This agreement is made between Dingit.tv Limited, a company incorporated and registered in England and Wales with company number 10191770 whose registered office is at 8 Percy Street, London W1T 1DJ (Licensor) and the entity or individual authorized by the Licensor to use the Dingit Player and Content (as defined below) (Licensee), and governs the Licensee’s use of the Dingit Player and Content.
The definitions in this clause apply in this agreement.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Confidential Information: any information (including, without limitation, in written, oral, visual or electronic form, or on tape or disk) which is not publicly available including, but not limited to, any information specifically designated by the disclosing party as confidential; any information supplied to the disclosing party by any third party in relation to which a duty of confidentiality is owed or arises; and any other information which should otherwise be reasonably regarded as possessing a quality of confidence. This includes know-how and information about design, development, specifications, manuals, instructions, customer lists, sales, marketing, promotion, distribution, business plans, forecasts, and technical or other expertise.
Content: all content including text, information, data, software, executable code, images, audio, or video material in any medium or form provided at any time by the Licensor to the Licensee. Content licenced under this agreement is archival/non-recent.
Dingit Player: a desktop application that allows publishers to stream live video and upload VOD files. Encoding can be carried out on the local machine, removing the need for hosted transcoding farms. The Dingit Player also allows publishers to trigger custom events (such as an ad break), which are exactly synchronised to the source video and surfaced to the video player at the point of playback. Publishers can also manage input sources, apply filters, customise quality and transition between multiple scenes.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in getup, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
2.1 The Licensor hereby grants to the Licensee a non-transferable, non-exclusive
licence to use the Dingit Player and Content for the term of this agreement.
2.2 The licence granted to the Licensee is strictly limited to, and the Licensee shall use the Dingit Player and Content solely for, the purpose of displaying the Content on the Licensee’s website(s).
2.3 The Licensee shall not grant sub-licences, in whole or in part, of any of the rights granted under this agreement, or sub-contract any aspects of exploitation of the rights licensed to it, without the Licensor’s prior written consent.
2.4 The Licensor may require the removal of, or editorial revisions to, any of the Content licensed to the Licensee under this agreement at any time. The Licensee agrees to effect that removal or editorial revisions within 24 hours of receipt of the request.
3.1 The Licensee may not change, amend or develop the Content in any way
without the Licensor’s prior written consent.
3.2 The Licensee shall comply with all applicable laws in performing its obligations and exercising its rights under this agreement.
3.3 The Licensee shall ensure that the Content is kept secure and in an encrypted form, and shall use the best available practices and systems to prevent, and take prompt and proper remedial action against, unauthorised access, copying, modification, storage, reproduction, display or distribution of the Content.
3.4 If the Licensee becomes aware of any misuse of any Content, or any security breach in connection with this agreement that could compromise the security or integrity of the Dingit Player or Content or otherwise adversely affect the Licensor, the Licensee shall, at the Licensee’s expense, promptly notify the Licensor and fully co-operate with the Licensor to remedy the issue as soon as reasonably practicable. The Licensor may suspend the Licensee’s rights under this agreement until the misuse or security breach is remedied.
The Licensor retains ownership of all Intellectual Property Rights in the Dingit Player and the Content.
5.1 The Licensee undertakes to deliver traffic to the Dingit Player equivalent to at least 30% of the total traffic generated by the Licensee’s website(s) as recorded on alexa.com, in each calendar month. The traffic sent by the Licensee must be organic in nature, that is it must emanate either from Google search or referral sites approved by the Licensor.
5.2 Within 30 days of the Licensor’s request, the Licensee shall deliver to the Licensor a written statement detailing: (a) the traffic generated by the Licensee’s website(s) as recorded on alexa.com; (b) the traffic delivered to the Dingit Player by the Licensee; and (c) any other particulars the Licensor may require.
6.1 Each party shall promptly notify the other of any actual or suspected infringement of the Content or the Dingit Player that comes to its attention (Infringement).
6.2 The Licensee shall co-operate fully with the Licensor by taking all steps required by the Licensor (in its sole discretion) in connection with any Infringement, including, without limitation, legal proceedings in the name of the Licensor or in the joint names of the parties. The Licensor shall be responsible for the cost of any legal proceedings it requires, and is entitled to any damages, account of profits and/or awards of costs recovered. The Licensee shall use its best endeavours to assist the Licensor in any legal proceedings relating to any Infringement.
7.1 Without affecting any other right or remedy available to it, the Licensor may terminate this agreement with immediate effect by giving notice to the Licensee: (a) if the Licensee fails to deliver the minimum traffic as set out in clause 5.1; or (b) if the Licensee commits a material breach of any other term of this agreement; or (c) if the Licensee challenges or disputes the Licensor’s ownership of, or rights in, the Dingit Player or Content, or the validity of those rights. The Licensor may also terminate this agreement for convenience by giving 30 days’ notice to the Licensee.
7.2 On any expiration or termination of this agreement (a) all rights and authorisations granted by the Licensor to the Licensee under this agreement shall automatically terminate and immediately revert to the Licensor; and (b) the Licensee shall immediately cease all use of the Dingit Player and Content and shall immediately return to the Licensor all Content in the Licensee’s possession or subject to its control including from back-up systems and any cached Content within the Licensee’s control.
8.1 Save where expressly provided, all conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this licence or any collateral contract, whether by statute, common law or otherwise, are hereby excluded to the maximum extent permitted by law.
8.2 Nothing in this licence shall operate to exclude or limit the Licensor’s liability for: (a) death or personal injury caused by its negligence; (b) any breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; (c) fraud; or (d) any other liability which cannot be excluded or limited under applicable law.
8.3 The Licensor shall have no liability for any losses or damages which may be suffered by the Licensee (or any person claiming under or through the Licensee), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories: (a) loss of use; (b) loss of profits; (c) loss of anticipated savings; (d) loss of business opportunity; (e) loss of contracts; (f) loss of goodwill; or (g) loss arising from damaged, corrupted or lost data.
8.4 Subject to Clause 8.2, the Licensor’s liability, whether in contract, tort (including negligence), or otherwise and whether in connection with this licence or any collateral contract, shall not exceed £500.
No one other than a party to this agreement shall have any right to enforce any of its terms.
10.1 The Licensee shall not assign, transfer, mortgage, charge, subcontract, sublicense, declare a trust over or deal in any manner with this agreement or any of its rights and obligations under this agreement without the prior written consent of the Licensor.
10.2 The Licensor may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under this agreement.
10.3 The Licensor may subcontract or delegate in any manner any or all of its obligations under this agreement to any third party.
10.4 The Licensee shall, at the Licensor’s request, execute any agreements or other instruments (including any supplement or amendment to this agreement) which may be required in order to give effect to or perfect any assignment, transfer, mortgage, charge or other dealing referred to in clause 10.2.
10.5 The Licensor may, after having given prior written notice to the Licensee, assign its rights under this agreement to any person to which it transfers that part of its business to which this agreement relates, provided that the assignee undertakes in writing to the Licensee to be bound by the Licensor’s obligations under this agreement.
Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or nonperformance continues for one week or more, the party not affected may terminate this agreement by giving 5 days’ written notice to the affected party.
12.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
12.2 If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
13.1 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
13.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
14.1 Each party undertakes that it shall not at any time during this agreement, and for a period of five years after the expiry or termination of this agreement, disclose to any person any Confidential Information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, nor any of the terms of this agreement, except as permitted by clause 14.2.
14.2 Each party may disclose the other party’s Confidential Information (a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall procure that its employees, officers, representatives or advisers to whom it discloses the other party’s Confidential information comply with the obligations set out in this clause 14.2 as if they were a party to this agreement; and (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
14.3 No party shall use any other party’s Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
15.1 Any notice given to a party under or in connection with this agreement shall be in writing and shall be (a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or (b) sent by email to an address previously provided by one party to another.
15.2 Any notice shall be deemed to have been received (a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; (b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or (c) if sent by email, at 9.00 am on the next Business Day after transmission.
15.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
Without prejudice to any other rights or remedies that the Licensor may have, the Licensee acknowledges and agrees that damages alone would not be an adequate remedy for any breach of the terms of this agreement by the Licensee. Accordingly, the Licensor shall be entitled to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of the terms of this agreement.
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
18.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
18.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this agreement.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).