PUBLISHER AGREEMENT



This PUBLISHER AGREEMENT ("Agreement") is between Viaway, Inc., a Delaware corporation with a principal place of business at 3570 Carmel Mountain Road, Suite 200 San Diego, CA 92130, USA ("Viaway"), and Your Company a Your Contry Your Corporate Entity with a principal place of business at Your Address ("Publisher") and is entered into 4/22/2019 (“Effective Date”).

 

RECITALS

A.  Publisher owns or has the right to display and distribute audio/visual content available through a website or server operated, owned, or otherwise controlled by Publisher (“Content”);

B.   Viaway owns and markets proprietary internet media platform (“IMP”) that enables consumer electronic devices (“Devices”) to display Content from internet sites and/or as otherwise hosted by Publisher or Viaway; and

C.   Publisher and Viaway desire to provide consumers wherever located (“End Users”) with access to the Content through the IMP.

AGREEMENT

1.      REGISTRATION AS A Viaway PUBLISHER. You are registering as a Publisher with Viaway, so that you may be eligible to publish and monetize Content with Viaway. You agree to comply with the terms and provisions of this Agreement, the Terms of Use of the Viaway website,  and the policies posted on the Viaway website (the "Viaway  Policies"), as may be amended from time to time by Viaway in its sole  discretion (collectively, the "Viaway Terms and Conditions”).

2.      DEFINITIONS.  All capitalized terms not defined herein have the meanings set forth in the body of the Agreement.

2.1      Intellectual Property Rights” means all inventions and proprietary rights owned or controlled by a party, including without limitation all copyrights, patents, trademarks, business processes, data rights, trade secrets, know-how, moral rights, performance rights, and specifications, including any registrations or applications in or to the foregoing, arising or enforceable under any international treaty, U.S. law, or the laws of any other jurisdiction.

2.2      Marks” means Publisher’s logos and trademarks or other logos or trademarks delivered to Viaway .

2.3      “Metadata” means information about the Content, including without limitation title, description, dates, key words, genre, Ratings, run time, names of actors, directors, producers, and authors, and any other information that Publisher provides to Viaway regarding the Content.

2.4      MPAA Ratings” means the industry standard ratings found at www.mpaa.org/FlmRat_Ratings.asp, which are G, PG, PG-13, R, NC-17.

2.5      Publisher Ratings” means a ratings system comparable to the MPAA Ratings or TV Parental Ratings and which ratings apply to the particular Content of the Publisher. 

2.6      Ratings” means the MPAA Ratings, TV Parental Ratings, or Publisher Ratings, as applicable to each piece of Content.

2.7      TV Parental Ratings” means the industry standard ratings found at www.tvguidelines.org, which are TV-Y, TV-Y7, TV-Y7 FV, TV-G, TV-PG, TV-14, TV-MA.

2.8     “Content” pay content and free content (each as defined below) collectively. 

2.9      “Gross Revenue”  all revenue collected from end users related to the distribution of content via IMP

2.10 “IP Royalties All royalties payable to third party licensors of intellectual property utilized in connection with the distribution of Content, including, by way of example only, amounts payable to performance rights organizations such as ASCAP, BMI and/or SESAC, and licensors of patents related to standards applicable to distribution of Content via IMP.

2.11 Launch Date” date upon which Content is initially available for consumption by an end user via IMP. 

2.12 Net Revenue” gross revenue less customer refunds voided on the “IMP Reporting Console,” as defined in this Agreement.

2.13 “Pay content” content provided to Viaway by Publisher that is published via IMP and delivered via the public Internet or private networks for a fee, including without limitation as a purchase for unlimited viewings, on a “pay per view” basis, as part of a paid subscription service, as a time-based viewing and/or as a viewing for a certain number of times.

2.14 “Free Content”  content provided to Viaway by Publisher that is published via IMP and delivered via the public Internet or private networks without cost to the end consumer.

2.15 "Viaway On Demand" is Viaway On Demand, the digital on demand distribution service, as further described on the Viaway Site, made available via the Viaway Properties.

2.16 "World TV" is World TV, the digital subscription service, as further described on the Viaway Site, made available via the Viaway Properties.

2.16 "Viaway Premium" is Viaway Premium, the digital subscription service, as further described on the Viaway Site, made available via the Viaway Properties.

2.17  “Viaway Site” means the web site whose primary home page is identified by the URL viaway.com (and any successor or replacement web site) and also includes any other web sites maintained by or for us or our affiliates.

2.18 “Viaway Properties” means (i) the Viaway Site and any "mirrored" version of the Viaway Site which substantially replicates the Viaway Site or a portion thereof, (ii) any site with a web page widget, any site with any other web page real estate, any application for use on mobile devices, or other online point of presence, which in each case is branded or co-branded "Viaway" and allows for the discovery and purchase of products from Viaway or its affiliates, (iii) any other web site or online point of presence on any platform through which Viaway Inc. or its affiliates make products or services available for discovery, (iv) internet media platform (“IMP”) that enables consumer electronic devices (“Devices”)  and (v) any other online point of presence or web site that you approve for treatment as an Viaway Property at our request, such approval not to be unreasonably withheld.     

3.      LICENSES.

3.1     Metadata.  Subject to the terms and conditions of this Agreement, Publisher hereby grants to Viaway a worldwide, non-exclusive license to copy, modify, distribute, and publicly display the Metadata through the IMP (“License”).

3.2     Content.  Subject to the terms and conditions of this Agreement, Publisher hereby grants Viaway permission to enable End Users to access the Content worldwide through the IMP on their Devices. Publisher can restrict End Users to access the Content country by country through the IMP.

3.3     Content Restriction.  Except as set forth in this Agreement, Publisher retains all right, title, and interest in and to the Content and Viaway shall not use the Content except as set forth herein.

3.4     Content Withdrawal. You may withdraw your Content from further distribution through the IMP at any time on five business days advance notice by following the then current procedures for Digital Content withdrawal or un-publishing. We may fulfill any customer orders completed through the date the Content is available for rent or sale. All withdrawals of Content will apply prospectively only and not with respect to any customers who rented or purchased the Content prior to the date of removal.

3.5     Marks.  Subject to the terms and conditions of this Agreement, Publisher hereby grants to Viaway the worldwide, non-exclusive right and license to use the Marks solely to the extent necessary for Viaway to exercise its rights under this Agreement.  Viaway understands that the Marks are owned solely by Publisher, or otherwise licensed to Viaway by Publisher, and may not be used in any way except as set forth herein. 

3.6     Marks Restrictions.

3.6.1.                Viaway agrees that its use of the Marks shall conform to the Publisher Branding Guidelines delivered to Viaway.

3.6.2.                Viaway agrees that display of the Marks on Viaway’s website or fixed media will first be submitted to Publisher for its prior written approval, such approval not to be unreasonably withheld or delayed.

3.6.3.                Viaway agrees that any use of the Marks will be accompanied by the trademark attribution "[Publisher or owner of Marks]® and associated logos are trademarks of [Publisher or owner of Marks] and are used under license" and Viaway will place such attribution where other, similar legal attributions are displayed (but only if Viaway uses the Marks).

3.6.4.                All goodwill generated from Viaway’s use of the Marks shall inure to the benefit of Publisher or owner of Marks, as applicable.

3.7     Marks Sublicense.  Subject to the terms and conditions of this Agreement, Publisher hereby grants to Viaway the worldwide, non-exclusive right and license to sublicense the use of the Marks solely to device manufacturers ("OEMs") solely to the extent necessary for Viaway or OEM to promote and market the Content accessed through the IMP on such OEMs’ Devices; provided, however, that Viaway shall get Publisher’s prior written consent to how such use of the Publisher Marks is implemented by the OEMs.

4.      LAUNCH DATE

Each of the parties acknowledges and agrees that it shall work in good faith to achieve Launch Date by no later than thirty (30) days following the Effective Date.

5.      SERVICES AND TOOLS

5.1     Content Set-Up Tools.  During the Term, Viaway shall provide the following tools (“Content Set-Up Tools”):

5.1.1.                capture of Content from source media provided to Viaway by Publisher;

5.1.2.                encoding of captured Content into a IMP Media Format;

5.1.3.                encryption of Content as needed;

5.1.4.                metadata entry tools and storage of metadata;

5.1.5.                publication onto the IMP system; and

5.1.6.                quality assurance (“QA”) of Content encoded in a IMP Media Format.

 

5.2     Managed Services.  During the Term, Viaway shall provide services as follows to Publisher (collectively, the “Managed Services”):

5.2.1.                storage of Content metadata;

5.2.2.                delivery of Content metadata over an IP network;

5.2.3.                storage of original and encoded Content;

5.2.4.                delivery of Content over an IP network;

5.2.5.                hosting of video-on-demand, or VOD;

5.2.6.                hosting of IMP’s digital rights management system;

5.2.7.                enabling Publisher to link to IMP’s player for the purpose of end users’ playback of Content;

5.2.8.                web-based access to real-time report and customer service tools (the “IMP Reporting Console”) that will enable Publisher to track Content royalties; and

5.2.9.                delivery of a monthly report, no less than fifteen (15) calendar days after the end of each calendar month, describing total purchase and playback activity for each item of Content.

5.2.10.            Viaway shall be responsible for all end-user customer support.  Viaway shall provide technical assistance via e-mail to Publisher’s support personnel via content@viaway.com and support web site at http://www.viaway.com.

5.3     Publisher acknowledges and agrees that: Content Set-Up Services and Managed Services, including without limitation data entry and technical assistance, shall be provided in English.  

5.4     The parties acknowledge and agree that Viaway will maintain the confidentiality of all end user customer data associated with transactions relating to the Content.  Except as necessary to provide the reports described in Section 5.2.7 or to process and/or maintain such data, or if disclosure is required by law or order of a court, administrative agency or other governmental body, Viaway shall not disclose such data to any third party, including Publisher. 

6.      ROYALTIES

6.1     Publisher Royalties.  Viaway shall pay Publisher as follows:

6.1.1.                Viaway shall pay Publisher one tenth of a cent (USD $0.001) per minute of video Pay Content delivered to end users by Viaway; and

6.1.2.                Viaway shall pay Publisher four hundreds of a cent (USD $0.0004) per minute of audio Pay Content delivered to end users by Viaway; and

6.1.3.                Delivery of Free Content.  Viaway shall pay Publisher zero cents (USD $0.00) per minute of Free Content delivered to end users by Viaway and fifty percent (50%) of Net Revenue from advertising revenue generated from Free Content.

6.1.4.                Delivery of Pay On-Demand Content by Viaway. Viaway shall pay Publisher 50% every time customer rent your content. For example, if you content is rented at USD $0.99, you earn a royalty of USD $0.49; and if your content is purchased as USD $2.99, you earn a royalty of USD $1.49

6.1.5.                All payments shall be made in US Dollars within thirty (30) calendar days after the first of the month, and shall be pursuant to the payment instructions therein.  All amounts due under this Agreement are exclusive of any tariffs, duties, or taxes imposed or levied, and all such tariffs, duties or taxes, with the exception of income taxes accrued by Viaway, are the sole responsibility of Publisher.  If such tariffs, duties, or taxes are paid or required to be paid by Viaway, that amount shall be deducted from the amount payable to Publisher.

 

6.2     Reports.  Viaway shall provide to Publisher, within fifteen (15) calendar days after the end of each calendar month, at http://www.viaway.com a royalty report, describing Publisher’s royalty for the applicable revenue related to this Agreement (“Royalty Report”). 

6.3     Taxes.  All payments under this Agreement are exclusive of taxes imposed by any governmental entity.  Publisher shall pay any applicable taxes, including sales, use, personal property, value-added, excise, customs fees, import duties or stamp duties or other taxes and duties imposed by governmental agencies of whatever kind and imposed with respect to services and/or transactions provided under this Agreement, including penalties and interest, but specifically excluding taxes based upon Viaway’s net income.  When Viaway has the legal obligation to collect any applicable taxes, the appropriate amount shall be invoiced to and paid by Publisher “net thirty (30) days” from the date of invoice or other notification.  Content Publisher shall promptly provide to Viaway: (i) original or certified copies of all tax payments or other sufficient evidence of tax payments at the time such payments are made by Publisher pursuant to this Agreement; or (ii) a valid certificate of Publisher’s exemption from obligation to pay such taxes as authorized by the appropriate taxing authority.

6.4     Audit.  Upon reasonable notice Publisher or its agent shall have the right to audit Viaway’s books and records relating to this Agreement.  Viaway shall cooperate fully with this audit.  If any audit conducted under this Section indicates that any amount due to Publisher was underpaid, Viaway shall within three (3) business days pay to Publisher the amount due.  All expenses associated with any such audit shall be paid by Publisher unless the audit reveals underpayment in excess of 5%, in which case Viaway shall pay such expenses as well as any amount due to Publisher. 

7.      COST AND FEES.

7.1     Storage and distribution costs. If Publisher chooses to store and distribute Free Content with IMP, publisher might be required to subscribe to Cloud TV: Record & Play service unless Viaway provided complimentary Cloud TV: Record & Play service. If Publisher chooses to store and distribute Paid Content with IMP, Viaway may offer a complimentary Cloud TV: Record & Play service for twelve (12) month period immediately following Effective Date at Viaway discretion.

8.      OBLIGATIONS.

8.1     Publisher. 

8.1.1.                Metadata and Content.  Promptly after the Effective Date and then continuing through the Term, Publisher shall make available or otherwise deliver the Metadata and Content to Viaway.  Publisher shall provide notice to Viaway no less than five (5) days prior to any changes in how the Metadata or Content is delivered to Viaway; such changes include without limitation Metadata feed format, Metadata fields made available, change in domain location for the Content, and changes in the encoding or transport format for the Content.

8.1.2.                Content Rating.  Publisher shall provide, at the same time it provides or otherwise makes Content available through the IMP and/or to Viaway, Ratings for each item of Content made accessible under this Agreement.  In the event any Content accessed through the IMP is required (by law, rule, regulation, or otherwise) to be labeled with a Rating, Publisher agrees and acknowledges that it is solely responsible for labeling all Content. 

8.1.3.                Closed-captioning.  If closed-captioning or similar technology is required (by law, rule, regulation, or otherwise) with respect to the Content accessed through the IMP, Publisher shall provide and deliver closed-captioning at the same time it provides access to the Content.

8.1.4.                Rights.  As between Publisher and Viaway, Publisher shall be responsible for any and all fees, costs, or licenses for Publisher’s distribution, display, performance, or any other rights associated with the Metadata and Content through the IMP.

8.2     Viaway. 

8.2.1.                Content Rating.  In its discretion, Viaway may provide Ratings for any Content not previously rated by Publisher as set forth in Section 8.1.2.

8.2.2.                Advertising.  Viaway may integrate and maintain 3rd party ad server in connection with providing the Content through the IMP; and further provided that any advertising distributed or displayed with the Content complies with generally accepted industry standards for decency and legally-permissible content.  If applicable, Viaway shall also integrate and maintain a means of measuring user metrics related to the Content. 

8.2.3.                Reporting.  Viaway shall deliver to Publisher monthly reports regarding Content accessed through the IMP, such reports to include without limitation aggregated number of views and length of views.  At such time as Viaway implements an on-line version of these monthly reports for its other content Publishers, Viaway will implement an on-line version for Publisher.

 

 

9.      CONFIDENTIALITY. 

9.1     Definition.  Each party (“Receiving Party”) acknowledges and agrees that all business and technical information provided by the other party (“Disclosing Party”) under this Agreement constitutes the confidential and proprietary information of the Disclosing Party.  For purposes of this Agreement, “Confidential Information” includes all oral, written, or recorded information about or related to the Disclosing Party or its business, including without limitation the terms and conditions of this Agreement, regardless of when received or the manner in which it is furnished, together with any summaries, extracts, analyses, compilations, studies, or other documents or records prepared by the Receiving Party which contain, reflect, or are generated from such information.  Notwithstanding the foregoing, Confidential Information does not include information that (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to the Receiving Party prior to its receipt from the Disclosing Party; (iii) is rightfully received from a third party who did not acquire or disclose such information by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by the Receiving Party without reference or reliance to any Confidential Information.  Notwithstanding the above, the Receiving Party may disclose the Confidential Information to a governmental entity with jurisdiction over it where it is obligated to disclose such information; provided, that, the Receiving Party shall disclose only such information as is legally required and shall provide the Disclosing Party prompt written notice to allow the Disclosing Party to seek and obtain a protective order or other appropriate remedy prior to any such disclosure.  In addition, the Receiving Party is entitled to disclose the terms and conditions of this Agreement (x) as required by law, including applicable securities law, and (y) to banks, proposed investors, and financing sources, where disclosure is related to any financial or corporate event for that party; provided such third parties maintain the confidentiality of the terms and conditions of this Agreement and only use such information for the purposes of such event.

9.2     Use of Confidential Information; Protective Measures.  The Receiving Party shall not use any Confidential Information for its own use or for any purpose other than as necessary to perform or enforce its rights and/or obligations under this Agreement.  The Receiving Party shall not disclose Confidential Information to any third party and shall restrict the possession, knowledge, and use of Confidential Information to its employees, agents, subcontractors, and entities that it controls (collectively, “Personnel”) and that have a need to know such information in connection with this Agreement.  Personnel will have access only to the Confidential Information they need for such purposes and the Receiving Party shall ensure that its Personnel comply with its obligations under this Agreement.  The Receiving Party agrees that it will take all reasonable measures to protect the secrecy of and avoid disclosure of Confidential Information and to prevent it from falling into the public domain or the possession of persons not authorized to possess such information under this Agreement.  These measures shall be no less than reasonable care and shall include all of those measures it uses to protect its own confidential information.  The Receiving Party shall immediately notify the Disclosing Party in writing of any breach of its obligations under this Section  5.2.

9.3     Injunctive Relief.  Each Receiving Party acknowledges and agrees that any breach of its obligations with respect to this Section  5 in a manner inconsistent with this Agreement may cause or threaten irreparable harm to the other party.  Each party further acknowledges and agrees that in the event of such actual or threatened breach or misuse, the other party may have no adequate remedy at law and may be entitled to immediate injunctive and other equitable relief.  Any right to obtain an injunction, restraining order, or other equitable relief shall not be deemed a waiver of any right to assert any other remedy that may be available in law or in equity.

 

 

 

10.  WARRANTIES.

10.1 Viaway.  Viaway represents, warrants, and covenants as follows:

10.1.1.            Viaway has the full right and power to enter, execute, and deliver this Agreement and to consummate the transactions and perform its obligations as contemplated by this Agreement.

10.2 Publisher.  Publisher represents, warrants, and covenants as follows:

10.2.1.            Publisher has the full right and power to enter, execute, and deliver this Agreement and to consummate the transactions and perform its obligations as contemplated by this Agreement;

10.2.2.            Publisher shall follow all laws, rules, and regulations concerning the use and collection of PII collected by it when providing Content to End Users.

10.2.3.            Publisher has all rights necessary to provide the License and enable access to the Content and Metadata; and

10.2.4.            Neither the Metadata nor the Content infringes upon or misappropriates any Intellectual Property Rights of any third party.

10.2.5.            Publisher warrants, represents and agrees that it will NOT contribute, submit or make available through the IMP, or use the IMP in connection with, any Content that is infringing, libelous, defamatory, obscene, pornographic, abusive, offensive or otherwise violates any law or right of any third party. Viaway reserves the right to remove any Content from the IMP at any time, or to terminate Publisher's right to use the IMP or access the IMP, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if Company is concerned that Publisher may have breached the terms of this paragraph), or for no reason at all, subject to the provisions of paragraph 13 ("Termination"). Publisher is responsible for all of its activity in connection with the IMP and accessing the Content. Publisher may not post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any Viaway user. Publisher shall not use any part of the IMP to violate the security of any computer network, crack passwords or security encryption codes, transfer or store material that is deemed threatening or obscene, or engage in any kind of illegal activity. User will not run Maillist, Listserv, any form of auto-responder, or "spam" on the IMP, or any processes that run or are activated while the User is not logged in.

10.3 Disclaimer.  THE LIMITED WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION  6 ARE THE ONLY WARRANTIES PROVIDED BY THE PARTIES AND ARE IN LIEU OF ALL OTHERS.  EXCEPT AS STATED IN THIS SECTION, ALL RIGHTS GRANTED HEREUNDER ARE “AS IS” AND EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHER, WITH RESPECT TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR COURSE OF PERFORMANCE.

11.  INDEMNIFICATION.

11.1 By Viaway.  Viaway shall indemnify and hold harmless Publisher and its officers, directors, employees, successors, and assigns (collectively, “Licensee Indemnifieds”) from and against any and all third-party claims, losses, damages, liabilities, and expenses (including reasonable attorneys fees and costs) actually incurred (collectively, “Claim”) arising out of:

11.1.1.            any material breach by Viaway of its obligations pursuant to Section  5; or

11.1.2.            any material breach by Viaway of its representations and warranties contained in Section  6.1.

11.2 By Publisher.  Publisher shall indemnify and hold harmless Viaway and its officers, directors, employees, successors and assigns (collectively, "Viaway Indemnifieds”) from and against any and all Claims arising out of:

11.2.1.            any material breach by Publisher of its obligations pursuant to Section  5; or

11.2.2.            any material breach by Publisher of its representations and warranties contained in Section  6.2.

11.3 Procedure.  A party seeking indemnification (“Indemnified Party”) shall promptly notify the other party (“Indemnifying Party”) in writing of any Claim of which it becomes aware.  The Indemnifying Party shall control the defense, settlement, adjustment, or compromise of any such Claim; provided that unless the Indemnifying Party obtains a complete and unconditional release of the Indemnified Party from any such Claim, the Indemnifying Party may not settle any Claim on behalf of the Indemnified Party without prior written authorization from the Indemnified Party.  The Indemnified Party may employ its own counsel at its own expense, and, at the Indemnifying Party’s reasonable request and expense, shall cooperate and assist the Indemnifying Party with respect to the negotiation, defense or settlement of any such Claim, but shall have no right or authority to settle any such Claim on behalf of the Indemnifying Party without first obtaining the Indemnifying Party’s written authorization.  In the event of a settlement of any such Claim, each party agrees not to disclose the terms of the settlement without first obtaining the other party’s written authorization.  Any authorization sought under this Section  7.3 shall not be unreasonably withheld or delayed.

12.  LIMITATION OF LIABILITY.

12.1 Limitations and Exclusions.  EXCEPT FOR BREACH OF THE CONFIDENTIALITY OBLIGATIONS IN SECTION 5 OR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7, IN NO EVENT SHALL EITHER PARTY BE LIABLE OR OBLIGATED TO THE OTHER PARTY IN ANY MANNER FOR ANY SPECIAL, NON-COMPENSATORY, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR OTHER INDIRECT DAMAGES OF ANY KIND OR NATURE, INCLUDING WITHOUT LIMITATION LOST PROFITS AND LOST REVENUE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY, OR OTHERWISE, INCURRED BY THE OTHER PARTY AND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF ADVISED OF OR OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. 

12.2 Maximum Aggregate Liability.  EXCEPT FOR BREACH OF THE CONFIDENTIALITY OBLIGATIONS IN SECTION 5 OR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT EXCEED THE TOTAL FEES PAYABLE PURSUANT TO SECTION 3 FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE IMPOSITION OF SUCH LIABILITY. 

12.3 Basis of the Bargain.  THE LIMITATIONS SET FORTH ABOVE SHALL BE DEEMED TO APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES.  EACH PARTY ACKNOWLEDGES AND AGREES THAT IT HAS FULLY CONSIDERED THE FOREGOING ALLOCATION OF RISK AND FINDS IT REASONABLE, AND THAT THE FOREGOING LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.

 

 

13.  TERM.

13.1 Term.  This Agreement commences upon the Effective Date and continues for three (3) years; it automatically renews for additional one (1) year terms unless either party provides written notice to the other party of termination at least ninety (90) calendar days prior to the expiration of the then-current term.

13.2 Termination.  Either party may immediately terminate this Agreement:

13.2.1.            in the event of a material uncured breach or default by the other party of any of its obligations under this Agreement, provided that (a) notice is provided to the other party in writing and (b) such breach or default is not cured within thirty (30) calendar days after receipt of notice; or

13.2.2.            in the event that the other party (a) institutes or otherwise becomes a party, voluntarily or involuntarily, to a proceeding alleging or pertaining to the insolvency or bankruptcy of that party; (b) is dissolved or liquidated; (c) makes an assignment of its material assets for the benefit of creditors; or (d) initiates or is subject to reorganization proceedings.  This Agreement shall be terminable on the date written notice is deemed given to such party.

13.2.3.            Viaway may also terminate or suspend any and all Content and access to the IMP immediately, without prior notice or liability, if Publisher breaches any of the terms or conditions of this Agreement. Any fees paid hereunder are non-refundable and non-cancelable. Upon termination of the Publisher's account, Publisher's right to use the IMP will immediately terminate. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability.

13.3 Effect.  Upon termination or expiration, this Agreement shall become void and the license granted hereunder shall immediately terminate.  However, nothing herein shall be construed to release either party from any obligation which matured prior to the effective date of such termination or expiration (or which may continue beyond such termination or expiration) or to relieve the defaulting party from any and all liabilities at law or in equity to the other for breach of this Agreement.  Upon termination or expiration, any unpaid amounts due under this Agreement shall become immediately due and payable, and each Receiving Party shall promptly return or certify that it has destroyed (or, in the case of electronic embodiments, permanently erased) all tangible material embodying Confidential Information of the Disclosing Party.

13.4 Survival.  Sections 1, 3, 5, 6.3, 7, 8, 9.1 through 9.3 inclusive, 10, and this Section 9.4 shall survive the expiration or termination of this Agreement. 

14.  GENERAL.

14.1 Publicity.  Publisher grants Viaway permission to issue one press release announcing that Publisher has provided access to the Content through the IMP.  Publisher further grants Viaway permission to use Publisher’s name and Marks in its marketing and promotional efforts for the IMP, provided Viaway uses such name and marks along with other companies’ names and marks regarding access to content through the IMP.  Except for these privileges, neither party shall release any announcement, publicity, or advertising, which contains reference to the other party or its affiliates, employees, representatives, products, or to this Agreement without the prior written consent of the other party, not unreasonably withheld or delayed.

14.2 Interpretation.  This Agreement may only be modified by a signed, written agreement.  Titles or headings to the sections of this Agreement are for convenience only, and shall not limit or define the scope of this Agreement.  This Agreement has been negotiated by the parties, with each party having the opportunity to avail itself of counsel of their own choosing, and it shall be fairly interpreted in accordance with its terms and conditions without any strict construction in favor of or against either party.  Any ambiguity shall not be interpreted against the drafting party.  The waiver by either party of a breach of any provision of this Agreement by the other party shall be in a signed writing, and shall not operate or be interpreted as a waiver of any other or subsequent breach.  If any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall be unimpaired and shall remain in full force and effect, and the invalid, illegal, or unenforceable provision shall be replaced by a valid, legal, and enforceable provision that comes closest to the intent of the parties underlying the invalid, illegal, or unenforceable provision.  This Agreement is written in the English language, and any translation shall be for reference only. 

14.3 Parties.  Viaway and Publisher will be and shall act as independent contractors, and this Agreement is not intended to create, nor should it be construed to create, a partnership, joint venture, agency, or employee/employer relationship.  Neither party by virtue of this Agreement shall have any right, power, or authority to act or create any obligation, express or implied, on behalf of the other party.  Neither this Agreement nor any rights granted herein may be assigned by Publisher without the prior written consent of Viaway, not unreasonably withheld or delayed.  Any attempt by Publisher to assign any rights without such consent shall be void.

14.4 Notices.  All notices, requests, and demands given to or made upon the parties shall be in writing (in English) and shall be mailed properly addressed, postage prepaid, registered or certified, by internationally recognized postal or delivery service, or hand delivered, to the other party at the addresses set forth below, or such other addresses to which either party shall notify the other party.  Any notice sent shall be deemed given when sent.

Publisher Name
Entity Type
Publisher Type

Phone:
Mobile Phone:
Email:

Email Send an email
Phone +1 (858) 314-8130
Fax +1 (360) 272 5794
Write Viaway, Inc.
3570 Carmel Mountain Road
Suite 200
San Diego, CA 92130

 

14.5 Law and Venue.  This Agreement, and any and all claims that may arise in connection with the Content and IMP, shall be governed by the substantive laws of State of California without giving effect to its conflict of law principles; the United Nations Convention on Contracts for the International Sale of Goods shall not apply.  The state and federal courts for the County of San Diego, California, shall have exclusive jurisdiction of disputes arising under this Agreement, and Viaway and Licensee hereby consent to and waive any objection to jurisdiction of and venue in such courts.  If any action is commenced to enforce the terms or provisions of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs incurred thereby. 

14.6 Entire Agreement.  This Agreement constitute the entire agreement and understanding of the parties with respect to the Content and IMP and supersedes all prior or contemporaneous oral or written agreements or understandings.  Any terms or conditions stated by Publisher in any purchase order or otherwise that are different from or in addition to this Agreement shall be of no force and effect, and no course of dealing, usage of trade, or course of performance shall be relevant to explain or modify any term expressed in this Agreement.  This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same document.  Electronic signatures are acceptable.

Agreed by the Viaway and Date at Your Company as of the Effective Date:4/22/2019


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