“iChannel” is web-based service, owned and operated by iChannel I.O Ltd. (“Company”), which provides a Software-as-a-Service (SAAS) solution for on-line curation and delivery of linear TV channels (the “Service”). These General Terms and Conditions, together with the Service Order executed between Company and the Customer (“Service Order”), govern Customer’s access to and use of the Service, and constitute the entire agreement between Company and Customer in relation to the Service (“Agreement”). Capitalized terms used in these General Terms and Conditions and not otherwise defined shall have the meaning attributed to them in the Service Order.
“Channels” means each of the linear channels identified in the Service Order, which can be curated by Customer through the use of the Service, and which incorporates Licensed Content together with Customer Content.
“Concurrent Users” means the maximum number of Customer’s personnel specified in the Service Order that are authorized to access and use the Service concurrently at any one time for and behalf of Customer.
“Content” means images, footage, videos, films, music, sound, graphics, logos, designs, fonts, text, animations, illustrations, program templates, artworks, literary works or any other audio and/or visual representation or impression, or any combination thereof, in any media, format and technology.
“Effective Date” means the initial date on which Customer may commence using the Service, as set out on the Service Order.
"Licensed Content" means any Content, whether owned by Company or its third party licensors, which is made available to Customer via the Service for use and display within Channels.
“Customer Content” means any data or Content (whether owned or controlled by Customer and/or any third party) uploaded, posted, published, processed, or transmitted by, in or through the Service by the Customer, excluding Licensed Content.
“Intellectual Property Rights” mean all intellectual property rights including, without limitation, rights associated with works of authorship, including copyrights and copyright applications, so called “moral rights”, mask work rights, inventions, patents, patent applications (including any and all continuations or extensions thereof), rights relating to the protection of trade secrets and confidential information, design rights and industrial property rights, any other proprietary rights relating to intangible property including trademarks, service marks and applications thereof, trade names and packaging and all goodwill associated with the same, and any other equivalent rights under applicable law, and all registrations, applications, renewals, extensions, continuations, divisions, reissues, or improvements thereof relating to the foregoing rights, all rights to sue for any infringement of any of the foregoing, and the right to all income, royalties, damages and payments with respect to any of the foregoing rights, in any jurisdiction.
3. REGISTRATION AND LOG-IN
As part of the registration process, Customer will identify an administrative user name and password for Customer’s company account. Customer shall also be responsible for maintaining the security of the Customer account and passwords (including but not limited to administrative and user passwords), and for all uses of Customer account without Customer’s knowledge or consent. Company reserves the right to disable any user ID and password without notice or explanation if it believes, in its judgment, that Customer has breached any of the terms of this Agreement.
The Term of this Agreement shall commence as of the Effective Date and, unless terminated earlier in accordance with its terms, shall continue for the period indicated in the Service Order (“Term”).
Customer undertakes to use the Service only for the purposes permitted by these General Terms and Conditions and in accordance with applicable laws and regulations. Subject to the terms and conditions hereof, and subject to Customer’s full and timely compliance with its entire warranties, representations and obligations hereunder, including without limitation, continuous payment in a timely manner of all Service Fees, Company grants Customer a non-exclusive, non-sublicensable, non-transferable, limited, revocable, royalty-bearing license to access and use the Service for the sole purpose of curating Channels, subject at all times to the restrictions set out below and elsewhere in this Agreement. The use of the Service by Customer is limited to the number of Concurrent Users set forth in the Service Order. Customer undertakes to use the Service solely for its own account, and solely for the purpose of curating Channels owned or controlled by Customer. Customer is strictly prohibited from using the Service as an agent, distributor, agent, broker or reseller for any third party.
6. SERVICE FEES AND PAYMENTS
(a) . In consideration for the right to access the Service, Customer shall pay Company the Service Fees specified in the Service Order, plus applicable taxes (such as Value Added Tax) (“Service Fees”).
(b) . Customer shall pay Company all Service Fees no later than 30 days of Company’s invoice therefor, unless an earlier date is indicated in the Service Order.
(c) . All Fees, prices and amounts set forth in these General Terms and Conditions and the Service Order are exclusive of any tax, levy, or similar governmental charge that may be assessed by any jurisdiction (“Taxes”), which, if applicable, shall be borne solely by Customer and added to the amount of Service Fees payable to Company. Any and all payment to be made hereunder by the Customer shall be made without deduction, counterclaim or set-off of any kind or nature, whether in respect of Taxes or otherwise.
(d) . Late Payment. TIME IS OF THE ESSENCE REGARDING ALL PAYMENTS DUE TO COMPANY UNDER THIS AGREEMENT. If Customer fails to make any payment to Company under this Agreement on the due date, then, in addition to any other right or remedy available to Company hereunder or under any applicable law or in equity, Customer shall pay Company an interest on the amount outstanding, in the amount of 1% per month, calculated from the date on which such payment was due until such payment is received by Company. In addition, if Customer fails to make any payment to Company under this Agreement on the due date, and such failure remains uncured for a period of 14 days or more from the date payment was due, then, in addition to any other right or remedy available to Company under this Agreement or under any applicable law or in equity, Company may, without any liability to Customer, disable Licensee's ability to use the Service until all outstanding payments, plus all applicable interest, are made in full.
7. RESTRICTIONS ON ACCESS AND USE
Customer shall not to use the Service to create Channels which (i) violate any applicable law, regulation, by-law, code or order of any governmental body having jurisdiction; (ii) are defamatory, obscene, pornographic, misleading, deceptive, fraudulent, unlawful, abusive, hateful, libelous, or otherwise inappropriate; (iii) violate any Intellectual Property Rights, right of privacy, right of publicity or any other right of any third party; and/or (iv) contain Content that promotes, encourages or glorifies violence, racism, hate or criminal activity. Customer covenant and agrees that its use of the Service shall be in a manner consistent with this Agreement and with all applicable laws and regulations. Without limiting the generality of the foregoing, Customer shall not fraudulently use the Service, use the Service in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement.
8. TITLE AND OWNERSHIP
(a) All Intellectual Property Rights and any all other proprietary rights in and to the Service, and any software, hardware, systems, materials (whether tangible or intangible) and equipment comprising, or which are used by Company to render the Service (”Company Technology”) are owned by Company or by its licensors, exclusively, and are protected by applicable Intellectual Property Rights laws.
(b) Customer shall not make any use of the Service or any portion thereof, except as expressly permitted under this Agreement. Customer shall not (i) copy, modify or create derivative works based on the Service or any portion thereof; (ii) reverse engineer, compile, decompile, decrypt, disassemble or attempt to derive the source code of the Service; (iii) transfer, sublicense, sub-distribute, lease, assign, lend, resell, rent or otherwise redistribute the Service or any portion thereof to any third party, (iv) remove or alter any copyright, trademark, trade name or other proprietary notices, legends, symbols or labels appearing on or in the Service, including in any Licensed Content, (iv) circumvent any controls or security measures of the Service or any portion thereof.
(c) The Licensed Content is licensed to Customer under the terms set forth herein. Customer expressly agrees that the Licensed Content is not sold to Customer and that Customer does not otherwise acquire any right, title or interest in or to the Licensed Content, except for the limited license granted under this Agreement. Company or its third party licensors, as applicable, retain any and all Intellectual Property Rights and any other proprietary rights in and to the Licensed Content. With respect to any Licensed Content, Customer is granted a non-exclusive, non-sublicensable, non-transferable, limited, revocable, royalty-bearing license solely to perform the following: (i) incorporate Licensed Content into Channels, and (ii) Distribute the Licensed Content in any media, solely as and when incorporated into such Channels. Customer is strictly prohibited from attempting to access, extracting, copying or duplicating Licensed Content as a stand-alone file and from distributing or otherwise using Licensed Content on a stand-alone basis or when not incorporated into Channels. Notwithstanding anything to the contrary herein contained, Company does not give any warranties, representations or indemnities with respect to any Licensed Content, except that is was duly licensed from its respective licensors.
9. THIRD PARTY SERVICES
The Service enables Customer to procure certain third party products or services such as, but not limited to, content delivery, storage, hosting, custom graphics etc. (collectively, “Third Party Services”). Customer acknowledges and agrees that with respect to any Third Party Services, Company acts solely as an intermediary platform, and does not assume any liability whatsoever, regardless of the manner in which such Third Party Services are offered to Customer (e.g., on a stand-alone basis or bundled with other Company offerings). Notwithstanding anything to the contrary herein contained, Company does not give any warranties, representations or indemnities with respect to any Third Party Services.
10. CUSTOMER CONTENT
(a) As between Customer and Company, Customer owns all right, title and interest in and to Customer Content, and Company does not acquire any rights therein. Customer assumes sole responsibility and liability for the legality, reliability, integrity, accuracy, quality and non-infringement of Customer Content and the compliance thereof with all applicable laws and regulations. Company does not assume any liability for Customer Content or any part thereof. Customer warrants that Customer Content: (i) shall not be fraudulent or intentionally misleading or inaccurate; (ii) shall not infringe any Intellectual Property Rights or other rights of any third party; (iii) shall not violate any law, statute, ordinance or regulation; (iv) shall not be malicious or derogatory; (v) shall not be harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, profane, hateful, or contain pornography or racially, ethnically or otherwise materially controversial, including, but not limited to, any material which encourages conduct that would constitute a criminal offense; or (vi) shall not contain any viruses, Trojan horses, worms, time bombs, cancel-bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information. Company reserves the right, exercisable at its sole discretion, to remove Customer Content or any part thereof without notice or explanation if Company, acting reasonably and in good faith, believes that the Customer Content does not comply with the terms of this Section.
(b) It is Customer’s sole responsibility to regularly and independently save and back up any of Customer Content and the Channels. Company is not obligated to monitor the Customer Content (although reserves its right to do so) and Company does not assume any liability for the Customer Content.
(c) Customer grants the Company a perpetual, non-exclusive, fully-transferable, worldwide, royalty free right and license to exercise any and all Intellectual Property Rights in and to any of the Customer Content (in whole or in part) for the purpose of providing the Service. Customer also grants the Company a perpetual, non-exclusive, fully-transferable, worldwide, royalty free right and license, under any and all Intellectual Property Rights, to use the sample extracts from the Channels or in any of the Service marketing and promotional activities, online and/or offline.
11. SERVICE ADMINISTRATION AND MONITORING
Company reserves the right to edit and modify the Service at its sole discretion. Company reserves the right to monitor Customer’s use of the Service. Such monitoring shall not impose any liability on Company, nor derogate from Customer’s obligations, responsibilities and liabilities hereunder.
12. SERVICE PERFORMANCES DATA
Notwithstanding anything to the contrary, Company shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Service and related systems and technologies (including, without limitation, information concerning Customer data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Service and for other development, diagnostic and corrective purposes in connection with the Service and other Company products, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. Customer hereby assigns to the Company any rights which Customer may have in any feedback data provided by Customer to the Company in respect of the Service (e.g., comments, suggestions, enhancement requests, and recommendations).
13. WARRANTY AND DISCLAIMER
Company shall use reasonable efforts consistent with good industry practice to maintain the Service in a manner which minimizes errors and interruption in the Service. However, Company does not guarantee, represent or warrant that the Service will be uninterrupted or error-free, and does not make any warranty as to the results that may be obtained from use of the Service. Customer’s sole and exclusive remedy with respect to any unavailability, error, interruption or failure of the Service shall be for Company to attempt to correct such failures in accordance with Company’s standard support procedures. With the exception of the foregoing, the Service is provided on an "as is", “as available” basis, without any representations or warranties, express or implied including but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement of third party rights. To the fullest extent permitted by law, Company excludes all representations and warranties relating to the Service and any Licensed Content, including in relation to any inaccuracies or omissions in the Service and/or the Licensed Content.
Customer shall be responsible at its sole costs and expense for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Service, whether owned or controlled by Customer or leased from any third party supplier, including, without limitation, modems, hardware, servers, software, operating systems, network connections and the like (collectively, “Customer Resources”). Company shall not be liable for errors or problems in the Service or the use (or inability to use) thereof by Customer associated with any of the Customer Resources, or the interconnection or integration thereof with the Service, or for any disruptions or failures of any network connections.
14. LIMITED LIABILITY
To the fullest extent permitted by law, and notwithstanding anything else to the contrary in this Agreement, Company and/or any of its affiliates, employees, directors, or officers, shall not be liable for (i) any consequential, indirect, moral or exemplary damages incurred by the customer of any nature whatsoever, and/or (ii) loss of profits or revenues, anticipated savings, interruption of business, loss or corruption of data, loss of Customer Content, loss of opportunities or any indirect economic losses, regardless of whether Company shall be advised, shall have other reason to know, or in fact shall know of the possibility of the foregoing. Company’s total, aggregate liability, in contract, negligence, strict liability, tort or otherwise, arising by reason of or in connection with this Agreement, shall be limited to direct and actual damages only and shall not exceed, throughout the entire Term, for all events and causes of action together, an amount that, together with amounts associated with all other claims, is equal to the monthly subscription fee paid by Customer to Company for the month immediately preceding the month during which the claim that gave rise to the liability arose, in each case, whether or not company has been advised of the possibility of such damages.
Customer agrees to indemnify and hold the Company harmless from and against all losses, expenses, damages and costs, including reasonable attorneys’ fees, resulting from: (i) any violation by Customer of any provision in this Agreement; (ii) any claim that Customer Content infringes any Intellectual Property Rights and/or any other third party rights and/or applicable law; (iii) actions against Company by any third parties in connection with Customer’s acts or omissions hereunder, including but not limited to, use of Licensed Content by Customer in manner inconsistent with these terms and conditions; (iv) any other claim in connection with Customer’s use of the Service.
“Confidential Information” means any information in tangible form disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) under this Agreement marked as “confidential” or “proprietary” or with a similar legend. Notwithstanding the foregoing, the Service and the Company Technology is the Confidential Information of Company regardless of whether so marked. Each party (“Receiving Party”) agrees that it will hold all Confidential Information of the other party (“Disclosing Party”) in trust for the sole benefit of the Disclosing Party and for the exercise of the limited rights expressly granted to the Receiving Party under this Agreement. The Receiving Party shall take all reasonable steps necessary to preserve the confidentiality of the Confidential Information of the Disclosing Party, including, but not limited to, those steps that the Receiving Party takes to protect the confidentiality of its own most highly Confidential Information. Except as may be expressly authorized by the Disclosing Party in writing, the Receiving Party shall not at any time either before or after any termination of this Agreement, directly or indirectly: (i) disclose any Confidential Information to any person other than an employee or agent of the Receiving Party who needs to know or have access to such Confidential Information for the purposes of this Agreement, and only to the extent necessary for such purposes; (ii) duplicate the Confidential Information for any purpose whatsoever; or (iii) use the Confidential Information for any reason or purpose other than as expressly permitted in this Agreement. The Receiving Party shall notify each of its employees and agents to whom it discloses or provides access to Confidential Information, that such disclosure or access is made in confidence and shall be responsible for any acts of its employees and agents based on this Section. The foregoing restrictions will not apply to information to the extent that the Receiving Party can demonstrate such information (i) was known to the Receiving Party at the time of disclosure by the Disclosing Party; (ii) has become publicly known through no wrongful act of the Receiving Party; (iii) was lawfully received by the Receiving Party from a third party without breach of this Agreement, as shown by documentation sufficient to establish the third party as a source of the Confidential Information, and not obtained by the third party from Disclosing Party; (iv) has been approved for release by written authorization of the Disclosing Party; or (v) has been required to be disclosed by court order or as otherwise required by law, provided that the Receiving Party has notified the Disclosing Party immediately upon learning of the possibility of any such court order or legal requirement and has given the Disclosing Party a reasonable opportunity (and cooperated with the Disclosing Party) to contest or limit the scope of such required disclosure (including without limitation application for a protective order). Notwithstanding the foregoing, each Party may disclose the terms and conditions of this Agreement in confidence (i) to its legal counsels, accountants, banks, and financing sources and their advisors, provided the foregoing are bound by confidentiality obligations in respect of Confidential Information which are substantially similar to, and not less restrictive, than the terms hereof, or (ii) in connection with the enforcement of this Agreement or rights under this Agreement.
(a) Notwithstanding anything else contained herein, this Agreement may be terminated by either party (“Injured Party”) forthwith on giving notice in writing to the other Party (“Defaulting Party”) if the Defaulting Party has breached any provision of this Agreement and (in the case of a breach capable of being remedied) has failed to cure such breach within 10 business days after receipt of a written notice to that effect from the Injured Party.
(b) Either Party will have the right to terminate this Agreement by providing written notice to the other party upon the occurrence of any of the following events, but only to the extent such events are not dismissed within 60 days from the date such events first occurred: (i) a receiver is appointed for the other party; (ii) the other party makes a general assignment of all or substantially all of its assets for the benefit of its creditors; (iii) the other party commences or has commenced against it, proceedings under any bankruptcy law; or (iv) the other party ceases to do business.
(c) In the event of any breach by Customer of any provision of this Agreement, Company shall have the right, in addition to any other remedies available to Company under this Agreement, at law or in equity, to immediately suspend Customer’s access and use of the Service, until such breach has been cured by Customer.
(d) Upon the expiration or termination of this Agreement for any reason whatsoever, (i) the license granted to Customer hereunder shall immediately expire; (ii) Company shall deny Customer’s access and use of the Service; (iii) upon the Disclosing Party’s written request, the Receiving Party will immediately return all Confidential Information to the Disclosing Party; and (iv) Customer shall pay to Company all outstanding Service Fees within 10 days of the date termination occurred.
(e) Sections 8, 9, 10, 12, 13, 14, 15, 16, 17 and 18 shall survive any termination or expiration of this Agreement, for any reason whatsoever
18. GENERAL PROVISIONS
(a) This Agreement is for the sole benefit of the parties, no third party is a beneficiary of this Agreement and no terms of this Agreement are enforceable by any third party.
(b) Customer may not assign this Agreement or any rights or obligations hereunder, by contract, operation of law, change of control, or in any other manner, without the prior written consent of Company. All assignments or attempted assignments in violation of this Section shall be null and void.
(c) This Agreement shall be governed by and construed in accordance with the laws of the state of Israel. The courts in the city of Tel Aviv, Israel shall have exclusive jurisdiction over all disputes, controversies, or claims arising out of or relating to this Agreement or a breach thereof.
(d) Except as provided in any express provision of this Agreement, any notice, request, approval, authorization, consent, demand or other communication required or permitted to be given or made pursuant to this Agreement will be in writing and will be sent by commercial overnight courier and addressed to the parties’ address, as set forth in the Service Order.
(e) The failure of either party to assert a right hereunder or to insist upon compliance with any term or condition of this Agreement shall not constitute a waiver of that right or excuse a similar subsequent failure to perform any such term or condition by the other party.
(f) This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof and supersedes any and all prior oral and written agreements and understandings relating thereto. No amendment, alteration, or modification of this Agreement shall be binding unless made in writing and signed by the parties.
(g) If any provision of this Agreement is found to be unenforceable, such provision will be deemed to be deleted or narrowly construed to such extent as is necessary to make it enforceable, and this Agreement will otherwise remain in full force and effect. Headings in this Agreement are for convenience of reference only and are not part of the substance hereof. References to “Sections” are to section of this Agreement. Unless the context requires otherwise, words importing the singular include the plural and vice versa and words importing gender include all genders. Any phrase introduced by the word “including”, “include” or any similar expressions shall be construed as illustrative and the words following any such word shall not limit the sense of the words preceding such words.
(h) Neither party shall be liable for delay in performance hereunder due to causes beyond its reasonable control, including but not limited to, acts of God, fires, strikes, acts of war or intervention by any governmental authority; however, each Party shall take reasonable steps to minimize any such delay. In the event of any delay due to force majeure, the date or dates for performance of this Agreement by either Party shall be extended for a period equal to the time lost by reason of the delay. Either Party shall have the right to terminate this Agreement in the event that such extension of the other Party's performance under this Section shall be for a period greater than sixty (60) days.
(i) The relationship of the parties is that of independent contractors. Neither party is, nor shall be considered to be, an agent, or representative of the other and nothing herein is intended to, or shall constitute, create, give effect to, or otherwise recognize a joint venture or partnership of any kind or be construed to give either Party the power to direct or control the day-to-day activities of the other. Neither party shall create or assume any obligation on behalf of the other party, unless otherwise expressly provided herein.
(j) This Agreement may be executed in counterparts and/or by facsimile, each of which shall be deemed an original, and all of which together shall constitute one and the same agreement.
(k) Except as expressly provided otherwise in this Agreement, each party shall be responsible for all costs and expenses incurred in connection with this Agreement and its performance hereunder.
(l) To the extent that there is any conflict between any provision in these General Terms and Conditions and the Service Order, the applicable provisions of these Terms and Conditions shall take precedence, unless expressly provided otherwise in the Service Order.