DAILYMOTION ENTERPRISE SOLUTION – MASTER SERVICES AGREEMENT (MSA)

INTRODUCTION

Dailymotion operates a video-hosting worldwide website available at www.dailymotion.com which enables users to access, Play, upload, store, and share videos on the Internet, and from any other technical, communication or transmission platforms now known or hereafter devised, discovered, or developed including, without limitation, mobile phones, tablets, IPTV platforms and other devices.

Dailymotion has developed a video hosting service which allows Customers to personalize the Dailymotion Video Player (as defined herein), to embed the Video Player on Customer’s own websites and mobile apps, and to display and stream in the Video Player Customer’s audiovisual content without any advertising (the “Dailymotion Enterprise Solution”) to respond to the specific needs of Customers regarding the storage, upload, administration, and broadcasting of the audiovisual content of its choice.

Customer wishes to benefit from the Dailymotion Enterprise Solution offered by Dailymotion, but also from any current or future tool which may be supplied by Dailymotion to Customer in the scope of the Dailymotion Enterprise Solution.

Each Order Form, and any exhibit thereto, is subject to this Agreement and is incorporated herein by reference.

In consideration of the mutual agreements and covenants set forth below, the Parties agree as follows.

TITLE I: PREAMBLE

DEFINITIONS

Unless otherwise specifically provided, and in addition to the other capitalized terms defined in this  Agreement, the following terms shall have the meanings set forth below:

“Account Limit” means the number of Accounts Customer will be entitled to during the Term under this Agreement.

“Additional Fees” means any and all applicable additional fees that may be due by Customer depending on Customer’s actual use of the corresponding Dailymotion Enterprise Services Solution features above the limits defined in the Order Form, and may include but are not limited to: the Additional Plays, the additional  Accounts, the additional log-ins, Hosting space, Bandwidth and Encoding. The Additional Fees do not include the Dailymotion Enterprise Subscription Fee nor the Onboarding Fee which are due separately.

“Affiliate(s)”: means an individual or an entity that directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with one of the Parties.  For purposes of this definition, the term “control” (including the terms “controlling”, “controlled by” and “under common control with”) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Party, whether through the ownership of voting securities, by contract or otherwise.

“Bandwidth” means the total amount of GBs transferred by Dailymotion in connection with Customer’s use of the Video Player.

“Bandwidth Limit” means the included number of maximum number of gigabytes for Customer’s Account for the term year.

“Claims”:  means claims, suits, demands damages, losses, liabilities, obligations, legal actions, cost or debt and expenses (including but not limited to attorney’s fees).

“Customer Account(s)” or “Account”: means jointly the Customer Master Account together with any Customer Sub-Accounts associated to it.

“Customer HQ”: means the dashboard available from each of the Customer Accounts which allows Customer to manage the Customer Accounts and Customer’s Content and to access to various account management features which may include: management of Customer’s  playlists, access to Customer statistics, registration of Customer Properties, and adjustments and selection of additional settings related to the Customer Accounts.  The Customer HQ of the Customer Master Account allows access to data and management tools applicable to all Customer Sub-Accounts, whereas the Customer HQ of an individual Customer Sub-Account allows access to data and management tools applicable only to such Customer Sub-Account.

“Customer Master Account”: means Customer’s main Content storage space available at the Customer Master Account URL and from which Customer can manage all the Customer Sub-Accounts if any. The Customer Master Account shall notably have accessible information through the Customer HQ regarding the total number of items of Content available on all Customer Sub-Accounts,  and the number of views for all Content (in total and per item of Content), if any.

“Customer Master Account URL”: means the Customer Master Account that will be accessible at the address stated in the Order Form. 

“Customer Sub-Account(s)”: means any account dedicated to the storage of the Content on the Dailymotion Service that has been linked to the Customer Master Account upon request by Customer to Dailymotion.  These accounts shall be directly managed by Customer, being agreed that the Customer Sub-Accounts will be subject to the same legal terms and conditions as those applicable to the Customer Master Account. Customer shall only request Dailymotion to link accounts to the Customer Master Account that Customer has the rights to operate and manage, and Dailymotion reserves the right not to link any such accounts to, or else to unlink any such accounts from, the Customer Master Account if it believes in good faith that Customer does not have such rights.

“Customer’s Subscription” is Customer’s Subscription Level as specified in the Order Form.

“Customer Property(ies)”: means the Internet websites or mobile applications that Customer owns and/or operates (or for which it has been duly appointed to operate by their legitimate owners).  Customer shall restrictively indicate in the dedicated area of its Customer HQ all such websites and/or mobile applications, however in some cases Customer may identify its Customer Properties by associating the Syndication Key in the embed code used to embed the Video Player onto such Internet websites and/or mobile applications. For sake of clarity, a specific URL domain or mobile application that is registered in the Customer HQ of a given Customer Account shall apply as a Customer Property for all the other of Customer’s Customer Accounts as long as it is registered in at least one of the Customer HQ’s Customer Accounts, while a specific Internet website and/or mobile application that is identified as a Customer Property though the association of the Syndication Key in the embedding of the Video Player, shall apply only for this particular embedding.

“Content”: means all audiovisual content such as videos and live broadcasts uploaded and hosted on one or all Customer’s Accounts by the Customer including any associated data (title, description, category, duration, images, graphics, etc.) in digital format as specified under Section 3.1.

“Dailymotion Policies”: mean the legal policies available from the homepage of the Dailymotion Site, including but not limited to the terms of use, the privacy policy, the cookie policy and the child safety policy.

“Dailymotion Properties”:  means (i) Dailymotion Site and (ii) all Dailymotion applications, both (i) and (ii) as accessible (online or offline) via any device including but not limited to: smartphones, tablets, game consoles, any IP/IPTV platform provided through a high-speed Internet connection on IP protocol, any internet-enabled television devices or through any current or future device.

“Dailymotion Service”:  means the Dailymotion products, technology, features, platforms, interfaces, and functionality provided by Dailymotion, including those associated with (i) the Dailymotion Properties; and (ii) the Dailymotion Video Player that is embeddable onto any website; and the (iii) Dailymotion Enterprise Solution.

“Dailymotion Site”:  means the video-hosting worldwide Internet website (as accessible through an Internet browser from any device including but not limited to mobile and tablet) available at www.dailymotion.com or at any other URL specifically dedicated to a country (e.g.: www.dailymotion.fr, www.dailymotion.us, etc.).

“Encoding” means the process of encoding Customer’s Content in multiple formats in order for such Content to fit particular devices or players associated with Customer’s Account.

“Encoding Limit” means the maximum number of minutes per term year that Dailymotion will encode Customer’s videos.

“Force Majeure”: means any act, event or circumstances beyond a Party’s reasonable control including, but not limited to: (i) war (whether declared or not), hostilities, invasion, act of foreign enemies, extensive military mobilization; (ii) civil war, riot, rebellion and revolution, military or usurped power, insurrection, act of terrorism, sabotage or piracy; (iii) currency and trade restriction, embargo, sanction; (iv) acts of authority whether lawful or unlawful, compliance with any law or governmental order, expropriation, seizure of works, requisition, nationalization; (v) plague, epidemic, pandemic, natural disaster or extreme natural event; (vi) explosion, fire, destruction of equipment, prolonged break-down of transport, telecommunication, information system or energy; (vi) general labor disturbance such as boycott, strike and lock-out, go-slow, occupation of factories and premises; (vii) acts of God;  provided that the Parties stipulate that Force Majeure shall not include the novel coronavirus Covid-19 pandemic which is ongoing as of the date of the execution of this Agreement. For the avoidance of doubt, Force Majeure shall not include (i) financial distress nor the inability of either party to make a profit or avoid a financial loss, (ii) changes in market prices or conditions, or (iii) a Party’s financial inability to perform its obligations hereunder.

“GB” means 1,000,000,000 bytes.

“HD Livestreaming”: means Livestreaming with a resolution around 720p up to 1080p. 

“Hosting” means the digital hosting and storing of Customer’s Content uploaded on Customer’s Account. The volume that hosting Customer’s Content takes up is measured in GB.

“Hosting Limit” means the maximum number of gigabytes of VOD per year that Customer can host on Customer’s Account. 

“Intellectual Property Rights”: means any and all rights, titles and interests, whether foreign or domestic, in and to any and all trade secrets, patents, copyrights, Marks, know-how, or similar intellectual property rights, as well as any and all moral rights, and similar rights of any type under the Laws of any governmental, regulatory or judicial authority, whether within or outside of the Territory.

“Livestream” or “Livestreaming” means to Stream, live or in real time.

“Livestream Limit” means the number of hours of Livestreaming allowed per term year for Customer’s Account.

“Laws”: means any applicable laws, statutes, regulations, court orders, and/or government standards.

“Marks”:  means trademarks, names, logos, brands, symbols, designations, service marks, emblems, designs, trade dress and uniforms and all identifications, labels, thereof, whether or not registered with competent public authorities.

“Onboarding Fee” means the one-time fixed fee defined in the Order Form corresponding to the fee due by the Customer in consideration of the onboarding technical and account setup services provided by Dailymotion, as detailed in the Order Form.

“Order Form” means the Dailymotion Enterprise Solution Agreement Order Form attached to this  Agreement .

“Play(s)” means the start of the delivery of a Content as initiated by an end user or by an auto-play feature, if available, of the Video Player where the transfer of the Content is through Streaming delivery, progressive download delivery or any other format supported by the Video Player. A Play can be all or a fraction of a single Content and there may be multiple Plays in an end user’s session. If the same Content, or portion thereof, is re-viewed by an end user in a single session or in multiple sessions, each view counts as a separate Play.

“Plays Limit” means the amount of Plays Customer will be entitled to for each year of the Term.

“Private Mode”: means a setting accessible within the Customer HQ which, if selected by Customer, renders an item of Content unavailable to the Public on the Dailymotion Service, unless Customer has given access to such Content to somebody from the Customer Account where it is stored, or exported such Content on Customer Properties or Third-Party Properties.

“Prohibited Content”:  means any content that as determined by Dailymotion in its sole discretion: (i) infringes any Intellectual Property Rights, right of publicity or other right of any person or entity, or (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive, tortious, obscene, offensive, vulgar, explicit, indecent, pornographic, profane or is otherwise inappropriate, or (iii) encourages violence, injury or hatred to or against any individual or group, or cruelty to animals, or (iv) creates either “Forced visit” traffic or spyware/adware loading pages (including, in either case, popups or popunders) which load ads, or (v) creates invisible or nested invisible IFRAMEs loading pages which load ads, or (vi) uses spyware/adware loading ads invisibly (or cause fake clicks thereon, including but not limited to click spam, robots, macro programs, and internet agents), or (vii) reloads/refreshes any code causing multiple impressions to be registered in short succession, or (viii) contains downloadable software; executable or malicious code, any virus, malicious or social engineering (phishing) code or features, worm, Trojan horse, time bomb, spyware, malware or other computer code, file or program designed, intended or likely to disrupt, damage, limit or interfere with the proper function of any software, hardware or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of Dailymotion or any person or entity, or (ix) encourages or promotes weapons, drug use or any illegal activity, or (x) is spam or (xi) falsely suggests or implies sponsorship or endorsement by Dailymotion.

“Public”: means the general public having access to the Dailymotion Service.

“Public Mode”: means a setting accessible within the Customer HQ which, if selected by Customer, renders an item of Content viewable to the Public on the Dailymotion Service.

“Sanctions List“: means any government sanctions-related list of designated parties with whom export transactions or the making available of funds or economic resources by persons subject to the jurisdiction of the United States, United Kingdom or the European Union are prohibited (including without limitation, United Nations Security Council list of sanctioned parties, the Office of Foreign Assets Control list of Specially Designated Nationals, the Commerce Department Denied Person List and Entity List, the European Union Consolidated Financial Sanctions List, and the United Kingdom Office of Financial Sanctions Implementation List of Sanctioned Targets).

“SD Livestreaming”: means the Livestream with a maximum resolution of 480p for Streaming.

“Stream”(including, with correlative meanings, “Streaming” or “Streams”): means to exhibit, reproduce, display and/or distribute content in a manner in which such content can be viewed by viewers of such content and cannot be permanently downloaded, recorded, or otherwise stored or copied for subsequent viewing by the viewer of such content (unless otherwise specifically stipulated), other than temporary storage for caching or buffering necessary to facilitate the viewing of such content or for offline viewing for a limited period of time within Dailymotion applications.

“Syndication Key”: means a personal key that may be generated and communicated to Customer by Dailymotion at Dailymotion’s sole discretion (unless otherwise stipulated herein) for insertion by Customer in the Video Player when Customer wishes to export Content and/or Third-Party Video(s) onto a website or mobile application.

“Term”: means the duration of this Agreement as further defined in section 10.1.

“Territory”: means by default worldwide, unless Customer has blocked certain territories where the Content shall not be communicated to the Public, through the settings in the Customer HQ or by using the Dailymotion API.

“Third-Party Property(ies)”:  means any Internet websites or applications that are not the Dailymotion Properties or the Customer Properties.

“Third-Party Video(s)”: means any video(s) uploaded by a third-party onto the Dailymotion Properties, which such third-party authorized to be exported via the Video Player for specific territories onto any website or applications other than the Dailymotion Properties.

“User(s)”: means the authorized person(s) to access and manage the Customer’s Account and the Customer HQ on behalf of the Customer, with a unique username and an associated password.

“User Limit” means the amount of user log-ins for Customer’s Account that Customer will be entitled to during the Term.

“VCR (VOD)”: means the ability provided to the Customer, allowing Customer to watch a livestream on-demand up to 4 hours after such livestream and having the ability to make that Livestream available as a VOD.

“Video(s)”: means the Third-Party Videos and the Content together.

“Videos Limit” means the yearly limit of Videos that Customer will be entitled to upload into Customer’s Account during the Term.

“Video Player”: means a technology developed and owned by Dailymotion, enabling viewing by Streaming of content (including Content and Third-Party Videos) uploaded and hosted on the Dailymotion Service, on the Dailymotion Properties, the Customer Properties, and Third-Party Properties.

“VOD”: means video-on-demand.

Section 1. PURPOSE

The purpose of the Agreement is to specify the terms and conditions applicable to the tools and features made available to the Customer by Dailymotion under the Dailymotion Enterprise Solution, being agreed that Customer shall be free to use all or part of such tools and features at its sole discretion.

Upon final signature of the Agreement, Customer is considered to have agreed and acknowledged all of the terms and conditions corresponding to each of the tools and features of the Dailymotion Enterprise Solution contained herein.

Section 2. ACCESS TO THE Customer ACCOUNTS

2.1. Customer expressly guarantees to provide its complete and accurate contact information to Dailymotion and promptly update such information from time to time as necessary in the case of any changes. Customer acknowledges that the email address provided by Customer constitutes part of the Customer Account credentials and that this email address is used by Dailymotion to communicate with Customer, including, without limitation, on matters relating to Customer ACCOUNT security. Customer remains solely responsible for any acts or omissions resulting from Dailymotion’s use of Customer’s inaccurate or outdated email address that Customer has failed to update. Customer is strictly prohibited from providing false or misleading sign-up information, including using a name, address or email address owned or controlled by another person without appropriate authorization. Dailymotion reserves the right to terminate any account that it reasonably believes is in violation of the foregoing.

2.2. Furthermore, the user id and password which are necessary to access the Customer Accounts and the tools provided by Dailymotion are confidential. Customer acknowledges that it shall be responsible for the secrecy of its user id and password associated herewith and for any possible disclosure, whether intentional or not, and is liable for all activities that occur through its Customer Accounts. Dailymotion is not liable for any unauthorized or fraudulent use of the user id and password of Customer and is not liable for any unauthorized or fraudulent use of the tools provided to Customer, except to the extent that any such unauthorized or fraudulent use resulted from the willful misconduct or gross negligence of Dailymotion. Dailymotion shall have the right, without further inquiry, to rely on the provision of Customer’s credentials as sufficient to authenticate Customer’s use of the Dailymotion Service. Customer agrees to immediately notify Dailymotion of any unauthorized use of Customer’s username, password or other breach of account security.

TITLE II: THE DAILYMOTION ENTERPRISE SOLUTION

Section 3. TERMS AND CONDITIONS OF THE Dailymotion ENTERPRISE SOLUTION

3.1. Description of the Dailymotion Enterprise Solution

The Dailymotion Enterprise Solution is a service owned and operated by Dailymotion providing Customer with a white-label video player and enabling the Customer to host and stream audiovisual content owned or licensed by the Customer on the Customer Properties without the association of an In-Stream Advertising and providing Customer with premium support as further described herein.

The principal features of the Dailymotion Enterprise Solution are as described in the Subscription Levels Exhibit and the Extra Services Exhibit.

As a counterpart for these features of the Dailymotion Enterprise Solution, Customer shall pay to Dailymotion the Fees specified in the Order Form.

3.2. Accessibility

The Dailymotion Enterprise Solution is available through the Customer Account on the Dailymotion Service, through any means of electronic communication such as computers and mobile phones.

The access to the Dailymotion Enterprise Solution granted to the Customer within the scope of the Agreement is personal, not assignable and non-transferable.

3.3. Licenses

3.3.1. License to the Content

Upon upload of Customer’s Content onto the Customer Accounts, by default such Content shall be in Private Mode. However, Customer may set any item of Content to Public Mode, making it viewable without any In-Stream Advertising on the Dailymotion Properties, on the Customer Properties (if it has been embedded there) and on Third Party Properties (if it has been embedded there).

Unless otherwise agreed in writing with Customer, Dailymotion shall not associate any In-Stream Advertising with the Customer’s Content uploaded on the Enterprise Sub-Account whenever and wherever it appears in the Video Player.

Customer grants to Dailymotion, for the Term and the Territory, and transferable to its Affiliates, the non-exclusive rights to reproduce, represent, Stream, replay, exploit, exhibit, show, distribute and to, technically modify and compress the Content as is strictly necessary for the purposes of the viewing and/or Streaming of the Content via the Video Player wherever it is available (subject to such Territory restrictions as may be specified by Customer in accordance with the terms of this Agreement). For sake of clarity, Dailymotion shall not edit or alter the Content in any way, it shall only technically modify the Content as provided by the Customer as is strictly necessary in order to store it on the Dailymotion Service and make it viewable via the Video Player.

Customer shall deliver the Content to Dailymotion with a level of quality in accordance with the typical industry standards; and shall provide the Content in one of the following digital formats: MPEG – 4, MPEG – 2, AVI, WMV, H.264 video format and AAC audio format or any other format set out in the “Frequently Asked Questions” section of the Dailymotion Site (as currently available at http://www.dailymotion.com/upload/faq).

3.3.2. License to the Dailymotion Enterprise Solution

Dailymotion grants to the Customer a limited, revocable, non-transferable, non-exclusive, worldwide license to use the Dailymotion Enterprise Solution to display the Content on the Customer Properties in the Territory without any In-stream Advertising and to benefit from the premium support as described herein associated with such service. Any right not explicitly granted to the Customer is hereby reserved by Dailymotion.

Dailymotion holds all rights related to the Dailymotion Service and in particular to the Dailymotion Enterprise Solution. The Agreement does not grant the Customer any rights to the Dailymotion Enterprise Solution, but simply a limited and revocable license according to the provisions of the present article. Customer shall not: (a) grant a sublicense, resell, redistribute, transfer, assign, broadcast, commercially exploit or make available to any third party in any way all or part of the Dailymotion Enterprise Solution, or (b) modify or create derivative works based on the Dailymotion Enterprise Solution, or modify or decompile the Dailymotion Enterprise Solution, without explicit authorization from Dailymotion.

3.3.4 License to Feedback, Suggestions or Recommendations

Customer hereby grants Dailymotion an unlimited, irrevocable, perpetual, transferable, non-exclusive, royalty-free, worldwide license to use and/or incorporate into the Dailymotion Service any feedback, suggestions and/or recommendations provided to Dailymotion by Customer regarding the Dailymotion Service.

Section 4. CONDITIONS APPLICABLE TO THE Dailymotion ENTERPRISE SOLUTION

4.1. Terms of Use of the Dailymotion Enterprise Solution

Customer’s use of the Dailymotion Enterprise Solution is dictated by the different limits specified in the Subscription Level Exhibit. Should Customer exceed such limits, the Overage Charges specified in the Overages Rate Card Exhibit shall apply.

Unused Plays, Bandwidth GBs, Hosting GBs, Encoding minutes, Users, or Sub-accounts that are included in Customer’s Subscription during a given term year do not carry over to the next term year.

Customer shall not (i) interfere or attempt to interfere with the proper operation of the Dailymotion Enterprise Solution or any activities conducted through the Dailymotion Enterprise Solution or disable or bypass any measures that Dailymotion may use to prevent or restrict access to the Video Player, (ii) use any robot, spider or other device to retrieve, index, scrape, data mine or in any way gather information, Content or other materials from the Dailymotion Enterprise Solution, (iii) decipher, decompile, disassemble, reverse engineer, simulate, derive or attempt to discover any source code or underlying structure, ideas or algorithms from the Dailymotion Enterprise Solution or use any of the foregoing to create any software or service similar to the Dailymotion Enterprise Solution, (iv) create any derivative work or modification of the Dailymotion Enterprise Solution, (v) license, sublicense, copy, display, sell, pledge, encumber, assign, loan, rent, lease, distribute, transfer or similarly exploit the Dailymotion Enterprise Solution, except as expressly set forth in this Agreement, (vi) remove, obscure or alter any proprietary notices on the Video Player (or any portion thereof), (vii) use the Dailymotion Enterprise Solution for any benchmarking purposes; or for application service provider, timesharing, service bureau or competitive purposes; or any purpose other than as contemplated by this Agreement or (viii) use the Dailymotion Enterprise Solution other than in accordance with this Agreement and all Laws.

Customer shall not distribute, re-license, sell, lease, transfer, encumber, assign or make available for Public use the Dailymotion Enterprise Solution. Any attempt to take any such actions is void and constitutes a material breach of this Agreement.

Dailymotion reserves the right to suspend the Customer’s access and/or Customer’s use of the Dailymotion Enterprise Solution if Dailymotion becomes aware of any infringement of the applicable legislation or of the Agreement by the Customer.

Unless otherwise specified herein, the Dailymotion Enterprise Solution is provided on an “AS IS” basis. Dailymotion reserves the right to freely make any modifications or improvements to the Dailymotion Enterprise Solution at its sole discretion. The Dailymotion’s Site will be available, in principle, 24 hours a day 7 days a week, except during any scheduled or unscheduled interruptions, for maintenance needs or cases of Force Majeure. Unless otherwise specified herein, the Customer acknowledges and agrees that Dailymotion is not liable for any interruptions and waives any claim and/or lawsuit against Dailymotion.

Dailymotion may update the Dailymotion Enterprise Solution at any time and is under no obligation to provide notice thereof unless there is a change that will materially affect Customer’s use of the Solution. Dailymotion may identify certain updates as being critical (e.g., updates that address significant security issues) by written notice (including e-mail to the address provided by Customer). Dailymotion shall not be liable for, and Customer shall indemnify and hold Dailymotion harmless for, losses due to Customer’s failure to take the foregoing steps with respect to a critical update.

Customer acknowledges that development for each operating system may be subject to the applicable operating system provider’s own rules, regulations, standards and requirements and that Dailymotion has no control or responsibility therefor. Customer is solely responsible for its compliance with the foregoing and Dailymotion makes no representations or warranties of compatibility with any operating system.

Content transcoded via the Dailymotion Enterprise Solution may only be delivered via the Dailymotion Enterprise Solution. Downloading transcoded content for delivery via other mechanisms or CDN fronting the Dailymotion Enterprise Solution’s delivery functionality is strictly prohibited and may result in additional fees, account suspension, and/or termination.

4.2. Support

As part of the Dailymotion Enterprise Solution, Dailymotion will assist the Customer in the implementation and integration of the Video Player as well as in the event of a technical issue related to the use of the Video Player, providing Customer with
the commitments listed in the Service Level Agreement.

Dailymotion may also provide the Customer with online or onsite trainings, for which the will be communicated to Customer by email, where any particular onsite or live online training session would be subject to pre-registration by Customer and space availability. For the avoidance of doubt, the Content of all training services form a part of the Dailymotion Service. In addition to the disclaimers set forth in the Agreement, Dailymotion makes no representation or warranty of any kind with respect to the training services or any results that may be obtained as a result of Customer’s attendance of such services.

4.3. Responsibility

Customer is solely responsible for: (i) its use of the Dailymotion Enterprise Solution and specifically of the Content it makes available to the Public through the Dailymotion Enterprise Solution (ii) and the protection of its own computer hardware against any virus or interruption.

Dailymotion shall not be held responsible in any case for (i) any malfunctions, inherent of the nature of the Internet, in the access and/or the use of the Dailymotion Enterprise Solution, (ii) or any default of its obligations caused by Force Majeure or an unintentional cause. Unless otherwise stated in the Agreement, Dailymotion does not grant any guarantee of any kind to the Customer, whether expressly or implicitly, in any area, including and in particular any guarantee of fitness for a particular purpose.

Notwithstanding the foregoing, Dailymotion undertakes to respect the Service Level Agreement.

4.4. Reversibility and Content Deletion

Upon termination of this Agreement for whatever reason, a reversibility plan to retrieve the source files and metadata of Content hosted on the Dailymotion Enterprise Solution may be activated at the request of the Customer.

If requested by the Customer, no later than sixty (60) days prior to the effective termination date of the Agreement, Dailymotion may at its own discretion assist the Customer to execute this reversibility plan, being agreed that such assistance and customized reversibility plan will be billed €2,000.00 because of the additional support needed to provide such service, according to the following rules:

• If the reversibility arises as a result of an early termination of this Agreement due to Dailymotion’s breach of its obligations and warranties, the reversibility assistance and customized plan service will not be invoiced to the Customer.

• If the reversibility arises as a result of the occurrence of a Force Majeure event, the costs of the reversibility assistance and customized plan service will be shared equally between the Parties.

• If the reversibility arises as a result of any other reason for termination of this Agreement, the cost of the reversibility assistance and customized plan service will be invoiced to the Customer in full.

Regardless of Customer’s choice in relation to Customer’s retrieval of the source files and Content metadata hosted by Dailymotion, Parties agree that immediately following the effective termination date of the Agreement (or at any other date mutually agreed between the Parties), Dailymotion shall have the right at its sole discretion to delete Customer’s Content hosted on the Dailymotion Service at any moment, without any liability or financial compensation from Dailymotion. Customer shall then be solely responsible for safeguarding its Content before the termination date, whether in the scope of the reversibility plan or by Customer’s own safeguarding means.

TITLE III: GENERAL PROVISIONS

Section 5. PROMOTION

If Customer chooses to set Customer’s content to Public Mode so that it is viewable on the Dailymotion Properties, Customer authorizes Dailymotion to include the Content on any relevant topic pages, playlists, staff picks, and other promotional materials as Dailymotion may determine in its sole discretion, provided however that Customer may request an item of Content be removed from such topic page, playlist, or staff pick at any time and Dailymotion shall promptly comply with such request. Customer will, upon reasonable request, also shall serve as a customer reference for Dailymotion.

Dailymotion shall have the sole control, discretion and approval over the promotional materials of the Content on the Dailymotion Service and of Dailymotion’s newsletters. If Customer chooses to set Customer’s content to Public Mode so that it is viewable on the Dailymotion Properties, Customer authorizes Dailymotion to use and/or refer to Customer’s Marks, and/or thumbnails of the Content, for information, communication and/or promotional purposes of the Content on and off the Dailymotion Service and/or in the Dailymotion newsletters in order to publicize the availability of the Content on and off the Dailymotion Service. However, any such use of the Customer Marks and/or thumbnails of the Content outside this limited use shall be subject to prior authorization from Customer.

Unless otherwise agreed, Dailymotion shall be permitted to publicly identify Customer as a user of the Dailymotion Service and a Dailymotion’s Customer, including on Dailymotion Properties and marketing materials. Customer hereby grants Dailymotion a non-exclusive, non-transferable, non-sublicensable, royalty-free, and worldwide license during the Term to use Customer’s Marks for this purpose. All goodwill arising out of any use of any of Customer’s Marks by Dailymotion will inure solely to the benefit of Customer.

Reciprocally, Customer shall be permitted to publicly identify itself as a user of the Dailymotion Service and/or a Customer of Dailymotion, including on Customer Properties and marketing materials. Dailymotion hereby grants Customer a non-exclusive, non-transferable, non-sublicensable, royalty-free license during the Term to use Dailymotion’s Marks for this purpose. All goodwill arising out of any use of any of Dailymotion’s Marks by Customer will inure solely to the benefit of Dailymotion. It is though agreed that any use by Customer of Dailymotion’s Marks must be in conformity with then-current graphic guidelines provided by Dailymotion and be approved in advance by Dailymotion in writing (email sufficient).

The Parties agree and acknowledge that each Party may issue a press release announcing Customer’s enrollment to the Dailymotion Enterprise Solution, provided that the Parties have mutually agreed to the wording of any such press release.

Section 6. FINANCIAL CONDITIONS

6.1. Fees

6.1.1. Fees & Overage Charges

In consideration of the provision of the Dailymotion Enterprise Solution and the premium support and services being provided to the Customer under this service, Customer shall pay to Dailymotion the Subscription Fees, Support Fees (if any), Extra Services Fees (if any) as prescribed in the Order Form or as may be added through mutually signed written amendment during the Term (collectively, the “Fees”). All Fees are indicated net of applicable taxes.

In the event that Client adds any Extra Services during the Term, the fees for such services as stipulated in Exhibit D: Extra Services Exhibit (as may be amended by Parties from time to time during the Term), shall be added to the total Fees owed by the Customer and will be invoiced by Dailymotion as stipulated below.

If Customer, during the Initial Term or any Renewal Term, exceeds any of the limits stipulated in Exhibit A: Subscription Level Exhibit Customer shall pay the Overage Charges set forth in the attached Exhibit C: Overages Rate Card Exhibit and will be invoiced by Dailymotion as stipulated below. All Overage Charges are indicated net of applicable taxes.

6.1.2. Renewal Term Fees

Dailymotion reserves the right to change all prices, including the Fees and Overage Charges, after the Initial Term, provided that Dailymotion will provide the Customer with notice and that such changes shall not take effect until the start of Customer’s next Renewal Term.

Dailymotion will inform the Customer of any substantial changes in Dailymotion’s prices for any subsequent Renewal Term by written notice no later than sixty (60) days prior to the expiration of the previous term.

In the event the Agreement is automatically renewed after the Initial Term, Dailymotion reserves the right to adjust the Fees and Overage Charges prior to the start date of a Renewal Term in accordance with the Syntec index based on the latest indexes published as of the start date of the Renewal Term in question and following this formula:
P= Po x (S/So)
Where:
• Po = the Fees/Overage Charges indicated in the Agreement;
• So = most recent Syntec index known at the Initial Term Start Date;
• S = most recent Syntec index known and issued at the start date of the Renewal Term in question;
• P = new Fees/Overage Charges for the Term in question;

6.2. Reporting, Invoicing and Payment

6.2.1. Reporting

Customer will have access to an online interface within its Customer HQ allowing access to Customer’s Accounts (Customer Master Account and Sub-Accounts), Customer’s monthly Plays reached for each Customer Account, and other such statistics). It is agreed between the Parties that the calculation of the number of Users, the number of Accounts, the number of Plays, the GBs of Hosting, the GBs of Bandwidth and the minutes of Encoding, and all other such calculations, shall be conducted by Dailymotion strictly and solely according to Dailymotion’s data and numbers. 

6.2.2. Invoicing

The Fees and any Overage Charges will be invoiced per the following invoicing schedule:

As a prerequisite for Dailymotion to generate the corresponding invoices, Customer shall promptly communicate to Dailymotion any relevant information requested by Dailymotion for invoicing purposes. To this matter, Dailymotion will send Customer a form to complete for this purpose.

In the event that Customer commences to use the Dailymotion Enterprise Solution prior to the full execution of this Agreement, the Parties agree that Customer shall owe Dailymotion the Fees as stipulated in the Order Form as of the start date of Customer’s use of the Dailymotion Enterprise Solution.

Dailymotion shall send any invoices to the Customer’s dedicated billing email address indicated in the Order Form unless otherwise agreed in writing by the Parties.

6.2.3. Payment

Customer agrees to timely pay all Fees within 30 (thirty) days from the date of Customer’s receipt of the corresponding invoice sent by Dailymotion. Dailymotion reserves the right to withhold or suspend Customer’s access to the Dailymotion Enterprise Solution, in addition to any other rights Dailymotion may have, if the Fees are not timely paid and/or until the Fees have been paid for the applicable period. Such suspension shall not affect Customer’s duty to pay all Fees due or constitute termination of this Agreement absent Dailymotion’s notice of termination pursuant to the Termination section hereof. Past-due Fees shall incur interest at a rate amounting to three times the annual legal interest rate in force in France. Customer shall be liable to, and fully reimburse, Dailymotion for all costs (including attorney’s fees) incurred in connection with Dailymotion’s collection of past-due Fees. All Fees are non-refundable except as otherwise provided in this Agreement. Customer shall be responsible to pay all Taxes (except Dailymotion’s corporate taxes) and all other charges (including without limitation: currency exchange settlements) due in connection with the Fees and Customer’s use of the Video Player, and all payments shall be made without deduction for withholding taxes.

Section 7. WARRANTIES AND INDEMNIFICATION

7.1. Warranties

7.1.1. Corporate Warranties

Each Party represents and warrants at all times that: (i) it is duly organized and validly existing and in good standing under the Laws of the place of its incorporation; (ii) it has full corporate power and authority to enter into this Agreement and to carry out the provisions hereof; (iii) it is duly authorized to execute and deliver this Agreement and duly authorized to perform its obligations and exercise its rights hereunder; (iv) this Agreement is a legal and valid obligation, binding and enforceable in accordance with its terms; and (v) the execution, delivery and performance of this Agreement does not conflict with any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound, nor violate any Law or regulation of any court, governmental body or administrative or other agency having jurisdiction over it.

7.1.2. Warranties related to the Content and the use of the Dailymotion Service

Customer represents and warrants that it shall not (i) use the Dailymotion Service in any illegal or unlawful manner or for any illegal or unlawful purpose or (ii) perform any act which is intended to harm Dailymotion or the Dailymotion Service. Customer expressly represents and warrants that Customer will not disassemble, reverse engineer, modify or otherwise alter the Dailymotion Service or any part thereof and, in particular, remove or modify any legal notices, content reporting functionalities or consent collection mechanisms available within the Dailymotion Service.

Customer represents and warrants to Dailymotion that it has the right and authority to grant all exploitation rights in connection with the Content for the Territory under this Agreement and that there are no claims, liens, encumbrances, limitations, reversions, restrictions or rights of any nature in or to the Content, which will limit, impair, or interfere with the rights of Dailymotion. Customer warrants that it owns or has obtained all necessary rights and clearances necessary with regards to any third party rights holders including, without limitation, authors, directors, producers, actors, artists-performers or executors, technicians and, in general, from anyone who has participated directly or indirectly or otherwise contributed to the creation of the Content and/or from any third-party that may be entitled to claim any right on or to the Content as required to respect its obligations, exercise its rights, and grant licenses according to the Agreement and as such, releases Dailymotion from any claim or action arising from any third-party as a result of the exploitation of such licensed rights.

Customer is solely responsible for any Content or other material that Customer posts, uploads, submits, Streams, distributes or otherwise makes available in relation to the present Agreement. Customer represents and warrants that, as an essential condition, the Content, metadata, any data provided by Customer, Customer’s username, and any images provided by Customer, if any, do not: (i) breach any Intellectual Property Rights of any third parties, (ii) constitute Prohibited Content and/or (iii) violate any applicable Laws. If Customer chooses to set Customer’s content to Public Mode so that it is viewable on the Dailymotion Properties, Customer agrees to associate the Content with complete and accurate metadata (including but without limitation, the title, tags video category, duration, language, video description, and any other information requested by Dailymotion from time to time) necessary for the exploitation of the Content on the Dailymotion Service. Notably, Customer represents and warrants that if Customer chooses to set Customer’s content to Public Mode so that it is viewable on the Dailymotion Properties and if Customer uploads video content which is directed towards children, that Customer shall indicate that such video falls under the “Kids” category (or any other similarly named related category, ex. ‘Children’) by selecting such category from the drop-down menu of categories made available to Customer when uploading the video, or any other method made available by Dailymotion in the future. Customer understands that doing so is crucial to ensure legal compliance with Laws protecting children (including but not limited to the US Children’s Online Privacy Protection Act (COPPA)) and that failure to do so whether by negligence or intentional misidentification shall be considered a material breach of this Agreement. Customer acknowledges that Customer shall indemnify Dailymotion for any Claims brought against Dailymotion for Customer’s failure to identify video content direct at children as being under the ‘Kids’ or other similarly named related category) category.

Should Customer decide to embed Third-Party Videos onto the Customer Properties, Customer represents and warrants that all websites or mobile applications on which Customer may export the Third-Party Videos through the Video Player do not include any element that: (i) breaches any Intellectual Property Rights of any third parties, (ii) constitutes Prohibited Content and/or (iii) violates any applicable Laws.

Any Content that violates the terms of this Agreement may be subject to removal upon Dailymotion becoming aware of such Content

Customer agrees to notify and forward to Dailymotion as soon as possible any action, claim or complaint relating to the Content hosted on the Customer Accounts.

7.1.3. Clearance of exploitation rights

Customer represents and warrants, with respect to the Content, that it will procure and maintain during the term all third-party rights and licenses which inure or may inure to the benefit of any third-party rights holders including, without limitation, authors, artists, artistic directors, composers and producers and more generally to any rightful beneficiary of such rights.

Dailymotion shall be responsible for paying royalties to collecting societies dedicated to authors for the viewing of the Content (if Customer chooses to set Customer’s content to Public Mode so that it is viewable on the Dailymotion Properties,) and of Third-Party Video(s) on the Dailymotion Properties which will be paid by Dailymotion in accordance with collective management agreements Dailymotion may have entered into for this purpose, if any.

7.1.4. Warranties in Relation to Processing of Personal Data

Customer shall not, directly or indirectly, place tracking tools (e.g. cookies) within the Content in order to collect or otherwise process any personal information, whether directly identifiable or indirectly identifiable, in relation to end-users accessing Content and related material on the Dailymotion Service. Nothing in the present Agreement shall be interpreted as limiting Customer’s entitlement to deploy or to render possible deployment of tracking tools on Customer’s Digital Properties outside of Video Player, being explicitly confirmed that Customer remains solely responsible for any such deployment and processing of any data such tracking tools may collect.

Either Party may process personal information in relation to the execution of the present Agreement as further detailed in the applicable data processing description, available here. Each Party shall respect the obligations applicable to its role in regard to the use of cookies and personal data processing operations undertaken in the scope of the Agreement and shall notably post a link to a privacy policy that discloses all required information under the applicable laws and regulations and comply therewith. Customer shall not remove or alter any such link provided by Dailymotion and present within the settings of the Video Player.

To the extent that the European data protection laws are applicable to the Parties’ cooperation under the present Agreement:

• Customer is the data controller of the personal data that may be contained within the Content (e.g., within the videos, images, associated metadata etc.). In the scope of this processing, Dailymotion is Customer’s data processor, as further detailed in the Data Protection Annex attached to the Terms of Use of the Dailymotion Service. In particular, Dailymotion shall transmit to Customer any and all data subjects’ requests in relation to the personal data contained within the Content using the contact details provided within the Customer HQ or otherwise communicated to Dailymotion. Customer authorizes Dailymotion to communicate Customer’s contact details to data subjects. Customer acknowledges that Customer’s absence of response to a data subject request within the timeframe imposed by the applicable laws may be considered as a valid reason to take down the Content.
• Customer and Dailymotion are Independent data controllers of the personal data that might be collected by the tracking tools deployed by the Video Player as further described in the Dailymotion Privacy Policy. Dailymotion hereby authorizes Customer to provide to end-users of its service any and all information relevant to the deployment of tracking tools by the Video Player as further described in the Dailymotion Cookie Policy and Privacy Policy.

To the extent that non-European data protection laws are applicable to the processing of personal information contained within the Content, the Parties agree that the above description of Parties’ roles and obligations shall also apply.

Additionally, each Party may independently process personal data of the other Party’s personnel as necessary for the proper execution of the present Agreement. In this regard, Customer acknowledges that Dailymotion is authorized to provide the information and personal data about Customer to relevant authorities upon a valid request from such authorities.

Moreover, Dailymotion may use Customer’s personal information and data to: deliver the Dailymotion Enterprise Solution; manage Customer’s Accounts; provide required support to Customer; communicate with Customer by email, postal mail, telephone and/or mobile devices; develop and display content and/or advertising tailored to Customer’s interests; enforce the Agreement; manage Dailymotion’s business; and perform actions otherwise described to Customer at the time of collection of their information and data or as otherwise authorized under applicable laws. As part of Dailymotion’s continued development and improvement of the Dailymotion Enterprise Solution, Customer authorizes Dailymotion to periodically conduct limited testing through the Dailymotion Enterprise Solution.

7.1.5. Breach of Warranties

If Customer breaches any of its obligations and/or warranties under the Agreement, Dailymotion shall be free to (i) terminate the Customer’s enrollment to the Dailymotion Enterprise Solution and/or (ii) to terminate immediately the Agreement without waiver to any other rights or remedies of Dailymotion within the scope of the Agreement.

7.2. Indemnity

Each Party agrees to indemnify the other party and such other party’s officers, employees, directors, agents, affiliates, subsidiaries, successors and assigns from and against any and all damages, liabilities, loss, government fines, costs and expenses (including reasonable attorney’s fees and litigation expenses) arising out of a claim, action or demand brought by a third party for a breach of any representation, warranty or covenant made by the indemnifying party in this Agreement (each a “Claim”) upon the entry of a full and final judgment of such Claim against the indemnified party.

Customer agrees, at its own expense, to indemnify, hold harmless and, at Dailymotion’s option, defend Dailymotion and its Affiliates from and against any and all third-party Claims associated with or arising out of: (i) Dailymotion’s and/or its Affiliates’ exploitation of the Content as specified herein; and/or (ii) Customer’s use of the Dailymotion Enterprise Solution and of the tools, features and functionality of the Dailymotion Enterprise Solution contrary to the provisions contained herein; and/or (iii) the infringement of any third-party Intellectual Property Rights or other rights arising from the use of Customer’s Marks by Dailymotion and/or its Affiliates.

The indemnification obligations in this Section are conditioned upon: (a) written notice by the indemnified party to the indemnifying party within 30 days of the indemnified party’s receipt of any Claim for which indemnification is sought; (b) counsel for the indemnified party reasonably acceptable to the indemnifying party; (c) approval by the indemnifying party of any settlement of the Claim for which indemnification is sought; and (d) such reasonable cooperation by the indemnified party in the defense as the indemnifying party may request. Notwithstanding anything to the contrary contained herein, the indemnifying party shall not, without the prior written consent of the indemnified party, settle, compromise or consent to the entry of any judgment with respect to any pending or threatened Claim unless the settlement, compromise or consent provides for and includes an express, unconditional release of such Claim against the indemnified party.

Section 8. LEGAL DISCLAIMERS & LIMITATION OF LIABILITY

EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, DAILYMOTION MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND TO CUSTOMER, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, WORKMANLIKE QUALITY, NON-INFRINGEMENT, TITLE, SUITABILITY, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE OR THAT THE DAILYMOTION SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE DAILYMOTION SERVICE IS PROVIDED ON AN “AS IS” BASIS ONLY. NO ADVICE OR INFORMATION OBTAINED BY COMPANY FROM DAILYMOTION SHALL CREATE ANY REPRESENTATION OR WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER UNDER ANY THEORY OF LIABILITY FOR INDIRECT DAMAGES, INCLUDING, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM THE PERFORMANCE OR FAILURE OF PERFORMANCE OF ANY PROVISION OF THIS AGREEMENT (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES), SUCH AS, WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. EXCLUDING INDEMINFICATION AND CONFIDENTIALITY OBLIGATIONS UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER FOR DAMAGES (OR AMOUNTS) IN EXCESS OF THE TOTAL FEES PAID AND/OR PAYABLE FOR THE APPLICABLE DAILYMOTION SERVICE FOR THE FULL INITIAL TERM OR RENEWAL TERM IN WHICH THE INCIDENT GIVING RISE TO THE CLAIM HEREUNDER AROSE.

In this regard, Customer is solely responsible for (i) its use of the Dailymotion Service and more specifically for the Content it stores and makes available to the Public through the Dailymotion Service and (ii) the protection of its computer hardware and information systems against any virus or interruption.

Customer acknowledges and agrees that Dailymotion is not required to perform any prior monitoring of the content hosted through the Dailymotion Service, or to search for facts or circumstances revealing illegal activities according to applicable Law, and Dailymotion’s obligations as a web hosting service provider may result in taking-down of content without Dailymotion’s having any liability in relation to such content and/or any obligation to participate in any legal proceedings Customer may initiate or be involved related to such content.

Furthermore, Customer acknowledges and agrees that Dailymotion is not responsible for any data related to Third-Party Video(s) provided by their relevant uploaders, such as the video title, description, category, etc. For the sake of clarity, Customer shall not be entitled to request any modification to the Dailymotion Service. Dailymotion shall be entitled to at any time discontinue and/or deactivate any of the features or tools provided within the scope of the Dailymotion Service, and Customer’s only recourse shall be to stop using the Dailymotion Service.

Notwithstanding anything to the contrary contained in this Agreement, Customer hereby recognizes and confirms that in the event of any failure or omission by Dailymotion constituting a breach of any of Dailymotion’s obligations or warranties under this Agreement, the damages, if any, caused to Customer are not irreparable or sufficient to entitle Customer to injunctive or other equitable relief. Consequently, Customer’s rights and remedies hereunder shall be limited to the right, if any, to obtain monetary damages at law, and Customer shall not have any right to seek or obtain any injunction or other equitable relief.

Customer is solely responsible for taking its own steps to backup its Content, and Dailymotion recommends that Customer routinely archives its Content. Dailymotion disclaims any responsibility for deleted, lost, corrupted or inaccessible Content.

Section 9. CONFIDENTIALITY

The Parties shall each keep all the information exchanged for the performance and execution of the Agreement (including any terms contained in the Agreement) and their subject matter confidential and agree not to disclose such information, including, without limitation, documents and information related to products, Customers, strategy, development, financial, business practices, to any third parties except as necessary to any business and legal representatives or as necessary to perform the obligations under the Agreement or as required by any Law, stock exchange rule, regulation, court order or governmental agency, in which event the relevant Party shall so notify the other as promptly as reasonably practicable (and if possible prior to making any disclosure) and shall use its reasonable endeavors to seek confidential treatment of such information.

Section 10. TERM

10.1. The Agreement shall enter into effect on the date the Agreement is fully executed by both Parties (the “Effective Date”) and shall remain in effect until all of Customer’s Order Forms have expired or been terminated in accordance with the terms of this Mater Services Agreement (the “Term”). The initial term of each Order Form shall commence on the Initial Term Start Date (the “Initial Term Start Date”) specified in the Order Form. Unless a different Initial Term period or Renewal Term period is set forth in Customer’s Order Form or unless earlier terminated in accordance with the terms of this Agreement, each Order Form shall remain in effect for one (1) year from the Initial Term Start Date (“Initial Term”), following which it shall automatically renew for successive one (1) year periods on the first day following the end of the Initial Term (each, a “Renewal Term”). For sake of clarity, each 12 month period commencing from the Initial Term Start Date shall be referred to as a “term year”.

Section 11. TERMINATION

11.1. Either Party may terminate this Agreement, without liability to the other Party, by notice to the other Party with immediate effect if:
(i) the other Party is in material breach of any of its obligations under this Agreement and, if the breach is capable of cure, fails to remedy the breach within fifteen (15) days of receiving notice to do so (unless a shorter cure period is specifically provided elsewhere in this agreement); or
(ii) any material step is taken with a view to the other Party ceasing to carry on business, or going or being put into receivership, administrative receivership, administration, bankruptcy, liquidation or any equivalent process by any relevant jurisdiction, to the extent authorized under the applicable laws .

11.2. Should Customer wish to terminate the Agreement, Customer shall provide notice to Dailymotion of non-renewal at least 90 days in advance of the end of the Initial Term or, if applicable, the then-current Renewal Term. Such termination notice delivered by Customer shall be addressed to the following contacts: official-termination@dailymotion.com.

11.3. In the event that notice of increase of the prices as stipulated in Section 6.1.2. above is given by Dailymotion less than 120 days before the end of the then current term year, Customer shall have 30 (thirty) days from receipt of such notice to provide termination notice should Customer choose to terminate the Agreement.

11.4. It is agreed between the Parties that Dailymotion may terminate the Agreement at any time with 30 (thirty) business days’ prior notice by sending an email to the email address given by Customer in its Customer Master Account information. In the event of such termination, Dailymotion shall reimburse part of the amount paid by Customer under the Agreement calculated on a prorata temporis basis, unless such termination resulted from a material, uncured breach of this Agreement by the Customer.

11.5. After the effective date of termination Dailymotion shall deactivate the Customer Account and Customer will no longer benefit from any of the tools or features of the Dailymotion Enterprise Solution. Immediately upon the effective termination date of this Agreement, or upon the termination of a particular Customer Sub-Account, the Customer Accounts or specific Customer Sub-Account (as the case may be) shall cease to benefit from any provisions of the Agreement including but not limited any SLA, promotion of the Content, etc. In the event of the termination or expiration of this Agreement, all licenses granted under this Agreement shall terminate as of right automatically. Upon an early termination of this Agreement for any reason, all then-current Order Forms shall terminate as of right and, unless such termination resulted from a material, uncured breach of this Agreement by Dailymotion, all fees and expenses payable under any such Order Form shall become immediately due and payable.

11.6. Any termination of Customer’s enrollment to the Dailymotion Enterprise Solution shall be without prejudice to any other rights or remedies a Party may be entitled to under those contracts or at Law and shall not affect any accrued rights or liabilities of either Party nor the coming into or continuance in force of any provision of those contracts which is expressly intended to come into or continue in force on or after such termination.

Section 12. MISCELLANEOUS

12.1. Assignment. This Agreement and the rights hereunder are not transferable or assignable without prior written consent of the non-assigning Party; provided, however, that this Agreement may be assigned by either Party without prior written consent of the other Party (a) to a person or entity who acquires substantially all of either Party’s assets, stock or business by sale, merger or otherwise and (b) to an Affiliate of either Party.

12.2. Dailymotion Policies. By executing the Agreement, Customer expressly acknowledges and agrees to be bound by all Dailymotion Policies, specifically including but not limited to the Dailymotion Site’s general terms of use and privacy policy. The Dailymotion Policies may be updated from time to time, and the newest version of which shall always be accessible from the home page of the Dailymotion Site; if Customer disagrees with such modifications, Customer’s recourse shall be to stop using the Dailymotion Service. In the event of any conflict between the Dailymotion Policies and this Agreement, this Agreement shall control.

12.3. Intellectual Property Rights. All rights not expressly granted herein are reserved. Any Intellectual Property Rights arising from and/or in relation with the Dailymotion Service including the Dailymotion Properties and the Video Player (including without restriction any data collected through them), Dailymotion’s Marks, including but not limited to copyright, trademark and patent rights, shall remain Dailymotion’s exclusive property or the relevant entitled person’s exclusive property in respect to the Third-Party Video(s). Unless otherwise provided herein, no provision contained herein shall grant Customer any Intellectual Property Right or other right to the Dailymotion Service including the Dailymotion Properties and the Video Player, the Third-Party Video(s) or Dailymotion’s logos and brands. Any Intellectual Property Rights arising from and/or in relation with the Content, the Customer Properties, and Customer’s Marks shall remain Customer’s exclusive property. Except as otherwise provided herein, no provision herein shall grant Dailymotion any Intellectual Property Right or other right to the Customer Properties or Customer’s logos and brands.

12.4. Commitments related to Business Ethics, anti-corruption, anti-money laundering, vigilance and respect of children rights. The Vivendi Group to which Dailymotion pertains has joined the United Nations Global Compact (https://www.unglobalcompact.org/) in order to support, apply and ensure the application by its subsidiaries (including Dailymotion) of the 10 fundamental Principles in the following areas: human rights, labor law, the environment and the fight against corruption. The Principles laid down by the United Nations Global Compact are notably based on the International Labor Organization (combating child and forced labor, compliance with rules on working hours, wages and benefits, freedom of expression, equal opportunity), the Universal Declaration of Human Rights, and the UN Convention against corruption  (https://www.unglobalcompact.org/what-is-gc/mission/principles). As such, both Parties undertake to respect these Principles as well as any applicable national and international rules relating to social and human rights issues, ethics and compliance, and environmental issues applicable to their activities  in the performance of any Agreement. Such compliance is an essential condition for the Parties to enter into the Agreement.

Each Party represents and warrants that:  (i) it complies with all applicable laws of the jurisdictions in which it conducts its activities, including, without limitation: (a) anti-money laundering and countering the financing of terrorism statutes and regulations; (b) export controls and sanctions laws and regulations; and (c) anti-corruption laws and regulations (e.g. the French Sapin II Law, if applicable) ; (ii) each Party or its officers, directors, employees or agents acting on the Party’s behalf, has not, directly or indirectly, offered, made or promised to make, authorized or given, and will no, as long as the Agreement is binding to the Party, offer, make or promise to make, authorize or give, any payment of funds or anything of value to any government official or any other person with the intent of: (a) influencing any act or decision of a government official in his or her official capacity or any other person, (b) inducing the government official or any other person to do or omit to do any act in violation of his or her lawful duty, (c) securing any improper advantage, or (d) inducing a government official or any other person to use his or her position improperly to affect any act or decision in any way connected with the Agreement. 

Further, each Party represents to the other Party that (i) it is not identified on, and is not fifty percent (50%) or more owned or controlled, directly or indirectly, by any legal or factual means, by any person or entity identified on, any Sanctions List, and (ii) no director or officer of the Party is on any Sanctions List or otherwise subject to violation of any applicable export controls and sanctions laws and regulations in any jurisdiction in which a Party conducts activities.  In addition, neither Party shall knowingly contract with any individual or entity that is identified on any Sanctions List, or is 50% or more owned or otherwise controlled, directly or indirectly, by any legal or factual means, by any entity or person on a Sanctions List.  Neither Party will engage in a business activity related to the exploitation of children, the engagement of children in unacceptably hazardous work, and/or the physical punishment, abuse, or involuntary servitude of any worker. 

Customer agrees that all funds that it will use to comply with its payment obligations under the Agreement shall be derived from legal sources. Customer also undertakes to comply with the Principles and general rules that apply to Dailymotion as well as to the Vivendi Group , available at the following link:  https://legal.dailymotion.com/en/compliance/, speficially with the Anti-Corruption Code, or with any other equivalent commitment formally made by Customer in its own organisation.

Each Party undertakes to inform the other Party without delay of any risk of breach of the present obligations and to inform the other Party of the corrective measures put in place. In the event that a Party suspects a breach of the obligations contained in this Section, the suspected Party agrees to cooperate in transparency with the suspicious Party to determine (i) whether such breach is proven and, if so, (ii) the associated corrective measures.

In the event (i) it becomes unlawful for Dailymotion to fulfill any part of its commitments under the Agreement, or receive payments due hereunder as a result of sanctions imposed against Customer, or any Customer’s directors or officers, any Customer’s direct or indirect interest holders, or Customer’s country of registration or (ii) there is a pattern of violation of the above-mentioned principles (each a “Sanctions Event”), or (iii) a Party does not respect any of the essential obligations stipulated in this Section, the concerned Party reserves the right to consider such breach as a material breach of the Agreement and thus to exercise any right or remedy that such Party has under the Agreement or per applicable Law.  

Dailymotion shall not be liable to Customer or to any other third party with whom Customer may have a contractual obligation related to the Agreement as a result of its suspension or termination of the Agreement or an Order Form due to the occurrence of a Sanctions Event. The Service can be provided to all countries within the Territory, other than those subject to comprehensive sanctions or export licensing requirements under U.S., UK, EU law or any other applicable law, including but not limited to, the EU Blocking Statute.” Finally, Customer’s performance under the Agreement shall not be in contradiction with the Vivendi Group’s policies, which are available at: https://www.vivendi.com/en/our-group/governance/compliance-program/, including its Anti-Corruption Code and Vigilance Program.

12.5. Dispute Resolution. Prior to the initiation of any action or proceedings under this Agreement to resolve disputes between the Parties, the Parties shall make commercially reasonable efforts to resolve any such disputes by means of internal escalation and negotiation between senior representatives of the Parties with decision-making authority. Either Party may initiate negotiation proceedings by writing a notification letter to the other Party setting forth the particulars of the dispute, the terms of this Agreement involved, and the suggested resolution of the dispute. The Parties shall work together in good faith to resolve such dispute for a period of at least 60 (sixty) days prior to the initiation of any action of proceeding under this Agreement, which may be further extended should the Parties agree in writing (email sufficient).

12.6. Governing Laws. The Parties agree that Dailymotion shall be deemed to be a passive website that is based solely in Paris, France and over which personal jurisdiction cannot be obtained, either specific or general, in any jurisdiction other than Paris, France. The Parties agree that the Agreement, the interpretation and validity of the Agreement, and any disputes arising from the Agreement, shall be governed by the substantive Laws of France, applicable to contracts made and to be performed therein and without reference to its conflicts of laws rules that would result in the application of the laws of another jurisdiction. The Parties also agree that any claim or dispute arising out of or relating in any way to this Agreement shall be decided exclusively by a civil court of competent jurisdiction located in Paris, France and both Parties irrevocably consent to the personal and exclusive jurisdiction of any such court.

12.7. Force Majeure. In the event that a Force Majeure event prevents or impedes a Party from performing one or more of its contractual obligations under the Agreement, the defaulting Party shall not be liable to the other Party to the extent attributable to such Force Majeure Event so long as such Force Majeure event is in effect. The defaulting Party shall immediately notify the other Party of such impediment and take commercially reasonable efforts to mitigate the effects of such Force Majeure event.

12.8. Independence of the Parties. Both Parties have entered into the Agreement as independent contractors, both legally and financially. The Agreement shall accordingly in no way constitute joint entity, agency relationship, joint venture or corporate partnership or any relationship of an employer and employee as between the Parties nor shall either Party hold themselves out as being part of such an entity or relationship. Except as provided under this Agreement, neither Party shall have the right or authority, express or implied, to assume or create any obligation on behalf of the other Party and neither Party shall misrepresent its authority to any third-party. Except as provided under this Agreement, neither Party shall have the authority to enter into any contract or commitment in the name of, or on behalf of the other Party, or to bind the other Party in any respect whatsoever.

12.9. Modification. Dailymotion may, in its sole discretion, modify the terms of this MSA or of the SLA from time to time. Customer shall be notified in writing of any material changes to such terms. In the event of any material change which significantly negatively impacts the functionalities of the Dailymotion Enterprise Solution or the support offered under the SLA, Customer shall be allowed to terminate the Agreement by providing written notification within 30 days of receipt of the notification of the change. In such event, Customer shall be reimbursed the cost of any a prorata portion of any pre-paid Fees or the unused portion of any pre-paid Fees as appropriate.

12.10. Notices. Unless otherwise specified herein, all notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given (i) if delivered by hand and receipted for by the party to whom said notice or other communication shall have been directed, or (ii) mailed by certified or registered mail with postage prepaid, on the third (3rd) business day after the date on which it is so mailed. A copy of all notices sent by Customer shall be emailed to legal@dailymotion.com.

12.11. Validity of the Agreement. If one or more provision of the Agreement is considered to be invalid as such or as a result of the application of a Law, regulation, or the decision of a competent body having jurisdiction, it will be treated as not forming part of the Agreement and all other conditions will remain in force. However, if the invalidity or unenforceability of any provision of the Agreement should affect the legal and/or economical balance of the Agreement, the Parties agree to negotiate in good faith the substitution of such provision with a valid provision as legally and economically similar as possible.

12.12. Entire Agreement. The Agreement shall constitute the entire agreement and understanding between the applicable Parties with respect to all matters which are referred to in the Agreement and the subject matter of the Agreement (specifically for the Customer Master Account stated herein) and shall supersede any previous agreements, letter of intents, prior drafts, undertakings, representations, warranties and arrangements of any nature whatsoever (whether or not in writing) between those Parties in connection with the subject matter of the Agreement.

12.13. Translation. In the event of translations of the Agreement, it is agreed by the Parties that the English version of the Agreement will prevail in any event, even if such translation is provided by Dailymotion.

12.14. Electronic Signature. The Parties agree that this Agreement may be electronically signed. The Parties agree that electronic signatures appearing on this Agreement shall have be the same as handwritten signatures for the purposes of validity, enforceability, and admissibility.