Terms & Conditions

2. Construction

2.1 Headings. The headings used in this Agreement are included for convenience only and are not to be used in construing or interpreting this Agreement.

2.2 References. In this Agreement:

2.2.1 any reference to “You” or your” refers to the individual or entity that has entered into this Agreement, as identified on the execution page hereof.

2.2.2 any reference to the plural shall include the singular and any reference to the singular shall include the plural; and

2.2.3 any reference to a Section or exhibit shall (unless otherwise specifically provided) be to a Section or an exhibit to this Agreement.

3. Developer Program Membership

3.1 Streamezzo Developer Program Level. The Streamezzo Developer Program includes different levels of membership. Levels of membership and applicable terms and fees for such levels are set out in the Streamezzo Developer Program Site, as may be updated from time to time. Please read policies set out in the Streamezzo Developer Program Site carefully as they contain the specific terms applicable to each Streamezzo Developer Program level. Schedule A to this Agreement sets outs the level of membership to which you elected to subscribe and the current annual membership fees which you agree to pay to Streamezzo.

3.2 Payment of Fees. Your membership in the Streamezzo Developer Program is subject to your payment of annual membership fees for the applicable membership level, as set out in the Streamezzo Developer Program Site. Membership fees are revised annually by Streamezzo and then current fees are posted on Streamezzo Developer Program Site. All membership fees are non-cancelable and non-refundable.

3.3 Territory. Subject to the section below titled Export Controls, your membership covers only the facilities or locations which are set out in Schedule A.. You will receive benefits from STREAMEZZO only in the country in which you registered to become a partner in the Streamezzo Developer Program.

4. Software License

Your use of the Licensed Products shall be subject to the terms set out in this Agreement and in the Streamezzo Developer Program Site. Provided that you continue to comply with the terms of this Agreement and the then-current Streamezzo Developer Program policies as published by STREAMEZZO on the Streamezzo Developer Program Site, you will be granted the rights below.

STREAMEZZO grants to you a non-exclusive, non-transferable, non sub licensable, limited license for the applicable number of licenses as set forth in the Streamezzo Developer Program Site and the licensed locations set forth in Schedule A, to use the Licensed Products for the following purposes: (i) to develop or prototype Applications; being expressly agreed that this Agreement does not authorize the distribution, resale, license or other disposition of the Application and/or the Licensed Products in any form whatsoever, regardless of whether you receive any fees for doing so; (ii) subject to Section 7.5, to demonstrate the Application to potential end users, provided you use the publication server provided by Streamezzo for limited demonstration purposes and you conspicuously display the “powered by Streamezzo” logo pursuant to the guidelines set out herein and in the Streamezzo Developer Program Site. Any deployment of the Application shall be subject to the prior conclusion of a commercial license or value-added reseller agreement between you and Streamezzo and the payment of additional license fees.

5. Developer Program Services

Provided that you continuously comply with the terms of this Agreement and the then current Streamezzo Developer Program policies, you shall receive the services then currently specified for the applicable partner level in the Streamezzo Developer Program Site, including the services outlined below.

5.1 Developer Support. Depending on the level of the Streamezzo Developer Program into which you have qualified, you may be able to access Developer Support from STREAMEZZO for the Software licenses you receive under this Agreement, as further described in the Streamezzo Developer Program Site. As Developer Support policies are subject to change by STREAMEZZO, you should review the policies prior to entering into the ordering document for the applicable services. You may access the current version of the Developer Support policies at the Streamezzo Developer Program Site. STREAMEZZO reserves the right to terminate Developer Support for the Software with reasonable notice. Such termination notices are deemed validly made to you on the date they are posted on STREAMEZZO’s Developer Program Site.

5.2 Training. Subject to Streamezzo’s available resources, you may be able to order training services from Streamezzo, as further described in the Streamezzo Developer Program policies. Training services shall be charged by STREAMEZZO to you, as per STREAMEZZO’s then current training fees.

5.2 Marketing Services. STREAMEZZO grants to you a non-exclusive, non transferable, non sub licensable, limited license to use the Marketing Services, as further defined in the Streamezzo Developer Program, solely for the purpose of creating, executing, and monitoring marketing campaigns related to the Software and the Application. You may allow third parties to access the Marketing Services for the purpose of creating, executing, and monitoring marketing campaigns related to the Application and Software on your behalf, provided that you ensure that all such use is in accordance with this Agreement. You agree to be responsible for any misuse of the Marketing Services by you or any third party using the Marketing Services on your behalf and you agree to use the Marketing Services at your own risk. You are licensed and agree to use the Marketing Services for lawful purposes only. You agree not to create any content or otherwise transmit any information or material that: (a) is false or misleading; (b) is harassing or invades another's privacy, harms minors in any way, or promotes racism, hatred or harm against any group; (c) is obscene; (d) infringes another's rights, including but not limited to intellectual property rights; or (e) constitutes “spam.” You, and not STREAMEZZO, are responsible for all content and other materials that you upload, post, email or otherwise transmit or use via the Marketing Services. You agree that STREAMEZZO in its sole discretion, may at any time: (i) terminate your right to use the Marketing Services if you breach the terms of this Section and fail to correct such breach within thirty (30) days of written notice from STREAMEZZO; and (ii) make changes to or discontinue any and all aspects of the Marketing Services. Upon termination or expiration of this Agreement or of your right to use the Marketing Services, STREAMEZZO may, but is not obligated to, delete archived data, including data entered by you or by your customers via your landing pad, but will not do so until sixty (60) days after such termination or expiration. You authorize STREAMEZZO to process data as required to facilitate the provision of the Marketing Services. STREAMEZZO will process and use personal data in accordance with the instructions received from you, and will not process or use such data in a manner different from that necessary to carry out STREAMEZZO’s obligations under this Agreement, provided however, that STREAMEZZO may be required to provide personally identifiable information to third parties to comply with legally mandated reporting, disclosure, or other legal process requirements. As the owner of the data, you are warranting that you have provided your users with all appropriate notices and have made all appropriate declarations to competent authorities or obtained all appropriate consents to transfer the data to us and allow its processing according to the terms of this Agreement.

You shall cooperate with STREAMEZZO to allow for review of your use of the Marketing Services and compliance with STREAMEZZO’s quality standards. If STREAMEZZO, in its sole discretion, determines that your use of the Marketing Services is not in compliance with this Agreement, you shall promptly modify or discontinue your use as directed by STREAMEZZO.

You shall defend, indemnify and hold harmless STREAMEZZO, its officers, directors, employees and agents from and against any and all claims, liabilities, damages, losses or expenses, including reasonable attorneys' fees and costs, arising out of or in any way connected with your access to or use of the Marketing Services.

6. Nature of Relationship

6.1 The relationship of STREAMEZZO and you established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed to:

6.1.1 give either party the power to direct and/or control the day to day activities of the other;

6.1.2 constitute the parties as partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking; or

6.1.3 allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever.

6.2 All financial obligations associated with either party’s business are the sole responsibility of that party.

6.3 You shall be solely responsible for and shall indemnify and hold STREAMEZZO free and harmless from any and all claims, damages or law suits (including STREAMEZZO's lawyers fees and the reasonable fees of any expert witnesses) arising out of your breach of this Agreement or of your acts or omissions or the acts or omissions of your employees or your agents.

6.4 The Parties recognize and agree that their relationship is exclusive of any agency arrangement. Under no circumstances will a Streamezzo Program Developer be considered as STREAMEZZO’s commercial agent within the meaning of directive n° 86/653/EEC of Council dated 18 December 1986 relating to coordination of the law of Member States in respect of independent commercial agents and any applicable national legislation and regulations applying said directive. The Parties expressly waive the application of aforementioned directive and any applicable national legislation with respect to the subject-matter hereof, including with respect to any ancillary facilitation which may be provided by you to STREAMEZZO or STREAMEZZO’s resellers or yous in entering into any commercial relationship with customers using the Licensed Products.

7. STREAMEZZO's Rights and Developer Partner’s Obligations

7.1 Rights to Review Marketing Material. STREAMEZZO reserves the right to review and approve all Marketing Services as used by you.

7.2 License Restrictions and Ownership. Any license rights granted herein are granted solely to the entity set forth herein, and not, by implication or otherwise, to any parent, subsidiary or affiliate of such entity. All rights not expressly granted hereunder are reserved to STREAMEZZO.

Except as expressly authorized by STREAMEZZO, you agree not to copy, distribute, reproduce, modify, delete, publish, transmit, participate in the transfer or sale of, create derivative works from, use or allow access to, or in any way exploit any of the content included in the Marketing Services. STREAMEZZO does not guarantee the accuracy, quality or usefulness of any content or any Marketing Services.

You shall not copy, distribute, reproduce, modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive the Software source code or any internal data files generated by the Software. You shall not merge or integrate all or part of the Software with other software programs, other than in compliance with the Reference Documentation. You may not rent, lease, sublicense or transfer the Licensed Products to any third party, use the Software in a service bureau or time-sharing arrangement, or otherwise allow direct or indirect use (including over the internet) of the Software by any third party.

You shall not remove, obscure, or alter STREAMEZZO's copyright notices, trademarks, or other proprietary rights notices affixed to or contained within the Licensed Products or the Marketing Services. You must reproduce such notices on any permitted copies of the Licensed Products and the Marketing Services.

STREAMEZZO reserves the right to require that you discontinue the use of the Licensed Products, STREAMEZZO’s logo or trademark and any advertising or marketing materials relating to STREAMEZZO or the Licensed Products. Nothing herein shall grant you any right, title, or interest in the Licensed Products, the Marketing Services or STREAMEZZO's logo or trademark. At no time during or after the term of this Agreement shall you challenge or assist others to challenge STREAMEZZO's logo or trademark or the registration thereof or attempt to register any trademarks, or trade names confusingly similar to those of STREAMEZZO.

You recognize and agree that STREAMEZZO and STREAMEZZO’s licensors own and upon termination shall remain the owner or owners of all rights, title and interest in the Licensed Products, the marketing materials and STREAMEZZO’s logos, trademarks or advertising template guidelines now or hereafter subject to this Agreement and of all patents, trademarks, trade names, inventions, copyright, know how, materials and trade secrets relating to the design, operation, or maintenance of the same. The use by you of any of aforementioned property rights is authorized only for the purposes herein set forth, and upon termination of this Agreement for any reason such authorization shall cease.

7.3 Confidentiality. You agree not to provide or otherwise make available any Licensed Products in any form, to any person other than your employees exclusively for purposes connected with your permitted activities hereunder. You acknowledge that the Software constitutes confidential and proprietary information of STREAMEZZO or STREAMEZZO's own licensor developed at substantial expense. You agree to use the Software only as authorized herein, and to treat the Software with at least the same degree of care and protection as you treat your own most confidential information, and you represent and warrant that you take reasonable measures to protect your own confidential information. In case Streamezzo provides to you any Software in source code, you agree to use utmost care in protecting such source code from any unauthorized disclosure. You agree that you will take appropriate action by instruction, agreement or otherwise with your employees to satisfy your obligation under this Agreement with respect to use, protection and security of the Software. You shall remain bound, both during the term of this Agreement and thereafter to hold in confidence your knowledge of the Software as a trade secret for the benefit of STREAMEZZO. You acknowledge that by reason of your relationship to STREAMEZZO hereunder you will have access to certain other information and materials concerning STREAMEZZO's business, plans, customers, technology and products that are confidential and of substantial value to STREAMEZZO, which value would be impaired if such information was disclosed to a third party. You agree that you will not use in any way for its own account or the account of any third party, nor disclose to any third party any confidential Information revealed to you by STREAMEZZO. You shall take every reasonable precaution to protect the confidentiality of such information. On your request, STREAMEZZO shall advise whether or not it considers the particular information or materials to be confidential. You shall not publish any technical description of the Software beyond the description published by STREAMEZZO. In the event of termination of this Agreement, there shall be no use or disclosure by you of any confidential information of STREAMEZZO, and you shall not manufacture or have manufactured any products using any of STREAMEZZO's confidential information.

7.4 You will regularly inform Streamezzo in writing of any Applications developed hereunder. You will inform Streamezzo in writing prior to making any demonstration of the Application

7.5 Certification. Prior to any disclosure or demonstration of the Application by you to potential end-users, STREAMEZZO is entitled (but not obliged) to require that such Application is certified by STREAMEZZO to verify its compliance with your proposed basic features and with STREAMEZZO’s basic functionalities. Certification by STREAMEZZO aims at verifying the quality of the applications using the Licensed Products and preserving STREAMEZZO’s goodwill. Under no circumstances will such certification create, by implication or otherwise, any warranty, undertaking or representation by STREAMEZZO with respect to the Application and/or any right, claim or remedy by you against STREAMEZZO with respect to the certification or non certification of the Application, including, without limitation, its quality, performance and/or operation.

8. Logo, Trademark and Advertising Template Guidelines

8.1 Use. If you qualify for membership in the Streamezzo Developer Program, STREAMEZZO grants you a non-exclusive, non-transferable right to use, during the term of this Agreement, STREAMEZZO’s logo and trademark appropriate to your level of membership to promote your relationship with STREAMEZZO under this Agreement. Said logo and trademark are specified on Streamezzo Developer Program Site. STREAMEZZO may modify the logo and trademark from time to time and you shall stop using any prior version following any such modification. Your use of the STREAMEZZO logo and trademark shall strictly comply with STREAMEZZO’s Logo, Trademark and Advertising Template Guidelines set forth at Streamezzo Developer Program Site. You shall not use the logo and trademark in a manner that misrepresents your relationship with STREAMEZZO or is otherwise misleading, or that reflects negatively on STREAMEZZO. All products and services in connection with which you use the logo and trademark shall conform to STREAMEZZO’s quality standards and meet or exceed industry standards. You shall cooperate with STREAMEZZO to allow for review of your use of the logo and trademark and compliance with STREAMEZZO’s quality standards. If STREAMEZZO, in its sole discretion, determines that your use of the logo and/or trademark is not in compliance with this Agreement, you shall promptly modify or discontinue your use of the logo and trademark as directed by STREAMEZZO. You agree to comply with the Logo, Trademark and Advertising Template Guidelines. STREAMEZZO may change the Logo, Trademark and Advertising Template Guidelines, and, upon reasonable notice from STREAMEZZO, you shall promptly modify your use of the Marketing Services to conform to any such changed Logo, Trademarks and Advertising Template Guidelines.

8.2 Approval of Representations. All representations of STREAMEZZO's logo and trademarks that you intend to use shall first be submitted to STREAMEZZO for approval (which shall not be unreasonably withheld) of design, color and other details or shall be exact copies of those used by STREAMEZZO. If any of STREAMEZZO's logo or trademark are to be used in conjunction with another logo or trademark, then STREAMEZZO's mark shall be presented equally legibly, equally prominently and of greater size than any other but nevertheless separated from the other so that each appears to be a mark in its own right, distinct from the other mark.

9. Warranty and Liability Disclaimer

STREAMEZZO licenses the Licensed Products and the Marketing Services to you on an "as is" basis. To the maximum extent permitted by applicable law, STREAMEZZO and its suppliers and licensors disclaim any and all warranties and conditions, whether express, implied, statutory or otherwise, including without limitation, the implied warranties of merchantability, fitness for a particular purpose, and non infringement, with regard to the Licensed Products and/or the Marketing Services. In no event shall STREAMEZZO or its suppliers or licensors be liable for any special, direct, indirect, exemplary, punitive damages, or for any indirect or consequential damages, including, but not limited to those for business interruption, loss of profits, loss of revenue, loss of data, loss of goodwill, or costs of procurement of substitute goods or services, notwithstanding the theory of liability under which said damages are sought, including but not limited to contract, tort (including negligence), products liability, strict liability, statutory liability or otherwise, and whether or not STREAMEZZO has been advised of the possibility of such damage. Without prejudice to the foregoing, in no event shall STREAMEZZO’s liability to you exceed an amount equal the annual membership fees paid by you to STREAMEZZO. These limitations shall apply notwithstanding any failure of essential purpose of any limited remedy. The foregoing will not affect either party’s liability, if any, for personal injury, or death caused by a party’s negligence or liability for fraud. The parties agree that this Section represents a reasonable allocation of risk and constitutes an essential clause of this agreement, in the absence of which STREAMEZZO would not have entered into this Agreement.

11. Term and Termination

11.1 Term. This Agreement shall continue in full force and effect for a fixed term of one (1) year as from the Effective Date, unless terminated earlier under the provisions of this Section. This Agreement shall renew by tacit consent for successive one (1) year periods, unless terminated by either party with thirty (30) days’ prior notice.

11.2 Termination for Cause. If either party materially defaults in its performance or breaches any of the terms or conditions of this Agreement then the other party may give written notice to the breaching or defaulting party of the breach and of the remedy for such breach required, and if such breach or default is not cured within 30 days of receipt of such notice, then the Agreement shall automatically terminate at the end of that period.

11.3 Termination for Grave Reason. Notwithstanding anything to the contrary contained herein, and without prejudice to the generality of Section above, STREAMEZZO may terminate this Agreement upon notice with immediate effect upon dispatch to you if you:

11.3.1 attempt to transfer or assign this Agreement or the licenses granted hereunder without the prior written consent of STREAMEZZO;

11.3.2 fail to make any payment herein within 30 days of its due date;

11.3.3 fail to comply with any of the provisions of Sections 3.2, 4, 7.2, 7.3 and 8 of this Agreement;

11.3.4 knowingly misrepresent the Software's capabilities or perform other actions which may bring STREAMEZZO into disrepute or damage the goodwill of STREAMEZZO's business or name;

11.3.5 experience a Change In Control. A “Change In Control” means either (a) the cumulative disposal (collectively or individually) of a controlling stake in your capital by the persons who hold your entire issued shares as of the Effective Date; where, for purposes of this clause 11.3.5, “controlling stake” means a stake in your capital which grants its owner or owners, whether by law or by agreement between such persons, control of yourself, as the term “control” is defined below, (b) the issuance of shares by you to third parties such that after such issuance the persons who hold your entire issued shares as of the Effective Date no longer hold a controlling stake in your capital, or (c) the sale or assignment of any of your shares to a competitor of STREAMEZZO or a greater than 10% shareholder in a competitor of STREAMEZZO. For purposes of this definition, “control” including, with their correlative meanings, the terms "controlled by," and "under common control with," as used with respect to any person (legal or physical), means the possession, direct or indirect, and formal or informal, of the power to direct or cause the direction of management or policies; being agreed that such power will be deemed to exist in case of ownership, directly or indirectly, of more than 40% of the voting securities of such person.

11.3.6 contravene the export laws and regulations referred to in Section 12.8 hereof.

11.5 Termination for Insolvency. This Agreement shall terminate, without notice:

11.5.1 upon the institution by or against you of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of your debt;

11.5.2 upon your making an assignment for the benefit of creditors; or

11.5.3 upon your dissolution.

11.6 Actions on Termination. Upon termination of this Agreement, you shall:

11.6.1 pay to STREAMEZZO all license fees and other amounts due and owing to STREAMEZZO at the time of termination; and

11.6.2 cease any use of the Licensed Products, the Marketing Services and STREAMEZZO’s logo and trademark;

11.6.3 Uninstall and return all copies of the Software and confidential information in your possession to STREAMEZZO;

11.6.4 destroy all copies of user documentation in its possession;

11.6.5 cease to represent yourself as an authorized as a Streamezzo Program Developer of STREAMEZZO;

11.7 Return of Materials. Within 30 days after termination of this Agreement, you shall prepare all materials in your possession for shipment, as STREAMEZZO may direct, at your expense. You shall not make or retain any copies of any confidential items or information which may have been entrusted to you.

11.8 Survival of Certain Terms. The provisions of Sections 6, 7.2, 7.3, 10, 11 and 12.1 shall survive the termination of this Agreement for any reason.

12. General Provisions

12.1 Governing Law and Jurisdiction

12.1.1 This Agreement shall be governed by and construed under the laws of France, without reference to any conflicts of law rules and both parties hereby submit to the jurisdiction the competent court of Paris, France, with respect to any dispute arising out of or in connection with this Agreement, including, without limitation, its formation, validity, construction, performance, expiration or termination.

12.1.2 Nothing in this Section shall prevent either party from enforcing judgment against the assets of the other held outside the jurisdiction of the Paris courts.

12.1.3 Both parties hereby expressly consent to service of process being effected upon one party by the other by arranging for its personal delivery at, or sending it by registered mail to, the relevant address shown at the beginning of this Agreement.

12.2 Entire Agreement. This Agreement sets forth the entire Agreement and understanding of the parties relating to the subject matter herein and merges all prior discussions between them. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement shall be effective unless in writing signed by the party to be charged.

12.3 Notices. Any notice required or permitted by this Agreement shall be in writing and shall be deemed given if sent to the other party at the relevant address shown at the beginning of this Agreement, or at such other address for which such other party has given notice to the sending party, either (i) personally delivered with written acknowledgment of receipt, (ii) by internationally recognized courier service with such service's written confirmation of receipt or (iii) by facsimile or telex with a confirmation copy sent by internationally recognized courier service. Such notice shall be deemed to have been given and become effective upon receipt.

12.4 Invalidity

12.4.1 If any provision of this Agreement, or the application thereof to any situation or circumstance, shall be invalid or unenforceable, the remainder of this Agreement shall not be affected; and each remaining provision of this Agreement shall be valid and enforceable to the fullest extent permitted by applicable law.

12.4.2 In the event of such partial invalidity, the parties shall seek in good faith to agree on replacing any such legally invalid provision with a provision or provisions which, while being legally valid, will have the effect most nearly and fairly approaching the intentions of the parties in agreeing the invalid provision.

12.4.3 WITHOUT LIMITING THE FOREGOING, IT IS UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THIS AGREEMENT WHICH PROVIDES LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES OR EXCLUSION OF DAMAGES IS INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER SUCH PROVISION AND TO BE ENFORCED AS SUCH. FURTHER, IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN EFFECT.

12.5 Non-Assignability and Binding Effect. You shall not, without the prior written consent of STREAMEZZO, assign this Agreement in whole or in part or delegate any right or duty hereunder to any third party, sub-agent, representative or consultant. Any attempted assignment not having such consent shall be void and without effect. STREAMEZZO may assign this Agreement, in whole or in part, to any entity provided that such third party is also assigned all necessary rights to appoint Streamezzo Program Developers of the Software and grant the licenses contemplated by this Agreement.

12.6 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.

12.7 Force Majeure. STREAMEZZO shall not be liable or deemed to be in default for any delay or failure in performance or interruption of any service resulting directly or indirectly from acts of God, civil or military authority, acts of public enemy, war, riots, civil disturbances, insurrections, accidents, fires, explosions, floods, the elements, strikes, labor disputes, shortages of suitable parts, materials, labor or transportation, magnetic interference, interruptions of electric power or other utility service, unavailability of any telecommunications service or connection to any telecommunications service, computer, software, backbone or network error, or any other cause beyond STREAMEZZO’s reasonable control.

12.8 Export Controls. Streamezzo Program Developers shall not transfer, directly or indirectly, any restricted Programs or technical data received from STREAMEZZO or any Affiliates of STREAMEZZO, or the direct product of such data, to any destination outside the Territory which is subject to export restrictions under United States or other applicable law, unless prior written authorization is obtained from the appropriate governmental agency.