This VIDEOTOUCH Master Agreement (the “Agreement”) is by and between Mactores Inc. (“Mactores, Videotouch”) and the entity or individual (“Company”) identified in the order submitted by Company (each, an “Order”) or identified in connection with the Videotouch Account registration process, and governs Company’s use, and Mactores provision, of Videotouch. Each Order, and any exhibit to an Order, is subject to this Agreement and is incorporated herein by reference. If you are an individual and are entering into this Agreement on behalf of an entity, you represent and warrant that you have the authority to bind such entity to all of the terms and conditions of this Agreement.

  1. Videotouch

The “Videotouch” means those online services that Company has ordered from Mactores, including Video Cloud and/or App Cloud, as applicable, and such other online services as Mactores makes available from time to time. “Videotouch” is an online video platform that enables Company to upload, manage and distribute Company’s Content. “Videotouch” is an online application platform that enables Company to distribute Company’s Content via such applications. Videotouch excludes any portion of the service distributed or otherwise made available via an open source license. As used herein, “Content” means all content, data, video, templates or information in any form that is uploaded on Videotouch by Company or on Company’s behalf, including any such Content that is ingested into the Videotouch from third parties at the direction of Company, Videotouch does not include Company’s Content or Apps or the Content or Apps of any other Mactores customer. By using the online, user interfaces (collectively, the “U/I”) provided as part of Videotouch, Company may make choices about the presentation, management and distribution of the Content and/or Apps. Company may change its selections as permitted by Videotouch. In all cases, however, Company’s last selections in the U/I, as reflected in Videotouch’s database, shall be conclusive in the event of any dispute concerning Company’s selections.

  1. Access to Videotouch; Free Accounts; Beta Services
    1. Access to Videotouch

Access to Company’s Videotouch Account(s) shall be enabled by use of username(s) and password(s) (“Credentials”) selected by Company. An “Account” is a single point of entry via the U/I through which Company accesses and uses Videotouch. Except where Mactores has actual notice of loss, theft or unauthorized use of Company’s Credentials, (i) Company is responsible for all activity occurring in Company’s Account(s) and (ii) Mactores shall have the right, without further inquiry, to rely on the provision of Company’s Credentials as sufficient to authenticate Company’s use of Videotouch.

  1. Free Accounts

Mactores may, from time to time, offer free Videotouch Accounts, such as trial. Unless otherwise specified during the Account registration process, the terms and conditions of this Agreement shall govern the use of such free Accounts. Mactores may terminate any free Account at any time without notice, in its sole discretion. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, VIDEOTOUCH IS PROVIDED “AS IS” AND WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND IN CONNECTION WITH FREE ACCOUNTS.

  1. Beta Services

Mactores may, from time to time, offer products or services that are not generally available to all Mactores customers (“Beta Services”). Unless otherwise indicated, all Beta Services will be offered at no cost and will be identified as “beta” or in a manner that indicates that the Beta Service is in limited or pre-release. Such Beta Services may still be in development and Mactores may change aspects of the Beta Services at any time, including prior to general release. Company will not be obligated or required to use any Beta Services. Mactores may cease offering any Beta Services, or cease offering such services at no cost, at any time without notice, in its sole discretion. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, Beta Services are provided “as is” AND without ANY REPRESENTATION OR warranty of any kind.

  1. Company’s Obligations
    1. Restrictions on Use

Company covenants that it will not (i) use Videotouch in any illegal or unlawful manner or for any illegal or unlawful purpose or (ii) perform any act which is intended to harm Mactores or Videotouch. Mactores will not review or screen Content on a regular basis for compliance with this Agreement or applicable law, and Mactores shall have no obligation to do so, provided, however, that in addition to any other rights Mactores may have, Mactores reserves the right to suspend Company’s access to and/or use of the Videotouch, or any particular Content, to the extent that Mactores reasonably determines, in good faith, that such suspension is necessary to comply with applicable law or to prevent significant harm to any end user or Videotouch; provided further, however, that in such event, Mactores shall use commercially reasonable efforts to suspend only that portion of the Videotouch, or any particular Content or App, as is reasonably necessary to prevent the occurrence or continuation of such violation and/or harm.

  1. Obligation to Pay

Company shall pay Mactores the fees set forth in an Order in accordance with the payment terms set forth in this Agreement and each Order. Company shall be responsible for and shall pay any applicable sales, use or other taxes or duties, tariffs or the like applicable to Company’s Order (except for taxes on Mactores income). All payments shall be made without deduction for withholding taxes. Late payments may be subject to fees at the rate of 1.5% per month or, if lower, the maximum rate allowed by law. If Company fails to pay applicable fees when payment is due, then in addition to any other rights Mactores may have, Mactores shall have the right to suspend delivery of all or a portion of the Videotouch to Company, provided that Mactores has supplied Company prior notice and 5 days’ opportunity to cure. If Mactores pursues collection efforts against Company due to Company’s failure to pay fees due under this Agreement, Company shall pay Mactores reasonable costs of collection, including any attorneys’ fees related thereto.

  1. Mactores Obligations

Mactores agrees to (a) make Videotouch available to Company in accordance with this Agreement, including any current Order; and (b) perform any other obligations expressly identified in any current Order.

  1. Term
    1. Term of this Agreement

This Agreement commences on the Effective Date and shall remain in effect until all of Company’s Orders have expired or been terminated in accordance with the terms of this Agreement (the “Term”). The “Effective Date” of this Agreement shall be the date specified in Company’s initial Order or, if such Order was submitted online, the date Company submits the online Order. If Company has entered into this Agreement as part of the online Account registration process (such as for trial or Core Accounts), the Effective Date shall be the date that Company accepts this Agreement online. If Company is using Videotouch pursuant to a trial or Core Account and does not submit an Order prior to the conclusion of the trial or test period, this Agreement will terminate at the end of the trial or test period or, if later, the date Mactores closes such free Account.

  1. Term of Orders

The initial term of each Order shall commence on the date specified in the Order or, if such Order was submitted online, the date Company submits the online Order (the “Order Effective Date”). Unless earlier terminated in accordance with this Agreement, each Order shall remain in effect for 1 year from the Order Effective Date (unless a different term is set forth in Company’s Order) (“Initial Term”), following which it shall automatically renew for successive 1-year periods on the first day following the end of the Initial Term (each, a “Renewal Term”) unless either party hereto has provided notice to the other of non-renewal at least 60 days in advance of the end of the Initial Term or, if applicable, the then-current Renewal Term. Notwithstanding the prior sentence, all Orders for free Accounts, unless earlier terminated by either Company or Mactores, shall remain in effect for the period of time indicated during the Account registration process.

  1. Termination

Unless otherwise prohibited by law, either party may terminate this Agreement, including any outstanding Orders: (a) if the other party is adjudicated bankrupt or otherwise seeks to avoid its performance obligations under applicable bankruptcy or insolvency laws or (b) upon the occurrence of a material breach of this Agreement by the other party if such breach is not cured within 30 days after written notice identifying the matter constituting the material breach. In the event of the termination or expiration of this Agreement, all licenses granted under this Agreement shall terminate automatically. Upon an early termination of this Agreement for any reason, all then-current Orders shall terminate and, unless such termination resulted from a material, uncured breach of this Agreement by Mactores, all fees and expenses payable under any such Orders shall become immediately due and payable.

  1. Title

As between the parties, Mactores owns all right, title and interest in and to Videotouch. This Agreement does not convey to Company any ownership interest in or to Videotouch, but only a limited license to the Videotouch that is revocable as set forth in this Agreement. As between the parties, Company owns all right, title and interest in and to the Content. This Agreement does not convey to Mactores any ownership interest in or to the Content, but only a limited license to the Content that is revocable as set forth in this Agreement.

  1. Licenses
    1. License to Use Videotouch

Mactores hereby grants Company a limited, revocable (as set forth in this Agreement), non-transferable (except as provided in Section 18(b)), non-exclusive, worldwide license to use the applicable Videotouch for which Company has submitted an Order or registered online. All rights not expressly granted to Company are reserved by Mactores. Except as expressly permitted by Mactores, Company shall not: (i) sublicense, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party Videotouch or any part thereof in any way; or (ii) modify or make derivative works based Videotouch or reverse engineer, decompile or disassemble Videotouch.

  1. License to Content

Company hereby grants Mactores a limited, revocable (as set forth in this Agreement), non-transferable (except as provided in Section 18(b)), non-exclusive, royalty-free, worldwide license to perform all such acts with respect to the Content as are necessary for Mactores to provide the Videotouch in accordance with this Agreement and Company’s selections made through the U/I. All rights not expressly granted to Mactores are reserved by Company.

  1. License to Feedback, Suggestions or Recommendations

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

  1. Representations and Warranties
    1. Videotouch

Mactores represents and warrants that (i) it either owns fully and outright or otherwise possesses and has obtained all rights, approvals, licenses, consents and permissions as are necessary to perform its obligations hereunder, exercise its rights hereunder and to grant the licenses granted by it under this Agreement and (ii) Videotouch, as used by Company in accordance with this Agreement, does not, and shall not, infringe, violate or misappropriate any third party’s rights.

  1. Content

Company represents and warrants that (i) it either owns fully and outright or otherwise possesses and has obtained all rights, approvals, licenses, consents and permissions as are necessary to perform its obligations hereunder, exercise its rights hereunder and to grant the licenses granted by it under this Agreement and (ii) the Content and its use through the Videotouch, as enabled by Company, directly or indirectly, does not, and shall not, infringe, violate or misappropriate any third party’s rights.

  1. Indemnification

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.

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.

  1. DISCLAIMERS

EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, MACTORES MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND TO COMPANY, 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 VIDEOTUCH WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE VIDEOTOUCH IS PROVIDED ON AN “AS IS” BASIS ONLY. NO ADVICE OR INFORMATION OBTAINED BY COMPANY FROM MACTORES SHALL CREATE ANY REPRESENTATION OR WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

  1. EXCLUSIONS/LIMITATIONS OF LIABILITY

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, 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. 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 ORDER FOR THE FULL INITIAL TERM OR RENEWAL TERM IN WHICH THE INCIDENT GIVING RISE TO THE CLAIM HEREUNDER AROSE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE PRECEDING SENTENCE, IF COMPANY IS USING VIDEOTOUCH VIA A FREE ACCOUNT, COMPANY’S MAXIMUM LIABILITY TO MACTORES IN CONNECTION WITH SUCH FREE ACCOUNT SHALL NOT EXCEED AN AMOUNT EQUAL TO THE DAMAGES INCURRED BY MACTORES.

  1. Third-Party Services

Mactores may, from time to time, inform customers of third-party services that can be used by customers in connection with Videotouch, including services from companies associated with Mactores’s Alliance program, and Company may opt to use these or other third-party services in connection with Videotouch. Company’s use of any third-party service in connection with Videotouch, and any terms, conditions, representations and/or warranties associated with such use, are solely between Company and such third-party service provider. Mactores makes no representation or warranty with regard to any such third-party service, even if such provider is certified by Mactores or selected as a premier provider (or similar designation) by Mactores, and Mactores shall not be responsible to Company in any manner for any such third-party service. Mactores does not, unless otherwise expressly set forth in writing, provide maintenance or support for third-party services.

  1. Confidentiality

Each party agrees not to disclose the other party’s Confidential Information without its prior written consent. “ Confidential Information” includes, without limitation: (a) all intellectual property; (b) financial information (including pricing) and business information; and (c) any other information designated in writing as “Confidential.” Confidential Information does not include (v) Content; (w) information that has become publicly known through no breach by Company or Mactores of these confidentiality obligations; (x) information that is independently and lawfully developed or obtained without access to Confidential Information, as evidenced in writing; (y) information required to be disclosed by law; or (z) the fact that Company is a customer of Mactores.

  1. Identification Rights

Mactores shall have the right to identify Company as a customer, and to use Company’s logo in Mactores and Videotouch’s general marketing materials, and Company shall have the right to identify Mactores as the provider of the Videotouch, and to use Mactores logo in connection with Company’s use of the Videotouch.

  1. Notices

All notices under this Agreement must be in writing and delivered either by hand, e-mail, certified mail (return receipt requested, postage pre-paid) or nationally recognized overnight delivery service (all delivery charges pre-paid) and addressed, if to Company, to the contact identified in Company’s most recent Order and, if to Mactores, to Mactores Inc., 2 68 Willow Rd, Menlo Park, CA 94025, attn: General Counsel.

General

(a) Independent Contractors: Mactores and Company are independent contractors under this Agreement and nothing herein shall be construed to create a partnership, joint venture or agency relationship; (b) Assignment: Neither party may assign performance of this Agreement or any of its rights or delegate any of its duties under this Agreement without the prior written consent of the other, except that each party may assign this Agreement without the other party’s prior written consent in the case of a merger, acquisition or other change of control, and in such event this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; (c) Governing Law: This Agreement shall be governed by the laws of the Commonwealth of Massachusetts applicable to contracts entered into and wholly to be performed therein; (d) Forum Selection: Any and all disputes arising out of or related to this Agreement or performance hereof, shall be brought exclusively in the Federal or state courts in the Commonwealth of Massachusetts and the parties hereby waive any objection thereto; (e) Jury Trial Waiver: Company and Mactores each waive any right to a jury trial in connection with any and all disputes arising out of or related to this Agreement; (f) Statute of Limitations: Notwithstanding any law providing a longer statute of limitations, any claim or cause of action arising out of or related to this Agreement and/or Company’s use of Videotouch must be filed within 1 year after such claim or cause of action arose, without regard to the date such claim or cause of action was discovered, or such claim or cause of action shall be forever barred; (g) Export Compliance: Each party shall comply with all applicable United States and international export control laws and regulations. Company specifically represents (i) that it is not located in any country or jurisdiction that is subject to U.S. economic sanctions, nor is it acting on behalf of the government of any such country and (ii) that it is not identified on the U.S. Department of the Treasury’s Office of Foreign Assets Control’s Specially Designated Nationals List, as amended from time to time, nor is it owned or controlled by any such entity; (h) Effect of Waivers: The waiver by either party of a breach or a default of any provision shall not be construed as a waiver of any succeeding breach of the same or any other provision; (i) Survival: All terms of this Agreement which by their nature extend beyond the termination of this Agreement, remain in effect until fulfilled and apply to respective successors and assigns; (j) Counterparts; Delivery; Acceptance: This Agreement may be executed in counterparts, all of which are considered one and the same agreement, and becomes effective when one or more counterparts have been signed by each of the parties and delivered to the other party or upon Company’s submission of an online Order (whichever occurs first). Delivery by facsimile or e-mail and online acceptance are all as effective as physical delivery of an originally executed copy hereof; (k) Integration; Amendment: This Agreement, including any Orders entered into hereunder, constitutes the entire understanding of the parties hereto with respect to the matters contemplated hereby, supersedes all previous agreements between the parties concerning the subject matter hereof and cannot be amended except by a writing signed by authorized representatives of both parties; (l) No Reliance: No party hereto has relied on any statement, representation or promise of any party or representative thereof except as expressly set forth in this Agreement; (m) Severability: If any term, provision, covenant or condition of this Agreement is held invalid or unenforceable for any reason, the remainder of the provisions will continue in full force and effect as if this Agreement had been executed with the invalid portion eliminated. The parties further agree to substitute for the invalid provision a valid provision that most closely approximates the intent and economic effect of the invalid provision; (n) Government Entities: Videotouch is licensed to the U.S. government or any entity acting on its behalf as a Commercial Item, as that term is defined at 48 C.F.R. §2.101, and licensed only with those rights as are granted to all other entities or individuals entering into an agreement to use Videotouch; (o) Purchase Orders/Instruments: Any instruments, including purchase orders, work orders, acknowledgments and vendor registration forms not signed by both parties (“Instruments”) shall not add to, supersede or modify, the terms of this Agreement and in the event any term of an Instrument purports to add to, supersede or modify any term of this Agreement, such term of the Instrument shall be void and without effect; and (p) Foreign Language Translation of Agreement: For Company’s convenience only, Mactores may provide Company with a non-English translation of the Agreement. Any such non-English language version of the Agreement is for reference purposes. Company acknowledges and agrees that the English language version of the Agreement shall, in all instances, govern the parties’ relationship.