure, and optimize the delivery of Customer Content to Customer’s End Users and End User Devices in conjunction with Customer’s independently provisioned CSPs, and using supported video streaming protocols. “DLVR Action” means DLVR Services that monitor CSP performance and allocate Customer Content video streams to CSPs. “DLVR Insights” means DLVR Services that provide operational analytics and data through an end user dashboard. “DLVR Insights API” means DLVR Services that provide operational QoE Data via defined application programming interfaces.
“Documentation” means the manuals, user guides, and other materials provided by DLVR to assist Customer in using the Services. DLVR will make Documentation available to Customer in electronic form. Customer may print, download, and copy Documentation for internal use only, but may not modify or distribute the Documentation without the prior written consent of DLVR.
“Effective Date” is the date of last execution of the Order Form by the parties.
“End User(s)” means a recipient(s) or viewer(s) of Customer Content. End Users receive or view Customer Content using an “End User Device.” End Users are not third party beneficiaries under the Agreement and have no direct rights or claims against DLVR by virtue of the Agreement.
“Order Form” means a DLVR order form by which DLVR Services and applicable pricing not specified in MSFT Market Place portal are ordered by Customer. To be valid, each Order Form must be completed and signed by both parties. Order Forms are not required for DLVR Services expressly specified in the MSFT Market Place portal. Unless explicitly stated on the Order Form, all Order Forms are governed by these Terms of Service.
“Party” means either Customer (and its Affiliates) or DLVR, and “Parties” means the Customer (and its Affiliates) and DLVR, collectively.
“Services” means those services provided by DLVR to Customer as specified on an Order Form(s).
“Service Commencement Date” means the date on which DLVR provides notification to Customer that Services are available for use. The Term commences on the Service Commencement Date.
2. Service Delivery and Use. DLVR agrees to provide the Services to Customer subject to the terms, Fees and other conditions set out on the applicable Order Form, and elsewhere in the Agreement. The Services are for use by Customer and its Affiliates. Customer may not resell the Services or allow third parties to access or use the Services.
Fees. Customer will pay all fees and any applicable Taxes (the “Fees”) as specified in the Agreement, including any annexes, schedules and appendices thereto.
4.1 Confidential information shall mean all information and documents or materials, including the Agreement, including all annexes, appendices and schedules, which are marked as confidential or which are confidential by their nature or purpose. Confidential information means in particular technical information, business and other information, e.g. information about technologies, research and development, products, services, prices of products and services, customers, employees, marketing plans and financial matters.
4.2 All confidential information which one party communicates to the other under the Agreement shall be treated as confidential and shall be used only for delivering the Products. Confidential information shall be protected from unauthorized access and treated with the same care which is used for own confidential information.
4.3 Confidential information shall not be disclosed by the receiving party without the previous written consent of the other party, unless
- this is required by mandatory legal general conditions or by legal or regulatory orders, and the receiving party has informed the other party immediately and in writing about the corresponding obligation or
- the confidential information is disclosed to authorized auditors of the receiving party given that he has committed himself to confidentiality to the receiving party and/or is bound by law to a professional obligation to maintain confidentiality.
4.4 Non-confidential information shall mean any information that
- was known to the receiving party before this party received the information in the scope of the Agreement, or
- which has been concluded developed by the receiving party independent of any confidential information of the other party, or
- which the receiving party obtained from a third party, which is not bound by the restrictions of the Agreement regarding the usage and passing on of information, or
- which is or will become public without a wrongful act of the receiving party, or
- which has been exempted from these confidentiality obligations by the other party by a written declaration to the receiving party.
4.5 Written confidential information of the parties which is in the possession of the receiving party shall be destroyed after the termination of the Agreement. This obligation also applies to all other documents or data which have been created based on the aforementioned documents or data or in any other way.
4.6 The provision of this clause shall continue to apply for two years after the termination of the Agreement. If the parties have concluded a non-disclosure agreement beforehand, the stipulations of that agreement shall prevail.
4.7 The parties shall obligate its staff to a regime of non-disclosure of confidential information corresponding to the above-mentioned obligations.
4.8. Publicity. DLVR may identify Customer as a user of the DLVR Services.
5. Customer Responsibilities. Customer is solely responsible for the creation, distribution, publication, use, and encryption (if any) of Customer Content. In addition, Customer is solely responsible for its own computing, communications, software, and other technical infrastructure; for any such infrastructure provided to it by third parties; and for the provisioning, performance, availability, and adequacy of its Customer Service Providers. Customer’s use of the Services shall at all times comply with DLVR’s Acceptable Use Policy (AUP) attached as Exhibit A. In addition to the other rights and remedies set out herein, DLVR may suspend or terminate Services by providing written notice to Customer of its breach of the AUP and allowing 30 days to either correct the breach or to initiate steps which the parties mutually agree will remedy the breach. If the Customer fails to remedy the breach or initiate the steps necessary to remedy such breach within the 30-day period, DLVR may immediately terminate Services by providing written notice. Notwithstanding the foregoing, DLVR may immediately suspend Services to the Customer upon written notice for a violation of the AUP that constitutes a violation of applicable law or threatens immediate material harm to DLVR’s network and/or its other customers. Customer also acknowledges and agrees that DLVR is not responsible for the operation, performance, or availability of End User Devices or the access networks by which End Users access the Customer Content, or for the operation, performance, or availability of third-party infrastructure, such as the intermediate networks that collectively comprise the Internet.
5. Administrative Users. All employees, agents, consultants, customers, suppliers, contractors, and outsourcers who need to use the service in performance of their duties for Customer and who are authorized and enabled by Customer to use the service, are entitled to use the service. In the course of Customer providing services to its Affiliates and its customers, the service may be used by or for the benefit of a Customer’s Affiliate or a Customer’s customer. Customer is solely responsible for the use and security of the Administrative User credentials provided to Customer by DLVR. Customer may not allow use of such credentials by more than one individual at any one time. Customer will use reasonable care to prevent the unauthorized access, use or distribution of Administrative User Credentials including, but not limited to, reasonable physical, technical and administrative security measures. Customer will notify DLVR immediately should it know or reasonably suspect a breach in the security of the Administrative User Credentials and/or unauthorized access, use or modification to the Services. Users accessing the DLVR Insights API via software or any other means are bound by the same terms, and additionally must adhere to API access limits as granted by their Service Order form, or absent any limit, not more than 100 requests per minute.
Indemnification by DLVR. DLVR will, at its sole expense, indemnify, defend, and hold Customer harmless from and against any claims, proceedings, damages, liabilities, costs and expenses (including without limitation reasonable attorneys’ fees) stemming from a third party claim against Customer alleging that the Services infringe, misappropriate, or otherwise violate any copyright, trademark, patent or trade secret of the third party. The DLVR indemnification obligations set forth in this section, and will not apply to the extent that any claim is based upon: (i) use of the Services in combination with any data, equipment, service or software not provided by DLVR, where the Services would not itself be infringing or otherwise the subject of the claim but for such combination, ; (iv) continued use of an infringing version of the Services after it has been replaced by a more recent non-infringing version provided by DLVR hereunder and Customer has received notification of the infringement. If a claim, demand, suit or action alleging infringement is brought or DLVR believes one may be brought, DLVR in consultation with Customer will have the option at its own expense to (i) modify the Services to avoid the allegation of infringement, while at the same time providing the same features and functionality, or (ii) obtain at no cost to Customer a license to allow Customer to continue using the Services in accordance with this Agreement free of any liability or restriction or (iii) if neither of the foregoing options are available following DLVR’s commercially reasonable efforts, DLVR may terminate the Agreement with respect to the alleged infringing Services and issue a prorated refund for all applicable paid but unused fees.
Indemnification by Customer. Customer will, at its sole expense, indemnify, defend, and hold DLVR harmless from and against any claims, proceedings, damages, liabilities, costs and expenses (including without limitation reasonable attorneys’ fees) resulting from any third party claim(s) based on, related to, or stemming from the Customer Content.
7. Warranties and Disclaimers:
BY DLVR: DLVR warrants that the Services will perform as represented in the Service Level Agreement referenced in the applicable Order Form (SLA). Customer’s sole and exclusive remedy for any violation of the applicable SLA shall be the Service level Credits set forth in the SLA.
EXCEPT AS EXPRESSLY PROVIDED HEREIN OR IN THE SLA, DLVR DOES NOT MAKE OR GIVE ANY REPRESENTATION OR WARRANTY OR CONDITION OF ANY KIND, WHETHER SUCH REPRESENTATION, WARRANTY, OR CONDITION BE EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, QUALITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
BY CUSTOMER: Customer warrants and represents that: i) the Customer Content and Customer’s use of the Services will be at all times in compliance with applicable laws and regulations, and ii) the Customer Content will not violate the rights of any third parties, and iii) that Customer has obtained all rights and/or licenses necessary to host, store, distribute, publish, re-publish and/or broadcast Customer Content using the Services.
8. Exclusion of Damages and Limitation of Liability.
EXCEPT FOR A BREACH OF CONFIDENTIALITY OBLIGATIONS OR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS, in no event shall EITHER PARTY be liable or obligated to THE OTHER or any third party in connection with the Services, or this Agreement, whether based on any contract, warranty, tort (including, without limitation negligence), strict liability or other legal or equitable theory, for any loss of profits, loss of business, loss of data or use thereof, interruption of business, or for any special, exemplary, incidental, consequential, punitive or other indirect damages of any kind, even if it has been advised in advance of the possibility of such damages, or such damages could have reasonably foreseen by it.
Maximum Liability. In no event shall DLVR’s liability to Customer or any other person or entity arising out of or in connection with this Agreement or the Services exceed, in the aggregate, the total fees paid by Customer to DLVR for the Services during the twelve (12) months preceding the claim with respect to which such liability relates. This limitation applies regardless of whether such claim/liability is based on an action in contract, warranty, strict liability or tort (including, without limitation, negligence) or otherwise. Notwithstanding the foregoing, the limitations set out herein do not apply to DLVR’s indemnification obligations, DLVR’s breach of any warranties contained in Exhibit C (Data Processor Obligations) or a breach of its confidentiality obligations hereunder.
9. Force Majeure. Neither Party shall be in default of any obligation (other than a payment obligation(s)) due to causes beyond such Party’s reasonable control, including but not limited to acts of God, war, riot, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation, facilities, fuel, energy, labor or materials, provided that the Party has exercised reasonable care to mitigate the impact of a Force Majeure event.
10.1. Conflicting Terms. If there is a conflict among the documents that make up the Agreement, the terms of the fully executed Agreement shall prevail over these terms of service.
10.2. Force Majeure. Neither party will be liable for failure or delay in its performance under the Agreement to the extent caused by circumstances beyond its reasonable control.
10.3. Governing Law. This Agreement is to be construed in accordance with and governed by the internal laws of Switzerland and any disputes arising hereunder will be settled by the competent courts of law in Switzerland.
10.4. Notices. All notices must be in writing and addressed to the other party’s legal department and primary point of contact. Notice will be treated as given on receipt, as verified by written or automated receipt or by electronic log (as applicable).
10.5. Severability and Waiver. In the event that any provision of the Agreement (or of these terms of service) is determined by a court of competent jurisdiction to be illegal, invalid or otherwise unenforceable, the provision (or portion) will be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable of enforcement, will be deemed to be severed and deleted from the Agreement, while the remainder of this Agreement will continue in full force. The waiver by either party of any default or breach of the Agreement will not constitute a waiver of any other or subsequent default or breach.
10.6. Survival. The following sections will survive any expiration or termination of this Agreement: Restrictions, Proprietary Rights, Confidentiality, Limitation of Liability, and Miscellaneous.
10.7. The Parties will only be bound by these terms of service if they enter into a fully executed Agreement. All further terms of the contractual relationship will be provided in the Agreement and any further annexes, appendices and schedules thereto.