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GENERAL TERMS AND CONDITIONS

Article 1 – Definitions


The following definitions shall have the following meanings as used in these general terms and conditions:

Agreement the agreement between Invideous and the Client pursuant to which the Client makes use of the Services (including the Cover Sheet at the front of this document, the Schedule, the Appendix and these General Terms)

Client the party, either a business or individual entity, making use of the Services

Confidential Info means information of either party which is marked or expressed as being confidential, the content of this Agreement and any information which could reasonably be deemed to be confidential from its nature, content or the circumstances in which it is provided including without limitation information relating to the business, customers, products, operations, processes, plans or intentions, product information, know-how, design rights, trade secrets, market opportunities and business affairs of either party and/or (if either party is part of a larger group of companies) information relating to any other group company

Control Panel a secured part of the Client's personal page on the Website, which can only be accessed by the Client by using their personal username and password. The Control Panel shows an overview of the Client's account transactions and other information resulting from their use of the Invideous Plugin

Customer any individual or business entity desiring to purchase access to the Client's services and/or products by making use of the Services

General Terms these general terms and conditions

IPRs all patents, unpatented inventions, design rights, copyrights (including, without limitation, rights in computer software), rights in databases, topography rights, trade marks, service marks, trade names, rights in goodwill or to bring an action in passing off, rights in trade secrets, confidential information or know-how and all other intellectual property rights of any nature whatsoever, and all rights of a similar nature or having similar effect, throughout the world, whether registered or unregistered, and including all applications and rights to apply for any of the same

Online Video Players software provided by third parties used by the Client to make available online video content to the Customers (“OVP”)

Gross Revenue the total amount of revenue actually received by Invideous from (i) Suppliers (relating to the Customer’s use of the Services described in article 5.1 a. below)

Parties Invideous and the Client

Plugin the Invideous provided .swf file accessed by the third party OVP used by the Client

Services the services offered by Invideous on the Website and as a Plugin to an OVP and via mobile applications

Supplier the merchant service or other operator providing for the means to allow the Customer to add funds to their Invideous account

General Terms these general terms and conditions

Term means the period from the date of this Agreemnt until the Agreement is terminated in accordance with its terms

Website Invideous' website with (at least) the domain name invideous.com included but not limited to all related software, design and databases

PCM or pcm means per calendar month.


Article 2 - Agreement


2.1 The Agreement shall come into force and effect upon its execution by representatives of both Parties. The Client shall, on execution of this Agreement, fill out the required details for registration on the Website and Invideous shall subsequently provide e-mail confirmation of the Client's registration. The Client guarantees the completeness and accuracy of any information provided.

2.2 The Client shall receive a personal username and password, which is strictly private and confidential. The Client will be fully responsible for all activities that occur under this account and for any misuse of the username or password that are/is within its control.

2.3 After registration and confirmation by Invideous as mentioned in article 2.1 of this Agreement, the Client will have access to the Website and Plugin and will be able to use the Website and Plugin as links to provide their Customers the Services.

2.4 The Client warrants that it is legally authorised and has obtained all necessary regulatory approvals and certificates to conclude the Agreement and to provide any services and/or sell any products it intends to sell. The Client further warrants that it will comply at all times with all applicable laws, rules and regulations.


Article 3 – Services and Payment


3.1 The Services consist of:

a. An account management system for the control of the applications that make up the Invideous platform

b. Any additional functionality that is added to the Client’s invideous account in the form of ‘Apps’. These may be subject to an addendum to this agreement or additional term sheet.

3.2 When the Customer pays for the Client's services/products (using the Invideous Services described in article 3.1 a. above) the cost shall be deducted from the Customer's Invideous account by the Supplier and transferred to Invideous. Once such amount is received by Invideous from the Supplier it shall be deemed to be Gross Revenue and the client revenue share payable in accordance with the Schedule will be credited to the Client's nominated account in accordance with article 3.3 below.

3.3 Invideous shall remit client revenue share outpayments to the client within 30 days of the end of the month during which the Gross Revenue was received by Invideous.

3.4 Subject to the Client’s prior approval, Invideous is allowed to introduce other methods of payment which makes it possible for a Customer to pay for access to the services and/or products on a Website of the Client. Any associated processing costs for these shall be paid for from Invideous' portion of the Gross Revenue, or deducted from a Customer's balance at point of add funds transaction.


Article 4 – Compliance


4.1 The Client warrants and represents to Invideous that it shall:

a. refrain from infringing any Invideous or third party’s IPRs;

b. refrain from violating any law or regulation, including but not limited to penal laws, privacy laws, advertisement laws and tort law, inter alia acting in any way detrimental, discriminatory, immoral, obscene, inappropriate or otherwise inadmissible pursuant to applicable law;

c. not make use of the Services to send unsolicited messages (spamming);

d. not mislead the Customer in any way or/and refrain from offering illegal services or distributing unlawful material;

e. refrain from hacking the Website or the server(s) on which the Website or Plugin is located, or circumventing any security measures made to it, or in any other way hinder or influence the operation of the Website.

4.2 Invideous warrants and represents to Client that it shall:

a. refrain from infringing any Client or third party’s IPRs;

b. refrain from violating any law or regulation, including but not limited to penal laws, privacy laws, advertisement laws and tort law, inter alia acting in any way detrimental, discriminatory, immoral, obscene, inappropriate or otherwise inadmissible pursuant to applicable law;

c. not mislead the Customer in any way or/and refrain from offering illegal services or distributing unlawful material;

d. comply at all times with the terms set out in the Appendix;

e. ensure that the Plugin does not contain any malware or viruses;

f. provide the Services using reasonable skill and care; and

g. subject to article 6.4, ensure that the Services and Plugin are available 99.5% of the time.


Article 5 – Intellectual property rights


5.1 The Client acknowledges and agrees that all IPRs in the Website and Plugin will at all times be exclusively owned by Invideous. Invideous acknowledges that all IPR’s in the Client’s content will at all times, as between the Client and Invideous, be exclusively owned by the Client. The Client acknowledges and agrees that Invideous shall be permitted to store a copy of the Clients’ video content on its server solely in order to improve the provision of services to the Customer. All copies will be deleted by Invideous within 7 days of the expiry or termination of this Agreement.

5.2 Invideous hereby grants to the Client a non-exclusive, revocable, non-transferable licence during the Term (without right to assign or sub-license) to use the Plugin on the URL’s/publisher IDs specified in the Schedule, on the terms and conditions of this Agreement. The Client shall not use the Plugin, the Services, or any product of the Services except as expressly permitted under this Agreement and in accordance with Invideous’ instructions from time to time. The Client is entitled to use Invideous' name and logo on its own website during the Term of this Agreement provided any goodwill accrues exclusively to Invideous.

5.3 The Client shall not and shall not allow any third party to: (i) take any action which might invalidate the title of Invideous to the IPRs or any product of the Services; (ii) create, or produce anything which utilises or applies any of the principles, concepts, designs, functionality or purposes of the Website or Plugin, or (iii) copy, adapt, reverse engineer, modify, decompile, disassemble, translate, or create derivative works based on the whole or any part of the Website or Plugin, all or any part of the program code, or any product of the Services.

5.4 The Client shall refrain from using, reproducing or altering the Website or any part of it in any other way than provided for by means of this Agreement, without Invideous' prior written consent. The Client shall immediately cease and desist the unauthorized use of Invideous' IPRs upon Invideous' first notice.

5.5 Invideous shall suspend use of the Plugin immediately on notice from the Client.

5.6 Invideous acknowledges that the Client shall be entitled to immediately suspend the Plugin at anytime.


Article 6 – Liability and force majeure


6.1 Nothing in this Agreement shall be construed as excluding or limiting the liability of either party (i) for fraud or fraudulent misrepresentation, or (ii) for death or personal injury caused by that party’s negligence.

6.2 Subject to article 6.1, in no event shall either party be liable to the other for any:

6.2.1 special, indirect or consequential losses; or

6.2.2 loss of profit, loss of revenue, loss of anticipated savings, loss of contract, loss of opportunity, loss of data in each case whether direct or indirect; or

6.2.3 any direct or indirect loss of or damage to goodwill, in each case arising out of or in connection with this Agreement or the subject matter hereof and in each case whether or not such losses were in the contemplation of the Parties or were notified by one party to the other on or prior to the date of this Agreement.

6.3 The Parties acknowledge that no representations were made by the other prior to entering into this Agreement, and that they did not rely on any representations (whether written or oral) of any kind, other than those expressly set out in this Agreement.

6.4 The Services and the Plugin are provided on an "as is" basis, and Invideous makes no guarantees that the Plugin or Services will be available on a continuous or uninterrupted basis or that it is or will be free of errors or bugs. Save to the extent expressly stated herein, Invideous does not give, and hereby expressly excludes tothe fullest extent permitted by applicable law, any and all other representations, warranties, guarantees, terms or conditions, whether implied, statutory or otherwise with respect to the Services and the Plugin, or the performance of its obligations hereunder. The Client understands and agrees that from time to time the Services and/or the Plugin may be inaccessible, unavailable or inoperable for causes beyond the control of Invideous or which are not reasonably foreseeable by Invideous and Invideous shall not be liable for any failure to perform its obligations under this Agreement caused by any such causes. The Client further acknowledges that from time to time it may be necessary to perform planned periodic maintenance procedures or repairs, affecting the availability of the Services and/or Plugin. The Client warrants and represents that it shall keep such planned procedures to an absolute minimum and shall notify the Client in advance of such procedures.

6.5 The Client shall submit any complaints with regard to the Services in writing within 10 days after the grounds for complaint have arisen, with a clear description of the grounds for the complaint. Invideous endeavours to resolve the complaint without delay.

6.6 The Client shall indemnify Invideous from and against any claims, liabilities, losses, damages, costs and expenses, including reasonable legal fees, arising out of or in connection with (i) any breach of its obligations under this Agreement, or (ii) any claim or allegation that the Client’s website(s), including any content therein or any downloads available therefrom: (a) infringes any third party’s patent, copyright, trade secret or other IPRs; or (b) violates any law or regulation; or (c) violates any right of or causes injury to any third party, including any right of publicity or privacy, or is defamatory or obscene.

6.7 Invideous shall indemnify the Client from and against any claims, liabilities, losses, damages, costs and expenses, including reasonable legal fees, arising out of or in connection with (i) any breach of its obligations under this Agreement, or (ii) any claim or allegation that the Website, the Plugin or Services: (a) infringes any third party’s patent, copyright, trade secret or other IPRs; or (b) violates any law or regulation; or (c) violates any right of or causes injury to any third party, including any right of publicity or privacy, or is defamatory or obscene.

6.8 Invideous undertakes to maintain insurance cover that Invideous reasonably believes would provide adequate cover for this Agreement (including without limitation errors and omissions, cyber liability and public liability) and will note the Client’s interest upon such insurance policies. Invideous shall upon request provide the Client with the relevant policies and evidence of payment of the current premiums.


Article 7 – Term and termination


7.1 The Agreement shall commence on the date of this Agreement and continue until the end of the Initial Term unless terminated earlier as provided herein. In addition the Initial Term will automatically renew for an additional one year period (“Renewal Term”) unless Invideous or the Client gives the other party at least three (3) months notice of its intention to terminate at the end of the Initial Term.

7.2 Without prejudice to the accrued rights and liabilities of the Parties at termination, the Client has the right to terminate this Agreement without cause upon 30 days prior notification.

7.3 This Agreement may be terminated forthwith by either party giving to the other written notice in the event that the other party:

7.3.1 has committed a material breach of this Agreement and has failed to remedy it within fourteen (14) days of written notice to do so having been given by the party not in default;

7.3.2 has committed a material breach of this Agreement which is incapable of remedy; or

7.3.3 ceases or threatens to cease carrying on the whole or substantially the whole of its business, or the other party suffers or threatens to suffer any form of insolvency including where an order is made or resolution passed for a voluntary winding up of the other party, or where the other party has an administrative order made in relation to it or has a receiver or administrator appointed over any of its property, undertaking or assets or if the other party is unable to pay its debts as and when they fall due, or any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction that has an effect equivalent or similar to any of the events mentioned in this article 7.3.3.

7.4 After termination of this Agreement, the Client will immediately cease the use of the Services, Plugin, the name, logo and the domain name of Invideous and Invideous will make any payments due to the Client pursuant to article 3 without delay. Invideous will be authorized to block the Client from using the Website and/or Plugin.


Article 8 – Data Ownership & Protection


8.1 Both parties warrant and represent that they will duly observe all their obligations under the Data Protection Act 1998 which arise in connection with this Agreement and any other applicable data protection legislation.


Article 9 – General provisions


9.1 Neither party may assign its rights and obligations pursuant to this Agreement without the other party’s prior written consent, such consent not to be unreasonably withheld or delayed.

9.2 If any provision of this Agreement is held to be unlawful, void or unenforceable by any judicial or administrative authority, this shall not in and of itself affect the validity or enforceability of the remaining provisions of this Agreement, provided that the cancellation of such provision does not materially alter the commercial balance of this Agreement.

9.3 Any waiver of either party of a breach of any provision of this Agreement shall not be considered to be a waiver of any subsequent breach of the same or any other provisions. No waiver shall be implied by taking or failing to take any other action.

9.4 A person who is not a party to this Agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement. This article does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act.

9.5 This Agreement shall not be varied unless such variation is in writing signed by a duly authorised representative of each party.

9.6 Neither party shall be liable to the other in respect of anything which, apart from this provision, may constitute breach of this Agreement arising by reason of force majeure, namely circumstances beyond the control of either party which shall include without limitation acts of God, perils of the sea or air, fire, flood, drought, explosion, sabotage, accident, embargo, riots, labour strikes, civil commotion or civil authority including acts of local government and parliamentary authority. In such eventuality, the parties shall meet together to devise ways of overcoming the difficulty.

9.7 Any notices given by either party under this Agreement shall be given in writing and provided to the recipient at its address set out above (or such address as such party may notify the other for the purposes of this Agreement). Any such notice shall be deemed to be delivered:

9.7.1 if delivered personally, at the time of delivery;

9.7.2 if sent by first class post, forty-eight (48) hours after posting; and

9.7.3 if sent by facsimile, at the time of transmission as confirmed by a transmission report from the sender's facsimile machine.


Article 10 – Applicable law and jurisdiction


The Agreement and any dispute or claim arising out of or in connection with it (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales. The parties to the Agreement irrevocably agree to submit to the exclusive jurisdiction of the courts of England and Wales in relation to all matters arising out of or in connection with the Agreement (including non-contractual disputes or claims).


Article 11 – Confidentiality


11.1 Each party shall:

11.1.1 hold in confidence all Confidential Information obtained from the other party; and

11.1.2 not disclose to any third party without the express permission of the other party any Confidential Information obtained from the other party.

11.2 The provisions of Article 11.1 shall not apply to any information which:

11.2.1 is or becomes public knowledge other than by breach of this Article 11;

11.2.2 is in the possession of the receiving party without restriction in relating to disclosure before the date of receipt from the disclosing party;

11.2.3 is received from a third party who lawfully acquired or developed it and who is under no obligation restricting its disclosure; or

11.2.4 must be disclosed by the receiving party in the discharge of its obligations to supply information for parliamentary, governmental or judicial purposes.


APPENDIX: SECURITY CLAUSES


A. Information Security Obligations With respect to any matter that may reasonably affect the security of any software or hardware used in relation to this Agreement Invideous agrees to comply in full with any and all guidelines or policies pertaining to the provision of its obligations under this Agreement as notified to Invideous by the Client from time to time during the Term. For the avoidance of doubt, the Invideous shall have the following obligations:

i. Invideous must have information systems in place and must provide a copy of such procedures to individuals who are granted access to the Website and Plugin and any Client Confidential Information;

ii. Invideous must ensure that the software used for the purposes of this Agreement (including any upgrades or updates) are tested for security vulnerabilities prior to release, and upon discovery, Invideous will take prompt action to fix the same prior to release to the end user;

iii. if and when Invideous obtains knowledge of any security vulnerability in any software it must notify the Client as soon as possible but in any event in less than twenty-four (24) hours;

iv. should an operating system vendor provide a critical security patch to protect against a known vulnerability, Invideous must ensure that the product will operate correctly or make product enhancements so that the patch can be applied as soon as practicable;

v. without limiting the foregoing, Invideous will comply with any security procedures and protections set forth in this Appendix and will give written notice to the Client prior to making any substantive changes to such security procedures and protections.

B. Information Security Auditing

i. For the purposes of ensuring compliance with and assessing the security of any software or hardware used in relation to this Agreement, the Client shall be entitled to regularly review and audit services, systems and facilities of Invideous and access at the Client’s own cost and expense in order to verify Invideous’s ongoing compliance with this Appendix with appropriate notice.

ii. Invideous shall provide the Client with confirmation that it is compliant with any security audit that the Client has directed Invideous to undertake and that the Client has been marked as named client on such audit within a reasonable time after such audit.

iii. In the event that there is a suspected or confirmed incident of a serious breach, attempted breach or impairment of security which may involve the Client’s data, Invideous will immediately report this to the Client’s [NOMINATED PERSON AND PHONE NUMBER] and in writing to the person designated by the Client to receive notices under this Agreement. In such event, the Client may engage a third party to assist with forensic analysis at the Client’s expense. Results of the investigation must be delivered to the Client in accordance with the confidentiality and notice provisions of this Agreement and marked “CONFIDENTIAL”. In the event that such forensic analysis reveals that Invideous was in breach of its obligations hereunder Invideous shall reimburse the Client for the costs of such audit.

C. Payment Card Issuer Compliance

i. Invideous agrees to comply with VISA’s, Mastercard’s and any other credit card issuer rules and regulations, including but not limited to their respective data security programme requirements. Invideous agrees to provide data security reports as required by such issuer, pay to such issuer any fines and/or penalties in the event that Invideous or any third party fails to comply with such data security requirements, provide full cooperation and access to permit such issuer to conduct a security review of Invideous’s policies and procedures. The Client reserves the right to terminate this Agreement forthwith in the event that such issuer finds that Invideous has failed to comply with its data security requirements or if Invideous has failed to obtain a “passing grade” from such issuer.