TERMS OF SERVICE

Last Updated: 6th of June, 2024

These Terms of Service constitute a legal agreement (this “Agreement”) between Cross Media Corporation doing business as Lightcast.com (“Lightcast.com”) and the customer entity or organization identified on an Order (“Customer”) and governs Customer’s access to and use of the Platform, Developer Tools, and Lightcast.com Content and Lightcast.com’s provision of the Services and Implementation Services. This Agreement is effective as of the earlier of the effective date of the initial Order or the date Customer first ticks a box to accept, or otherwise indicates its acceptance to, this Agreement (the “Effective Date”). The services and implementation services and customer’s access to and use of the platform, developer tools, and Lightcast.com content are expressly conditioned on customer’s acceptance of this agreement, and customer may only access and use the platform, developer tools, or Lightcast.com content, and Lightcast.com will only provide the services and implementation services, upon the terms and conditions herein. Notwithstanding the foregoing, if the parties have otherwise agreed to a separate written agreement (excluding orders) signed by authorized representatives of each party governing the services and implementation services and customer’s access to and use of the platform, developer tools, and Lightcast.com content (“written agreement”), such written agreement applies and this agreement will be of no force or effect.

If Customer purchases a Paid Subscription, Customer’s Paid Subscription will automatically renew for additional periods of 12 months (or such other duration as agreed by the parties) at the then-current Fees for such Paid Subscription unless Customer cancels in accordance with Section 6.12.

Lightcast.com and Customer agree as follows:

Table of Content:

1. Definitions
2. Services
3. Grant of Rights
4. Implementation Services
5. Additional Service-Specific Terms
6. Fees and Payment Terms
7. Term and Termination; Suspension
8. Technology
9. Proprietary Rights
10. Warranty; Disclaimers
11. Indemnification
12. Limitations of Liability
13. Confidentiality
14. Privacy and Cookie Policies
15. General

1. DEFINITIONS.

1.1 “Affiliate” means, with respect to a party, any other entity that directly or indirectly controls, is controlled by, or is under common control with such entity, where “control” means (solely for purposes of this definition) the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such entity through the ownership of 50% or more of the outstanding voting securities (but only for as long as such entity meets these requirements).

1.2 “Background Rights” means with respect to a party, all Intellectual Property Rights: (a) owned, licensed, or controlled by the party as of the Effective Date: (b) acquired, developed, created, or licensed (i) outside of this Agreement at any time, or (ii) with respect to Lightcast.com only, during the Term (A) but not made specifically and exclusively for Customer hereunder; or (B) which have applicability to Lightcast.com’s provision of services to its customers generally and which are not based on any Customer Confidential Information; and (c) any Improvements Made to, on, or of either ‘(a)’ or ‘(b)’ by either party either acting alone or jointly with the other party or any third party. For the avoidance of doubt, (1) all Technology, all results of the Platform, Lightcast.com Content, Services, and Implementation Services, and all Improvements to, on, or of the foregoing are the Background Rights of Lightcast.com, and (2) all Customer Content are the Background Rights of Customer; where “Made” (or any of its variants, e.g., Make or Makes) means, as applicable, to make, author, create, derive, develop, write, invent, conceive, reduce to practice, or otherwise generate, or to have made, authored, created, derived, developed, written, invented, conceived, reduced to practice, or otherwise generated. Lightcast.com’s Background Rights include derivative products and methodologies used in the course of performing Implementation Services and providing Branded Apps and other TV Apps, to the extent they do not contain Customer’s Background Rights or Confidential Information.

1.3 “Branded Apps” means all Mobile Apps, Websites, and other software programs and applications (including mobile apps, web apps, and smart TV apps) for Third-Party Streaming Services, including any source code for such programs and applications, that are hosted, distributed, or deployed as part of the Hosting Services or Distribution Services hereunder and that (a) Customer or its Users create using the Platform or any Services, or (b) are configured or otherwise developed by or on behalf of Lightcast.com or by Customer’s or its Users’ use of the Platform or any Technology.

1.4 “Customer Apps” means all software programs and applications (including mobile apps, web apps, and smart TV apps) for Third-Party Streaming Services (e.g., Roku, Fire TV, Android TV, Apple TV), that are owned or licensed by Customer outside of this Agreement including any source code for such programs and applications, that (a) Customer or its Users provide and load onto the Platform, or (b) Lightcast.com otherwise hosts, distributes, or deploys as part of the Hosting Services or Distribution Services hereunder (excluding in all cases any Lightcast.com Intellectual Property Rights embodied or incorporated therein). Customer Apps do not include Branded Apps.

1.5 “Customer Content” means all Customer Apps, Customer Media, and Customer Materials, and all other data, information, content, and materials that Customer or its Users upload, provide, load onto, input into, or create or live stream using the Platform or otherwise make available to the Services or Lightcast.com (excluding in all cases any Lightcast.com Intellectual Property Rights embodied or incorporated therein). Customer Content does not include Usage Data or Aggregated Data.

1.6 “Customer Media” means all text, files, images, graphics, illustrations, information, data (including Personal Data, but excluding Usage Data or Aggregated Data), audio, video, audiovisual materials, photographs, and other content and material (other than Customer Apps), in any format, provided by Customer or its Users that reside in, or run on or through, the Platform (excluding in all cases any Lightcast.com Intellectual Property Rights embodied or incorporated therein).

1.7 “Data Protection Laws” means all applicable privacy and data security laws, rules, and regulations to which the applicable party is subject.

1.8 “Developer Tools” means Lightcast.com’s application programming interfaces (“APIs”), software development kits (“SDKs”), and similar tools and documentation that enable developers to build or operate Branded Apps or Customer Apps, or to publish Customer Media or Customer Apps, through or connected to the Services, but exclude the video players provided by Lightcast.com.

1.9 “Distribution Services” means the Distribution of Customer Media or Customer Apps on or to Third-Party Streaming Services by or on behalf of Lightcast.com, as specified in the applicable Order; where “Distribution” (or any of its variants, e.g., Distribute, Distributes, or Distributed), means, as applicable, placement, provision, publishing, distribution, or deployment.

1.10 “Documentation” means any user materials, instructions, and specifications made available by Lightcast.com to Customer for the Services.

1.11 “Hosting Services” means the hosting and provision of access to Customer Apps, Customer Media, Branded Apps, and other Customer Content that Customer or its Users provide and load onto the Platform, via the Internet as software-as-a-service in accordance with the terms of the applicable Order and this Agreement.

1.12 “Implementation Services” means professional or consulting services to be provided by Lightcast.com, such as implementation, configuration, custom development, or training relating to the Services, including any deliverables (e.g., Branded Apps) to be provided by Lightcast.com as part of such services, in each case as expressly set forth in an applicable Order. Implementation Services do not include the Services or any Third-Party Services.

1.13 “Improvements” means all modifications, revisions, enhancements, improvements, updates, upgrades, new versions, adaptations, or derivatives (including derivative works).

1.14 “Intellectual Property Rights” means all intellectual property and proprietary rights thereto throughout the world, including all copyrights, trademarks, service marks, trade secrets, patents (and patent applications), moral rights, contract rights and any and all other legal rights protecting intangible proprietary information, and all tangible embodiments of the foregoing, including all research, content, software, algorithms, methodologies, methods, techniques, concepts, systems, procedures, know-how, data, results, ideas, discoveries, inventions, reports, and works of authorship, whether or not patentable, subject to trademark, or subject to copyright, and all intellectual property rights in same, including all patents and patent applications covering same.

1.15 “Lightcast.com Content” means all data, information, content, or materials provided or made available through the Services or Implementation Services, excluding only Customer Content.

1.16 “Order” means any proposal, quote, online registration or ordering process, written order, or similar document executed (including via online acceptance) by Lightcast.com and Customer that references this Agreement and sets forth the terms and conditions relating to the Services or Implementation Services, as applicable. Each Order is incorporated by reference into this Agreement.

1.17 “Personal Data” means all information provided by Customer as part of the Services or Implementation Services that constitutes “personally identifiable information,” “personal information,” “personal data,” or other similar term under Data Protection Laws that is collected, processed, or accessed by Lightcast.com under this Agreement that relates to either Customer or any User.

1.18 “Platform” means, collectively, (a) Lightcast.com’s proprietary multi-platform over-the-top (“OTT”) solution (including any platform module thereof and Lightcast.com’s media management system (CMS) and its proprietary online video platform (OVP), “Media Cloud”), which relies on the Software to provide, host, deliver, distribute, or deploy Customer Content or to provide Lightcast.com Content to Customer or its Users under this Agreement; and (b) the combination of hardware and software components owned, licensed, or managed by Lightcast.com to which Lightcast.com grants Customer and its Users access as part of the Services which Customer has ordered. As applicable and subject to the terms of this Agreement and the applicable Order, the Software, Platform, Lightcast.com Content, Developer Tools, Branded Apps, Customer Apps, Customer Content, and Third-Party Content may be hosted on the Platform. The Platform does not include Customer’s connectivity equipment, internet or network connections, hardware, software, or other equipment as may be necessary for Customer or its Users to connect to or obtain access to the Platform or to utilize the Services.

1.19 “Service Package” means a Lightcast.com service package selected by Customer, which describes the Services to be provided by or on behalf of Lightcast.com under the Order, as set forth in and modified by the applicable Order, as may be further described in the “Scope of Service” section of such Order (if any).

1.20 “Services” means, collectively, access to or use of the Platform, Developer Tools, Hardware, or Lightcast.com Content, Service Packages, Support Services, Hosting Services, Distribution Services, Delivery Services, Server Storage, CDN Services and the other services (e.g., transcoding, marketing, and advertising services) made available on, by, or through the Platform by Lightcast.com under this Agreement, in each case, as set forth in the applicable Order. The Services do not include Implementation Services or any Third-Party Services.

1.21 “Software” means the software products owned or licensed by Lightcast.com to which Lightcast.com grants Customer and its Users access as part of the Services, including Lightcast.com’s proprietary software-as-a-service offering set forth in the applicable Order and made available through remote access by Lightcast.com to Customer and Users as part of the Platform that enables content producers and publishers to upload, manage, control, or monetize Customer Content or publish Customer Content to Third-Party Streaming Services, including any modified, updated, or enhanced versions that may become part of the Software during the Term.

1.22 “Support Services” means Lightcast.com’s standard technical support and Software maintenance or such additional support and Software maintenance purchased by Customer.

1.23 “Third-Party Content” means all text, files, images, graphics, illustrations, information, data, audio, video, photographs, and other content and material, in any format, that are obtained or derived from third-party sources outside of Lightcast.com and made available to Customer or its Users through, within, or in conjunction with Customer’s or its Users’ access to or use of the Services or Implementation Services. Examples of Third-Party Content include data feeds from social network services, RSS feeds, images, media libraries, and data libraries. Third-Party Content does not include Third-Party Services or Third-Party Streaming Services.

1.24 “Third-Party Streaming Services” means a third-party online streaming service, other serviced video platform, OTT solution, or application platform, or the third-party author, owner, or provider thereof, to which Lightcast.com may provide, distribute, deploy, or otherwise make available Customer Media, Customer Apps, or Branded Apps pursuant to an Order and this Agreement.

1.25 “Usage Data” means any content, data, or information that is collected or produced by the Platform or otherwise in connection with Customer’s or its Users’ use of the Services that does not identify Customer or its Users, and may include usage patterns, traffic logs, and user conduct associated with the Platform.

1.26 “Users” means, collectively, Customer’s employees, independent contractors, and other individuals (a) who are authorized by Customer to use the Services on behalf of Customer under the rights granted to Customer pursuant to this Agreement and (b) for whom access to the Services has been purchased hereunder.

2. SERVICES.

2.1 Provision of Services. Subject to the terms and conditions of this Agreement, Lightcast.com shall provide the Services to Customer and its Users.

2.2 Customer Materials and Assistance. Customer acknowledges that in order to perform the Services or Implementation Services (including, for all purposes hereunder, to provide any Branded Apps), Lightcast.com requires access to certain materials, content, data, information (including video contents, audio contents, meta data, image files and/or live streams), and other intellectual property of Customer or Customer’s suppliers, including certain of Customer’s names, logos, and other trademarks and service marks (collectively, “Customer Materials”). Customer shall provide Lightcast.com with all Customer Materials along with any assistance, access, and personnel resources that Lightcast.com reasonably requests in order for Lightcast.com to perform the applicable Services or Implementation Services. Customer acknowledges that Lightcast.com’s ability to successfully perform the Services or Implementation Services is contingent upon Lightcast.com’s receipt from Customer of such Customer Materials and such assistance, access, and personnel resources. Accordingly, Lightcast.com will not be deemed in breach of this Agreement (or any Order) and will have no liability to Customer for failure to perform, a delay in performance of, or any other deficiencies in, the Services or Implementation Services or for damages resulting from: (a) Customer’s failure to provide any Customer Materials or any such assistance, access, and personnel resources; (b) the acts or omissions of Customer, its agents, contractors, or employees; or (c) performance of the Services or Implementation Services in accordance with Customer’s instructions.

2.3 Resources. Customer is solely responsible for, at its own expense, acquiring, installing, and maintaining all connectivity equipment, internet and network connections, hardware, software, and other equipment, technologies, and services as may be necessary for its Users to connect to or access the Platform or otherwise use the Services or Implementation Services and Customer understands that such connections or access may involve third-party fees and costs (such as Internet service provider or airtime charges). Customer is responsible for all such fees and costs.

2.4 Acceptable Use Policy. The following sets forth Lightcast.com’s “Acceptable Use Policy”: Customer represents and warrants that Customer shall not, and shall not permit any User or other third party to, use the Services or Implementation Services (including by uploading, emailing, posting, publishing, displaying, distributing, or otherwise transmitting any material, including Customer Content, Branded Apps, Lightcast.com Content, or Third-Party Content) in any manner or for any purpose that may: (a) violate this Agreement, Lightcast.com’s then-current privacy policy (available at: https://www.lightcast.com/privacy-terms/), or any applicable laws, rules, ordinances, or regulations (“Laws”); (b) constitute an infringement, misappropriation, or violation of any Intellectual Property Rights, rights of publicity, rights of privacy, or any other rights of any third party; (c) be unlawful, harassing, menacing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, sexually explicit, obscene, patently offensive, promote racism, bigotry, hatred, or physical harm of any kind against any group or individual, promote illegal activities or contribute to the creation of weapons, illegal materials, or otherwise be objectionable or illegal in any way; (d) be harmful to minors in any way; (e) cause damage or injury to any person or property; (f) cause Lightcast.com to violate any Laws; (g) constitute unlawful or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; or (h) cause Customer to violate any obligations or restrictions imposed by any third party; in each case, as reasonably determined by Lightcast.com. Customer represents, warrants, and covenants that the use of Customer Content by Lightcast.com or any User or third party does not violate the Acceptable Use Policy. In addition to any other rights afforded to Lightcast.com under this Agreement, Lightcast.com reserves the right, but has no obligation, to review any Customer Content, investigate, or take remedial or otherwise appropriate action against Customer (or any User) in its sole discretion if Customer or any User violates the Acceptable Use Policy or otherwise creates liability for Lightcast.com or any other person or if any material otherwise violates the foregoing restrictions. Such actions may include removing or disabling access to such material, removing or modifying Customer Content, terminating Customer’s Account (or each applicable User’s account and Account ID), or reporting Customer or each applicable User to law enforcement authorities. Lightcast.com shall have no liability to Customer (or any User) in the event that Lightcast.com takes any such action. Customer shall have sole responsibility and liability for the accuracy, quality, integrity, legality, reliability, appropriateness, and ownership of all Customer Content. Customer agrees to defend and indemnify Lightcast.com against any claim arising out of a violation of Customer’s obligations under this Section 2.4.

2.5 Software Updates. Customer is required to accept all patches, bug fixes, updates, maintenance, and service packs (collectively, “Software Updates”) necessary for the proper function and security of the Services or Implementation Services, including for the Software, Platform, and Branded Apps, as such Software Updates are generally released by Lightcast.com. Except for emergency or security related maintenance activities, Lightcast.com will coordinate with Customer the scheduling of application of Software Updates, where possible, based on Lightcast.com’s next available standard maintenance window.

2.6 Third-Party Websites, Content, Products, and Services.

(a) Third-Party Services. The Services or Implementation Services may (i) display, include, or make available Third-Party Content, (ii) enable Customer or its Users to use third-party authentication services to sign on to the Platform (e.g., single sign on (SSO) to access third-party accounts such as Google and GitHub) (“Third-Party Authentication”) or (iii) contain, require the use of, or enable Customer or its Users to link to, integrate the Services or Implementation Services with, connect or otherwise interoperate with, transmit Customer Content to, or otherwise access Third-Party Streaming Services or other third-party websites, technology, products, or services (together with Third-Party Content, collectively, “Third-Party Services”). Any Third-Party Services made accessible by Lightcast.com in or through the Platform, Services, or Implementation Services are provided on an “as-is” and “as available” basis without any warranty of any kind. Lightcast.com is not responsible for and expressly disclaims any representations, warranties, or conditions of any kind, express or implied, with respect to any Third-Party Services or the security thereof. Customer acknowledges that Lightcast.com does not own or control such Third-Party Services, they are made available as a convenience to Customer only, and are not part of the Services or Implementation Services or subject to any of the warranties, service commitments, or other obligations with respect to the Services or Implementation Services under this Agreement and that such Third-Party Services are subject to their own terms and conditions. Customer acknowledges and agrees that Lightcast.com shall not be responsible for any Third-Party Services, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Lightcast.com does not assume and shall not have any liability or responsibility to Customer, any User, or any other person or entity for any Third-Party Services. Any acquisition of any Third-Party Services by Customer or any User, and any exchange of data between any Third-Party Services and Customer or any User, is solely between Customer or such User and the applicable third-party owner, author, or provider of such Third-Party Services (“Third-Party Provider”). Any access to or use of any Third-Party Services is entirely at Customer’s or the applicable User’s own risk and is solely determined by the relevant Third-Party Provider. The Third-Party Provider retains all ownership and Intellectual Property Rights in and to those Third-Party Services, and Customer’s and its Users’ rights to use such Third-Party Services are subject to, and governed by, the terms, conditions, and policies applicable to such Third-Party Services as specified by such Third-Party Provider (“Third-Party Terms”). Third-Party Terms may include YouTube's terms available at https://www.youtube.com/t/terms and Facebook’s terms available at https://www.facebook.com/terms.php. Customer acknowledges and agrees that: (1) Lightcast.com is entitled to rely on any authentication provided via any Third-Party Authentication; (2) Customer authorizes Lightcast.com to disclose Customer Content to the Third-Party Provider associated with any Third-Party Services that Customer or any User enables; (3) Lightcast.com will not be responsible or liable, directly or indirectly, for the security of any Third-Party Services or the security of the underlying protocols used for the same, or for any damage or loss caused by or in connection with the use of or reliance on any Third-Party Authentication or other Third-Party Services connection; (4) each applicable Third-Party Provider is a separate data controller with respect to such provider’s processing of Customer Content; and (5) Lightcast.com does not control the processing of Customer Content by any such Third-Party Provider. Lightcast.com may disable or restrict access to any Third-Party Services at any time without notice. Lightcast.com is not liable for Third-Party Services or any Customer Content provided to a third party via any Third-Party Services.

(b) Subject to Availability. Customer acknowledges that: (i) the nature, type, quality, and availability of Third-Party Services may change at any time during the Term, and (ii) features of Third-Party Services, may depend on the continuing availability of such third parties’ respective application programming interfaces (APIs) for use with the Services or Implementation Services. Lightcast.com may update, change, or modify the Services or Implementation Services under this Agreement as a result of a change in, or unavailability of, such Third-Party Services. If any third party ceases to make its Third-Party Services (including its APIs) available on reasonable terms for the Services or Implementation Services, as determined by Lightcast.com in its sole discretion, Lightcast.com may cease providing access to the affected Third-Party Services without any liability to Customer. Any changes to Third-Party Services, including their availability or unavailability, during the Term does not affect Customer’s obligations under this Agreement or the applicable Order, and Customer will not be entitled to any refund, credit, or other compensation due to any such changes.

2.7 Beta Offerings. From time to time, Lightcast.com may offer new “beta” features or tools or trial access to a certain portion of the Services (each, a “Beta Offering”). Beta Offerings are offered solely for trial or evaluation purposes and may be modified or discontinued at Lightcast.com’s sole discretion. Beta Offerings may be inoperable, incomplete, or include features that Lightcast.com may never release, and their features and performance information are Lightcast.com’s Confidential Information. If the Services include a mechanism that limits access to Beta Offerings, Customer will not, and will not permit any User to, attempt to circumvent any such mechanism or restriction. Notwithstanding any other provision of this Agreement to the contrary: (a) Lightcast.com has no obligation to retain Customer Content used with Beta Offerings, (b) Lightcast.com provides the Beta Offerings on an “AS IS” and “AS AVAILABLE” basis with no warranty, indemnity, service levels, or support of any kind, and (c) LIGHTCAST.COM’S CUMULATIVE LIABILITY RELATING TO ANY BETA OFFERING, AND ANY USE OF THE SERVICES IN CONNECTION THEREWITH, IS LIMITED TO DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED THE GREATER OF (i) $100 OR (ii) THE AMOUNT CUSTOMER ACTUALLY PAID FOR THE BETA OFFERING. Lightcast.com may terminate Customer’s Beta Offerings at any time and, unless Customer has executed an Order with Lightcast.com providing for continued access to and use of the Services, Customer will cease, and will ensure that each User ceases, all access to and use of the Services.

2.8 Effect of Customer Delays. Lightcast.com is not responsible or liable for any late delivery or delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement. In the event of any such delay or failure, Lightcast.com may, by written notice to Customer, extend all or any subsequent due dates set forth in the applicable Order as Lightcast.com deems reasonably necessary. If Lightcast.com can show that Customer’s delay has resulted in Lightcast.com’s increased costs of performing its obligations under this Agreement, Lightcast.com may, at its sole discretion, notify Customer that it wishes to increase Fees by an amount not exceeding any such demonstrable cost. Lightcast.com may invoice Customer for any such additional Fees after demonstrating the increased costs. No Fees will be suspended during any period during which the Services or Implementation Services are not usable or operational to the extent resulting from a Customer delay, including the commencement of any subscription fees under this Agreement. The foregoing is in addition to, and not in lieu of, all other remedies Lightcast.com may have for any such failure or delay by Customer.

3. GRANT OF RIGHTS.

3.1 Access Rights; Customer’s Use of the Platform. Subject to the terms and conditions of this Agreement, Lightcast.com hereby grants to Customer, during the Term, a non-exclusive, non-transferable (except as permitted by Section 15.3), non-sublicensable right to access and use the Platform and the Developer Tools and Lightcast.com Content therein solely for Customer’s internal business purposes in accordance with the Documentation and the terms and conditions of this Agreement and the applicable Order, and subject to the usage limitations set forth therein. Access to or use of certain areas of the Platform, certain Developer Tools or Lightcast.com Content, or certain other Services or Implementation Services may also require Customer to agree to separate license terms or agreements that are specified in the applicable Order, Documentation, or applicable readme or notice files, or otherwise provided by Lightcast.com in writing in advance (each an “Annex”). In the event of a conflict between the terms of this Agreement and an Annex, the terms of the Annex will govern Customer’s use of the portions of the Platform or Developer Tools, items of Lightcast.com Content, or portions of the Services or Implementation Services to which the Annex applies, and this Agreement will govern in all other respects.

3.2 Users. Under the rights granted to Customer under this Agreement, Customer may permit its employees and independent contractors to become Users in order to access and use the Platform, Software, Lightcast.com Content, Developer Tools, and Documentation in accordance with this Agreement; provided that Customer will be liable and responsible for all acts and omissions of each User to the extent that any of such acts or omissions, if performed by Customer, would constitute a breach of, or otherwise give rise to liability to Customer under, this Agreement (e.g., just as if each User were “Customer” under this Agreement). Customer shall not, and shall not permit any User to, use any Implementation Services or Services (including the Platform, Software, Lightcast.com Content, Developer Tools, and Documentation) except as expressly permitted under this Agreement. Customer is responsible for each User’s compliance with this Agreement (including the Acceptable Use Policy).

3.3 Affiliates. For purposes of this Agreement, the parties are contracting for and on behalf of themselves individually, and collectively for their current and future Affiliates. The parties agree that any Affiliate of a party may contract for the performance of Services or Implementation Services hereunder by mutually executing with the other party a written Order. Each such Order will be subject to this Agreement as if each were a separate agreement between the Customer entity and Lightcast.com entity executing that Order (the “Executing Entities”). All obligations and liabilities arising from each such Order shall be solely between the Executing Entities. For the purposes of each such Order, all references to “Customer” and “Lightcast.com” in this Agreement shall mean, for purposes of that Order only, the respective Customer Executing Entity and Lightcast.com Executing Entity.

3.4 Accounts. Access to and use of the Platform will be through an account on the Platform provided for Customer (“Customer’s Account”). Users may be required to establish user-identification and passwords to access the Platform (“Account ID”). By permitting a User to establish or attempt to establish an Account ID, Customer certifies that each such User (a) is at least eighteen (18) years of age, and (b) has been informed of all applicable terms, conditions, and obligations under this Agreement, including all applicable operating rules and policies of Lightcast.com that may be published on the Platform. Notwithstanding the foregoing, if a User establishing or attempting to establish an Account ID is under the age of majority in such User’s jurisdiction (e.g., its state of residence), then Lightcast.com hereby rejects each such User’s application to establish an Account ID and Customer shall request that each such User cease any attempted or actual access to or use of the Platform immediately. Each Account ID is personal in nature and may only be used by the individual associated with that Account ID, provided that each Account ID may be transferred from one individual to another if the original individual is no longer permitted to access the Platform. Customer is responsible for maintaining the security and confidentiality of all Account IDs and will implement at least commercially reasonable measures to protect the security and confidentiality of each Account ID. Customer shall (i) not allow a third party to use Customer’s Account or any Account IDs at any time, except as expressly permitted under this Agreement, and (ii) notify Lightcast.com promptly of any actual or reasonably suspected unauthorized use of or access to Customer’s Account, any Account IDs, or the Platform, any other breach or suspected breach of this Agreement of which it becomes aware, or if any Account ID is lost, stolen, or otherwise compromised. Customer is liable and responsible for all acts and omissions of its Users, and for all activities that occur under Customer’s Account, including all Account IDs and all sub-accounts created by or for Customer.

3.5 Proposals. New customers referred to Lightcast.com (whether by an existing customer or any other third party) are provided a unique proposal identifier, independent from anyone else’s prior proposal or agreement identifier. Customer shall not, and shall not permit any User or other third party to, share its proposal, proposal identifier, or any credentials related thereto with any third party.

3.6 Prohibited Data. Notwithstanding anything to the contrary in this Agreement, Customer shall not, and shall take commercially reasonable efforts to ensure that its Users do not, upload to the Platform, otherwise provide through the Services, or otherwise submit or make accessible to Lightcast.com any financial account or government issued identifiers (e.g., social security numbers, credit card information, or bank information), protected health information, or other types of sensitive data that is subject to specific or elevated data protection requirements (other than Personal Data required in connection with the Services) (collectively, “Prohibited Data”). Notwithstanding anything to the contrary in this Agreement, Customer acknowledges that: (a) the Software, Platform, and Services are not intended for the management or protection of Prohibited Data and may not provide adequate or legally required security for Prohibited Data; and (b) Lightcast.com will have no liability for any failure to provide protections set forth in any laws, rules, regulations, or standards applicable to such Prohibited Data or to otherwise protect the Prohibited Data. If Customer or any User uploads any Prohibited Data to the Platform, otherwise provides any Prohibited Data through the Services, or otherwise submits or makes accessible to Lightcast.com any Prohibited Data in violation of this Section, Lightcast.com may, without limiting any of its other rights and remedies, delete such Prohibited Data.

4. IMPLEMENTATION SERVICES.

If an Order provides for any Implementation Services (including any Branded Apps resulting from such Implementation Services), Lightcast.com will perform the Implementation Services and provide the Branded Apps as set forth in the applicable Order; provided that, notwithstanding the foregoing, Lightcast.com is not obligated to begin performing (and has no obligation to begin performing) any portion of the Implementation Services until Customer has specifically requested that Lightcast.com perform such portion of Implementation Services (in each case), or until Customer has uploaded or provided requested contents to make implementation possible, which requests Customer shall make by logging into Customer’s Account on the Platform and navigating to “Platforms” or such other location(s) as may be instructed by Lightcast.com from time to time. Nothing in this Agreement shall prevent Lightcast.com from performing for itself or acquiring from other providers the same or similar services, nor prevent Lightcast.com from providing the same or similar Implementation Services for itself or to other clients (subject to confidentiality and intellectual property obligations set forth in the Agreement). Subject to payment of all applicable Fees when due, Lightcast.com grants to Customer a non-exclusive, non-transferable (except as permitted by Section 15.3), non-sublicensable worldwide license during the Term to use any Branded Apps provided to Customer by Lightcast.com under this Agreement for the purposes set forth in the applicable Order or, if no purpose is specified, for Customer’s own internal business purposes. Customer shall not and shall not permit any User or third party to use or copy any Branded Apps (or any portion thereof) except as expressly allowed in this Section.

5. ADDITIONAL SERVICE-SPECIFIC TERMS.

For the avoidance of doubt, the terms in this Section 5, to the extent applicable, are in addition to and not in lieu of the other provisions of this Agreement (including Customer’s obligations under Section 2.2); provided that, notwithstanding the foregoing, Lightcast.com will not begin performing (and has no obligation to begin performing) any portion of the applicable Services until Customer has specifically requested that Lightcast.com perform such portion of Services (in each case), as well as uploading or providing requested contents, which requests Customer shall make by logging into Customer’s Account on the Platform and navigating to “Platforms” or such other location(s) as may be instructed by Lightcast.com from time to time.

5.1 Video Uploading and Delivery.

(a) Video Minutes. Unless otherwise specified in the applicable Order, bandwidth for any media is measured in the number of minutes of media comprising the applicable video file that has been uploaded to the Platform (each, a “Video Minute” or “VM”), and bandwidth consumption is based on whether the applicable media file is consumed (e.g., watched) in standard definition or high definition. Specifically, in calculating a video’s bandwidth consumption: (i) each minute of standard definition consumption of the video will constitute 1 Video Minute, and (ii) each minute of high definition consumption of the video will constitute 3 Video Minutes. Higher resolutions including, but not limited to, 4K or higher, are subject to higher VM per viewed minute ratios. Lightcast.com’s video players will automatically switch between different video file versions (i.e., the standard definition version and the high definition version), as applicable, adapting to the viewer’s then-current available bandwidth; provided, however, that high definition video files are only delivered if there is a high definition version of the video file then-currently available on Lightcast.com’s servers and the viewer has the necessary bandwidth available at such time.

(b) Available Video Minutes. Video Minutes purchased by Customer hereunder, as part of a subscription or otherwise, are “Available Video Minutes”. The following Available Video Minutes will only expire on the expiration or termination of this Agreement (or the termination of Customer’s Account, if earlier): (i) any Available Video Minutes that Customer has purchased separate and apart from a subscription, and (ii) any Available Video Minutes included in any subscription purchased by Customer for individual “VOD”, “AOD”, “LIVE”, or “24/7 Channels”. The following Available Video Minutes will be credited to Customer’s Account concurrently with each billing period payment (e.g., Customer’s upfront monthly or annual payment) and will expire at the end of each such billing period (e.g., these Available Video Minutes will only be available to Customer during that month (after Customer has paid for such month), on a use-it-or-lose-it basis, and will expire at the end of such month): any Video Minutes included in any (A) service subscriptions purchased by Customer, such as “Video Smart”, “Video Growth”, “Video Power”, “Video Power X”, or “Video Power XL”, and (B) “Signature” Service Packages or “Custom” Service Packages.

(c) Storage. Media storage on the platform is subject to the applicable Order.

(d) Video Uploads. Lightcast.com shall not be liable or responsible for, and Customer is solely responsible for: (i) the integrity of Customer’s or its Users’ uploaded video files; (ii) file formats, file types, or file sizes of files that Customer or any User is attempting to upload; (iii) understanding file-size limits (e.g., of browsers or standard FTP protocols); and (iv) Customer’s or its Users’ internet connection, computer hardware, software, or virus issues, or other sources of issues caused during any upload which may damage files or render them non-transcodable/streamable. All FTP Credits are non-refundable, including those used for files which do not pass the file-check. The file-size limit of standard file transfer protocol (“FTP”) uploads is subject to change from time to time. Files larger than the then current limit will not be passed on in transcoding and any FTP Credits used in such upload attempt will be lost.. Uploads through Customer’s connected third-party file-services, such as Dropbox or AWS folders, have no file-size limit.

5.2 Distribution Services. If Customer purchases any Distribution Services from Lightcast.com hereunder (including any Service Package that includes Distribution Services), as set forth in an Order, then the following additional terms in this Section will apply to such Services or Implementation Services, to the extent applicable.

(a) TV Apps.

(i) Conditions; Commitment Period. As a condition of Lightcast.com agreeing to provide any development Implementation Services for Branded Apps or any Distribution Services for Branded Apps or Customer Apps that are to be published or otherwise distributed, as part of Distribution Services hereunder, to Third-Party Streaming Services that are OTT platforms, broadcast television outlets, or other platforms for television content and channels (e.g., Roku, Apple TV, Amazon Fire TV, Android TV, iTunes) (collectively, “TV Platforms”) (such Customer Apps together with the applicable Branded Apps, collectively, “TV Apps”), Customer represents and warrants that it will: (A) ensure that each TV App is and remains online and available in (1) each of the TV Platforms that such TV App has been Distributed to as part of the Distribution Services, and (2) each public channel thereof that such TV App has been Distributed to, in each case of subparts ‘(1)’ and ‘(2) for a period of at least twenty-four (24) months from the date that such TV App was Distributed to the applicable TV Platform (“Commitment Period”). Each Commitment Period is necessary and designed to avoid penalization by the applicable TV Platforms and loss of reputation with applicable viewers and subscribers. Customer understands and agrees that Lightcast.com may be required to enforce specific Commitment Periods on behalf of applicable TV Platforms, including by taking all necessary action to keep TV Apps online and available, as described above, for the entirety of the applicable Commitment Period, including charging Customer for all additional bandwidth costs incurred by such TV Apps beyond Customer’s Available Minutes during the applicable period.

(ii) TV App Approval Disclaimer. The parties acknowledge and agree that: (A) Lightcast.com shall not be liable or responsible for the approval, disapproval, or other rejection of any TV Apps submitted to a TV Platform, nor for any approval (or not) of any Customer Content or other content or programming submitted in connection with, or otherwise intended for, any such TV App; (B) each TV Platform operates under its own terms and conditions of use and guidelines by which TV Apps are approved (or not) for Distribution on such TV Platform (“Publishing Guidelines”); (C) pursuant to an applicable Order, Lightcast.com’s TV App specialists will build and submit applicable TV Apps thereunder according to the applicable Publishing Guidelines and will work with each applicable TV Platform and its applicable TV App review team on Customer’s behalf; however, the approval (or not) of a TV App is independent of the approval (or not) of any programming or content for such TV App; thus, even though a TV App may be approved by a TV Platform, it is up to each such TV Platform, at its sole discretion, to approve (or not) Customer Content as well (e.g., just because a TV App is approved by a TV Platform, it does not mean that the applicable TV Platform will also approve any or all programming or other content for such TV App); (D) while the approval of new TV Apps in all global TV Platforms worldwide is intended, pursued, and very likely according to Lightcast.com’s proven TV App-submission-strategy, it is not guaranteed; (E) category and other factors (e.g., store assignment) remain subject to each TV Platform’s discretion; and (F) no refunds, credits, or other compensation will be provided by Lightcast.com to Customer for any TV Apps (even if such TV Apps are rejected) or for any delays caused by a TV Platform or its review process, service, personnel, or agents.

(b) Multi-Platform Distribution Services. In order to Distribute Customer Content to multiple platforms simultaneously pursuant to an Order (e.g., as part of Distribution Services ordered thereunder for “Multi-Screen/Multi-Platform” Distribution, “ConnectedTV Publishing”, or similar multi-platform Distribution), Customer is responsible for and shall ensure that it (i) purchases a Service Package that includes all necessary services and offerings to facilitate such simultaneous multi-platform Distribution Services, and (ii) enables any necessary population of feeds in the “Control Center” of Customer’s Account to facilitate the applicable multi-platform Distribution. Specifically, the application required to transcode and publish media to multiple platforms simultaneously (e.g., to TV Platforms, Mobile App platforms, and social app platforms), requires special feeds populated by such Control Center; however, these special feed population Services are only included in certain Service Packages (for example, as of the “Last Updated” date above, such Services were only included in the “Video Growth” and better Service Packages (e.g., “Power”, “Power X”, and “Power XL”), and were excluded from the “Video Starter”, “Video Smart”, and “Gold Complete” Service Packages).

(c) Redistribution, Viewership Growth Support, Additional Exposure. For purposes of supporting Customer’s growth in viewership and reach of its TV Apps, Lightcast.com may (but is not obligated to) redistribute selected TV Apps under Special Interest Channels and recommend selected TV Apps for enhanced promotion as featured content on applicable TV Platforms. A “Special Interest Channel” means a TV Platform channel that is dedicated to or for certain industries (e.g. cruises, hotels) or interests (e.g., religion, animals). With respect to religious programming, some Special Interest Channels may provide a dedicated channel for a church or denomination, where such church or denomination can form an “umbrella channel” with an umbrella structure over its applicable affiliated churches. In any such Special Interest Channel, as with other Distribution Services hereunder, a viewer’s consumption of the applicable TV App will be consumed as Video Minutes (as described above) which Video Minutes will be deducted from Customer’s Available Video Minutes balance. Views and statistics for any redistributed TV Apps will show up in the appropriate TV Platform category (e.g., Roku, Android TV, Apple TV) in Customer’s “Media Stats Center” in Customer’s Account. Customer acknowledges, agrees, and fully understands that: (i) each TV Platform has the ability and objective to increase viewership of content on such TV Platform, including Customer’s TV Apps on such TV Platform; (ii) any such increase in viewership will always result in an increase of bandwidth usage for the applicable content, i.e., an increase in Video Minute usage for Customer’s applicable TV Apps; and (iii) accordingly, Customer may need to upgrade to a Service Package with additional Video Minutes or otherwise purchase additional Video Minutes so that Customer has sufficient Available Video Minutes.

(d) Customer Content Distribution. Customer is solely responsible for, and shall indemnify and hold Lightcast.com harmless from, any loss or damage resulting from any Distribution Services for, or any other Distribution of, any Customer Content on any Third-Party Services, including any Customer Content in any TV Apps or other Branded Apps.

5.3 Advertising Campaigns. If Customer purchases any advertising services from Lightcast.com hereunder (including any Service Package that includes advertising services), as set forth in an Order, then the following additional terms in this Section will apply to such Services or Implementation Services. To the extent specified in the applicable Order, after Customer’s specific request therefor during the applicable Order Term, and then solely after Customer’s provision of all applicable banner artwork in the required formats, ad texts, ad titles, target URLs, and information about targeting preferences, Lightcast.com will create and manage paid search and display ad banner campaigns. Customer acknowledges and agrees that (a) the relevance of content and design of ad banners, as well as the quality and conversion optimization of the landing pages (e.g., target URLs) are leading factors in campaign results, such as click-through-rate and conversion rate, and (b) Lightcast.com cannot guarantee the results or effectiveness of the Services or Implementation Services to be performed hereunder, including any click-through-rates, costs-per-click, or conversion rates, or any other facet of a created or managed advertising campaign’s performance.

5.4 Development Services.

(a) Version Compatibility Generally. With respect to any Website, Branded App (including any Mobile App), and Customer App, Lightcast.com does not guarantee any downward compatibility with older versions nor any continuous upward compatibility (e.g., with changes in software or updates to the applicable platforms, operating systems, or devices). Subject to Customer’s payment of additional Fees therefor and the parties’ mutual agreement, after Customer’s written request to provide Implementation Services to make an applicable Website, Branded App, or Customer App compatible with one or more older or newer versions thereof, Lightcast.com will provide such Implementation Services to make the applicable Website, Branded App, or Customer App compatible with the versions specified in the applicable Order. Please note that Lightcast.com’s ability or willingness to provide such compatibility Implementation Services may depend on Customer’s requests, requirements, and preferences therefor.

(b) Website Development. If Customer purchases any Implementation Services for the development of a website (including a website that is a part of Lightcast.com’s “Web App”) from Lightcast.com hereunder (including any Service Package that includes any such website development services), as set forth in an Order, then the following additional terms in this Section will apply to such Implementation Services. Without limiting the generality of Section 5.4(a), any website developed hereunder as part of such website development services (each, a “Website”) will be compatible with the then-current version of the most significant operating systems and browsers on stationary devices, such as: Windows, OSX, Firefox, Google Chrome, and Safari. Unless otherwise expressly provided in the applicable Order, Lightcast.com will not provide ongoing Website development services to keep Websites compatible with updates or changes in or of operating systems or browsers. If set forth under an Order, Lightcast.com will (i) build mobile versions of each applicable Website, (ii) make applicable standard Websites compatible with certain older and newer browser versions (to the extent specified in the applicable Order), (iii) make device-responsive versions of applicable Websites for certain mobile platforms such as iOS, Android, or Windows Mobile (to the extent specified in the applicable Order), (iv) provide support on Website functionality or the Media Cloud, or (v) provide additional web development. Prior to the finalization or Distribution of any Website, Customer will receive access to the Media Cloud and a mockup of each applicable Website that is to be developed as part of the website development services pursuant to an applicable Order (each, a “Mockup”). Customer must approve each Mockup, including the look and feel thereof, through Customer’s Account on the Platform prior to any finalization or Distribution of the applicable Website. Once the applicable Mockup is approved, Customer must also (A) submit a form to Lightcast.com signed by Customer stating that each applicable Website has been developed according to specifications and has been approved by Customer finalization, Distribution, and public release, or (B) otherwise approve the applicable Website for finalization, Distribution, and public release through Customer’s Account. Upon such approval, the applicable Website and the finalization, Distribution, and public release thereof is non-cancellable and, provided that Customer has paid all applicable Fees, Lightcast.com will Distribute and publicly release the applicable Website as specified in the applicable Order. For the avoidance of doubt, Lightcast.com will not (and has no obligation to) Distribute or publicly release any Website until Customer has approved the applicable Mockup and the finalization, Distribution, and public release thereof (in each case). Customer acknowledges that Lightcast.com’s ability to successfully perform the website development services is contingent upon Lightcast.com’s receipt from Customer of such approvals. Accordingly, Lightcast.com will not be deemed in breach of this Agreement (or any Order) and will have no liability to Customer for failure to perform, a delay in performance of, or any other deficiencies in, the website development services or for damages resulting from Customer’s failure to provide any such approvals. Customer further acknowledges and agrees that solely Customer shall be liable and responsible for (and Lightcast.com shall not in any way be liable or responsible for) any changes made by Customer to any Website following its finalization, Distribution, and public release thereof, including any malfunctions or other issues or damages resulting from any such changes.

(c) Mobile App Development. If Customer purchases any Implementation Services for the development of any mobile applications (e.g., iOS or Android apps) (each, a “Mobile App”) from Lightcast.com hereunder (including any Service Package that includes such mobile app development services), as set forth in an Order, then the following additional terms in this Section will apply to such Implementation Services. Without limiting the generality of Section 5.4(a): (i) any Android Mobile App developed hereunder will be compatible with the then-current Android operating system version and common, market standard Android devices at the time the applicable Mobile App is submitted to the applicable app store (e.g., Google Play), and (ii) any iOS Mobile App developed hereunder will be compatible with the then-current generation of iOS devices at the time the applicable Mobile App is submitted to the applicable app store (e.g., Apple’s App Store). Unless otherwise expressly provided in the applicable Order, Lightcast.com will not provide ongoing Mobile App development services to keep Mobile Apps compatible with releases, changes in operating systems (e.g., future Android or iOS releases), changes in software related thereto, or updates to the applicable Mobile App platform.

(d) Sponsored Services. Except as otherwise provided in Section 6.6 below: (i) each Sponsorship and all Sponsored Services shall be and remain non-transferrable and personal to the particular recipient specified in the applicable Order, solely for such recipient’s benefit; (ii) Sponsorships and Sponsored Services have no cash value and cannot be redeemed for cash; and (iii) the full scope of work for any development Sponsored Services is limited to the initial development phase, number of channels, and features as described in the applicable Order. Customer acknowledges and agrees that any extensions or changes to such Sponsored Services as mutually agreed upon will be billed to Customer at the Standard Fees therefor, unless otherwise mutually agreed in writing. Customer shall not, and shall not permit any User or other third party to, sell, lease, license, sublicense, or otherwise transfer any Sponsorship or Sponsored Services to any third party, or attempt to do any of the foregoing (including as a promise in exchange for compensation or other consideration or as part of any transaction exchanging compensation or other consideration for any Sponsorship or Sponsored Services).

(e) Development Hours. With respect to any Implementation Services for the development of websites or applications (including Websites and Branded Apps), unless all applicable specifications, requirements, graphics, and reference websites or applications are specified by Customer in detail and delivered to Lightcast.com in advance, Lightcast.com will have full creative liberty to make the most out of the applicable Implementation Services development hours purchased under the applicable Order. Unless otherwise provided in the applicable Order, for all development Implementation Services, Customer will be charged on a time and materials basis and shall pay in full such agreed upon amounts in advance of any applicable Implementation Services. Customer may need to purchase additional prepaid development hours on as-needed basis (e.g., for changes or modifications to the Implementation Services requested by Customer, for delays in performance caused by Customer), subject to the parties’ mutual agreement, and to the extent any development Implementation Services incur in excess of such agreed upon hours set forth in the applicable Order, Customer shall pay Lightcast.com for any such excess hours. Except for Sponsored Apps (defined below) Lightcast.com commits to full transparency of such Implementation Services and will provide Customer with access to the applicable development Implementation Services’ project overview with a real-time reflection of the entire scope of work of such project, broken down in tasks and the detailed usage of purchased development hours and the balance of remaining development hours. Additionally, during the applicable Order Term, Customer may reasonably request in writing that Lightcast.com provide Customer with (i) a report specifying how such development hours are being used, or (ii) a document detailing the specifications applicable to the particular features, functionalities, and designs requested by Customer in such written request. For the avoidance of doubt, unless expressly provided otherwise herein or in the applicable Order, the creation of any initial layouts, Mockups, or other versions of websites or applications (including Websites and Branded Apps) as part of any Implementation Services purchased under an Order are not considered “pro bono” services or previews, nor created free of charge, but are a part of such Implementation Services and Customer shall pay for all such Implementation Services as set forth herein (e.g., the time and materials for any such development will be counted against, and thus deducted from, the applicable development hours prepaid by Customer therefor). Lightcast.com strongly recommends that Customer deliver to Lightcast.com all applicable specifications, requirements, graphics, and reference websites or applications prior to Lightcast.com’s commencement of any development Implementation Services.

(f) Advertising on Sponsored Apps. For any Branded App developed under this Agreement that (i) Customer has not paid a fee specifically for the development of such Branded App, (ii) is a part of any Sponsorship or Sponsored Services, or (ii) the development services for such Branded App were otherwise provided at no cost to Customer (e.g., free development services were provided as a special offer or as a free component of a Service Package) (collectively, “Sponsored Apps”), Lightcast.com may, at its sole discretion, place ads on each and any such Sponsored App unless and until such Sponsored App becomes a Purchased App, if applicable.

(g) Buyout of Branded Apps; Purchased Apps. If the applicable Order specifies that there is a Buyout Fee Option for Branded Apps (i.e., the applicable box is checked ‘Yes’), then the following additional terms will apply to the applicable Branded Apps.

(i) Buyout Fee; Purchased App License. At any time during the Term, Customer can request a quote from Lightcast.com for the purchase of a perpetual, “as is” license to the file package of the Branded App, and following such a request from Customer, Lightcast.com will notify Customer in writing (email or electronic message via Customer’s Account on the Platform suffices) of the applicable fee for such license (“Buyout Fee”). If Customer pays Lightcast.com the applicable Buyout Fee in full by the due date specified in such notice, or if no such date is specified, within a reasonable time after the date of Lightcast.com’s notice, then Lightcast.com will deliver the file package of the applicable Branded App (after Customer’s timely, full payment of the Buyout Fee, the “Purchased App”), and upon such delivery, subject to the terms and conditions of this Agreement and any additional or different terms that Lightcast.com may specify at such time, Lightcast.com will grant to Customer a non-exclusive, non-transferable, non-sublicensable, worldwide license to use the Purchased App (excluding in all cases any of the following embodied or incorporated therein: Technology, Lightcast.com Background Rights, Lightcast.com Confidential Information, Improvements to or of each and any of the foregoing, and all Intellectual Property Rights in or to any of the foregoing) for the purposes set forth in the applicable Order for the underlying Branded App or, if no purpose is specified, for any legal purpose. Customer may not: (a) sublicense, lease, sell, rent, loan, or otherwise transfer the Purchased App (or any Technology or Lightcast.com Background Rights, Confidential Information, Improvements, or Intellectual Property Rights) to any third party; (b) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code or method of operation of the Purchased App (or any Technology or Lightcast.com Background Rights, Confidential Information, Improvements, or Intellectual Property Rights); or (c) otherwise use or copy the Purchased App (or any Technology or Lightcast.com Background Rights, Confidential Information, Improvements, or Intellectual Property Rights) except as expressly allowed in this Section or a separate written agreement with Lightcast.com.

(ii) Purchased App Disclaimer. Notwithstanding anything to the contrary in this agreement or elsewhere: (a) Lightcast.com has no obligation to retain customer content used with any purchased apps; (b) Lightcast.com’s cumulative liability relating to any purchased apps, and any use of the services or implementation services in connection therewith, is limited to direct damages in an amount not to exceed the greater of (1) $100, and (2) the amount customer actually paid for the applicable purchased apps; (c) all purchased apps are provided “as is” and Lightcast.com hereby disclaims all warranties, whether express, implied, statutory, or other, and Lightcast.com specifically disclaims all implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement, and all warranties arising from course of dealing, usage, or trade practice; and (d) without limiting the foregoing, Lightcast.com makes no warranty of any kind that the purchased apps, or any products or results of the use thereof, will meet customer’s or any other person's requirements, operate without interruption, achieve any intended result, be compatible or work with any software, system, or other services, or be secure, accurate, complete, free of harmful code, or error free. Customer shall defend, indemnify, and hold harmless the Lightcast.com Parties from and against any and all claims, actions, suits, judgments, demands, liabilities, damages, losses, costs, and expenses (including payment of reasonable attorney’s fees) arising from, asserted to arise from, in connection with, or related in any way to any Purchased Apps, including, without limitation: any use thereof or access thereto by Customer or any third party; or any actual or alleged infringement, misappropriation, or violation of any Intellectual Property Rights or any other Law by any Purchased Apps or any use or provision thereof or access thereto.

5.5 Lightcast.com CDN. Customer acknowledges and agrees that it is expressly prohibited to, and Customer shall not and shall not permit any User or other third party to: (a) use any media files (including Customer Media) that are or have been stored on Lightcast.com’s content delivery network (CDN) in any (i) third-party players, or (ii) applications that have not been approved by Lightcast.com, in each case without obtaining Lightcast.com’s prior written approval therefor; or (b) deep link to any media files (including Customer Media). The intent of this prohibition is to help ensure that all applicable direct-links or feeds are integrated correctly so as to better facilitate a positive user-experience for Customer’s viewers. If Customer needs assistance with the provision of media files or feeds, or with certain web or app development services, Customer should reach out to Lightcast.com to discuss entering into an Order for same.

5.6 Hardware and Servers.

(a) Hardware Seal. Any hardware provided to Customer hereunder (including the Lightcast.comerXD Hardware Encoder) (“Hardware”) shall remain the sole and exclusive property of Lightcast.com or its suppliers. If the Hardware is damaged by Customer or any User, Lightcast.com reserves the right to invoice Customer, and Customer shall pay, for all necessary repairs or replacements of the damaged Hardware. Customer shall not, and shall ensure its Users do not, open or manipulate the Hardware. The Hardware case will be sealed upon dispatch. It is solely Customer’s responsibility to verify that the Hardware case is sealed upon delivery and its receipt thereof and to notify Lightcast.com immediately if the Hardware case seal is broken or breaks. Notwithstanding anything to the contrary, if the Hardware case seal breaks after dispatch, any warranties for the Hardware and any Lightcast.com liabilities or obligations arising therefrom or related thereto shall be immediately null and void the moment the seal is broken.

(b) Hardware Performance. Upon Customer’s discovery of any irregularities in the Hardware’s performance (including any software therein), Customer shall be available via phone and email for necessary troubleshooting. Customer shall submit all reports of issues with, or irregularities in the performance of, the Hardware to Lightcast.com, which reports must include photos taken of the Hardware around such time. In case consistent Hardware issues cannot be resolved remotely, the Hardware will be picked up by a shipping carrier designated by Lightcast.com and will be investigated by Lightcast.com. If any damage to the Hardware caused be external forces, water, or heat is discovered, Lightcast.com reserves the right to charge Customer, and Customer shall pay, for the costs and expenses of replacing the Hardware and any shipping costs related thereto.

(c) Server Infrastructure. Like any other server infrastructure, Lightcast.com’s server hardware or other components of its infrastructure may become subject to temporary outages, notwithstanding that Lightcast.com has a server infrastructure that is designed to be one of the most reliable and stable server infrastructures, and uses content delivery networks with numerous backup and security measures in place. Accordingly, Customer acknowledges and agrees that Lightcast.com shall not be held responsible for loss or damage of virtual or physical property, reputation, or revenue of Customer, its Affiliates, or third parties of any kind, due to any temporary outages in or resulting from server hardware or server infrastructure.

6. FEES AND PAYMENT TERMS

6.1 Price. Customer shall pay Lightcast.com the fees set forth in the applicable Order (“Fees”) in accordance with the terms thereof and of this Agreement. Fees are exclusive of, and Customer shall pay all, taxes, fees, duties, and other governmental charges arising from the payment of any Fees or other amounts owed to Lightcast.com under this Agreement (excluding any taxes arising from Lightcast.com’s income or any employment taxes). Fees for any Services or Implementation Services requested by Customer that are not set forth in an applicable Order will be charged as mutually agreed to in advance by the parties in writing. After the Initial Term and no more than once annually thereafter, Lightcast.com may adjust its pricing under this Agreement upon 30 days’ prior written notice to Customer.

6.2 Payment. Payments are due as specified in the Order. If Customer disagrees with any Fees charged, Customer must notify Lightcast.com of the dispute within 14 days after receipt of the charge. If Lightcast.com does not receive notice of a dispute during such 14-day period, Customer will be deemed to have accepted the Fees. All payments received by Lightcast.com are non-refundable except as otherwise expressly provided in this Agreement. Customer shall make all payments in United States dollars. If Lightcast.com requires use of collection agencies, attorneys, or courts of law for collection of Customer’s account, Customer will be responsible for those expenses.

6.3 Payment Card Authorization. If Customer has specified a credit card or debit card (excluding pre-paid credit cards and pre-paid debit cards, which are not accepted hereunder) as an applicable payment mechanism under this Agreement (each, a “Payment Method”), Customer hereby grants Lightcast.com the right to charge the applicable Payment Method for all Fees incurred under this Agreement. Unless otherwise stated in the applicable Order, Lightcast.com will charge (and Customer hereby authorizes Lightcast.com to charge) the applicable Payment Method for: (a) all applicable Fees as of the date the applicable invoice is generated; (b) all applicable Fees for each applicable billing frequency otherwise specified in the applicable Order (e.g., the applicable Billing Cycle); (c) all applicable Fees for any applicable renewal Subscription Term on the Renewal Date; and (d) the amount of any past due Fees, plus late charges, if any, due to Lightcast.com under this Agreement. Customer agrees that: (i) all information regarding Payment Methods that Customer provides will be accurate, current, and complete; (ii) Customer will maintain and promptly update its Payment Method information to keep it accurate, current, and complete; (iii) Customer shall ensure it maintains at least one permitted Payment Method that is sufficiently funded (e.g., a credit card with a sufficiently high credit limit) to timely pay all Fees hereunder; and (iv) Customer shall notify Lightcast.com promptly regarding any changes to Customer’s preferred Payment Method. Notwithstanding anything to the contrary, pre-paid credit cards and pre-paid debit cards are not acceptable methods of payment hereunder. Lightcast.com and its Payment Method processor may retain Customer’s Payment Method information for purposes of this Section 6.3.

6.4 Grace Period; Reactivation Fees. Should Customer’s payment fail (or Lightcast.com’s or its payment processor’s charge of the applicable Payment Method, as specified above fail), Lightcast.com or its payment processor will automatically retry to process the most up-to-date Payment Method on file several times following a 21-day grace period (“Grace Period”), until such payment or charge, as applicable, succeeds. During this Grace Period, Lightcast.com’s automated accounting system regards the payment as “pending”, and such system will send out payment failure notifications to Customer with a request to cure same. During the Grace Period, Customer will have the opportunity to free up necessary credit line on a Payment Method card, for example, or call Lightcast.com with updated Payment Method information, at no additional costs or fees. Should the payment failure issue become resolved within the Grace Period, Customer will incur no penalty, re-activation, or additional processing fees related to such payment failure; however, once the Grace Period expires, Lightcast.com’s accounting system will automatically deactivate Customer’s Account (including all Customer Content such as Customer’s streams and channels) and notwithstanding Section 5.1(a) or anything to the contrary, will remove any remaining Available Video Minutes (e.g., bandwidth left over from Customer’s previous payment cycle), in order to prevent further charges for bandwidth, Video Minutes, or other Services used. Accordingly, Customer Content will become unavailable (including in embedded video and audio players on Customer Websites, social sites, Mobile Apps, TV apps, etc.). Once Customer’s Account is deactivated, to access or otherwise make Customer’s Account and any such Customer Content available, Customer must reactivate Customer’s Account and all Customer Content, for which Customer must pay the then-current reactivation fee at the time of such reactivation. By reactivating Customer’s Account, Customer hereby authorizes Lightcast.com to charge, and Lightcast.com will charge, the applicable Payment Method for the applicable reactivation fee and the amount of any pending or otherwise past due Fees, plus late charges, if any, due to Lightcast.com under this Agreement. On or after the 9th day after the Grace Period (i.e., 30 days after the unresolved payment failure), Lightcast.com will send correspondence to Customer notifying it of further action, which may result in a processing fee charged to Customer for each letter sent (electronic or standard mail). On the 19th day after the Grace Period (i.e., 50 days after the unresolved payment failure): (a) the full amount of any pending, overdue, or otherwise remaining or outstanding Fees, plus late charges, if any, due to Lightcast.com hereunder will immediately become due and payable; (b) all Fees for the remainder of the Term will immediately be accelerated and become due and payable; and (c) all of the foregoing amounts described in subparts ‘(a)’ and ‘(b)’ (collectively, the “Accelerated Fees”) may be collected by or on behalf of Lightcast.com (through legal action or otherwise).

6.5 Charge-Backs.

(a) Implications. If a Payment Method provider charges back, otherwise debits, or offsets from any amounts owed, any Fees or other amounts paid or otherwise credited to Lightcast.com hereunder (each, a “Charge-Back”), Customer hereby authorizes and consents to Lightcast.com taking the following actions as well as pursuing any other remedy that may be available at law or in equity. Customer acknowledges and agrees that: (i) any Charge-Back may be fought by or for Lightcast.com; (ii) any Charge-Back may result in (A) the immediate termination of Customer’s Account, Services or Implementation Services, or any access to or use of any of the foregoing or of any Customer Content (by Customer or any third party, including its paid subscribers (if any)), (B) the removal of Customer Media (including uploaded and transcoded media files), apps from app stores (including, Branded Apps and Customer Apps), or Customer websites (including Websites) or other Customer Content (including digital assets and files) hosted by Lightcast.com; (iii) any Charge-Back may result in immediate loss of all Customer Content (including uploaded media assets and of all publishing properties developed or hosted by Lightcast.com or any of its Affiliates); (iv) the removal of Branded Apps or Customer Apps from app stores may result in indefinite banning from the respective app stores; (v) access to Customer’s Account, the Platform (including the Media Cloud), EasyPay, and any user interfaces (e.g., for Subscribers, Donors, or other third parties) may be denied, terminated, or suspended until all Charge-Backs have been resolved to Lightcast.com’s satisfaction and until all outstanding Fees and charges hereunder (e.g., pending or past due Fees, accelerated Fees, Charge-Backs, reactivation charges (including applicable processing and correspondence charges described about)) have been paid in full to Lightcast.com; and (vi) upon a Charge-Back, all Accelerated Fees will immediately be accelerated and due and payable, and may be collected by or on behalf of Lightcast.com (through legal action or otherwise).

(b) Correspondence. All correspondence, including emails, support tickets, uploads, forms, and other Services used by or for Customer or within Customer’s Account, may be used as proof of use of service, illegitimate cancelation claims, or fraudulent actions or omissions (actual or attempted). Referring to alleged “cancelations” of Orders or this Agreement, provides no proof nor basis for a Charge-Back as this Agreement and each Order can only be terminated as set forth herein. Additionally, in the event that Customer has received payment hereunder for fraudulent activities, Customer will promptly reimburse Lightcast.com for any such amounts paid in relation thereto (including payouts of Eligible Amounts or portions thereof).

6.6 Sponsorship. Lightcast.com may (but is not required to) offer to Customer an abatement of Fees (“Sponsorship”) for certain Implementation Services hereunder (“Sponsored Services”); provided that each Sponsorship for Sponsored Services is subject to, and expressly conditioned upon, Customer’s strict compliance with the conditions of such Sponsorship specified herein, in the Order, or in any additional terms accompanying Lightcast.com’s offer for such Sponsored Services (“Conditions of Sponsorship”). For any Sponsored Services, the applicable Order will identify the particular Sponsored Services, the Sponsorship therefor, and the then-current amounts typically charged by Lightcast.com for such Sponsored Services (“Standard Fees”). If at any time Customer fails to strictly comply with the Conditions of Sponsorship, Lightcast.com will be entitled to immediately demand from Customer, and Customer shall promptly pay upon its receipt of such demand, an amount equal to the aggregate total of all applicable Standard Fees subtracted by: the total amount Customer has actually paid Lightcast.com for such Sponsored Services, or if no payment has been made for such Sponsored Services, $0 (i.e.., upon failure to strictly comply, Customer will owe all Standard Fees for such Sponsored Services, and the Sponsorship will be null and void). Moreover, Lightcast.com’s offer and provision of Sponsored Services (if any) is expressly conditioned on Customer timely paying all applicable Fees in accordance with this Section 6 for all for-charge Services and Implementation Services hereunder for which no Sponsorship has been offered or provided (collectively, “Full-Charge Services”). Notwithstanding anything to the contrary, if Customer receives any Sponsored Services: (a) all Fees for Full-Charge Services are in all circumstances non-refundable; (b) Customer may not withhold, reduce, or offset any Fees for Full-Charge Services owed to Lightcast.com under this Agreement against any amounts due to Customer; and (c) Customer may not reduce the Fees for Full-Charge Services payable under any Order or any limitations set forth in any Order during the Order Term.

6.7 Guarantor. By entering the name of an individual as the personal guarantor under an applicable Order (“Guarantor”), Customer represents and warrants to Lightcast.com that Customer has the authority to bind that Guarantor to the applicable portions of such Order and this Agreement. If Customer does not have such authority, or the Guarantor does not agree to be bound by the applicable portions of such Order and this Agreement, do not enter such Guarantor’s name as the personal guarantor for the Order.

6.8 Subscriptions. Lightcast.com may offer access to the Services (or portions thereof) on a subscription basis (each, a “Subscription”), the terms of which will be set forth in the relevant offer. To purchase a Subscription to the Services (or portions thereof) (each, a “Paid Subscription”), Customer must provide a valid payment method. Customer will be billed in advance on a recurring and periodic basis for Customer’s Paid Subscription base rate (“Billing Cycle”) and each such Billing Cycle will be the same duration and period as Customer’s applicable Subscription Term. Notwithstanding the foregoing, to the extent specified in the offer details, each plan is subject to additional monthly charges based on usage during such month (e.g., for the number of video minutes submitted to the Platform for streaming during the month) (“Additional Monthly Charges”). Upon renewal of any Subscription, if Lightcast.com does not receive payment, (a) Customer agrees to pay all Fees and charges, including Subscription fees and Additional Monthly Charges, due on Customer’s account upon demand, and (b) Customer agrees that Lightcast.com may either terminate or suspend Customer’s Subscription and continue to attempt to charge Customer’s payment method(s) until payment is received (upon receipt of payment, Customer’s Subscription will be reactivated and Customer’s next Subscription Term will begin on the date of such payment). Lightcast.com may change its Subscription models and pricing at any time. Lightcast.com will provide Customer with notice of such changes.

6.9 Free Trials and Discounts. Lightcast.com may offer a free-trial or discounted Subscription which automatically converts to a Paid Subscription after a certain period of time (each, a “Trial Subscription”). In such instances, Customer can disable the automatic conversion by following the cancellation instructions set forth in Section 6.12 prior to the date of conversion. Unless otherwise set forth in the terms of any promotion, all pricing promotions or discounts (including free trials) will apply only to the initial Subscription Term of the Subscription, and any Subscription renewals will be charged at the non-discounted rate then in effect for the type of Subscription plan purchased. For clarity, when the initial Subscription Term of Customer’s Trial Subscription ends, Customer’s Paid Subscription begins (unless Customer has cancelled Customer’s Trial Subscription in accordance with Section 6.12) and Customer must pay the full Fees, as applicable, at Lightcast.com’s then-current price for the Paid Subscription Plan selected as part of Customer’s Trial Subscription (whether Customer’s Trial Subscription was provided to Customer for free or at a discounted rate). If Lightcast.com provides a discount for the first Subscription Term, Customer must pay the discounted Fees for that Subscription Term; however, in any renewal Subscription Term, Customer must pay the full Fees, as specified above in this Section 6.9.

6.10 Automatic Renewal.A Subscription will continue for the length of Customer’s selected Paid Subscription plan or the length of Customer’s Trial Subscription as specified in the offer details, as applicable (each, a “Subscription Term”). To the extent permitted by applicable law, after Customer’s initial Subscription Term, and again after any subsequent renewal Subscription Term, Customer’s Subscription will be automatically renewed on the first day following the end of such Subscription Term (each, a “Renewal Date”), and unless otherwise specified in the applicable Order, will continue for an additional 12-month Subscription Term, under the same terms and conditions (unless Customer has upgraded or downgraded its Subscription plan during the Subscription Term, in which case Customer’s Subscription will be automatically renewed under the same terms and conditions as such upgraded or downgraded plan (as applicable), rather than Customer’s initial plan), and at Lightcast.com’s then-current price for such Subscription (unless Customer upgrades or downgrades its Subscription plan, or cancels its Subscription in accordance with, and subject to, the cancellation terms set forth in Section 6.12 below). Customer agrees that Customer’s account will be subject to this automatic renewal feature unless Customer cancels Customer’s Subscription at least 30 days prior to the Renewal Date. Customer’s payment method will be charged at the beginning of each Subscription Term on the Renewal Date. If Customer signs up for a Trial Subscription, Customer’s payment method will be charged at the end of the Subscription Term of such Trial Subscription unless Customer cancels before the end of that Subscription Term. To pause or cancel a Subscription, Customer shall follow the cancellation instructions in Section 6.12 below.

By purchasing or otherwise signing up for any Subscription, Customer acknowledges that Customer’s Subscription (including the purchase of Customer’s Paid Subscription):

• Is subject to automatic renewal;
• Will be automatically extended for successive periods and will continue until Customer cancels the Subscription in accordance with Section 6.12; provided that if Customer upgrades or downgrades its Subscription plan during a Subscription Term in accordance with the terms of Section 6.11, the Subscription will continue under the terms of the upgraded or downgraded plan, as applicable, until the Subscription is cancelled as set forth in Section 6.12;
• Has an initial (except with respect to free portions of Trial Subscriptions) and recurring payment feature and Customer accepts responsibility for all recurring charges prior to cancellation of the automatic renewal of Customer’s Subscription or the conversion of Customer’s Trial Subscription to a Paid subscription, as applicable; and
• Is subject to automatic charges on Customer’s Payment Method(s).

6.11 Upgrading or Downgrading Subscription Plans. Customer may request to upgrade or downgrade its Subscription plan at any time prior to the Renewal Date by contacting Lightcast.com via email at customercare@lightcast.com and requesting in such email that Lightcast.com upgrade or downgrade Customer’s Subscription, as applicable, to a particular plan, which Customer shall specify in reasonable detail. Except as otherwise specified in the applicable Order:

(a) Upgrades. Any such upgrade of Customer’s Subscription will be effective either immediately or at the end of the then-current Billing Cycle; provided that Customer has paid all applicable Fees related to the Subscription plan upgrade in full, including the setup fee for the upgraded plan (e.g., an upgraded Service Package). For clarity, if Customer upgrades during the first 30 days of a Subscription Term, the setup fee for the upgraded Subscription Plan will be an amount equal to the upgraded plan setup fee less the setup fee already paid by Customer (if any) for its then-current Subscription plan; and if Customer upgrades after the first 30 days of a Subscription Term, the setup fee for the upgraded Subscription Plan will be an amount equal to the full upgraded plan setup fee.

(b) Downgrades. Any such downgrade of Customer’s Subscription will be effective on the upcoming Renewal Date. No downgrade will take effect during the then-current Subscription Term in which the downgrade request is made and are subject to Customer’s payment of all Fees then due. This is due to Lightcast.com’s upfront and continued investment into development features, such as, Branded Apps or other Services or Implementation Services which require setup and development, as well as the general costs involved in making changes to a Subscription plan; which investment generally takes Lightcast.com at least 1-2 years to recoup. If Customer downgrades its Subscription plan, Customer may use the then-current plan (i.e., the non-downgraded plan) until the end of the applicable Subscription Term; thereafter, on the Renewal Date, Customer will only have access to the downgraded Subscription plan.

6.12 Cancellation. Subject to the terms of this Section 6, Customer may cancel Customer’s Subscription at any time at least 30 days’ prior to the Renewal Date by contacting Lightcast.com via email at customercare@lightcast.com and requesting in such email that Lightcast.com cancel Customer’s Subscription. Cancellation of Customer’s Subscription will be effective at the end of the then-current Subscription Term. If Customer cancels Customer’s Subscription, Customer may use it until the end of the applicable Billing Cycle. Customer’s Subscription will not be renewed after Customer’s cancellation. Customer will not be eligible for a prorated refund of any portion of the Subscription Fees or Additional Monthly Charges paid for the then-current Subscription Term.

6.13 EasyPay Payment Processing Service.

(a) EasyPay. Lightcast.com’s multi-platform authentication and payment processing service (“EasyPay”) may be offered to Customer Users for the purpose of processing Subscription Payments or Donations. For purposes of this Agreement, a “Subscription Payment” means a payment of fees (as determined by Customer) via EasyPay by a third party for a subscription to multi-platform access of certain Customer Content or Branded Apps on Third-Party Streaming Services (each such third party, a “Subscriber”); and a “Donation” means a payment via EasyPay by a third party of a pledge to donate a certain amount of money (as determined by the third party) to access or subscribe to certain Customer Content or Branded Apps on Third-Party Streaming Services (each such third party, a “Donor”), or to support the organization..

(b) Transaction Costs. Except as otherwise provided in an Order or on the Platform: transaction costs for Donation processing range between 4% and 8% of the net Donation amount; and transaction costs for Subscription Payment processing range between 20% and 30% of the net Subscription Payment amount. The recommended minimum transaction amount is $4.99/month (e.g., for net 80% of the total subscription revenue, with only 20% going towards transaction processing costs and subscriber management system). Each time Customer reduces a Subscriber’s monthly subscription price, EasyPay may withhold at least an additional $1.00 from each subsequent Subscription Payment for purposes of covering applicable costs (e.g., transaction processing, credit card, charge-back, support, and subscriber management system costs).

(c) Payout Eligibility. Subject to this Section 6.13 and any additional terms and conditions applicable to EasyPay set forth in an Order or on the Platform, after the applicable 30-day period immediately following a Subscription Payment or Donation in which Lightcast.com ensures that all payments are valid (e.g., proper credit card authorization, proper check clearing, completed debit card transactions) (the “Clearing Period”), Customer will be eligible to request a payout of the applicable portion of the cleared amounts for each such Subscription Payment and Donation (“Eligible Amount”) until the earlier of (i) the date of the termination or expiration of this Agreement, and (ii) the date that is 6 months after the date the applicable Subscription Payment or Donation was processed through EasyPay (“Transaction Date”) (from the day after the end of the Clearing Period to whichever date of ‘(i)’ and ‘(ii)’ occurs earlier, the “Eligibility Period”). Notwithstanding the foregoing, all applicable charges for fund transfers (e.g., PayPal® charges resulting from a transfer of Eligible Amounts from Customer’s account on Crosstribution.com to its PayPal® account) will be deducted from the Eligible Amount. Any canceled credit card charges, denied credit card charges, returned checks, or refunds determined necessary pursuant to the sole authority of Lightcast.com are considered Charge-Backs to an EasyPay account and will be subtracted from the value of Customer’s original Eligible Amount payout payment.

(d) Payout Requests. During the Eligibility Period, Eligible Amounts will appear in Customer’s dedicated Crosstribution account in the form of cross.credits (“EasyPay Credits”), as well as in USD, EUR, GBP, CHF, and/or YEN; provided that, subject to Customer’s eligibility, Customer would only be entitled to request one of the foregoing options as a payout of Eligible Amounts (e.g., if eligible, Customer could request the Eligible Amounts in USD or EasyPay Credits, but not both). Each Eligible Amount will only be available for payout during the applicable Eligibility Period while Customer’s Account is active. The termination of Customer’s Account or Customer’s account on Crosstribution.com may result in the expiration of Eligible Amounts. Customer is fully responsible for requesting payouts in time (i.e., within the Eligibility Period and prior to the termination of Customer’s Account or Customer’s account on Crosstribution.com). To avoid forfeiting Eligible Amounts, payouts of Eligible Amounts must be requested by Customer pro-actively during the Eligibility Period and in accordance with this Agreement, and such payout requests will be processed according to the terms of this Agreement and Crosstribution.com. Specifically, in order to receive a payout of any Eligible Amounts, Customer must initiated a request via the Customer’s account on Crosstibution.com

7. TERM AND TERMINATION; SUSPENSION.

7.1 Term. This Agreement commences on the Effective Date and continues in effect until all Orders have expired or been terminated (the “Term”).

7.2 Order Term. The initial term of an Order begins on the date set forth in the Order and continues for the period set forth in the Order, or if not specified therein, for a period of 3 years (each, as applicable, the “Initial Term”). Each Order will automatically renew for additional 12-month periods (each, a “Renewal Term,” and together with the Initial Term, the “Order Term”), unless a party gives the other party written notice of its intent to not renew such Order at least 30 days prior to the end of the then-current Order Term.

7.3 Termination for Convenience. Subject to Lightcast.com’s prior written approval and Customer’s payment of Accelerated Fees as set forth in this Section 7.3, Customer may terminate this Agreement (including each Order then in effect) at any time for convenience by giving Lightcast.com at least 30 days’ prior written notice. Customer acknowledges and agrees that if Customer terminates this Agreement for convenience pursuant to this Section 7.3, unless otherwise expressly provided in the applicable Order or this Agreement: (a) an amount equal to all Accelerated Fees under this Agreement (including each Order hereunder) multiplied by 75% will immediately become due and payable (“Discounted Accelerated Fees”); (b) Customer will pay Lightcast.com all such Discounted Accelerated Fees by the effective date of termination of this Agreement, and if not paid in full by such date, Customer hereby authorizes Lightcast.com to charge (and Lightcast.com will charge) the Payment Method on the effective date of termination for the outstanding amount of all Discounted Accelerated Fees; and (c) Customer will not be entitled to any refund of any kind (including for any prepaid unused fees).

7.4 Termination for Cause. A party may terminate this Agreement or any outstanding Order upon written notice if the other party breaches any material provision of this Agreement or such Order, respectively, and such breach: (a) is incapable of cure; or (b) is capable of cure, and is not cured within 30 days after being provided with written notice of such breach from the non-breaching party.

7.5 Effects of Termination. Upon any expiration or termination of this Agreement and all Orders: (a) all amounts owed to Lightcast.com under this Agreement (including any Orders) before such expiration or termination will be due and payable in accordance with Section 6; (b) Customer’s rights granted in this Agreement will immediately cease (except with respect to any perpetual license to Purchased Apps hereunder); (c) Customer shall promptly discontinue, and shall cause each User to promptly discontinue, all access to and use of the Platform, Software, Services, Lightcast.com Content, Developer Tools, and Branded Apps (except Purchased Apps) and Customer shall return or erase all copies of Documentation in Customer’s (or any User’s) possession or control and all tangible embodiments of any Lightcast.com Content, Developer Tools, or Branded Apps (except Purchased Apps) in Customer’s (or any User’s) possession or control and all copies thereof; and (d) Lightcast.com shall promptly return or erase all Customer Content, except that Lightcast.com may retain Customer Content in Lightcast.com’s archived backup files. Sections 1, 2.2, 2.4, 2.6(a), 2.7, 2.8, 3.3, 3.4, 3.6, 5, 6.1, 6.2, 6.3, 6.4, 6.5, 6.6, 6.7, 6.13, 7.3, 7.5, 8.1, 9, 10.4, 10.5, 10.6, 11, 12, 13, and 15 shall survive any expiration or termination of this Agreement.

7.6 Suspension. Notwithstanding anything to the contrary in this Agreement, Lightcast.com may suspend Customer’s and each User’s access to and use of the Platform if Lightcast.com determines that: (a) there is a threat or attack on the Platform; (b) Customer’s or any Users’ use of the Platform poses a reasonable risk of harm or liability to the Technology, Lightcast.com, or any other customer or provider of Lightcast.com; and, if capable of being cured, Customer is not taking appropriate action to cure such risk; (c) Customer has breached Section 8.1 or Section 13; (d) Customer’s or any User’s use of or access to any Technology violates any Laws; or (e) Customer has failed to pay any undisputed amounts owed under this Agreement when due and has failed to cure such late payment within 10 days after Lightcast.com has provided Customer with written notice of such late payment. Lightcast.com shall use commercially reasonable efforts to provide Customer with notice of such suspension. Lightcast.com may suspend Customer’s and each User’s access to the Platform until the situation giving rise to the suspension has been remedied to Lightcast.com’s reasonable satisfaction. Lightcast.com’s suspension of Customer’s or its Users’ access to or use of the Platform will not relieve Customer of its payment obligations under this Agreement.

8. TECHNOLOGY.

8.1 Restrictions. The Platform, Software, Hardware, Documentation, Lightcast.com Content, Developer Tools, Services, Implementation Services, Branded Apps, Websites, Mockups, SDKs, APIs, interfaces, add-ons, templates, template frameworks, graphics, feeds, content URLs, StreamIDs, ServerURLs, server integrations, and all software, hardware, data, databases, information, and all other technology comprising the foregoing or used by or on behalf of Lightcast.com to provide the foregoing (collectively, the “Technology”), constitute the valuable Intellectual Property Rights of Lightcast.com or its licensors. As an express condition to the rights granted to Customer under this Agreement, Customer will not and will not permit any User or other employee, contractor, or third party to: (a) use or access the Technology or any portion thereof (i) for any purpose except as expressly provided in this Agreement and an applicable Order, (ii) in any manner that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party, (iii) in any unlawful, illegal, or unauthorized manner (including in any manner that violates any Law), (iv) in any manner that could damage, disable, overburden, or impair the Technology, or (v) to store or transmit any code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs, or Trojan horses; (b) modify, adapt, alter, translate, compile, or create derivative works from the Technology; (c) distribute, lend, loan, lease, license, sublicense, transfer, or make available the Technology, or any rights in or to the Technology, to any third party; (d) copy, publish, disclose, publicly display or perform, co-brand, frame, link to, or the Technology (including, using any part of the Technology to create fonts, icons, links, buttons, wallpaper, or unlicensed merchandise); (e) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, structure, design, or method of operation for the Technology; (f) circumvent or overcome (or attempt to circumvent or overcome) any security or authentication measures or other technological protection measures intended to restrict access to the Technology; (g) interfere (or attempt to interfere) in any manner with the operation of the Technology (including interfering, or attempting to interfere, with any user, host, system, or network thereof) or gain (or attempt to gain) unauthorized access to the Technology; (h) use automated scripts or processes to collect information from or otherwise interact with the Technology; (i) alter, obscure, or remove any copyright notice, copyright management information, or proprietary legend contained in or on any Technology; (j) forge headers or otherwise manipulate identifiers in order to disguise the origin of the Technology or any Branded Apps, Customer Content, Documentation, Lightcast.com Content, or Third-Party Services transmitted therethrough; (k) probe, scan, or test (or attempt to probe, scan, or test) the vulnerability of a system or network; or (l) permit any third party, other than the then-currently authorized Users to independently access or use the Technology. Customer and each User shall only use the Technology in accordance with this Agreement, any applicable technical and functional documentation Lightcast.com provides in connection with the Services or Implementation Services (as applicable), and any instructions provided by or on behalf of Lightcast.com. Lightcast.com may monitor use of or access to the Technology to verify compliance with the terms of this Agreement. Customer consents to, and shall obtain all necessary consents, permissions, and rights from each User for, all such monitoring and the use by Lightcast.com of all data and information collected through such monitoring. In addition to any other rights afforded to Lightcast.com under this Agreement, Lightcast.com reserves the right, but has no obligation, to investigate or take remedial or otherwise appropriate action against Customer (or any User) in its sole discretion if Customer or any User violates this Section 8.1. Such actions may include terminating Customer’s Account or each applicable User’s account and Account ID or reporting Customer or each applicable User to law enforcement authorities and cooperating with such authorities (e.g., in the prosecution of Users who have violated the terms of this Section). Lightcast.com shall have no liability to Customer (or any User) in the event that Lightcast.com takes any such action. Lightcast.com uses reasonable means to protect the security of the Platform, but Customer acknowledges that perfect security on the internet is impossible and that, as a result, Customer Content may be exposed in the event of a breach, and Lightcast.com hereby disclaims all liability arising from any such breach.

8.2 Modifications. Lightcast.com reserves the right, at any time, to update or modify the Technology or any portion thereof (including the Platform, Software, Services, Branded Apps and Lightcast.com Content) and will use commercially reasonable efforts to notify Customer 30 days in advance of any such update or modification; provided that no such update or modification will result in a material decrease in the functionality of the applicable Technology. In the event that any such update or modification results in new features being added to Customer’s then-current Service Package under an Order, Customer may contact Lightcast.com’s Customer Care team to pro-actively inquire about such features, even if they were not included in the applicable Order as of the Order’s effective date or are not yet displayed in the Control Center portion of Customer’s Account. Notwithstanding anything to the contrary, no refunds or credits will be provided for any unused Services or new features released as updates or modifications to existing Service Packages or Subscriptions.

9. PROPRIETARY RIGHTS.

9.1 Customer Media and Apps. Customer hereby grants Lightcast.com and its authorized representatives and contractors, during the Term, a non-exclusive, non-transferable (except as permitted by Section 15.3), worldwide, royalty-free right and license to do the following with Customer Media and Customer Apps (as applicable), in each case as set forth in the applicable Order: (a) stream and otherwise Distribute the applicable Customer Media to end users; (b) embed the applicable Customer Media on third-party websites and other Third-Party Services; (c) Distribute the applicable Customer Media and Customer Apps to Third-Party Streaming Services via Lightcast.com’s APIs or otherwise; (e) make the applicable Customer Media and Customer Apps available for download; (f) transcode the applicable Customer Media and Customer Apps; (g) generate stills (i.e., “thumbnails”) from the applicable Customer Media and Customer Apps to represent it; (h) automatically generate and display closed captions or subtitles from the applicable Customer Media and Customer Apps; and (h) alter or enhance the applicable Customer Media and Customer Apps as directed by Customer. If Customer has enabled a video privacy setting or disabled downloading or embedding, Lightcast.com will limit Distribution of the applicable Customer Media and Customer Apps pursuant to Customer’s selection. By enabling access to the applicable Customer Media or Customer Apps to any third party, Customer grants each such third party permission to stream, download, or embed (as applicable) such Customer Media or Customer Apps. For the purposes of this Section, Customer Media and Customer Apps include their titles, descriptions, tags, and other metadata.

9.2 Other Customer Content. As between the parties, Customer owns all right, title, and interest, including all Intellectual Property Rights in and to Customer Content and is solely responsible and liable for Customer Content. In addition to the license granted in Section 9.1, Customer hereby grants Lightcast.com and its authorized representatives and contractors, during the Term, a non-exclusive, non-transferable (except as permitted by Section 15.3), worldwide, royalty-free right and license to use, process, reproduce, adapt, modify, translate, publish, publicly perform, publicly display, distribute, host, and make available Customer Content solely to provide and support the Services or Implementation Services and to otherwise perform Lightcast.com’s obligations and exercise its rights under this Agreement. Customer is responsible for giving adequate notice and making any required disclosures regarding Lightcast.com’s use and processing of Customer Content as contemplated herein and obtaining all necessary rights, permissions, and valid consents which may be required in order to permit Lightcast.com’s performance of its obligations and exercise of its rights under this Agreement. Customer commits to Lightcast.com that neither Customer Content nor Lightcast.com’s use of Customer Content nor Customer’s use of Third-Party Content will: (a) violate this Agreement or any Laws; (b) be libelous, defamatory, obscene, abusive, pornographic, threatening, or an invasion of privacy; (c) constitute an infringement or misappropriation of the Intellectual Property Rights or other rights of any third party; (d) be illegal in any way or advocate illegal activity; or (e) be false, misleading, or inaccurate. Lightcast.com will not be responsible or liable for any deletion, correction, destruction, damage, loss, or failure with respect to any Customer Content. Lightcast.com may take remedial action if any Customer Content violates this Agreement, provided that Lightcast.com is under no obligation to review any Customer Content (for potential liability or otherwise).

9.3 Technology. As between the parties, Lightcast.com owns and retains all right, title, and interest, including all Intellectual Property Rights, in and to the Technology (including Branded Apps), and all Improvements thereof or thereto. Customer receives no ownership interest in or to any of the foregoing. Except as expressly stated in this Agreement or an applicable Order, Lightcast.com grants Customer no rights or licenses in or to the Technology or any Improvements thereof or thereto (whether by implication, estoppel, or otherwise). Any rights not expressly granted to Customer hereunder are reserved by Lightcast.com. Customer covenants, on behalf of itself and its successors and assigns, not to assert against Lightcast.com any rights, or any claims of any rights, in the Technology or any Improvements thereof or thereto.

9.4 Background Rights. Each party shall retain sole and exclusive ownership of all of its Background Rights, subject only to the licenses granted elsewhere in this Agreement. Customer hereby grants Lightcast.com a worldwide, non-exclusive, royalty free, non-transferable (except as permitted by Section 15.3) license to use any of Customer’s Background Rights solely as necessary for Lightcast.com to provide the Services or Implementation Services. Nothing in this Agreement is intended to grant or create any right or license to either party with respect to any Background Rights of the other party, except as may be expressly provided herein.

9.5 General Knowledge. Customer agrees that Lightcast.com is free to reuse all general knowledge, experience, know-how, works, and technologies (including ideas, concepts, processes, and techniques) acquired during the provision of the Services or Implementation Services hereunder, to the extent that the foregoing do not constitute Customer Content or Customer’s Confidential Information.

9.6 Feedback. If either party provides any general suggestions, ideas, or other feedback about the other party or the other party’s products, services, or offerings (“Feedback”), the other party may use and otherwise act on such Feedback with no financial, credit, confidentiality, or other obligation to such party, but is not obligated to use any such Feedback in any way.

9.7 Names and Logos. The names, logos, and other trademarks and service marks of each party are and will remain the property of each applicable party. During the Term, Lightcast.com may include Customer’s name and logo in Lightcast.com’s standard marketing materials and customer lists.

9.8 Aggregated Data. Notwithstanding anything in this Agreement to the contrary, Lightcast.com may analyze Customer Content to create a de-identified and aggregated data set that does not identify Customer or its Users (collectively, “Aggregated Data”). Lightcast.com retains ownership of all right, title, and interest in and to Aggregated Data. Lightcast.com may use Aggregated Data for purposes of improving or providing the Services or Implementation Services, and for its internal business purposes.

9.9 Usage Data. Lightcast.com retains ownership of all right, title, and interest in and to Usage Data. Lightcast.com may use Usage Data in connection with its performance of its obligations in this Agreement and for any other lawful business purpose, including benchmarking, data analysis, and to improve Lightcast.com’s products, services, systems, or algorithms.

9.10 No Other Rights. Nothing in this Agreement is intended to grant or create any right or license to either party with respect to any Intellectual Property Rights owned, licensed, or controlled by the other party, except as expressly specified herein.

10. WARRANTY; DISCLAIMERS.

10.1 Mutual. Each party hereby represents and warrants to the other party that: (a) it has the legal right and authority to enter into this Agreement; (b) this Agreement forms a binding legal obligation on behalf of such party; and (c) it has the legal right and authority to perform its obligations under this Agreement and to grant the rights and licenses described in this Agreement.

10.2 Services. During the Term, Lightcast.com will use commercially reasonable efforts to provide the Services as specified in each applicable Order. As Customer’s sole remedy, and Lightcast.com’s sole obligation, for any failure by Lightcast.com to comply with the foregoing sentence, Lightcast.com will at its option: (a) correct, re-perform, or re-provide the applicable Services; or (b) credit Customer the portion of any Fees actually paid for the applicable defective Services. This Section 10.2 will not apply to Branded Apps, or Customer Apps that Customer has reviewed and approved for Distribution Services through its account on the Platform or to the extent the nonconformity was caused by Customer’s abuse or misuse of the Services or Implementation Services. To receive the foregoing remedies, Customer must notify Lightcast.com in writing of the non-conformity within 30 days after Lightcast.com provides the applicable Services.

10.3 Implementation Services. Lightcast.com warrants to Customer that during the Term: (a) the Implementation Services will be performed in a professional manner consistent with industry standards; and (b) the Branded Apps will materially conform to the specifications set forth in the applicable Order. If Customer notifies Lightcast.com of a breach of the foregoing warranty (specifying the breach in reasonable detail) within 30 days after Lightcast.com performs the applicable Implementation Services or delivers the applicable Branded App, Lightcast.com shall, at its own expense and as its sole obligation and Customer’s exclusive remedy for breach of the foregoing warranty: (i) use commercially reasonable efforts to re-perform the Implementation Services or re-deliver the Branded App which gave rise to the breach; or (ii) if Lightcast.com cannot re-perform such defective Implementation Services or re-deliver such defective Branded App to Customer within 60 days after receiving notice of the breach, Customer may terminate this Agreement upon written notice to Lightcast.com and Lightcast.com shall refund to Customer the Fees paid for such defective Implementation Services and Branded Apps. This limited warranty will not apply to Mockups, Branded Apps, or Customer Apps that Customer has reviewed and approved through Customer’s Account on the Platform or to the extent the nonconformity was caused by Customer’s or its Users’ abuse or misuse of the Services or Implementation Services. To receive the foregoing remedies, Customer must notify Lightcast.com in writing of the non-conformity within 30 days after Lightcast.com provides the applicable Implementation Services.

10.4 Right to Customer Content. Customer represents, warrants, and covenants to Lightcast.com that: (a) Customer has the right to use Customer Content as contemplated by this Agreement; (b) Customer has, and will maintain throughout the Term, all necessary consents, permissions, and rights necessary to provide Lightcast.com with any Customer Content and to enable any Third-Party Services, to grant Lightcast.com the rights and licenses in this Agreement, and for Lightcast.com to use, host, and Distribute such Customer Content as permitted under this Agreement; (c) no Distribution of a Customer App or Branded App as specified in an Order will violate Customer’s privacy policy, terms of service, or the privacy rights of any individual; (d) Lightcast.com will not need to obtain licenses from any third party or pay royalties to any third party with respect to the streaming or other permitted Distribution of any Customer Content; (e) Customer has, and will maintain throughout the Term, all appropriate releases (if necessary) from all persons who appear in any Customer Content; (f) Customer Content does not, and will not, infringe any third party’s rights, including Intellectual Property Rights, rights of publicity, moral rights, and privacy rights; (g) Customer Content does, and will at all times during the Term, comply with this Agreement (including the Acceptable Use Policy), and all Laws; and (h) Customer has the right and authority to grant Lightcast.com all rights and licenses granted in this Agreement. Customer acknowledges and agrees that Lightcast.com is not, and shall not be, responsible or liable for: (i) any unauthorized access to or alteration of any Customer Content; (ii) any Customer Content sent or received or not sent or received; (iii) any Customer Content stored on storage devices owned, operated, or controlled by Lightcast.com; or (iv) any Customer Content or conduct of any third party, including Customer Content sent using or included within the Technology provided by any other user of the Services or any licensors or suppliers of Lightcast.com.

10.5 Compliance. Each party represents and warrants to the other party that: (a) such party will comply with all Laws applicable to such party in connection with such party’s performance under this Agreement; and (b) such party’s performance under this Agreement will not cause the other party to violate any Laws.

10.6 Disclaimer. Except for the limited warranties expressly provided in this agreement: (a) the platform, software, hardware, lightcast.Com content, developer tools, services, implementation services, branded apps, and any other technology or lightcast.Com background rights are provided “as is,” without representations or warranties of any kind; (b) neither party makes any representations or warranties of any kind; and (b) each party specifically disclaims all other warranties, whether express, implied, or statutory, including all implied warranties of merchantability, fitness for a particular purpose, title, non-infringement, and any warranties arising from course of dealing or course of performance. Lightcast.Com does not guarantee or warrant that (I) the services or implementation services will be performed timely, secure, error-free, or uninterrupted, or that lightcast.Com will correct all services or implementation services errors, (ii) the services or implementation services will operate in combination with customer content or branded apps, or with any other hardware, software, systems, or data not provided by lightcast.Com, and (iii) the platform, software, hardware, lightcast.Com content, developer tools, services, implementation services, branded apps, or any other technology or lightcast.Com background rights will (a) meet customer’s requirements, specifications, or expectations, (b) be free of viruses or other harmful components, or (c) be correct, accurate, adequate, useful, or reliable. Customer acknowledges that lightcast.Com does not control the transfer of data over communications facilities, including the internet, and that the services or implementation services may be subject to limitations, delays, and other problems inherent in the use of such communications facilities. Lightcast.Com is not responsible for any delays, delivery failures, or other damage resulting from such problems. Lightcast.Com is not responsible for any issues related to the performance, operation, or security of the services or implementation services that arise from customer content (including any customer media or customer apps), customer background rights, or third-party services. Customer acknowledges that any lightcast.Com content downloaded or otherwise obtained by customer or its users is done at customer’s or its users’, as applicable, discretion and risk, and customer will be solely responsible for any damage to customer’s or any of its users’ computer systems or loss of data that results from the downloading or other obtainment of any such lightcast.Com content, including damage caused by viruses or other forms of malware or harmful code. Lightcast.Com does not make any representation or warranty regarding the reliability, accuracy, completeness, correctness, or usefulness of third-party services, and disclaims all liabilities arising from or related to third-party services.

11. INDEMNIFICATION.

11.1 Claims Against Customer. Lightcast.com shall defend any claim, suit, or action against Customer brought by a third party to the extent based on an allegation that the Software infringes any Intellectual Property Rights of such third party (a “Customer Claim”), and Lightcast.com shall indemnify and hold Customer harmless, from and against all damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and other legal expenses) (collectively, “Losses”) that are specifically attributable to such Customer Claim or those costs and damages agreed to in a settlement of such Customer Claim. The foregoing obligations are conditioned on Customer: (a) promptly notifying Lightcast.com in writing of such Customer Claim; (b) giving Lightcast.com sole control of the defense thereof and any related settlement negotiations, provided that any settlement that involves more than the payment of money and a full release of Customer will require Customer’s written consent; and (c) cooperating and, at Lightcast.com’s request and expense, assisting in such defense. In the event that the use of the Platform is enjoined, or in Lightcast.com’s reasonable opinion is likely to be enjoined, Lightcast.com may, at its option and expense either: (i) procure for Customer the right to continue using the Platform; (ii) replace the Software with a non-infringing but functionally equivalent product; (iii) modify the Software so it becomes non-infringing; or (iv) terminate this Agreement and refund the amounts Customer paid for access to the Platform that relate to the period during which Customer was not able to use the Platform due to the actual or anticipated enjoinment thereof as described in this sentence. Notwithstanding the foregoing, Lightcast.com will have no obligation under this Section 11.1 or otherwise with respect to any infringement claim based upon: (A) any use of the Platform not in accordance with this Agreement; (B) any use of the Platform in combination with products, equipment, software, or data that Lightcast.com did not supply or approve of if such infringement would have been avoided without the combination with such other products, equipment, software, or data; (C) any modification of the Platform by any person other than Lightcast.com or its authorized agents or subcontractors; or (D) any Third-Party Services (collectively, “Exclusions”). This Section 11.1 states Lightcast.com Parties’ entire liability and Customer’s sole and exclusive remedy for infringement claims or actions.

11.2 Claims Against Lightcast.com. Customer shall defend, any claim, suit, or action against Lightcast.com, any of its Affiliates, or any of Lightcast.com’s or its Affiliates’ respective officers, directors, agents, employees, independent contractors, successors, or assigns (collectively, “Lightcast.com Parties”) brought by a third party to the extent that such claim, suit, or action is based upon: (a) Customer’s actual or alleged breach of Section 2.6, Section 8.1, Section 9.2, or Section 10.4; (b) an Exclusion; (c) Lightcast.com’s or its authorized agents’ or Subcontractors’ use of any Customer Content in accordance with this Agreement; or (d) Customer’s or any User’s use of any Customer Content (each, an “Lightcast.com Claim”) and Customer shall indemnify and hold the Lightcast.com Parties harmless, from and against all Losses that are specifically attributable to such Lightcast.com Claim or those costs and damages agreed to in a settlement of such Lightcast.com Claim. The foregoing obligations are conditioned on the Lightcast.com Party: (i) promptly notifying Customer in writing of such Lightcast.com Claim; (ii) giving Customer sole control of the defense thereof and any related settlement negotiations, provided that any settlement that involves more than the payment of money and a full release of the Lightcast.com Party will require the Lightcast.com Party’s written consent; and (iii) cooperating and, at Customer’s request and expense, assisting in such defense. Notwithstanding the foregoing, Customer will have no obligation under this Section 11.2 or otherwise with respect to any Lightcast.com Claim to the extent based upon Lightcast.com’s use of Customer Content in violation of this Agreement.

12. LIMITATIONS OF LIABILITY.

Except as otherwise expressly provided in the last sentence of this section: (1) in no event will either party be liable for any consequential, indirect, exemplary, special, or incidental damages, or for any lost data, lost profits, or costs of procurement of substitute goods or services, arising from or relating to this agreement, however caused and under any theory of liability (including negligence), even if such party has been advised of the possibility of such damages; and (2) each party’s total cumulative liability in connection with this agreement, whether in contract or tort or otherwise, will not exceed the total amount of fees paid or owed by customer to lightcast.Com under the applicable order during the initial term or renewal term, as the case may be, during which the events giving rise to such liability occurred. The exclusions and limitations of liabilities set forth in this section 12 do not apply to a party’s obligations under section 11 (indemnification), to liability arising from a party’s breach of section 13 (confidentiality), or to liability arising from customer’s breach of section 2.4 (acceptable use policy) or section 8.1 (restrictions).

13. CONFIDENTIALITY.

13.1 Definitions. “Confidential Information” means all information disclosed or otherwise made available by or on behalf of one party (“Discloser”) to the other party (“Recipient”) under this Agreement during the Term (including information disclosed or made available via feeds, URLs, server instances, or other portions of Technology). Confidential Information includes information that is marked or identified as confidential and, if not marked or identified as confidential, information that should reasonably have been understood by Recipient to be proprietary and confidential to Discloser or to a third party. Lightcast.com’s Confidential Information includes Software, Lightcast.com Content, Documentation, Lightcast.com’s Background Rights, any Lightcast.com offers, pricing, and packaging, and the terms of this Agreement (including any Order hereunder). Customer’s Confidential Information includes Customer Content and Customer’s Background Rights.

13.2 Protection. Recipient shall not use any Confidential Information for any purpose not expressly permitted by this Agreement and shall not disclose or permit access to Confidential Information to anyone other than Recipient’s employees or independent contractors who have a need to know such Confidential Information for purposes of this Agreement and who are subject to confidentiality obligations no less restrictive than Recipient’s obligations under this Section 13. Recipient will be responsible and liable for each of its employees’ and independent contractors’ acts and omissions, which, if performed by Recipient, would constitute a breach of this Section 13. Recipient shall protect Confidential Information from unauthorized use, access, and disclosure in the same manner as Recipient protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.

13.3 Exceptions. Recipient shall have no obligations under Section 13.2 above with respect to any information of Discloser that Recipient can document: (a) was already known to Recipient free of any confidentiality obligations prior to Discloser’s disclosure hereunder; (b) is disclosed to Recipient free of any confidentiality obligations by a third party who had the right to make such disclosure without violating any confidentiality agreement with or other obligation to the party who disclosed the information; (c) is, or through no fault of Recipient has become, generally available to the public; or (d) is independently developed by Recipient without access or reference to, or use of, Confidential Information. Notwithstanding the foregoing, Recipient may disclose certain Confidential Information to the limited extent required to as part of a judicial process, government investigation, legal proceeding, or other similar process on the condition that, to the extent permitted by Law, Recipient gives prior written notice of such requirement to Discloser. Recipient shall take reasonable efforts to provide this notice in sufficient time to allow Discloser to seek an appropriate confidentiality agreement, protective order, or modification of any disclosure, and Recipient shall reasonably cooperate in such efforts at the expense of Discloser. Recipient’s obligations under this Section 13 shall continue for 3 years after the expiration or termination of this Agreement, except that such obligations will survive with respect to trade secrets for so long as any such Confidential Information remains a trade secret under applicable laws.

14. PRIVACY AND COOKIE POLICIES.

Please review Lightcast.com’s current Privacy Policy (available at: https://www.lightcast.com/privacy-terms/) to learn about what personal information Lightcast.com may collect about Customer; how Lightcast.com may use that personal information; and with whom Lightcast.com may share that personal information. Please also review Lightcast.com’s current Cookie Policy (available at: https://www.lightcast.com/cookie-policy/) to learn about how Lightcast.com or some of its third-party partners may use cookies on certain portions of the Platform; how Lightcast.com may use those cookies; and what choices Customer may have with respect to such cookies.

15. GENERAL.

15.1 Independent Contractor. The relationship of the parties established under this Agreement is that of independent contractors and neither party is a partner, employee, agent, or joint venture partner of or with the other, and neither party has the right or authority to assume or create any obligation on behalf of the other party.

15.2 Subcontractors. Lightcast.com may utilize subcontractors, subprocessors, or other third-party service providers (collectively, “Subcontractors”) in the performance of its obligations, provided that Lightcast.com will remain liable and responsible for the Subcontractors’ acts and omissions to the extent any of such acts or omissions, if performed by Lightcast.com, would constitute a breach of, or otherwise give rise to liability to Lightcast.com under, this Agreement when they are performing directly for or on behalf of Lightcast.com (and not indirectly, such as through the provision of Third-Party Services as set forth in Section 2.6 above).

15.3 Assignment. Neither party may assign this Agreement or any of its rights under this Agreement to any third party without the other party’s prior written consent; except that a party may assign this Agreement without consent from the other party to (a) an Affiliate, or (b) any successor to its business or assets to which this Agreement relates, whether by merger, acquisition, sale of all or substantially all of its assets, or otherwise. Any attempted or purported assignment in violation of the foregoing will be void and of no force or effect.

15.4 Force Majeure. Except for payment obligations, neither party will be liable for any breach of this Agreement, or for any delay or failure of performance, resulting from any cause beyond that party’s reasonable control.

15.5 Notices. To be effective, notices under this Agreement must be delivered in writing by email to the other party at the address for each party identified below in this Section 15.5 and will be effective upon receipt. The email address for notices being sent to Lightcast.com is legal@lightcast.com, and the email address for notices being sent to Customer is the primary email address that Lightcast.com has on file for Customer. Each party may update its notice address in accordance with this provision.

15.6 Governing Law; Venue. The laws of the State of North Carolina govern this Agreement and any matters related to this Agreement, without regard to any conflicts of laws principles that would require the application of the laws of a different jurisdiction. The parties hereby submit to the exclusive jurisdiction of, and waive any venue objections against, the state or federal courts sitting in Charlotte, North Carolina in any litigation arising out of this Agreement or the Technology.

15.7 Remedies. Each party acknowledges that any actual or threatened breach of Sections 8.1 or 13 will constitute immediate, irreparable harm to the non-breaching party for which monetary damages would be an inadequate remedy, that injunctive relief is an appropriate remedy for such breach (actual or threatened), and that if granted, the breaching party agrees to waive any bond that would otherwise be required. If any legal action is brought by a party to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other legal expenses, in addition to any other relief it may receive from the non-prevailing party. Notwithstanding, and without limiting the generality of, the foregoing, in the event Lightcast.com is required to respond to a subpoena, government inquiry, or other legal process related to the Technology in connection with a legal or dispute resolution proceeding to which Lightcast.com is not a party, Customer shall reimburse Lightcast.com for reasonable costs in responding, and compensate Lightcast.com at its then-standard rates for reasonable time incurred in gathering information and documents and attending depositions, hearings, and trial.

15.8 No Export. Customer shall not: (a) permit any third party to access or use the Technology in violation of any U.S. law or regulation; or (b) export the Technology or otherwise remove it from the United States except in compliance with all U.S. Laws.

15.9 Waivers. To be effective, any waivers must be in writing and signed by the party to be charged. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

15.10 Severability. If any provision of this Agreement is unenforceable, the other provisions of this Agreement will be unimpaired, and the unenforceable provision will be deemed modified so that it is enforceable to the maximum extent permitted by law (unless such modification is not permitted by law, in which case such provision will be disregarded).

15.11 Entire Agreement. This Agreement, including each Order and Annex, any exhibits or attachments hereto or thereto, and any terms incorporated herein, constitutes the final and entire agreement between the parties regarding the subject matter hereof and supersedes all other agreements, whether written or oral, between the parties concerning such subject matter. No terms and conditions proposed by either party will be binding on the other party unless accepted in a writing executed by both parties, and each party hereby objects to and rejects all terms and conditions not so accepted. No term of this Agreement will be construed to confer any third-party beneficiary rights on any non-party. The words “include,” “includes,” and “including” mean “include,” “includes,” and “including,” in each case, “without limitation.” To the extent of any conflict between the provisions of this Agreement and the provisions of any Order, the provisions of this Agreement will govern unless the Order specifically and expressly overrides this Agreement. No amendment to this Agreement will be effective unless in writing and signed by both parties. This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument.

15.12 Contact Information.

Cross Media Corporation
Attn: Legal
10616 Metromont Parkway, Suite 202, Charlotte, NC 28269, USA
legal@lightcast.com