Master Service Agreement
(July 2018)

This Software as a Service Agreement (“Agreement”) is made and entered into as of __________________________________
(“Effective Date”), by and between Make.TV, Inc., a Delaware corporation, having its principal place of business at 500
Yale Avenue N, Seattle, Washington, 98109 and Insert Customer name, a ____________________________ corporation with
its principal place of business at _________________________________________ (“Customer”).
Make.TV has developed and hosts the Subscription Services (as defined below), which are accessed and used by
Make.TV’s customers.
Customer desires to access and use the Subscription Services, and Make.TV is willing to permit Customer to access
and use the Subscription Services, subject to the terms and conditions of this Agreement.

Software as a Service Agreement
NOW, THEREFORE, the parties hereby agree as follows:
1. DEFINITIONS
1.1. “AUP” or “Acceptable Use Policy” means Make.TV’s acceptable
use policy available on Make.TV’s website at
http://www.make.tv/aup as it may be updated from time to time
by Make.TV, which document, as updated from time to time, is
incorporated herein.
1.2. “Editorial User” means an employee or contractor of Customer
that has (i) been assigned a unique username-password
combination to access and use the Subscription Services, and (ii)
registered online to access and use the Subscription Services.
The number of Customer’s concurrent Editorial Users is strictly
limited to the quantity set forth in the applicable Subscription
Order.
1.3. “Customer Content” means any and all content submitted to or
through the Subscription Services by Customer’s Editorial Users,
Customer’s other personnel, or End-Users, including but not
limited to recordations comprising videos, images, music, and
other materials.
1.4. “Customer Data” means Customer’s proprietary data and
information, Customer Content, and any and all other data,
information, content or materials that Customer’s Editorial
Users, Customer’s other personnel, or End Users submit to or
through the Subscription Services and/or is otherwise stored
within the Subscription Services on behalf of Customer.
1.5. “Customer Technology” means, excluding the Subscription
Services and any Intellectual Property Rights developed by
Make.TV in connection with the Subscription Services, the
hardware, software, communications network, architecture, and
other technology that Customer uses for its internet and
broadcasting infrastructure (whether owned by Customer or
licensed or made available to Customer from a third party).
1.6. “End-User” means an individual that submits Customer Content
to Customer via the Subscription Services.
1.7. “Fees” means the Subscription Fees, Overage Fees, and any
other fees described in the applicable Subscription Order.
Certain fees are based on the volume of users and usage of the
Subscription Service, as set described in the applicable
Subscription Order.
1.8. “Intellectual Property Rights” means patent rights (including,
without limitation, patent applications and disclosures),
copyrights, trade secrets, moral rights, know-how, and any other
intellectual property rights recognized in any country or
jurisdiction in the world.
1.9. “Professional Services” means the training and support
services described in the applicable Subscription Order.
1.10. “Service Activation Date” means the date on which the
Subscription Services are available for use by Customer as set
forth in the applicable Subscription Order.
1.11. “Services” means the Subscription Services and Professional
Services.
1.12. “SLA” means the service level agreement set forth at
http://www.make.tv/sla.
1.13. “Software” means any Make.TV or third-party software used by
Make.TV in connection with the Subscription Services.
1.14. “Subscription Order” means an order is that is substantially in
the form attached hereto as Exhibit A, is executed by each Party,
refers to this Agreement, and describes the specific Services to
be performed by Make.TV. Each Subscription Order will form a
part of this Agreement and will be subject to the terms and
conditions contained herein. The initial Subscription Order is
attached hereto as Exhibit B and does not require execution in
addition to the execution of this Agreement.
1.15. “Subscription Services” means the online services provided by
Make.TV that are identified in the applicable Subscription Order,
including any and all modifications, improvements, and
enhancements made thereto.
1.16. “Subscription Term” means the duration for which Customer is
authorized to the access the Subscription Service, as set forth in
the applicable Subscription Order.
1.17. “Term” means the term of this Agreement as defined in Section
9.1.
2. SERVICES
2.1. Subscription Services. Subject to Customer’s compliance with
the terms and conditions of this Agreement, commencing on the
Service Activation Date and continuing through the Subscription
Term, Make.TV will provide the Subscription Services in
accordance with and subject to the SLA.
2.2. Restrictions. Customer shall not attempt to interfere with or
disrupt the Subscription Services or the Software or attempt to
gain access to any systems or networks that connect thereto
(except as required to access and use the Subscription Services).
Customer shall not allow access to or use of the Subscription
Services by anyone other than Editorial Users. Customer shall
not: (a) use the Subscription Services other than expressly
permitted under this MSA; (b) copy, modify or distribute any
portion of the Subscription Services or Software; (c) rent, lease,
or provide access to the Subscription Services on a time-share
or service bureau basis; (d) use, or otherwise obtain access to,
any source code from which Subscription Services are compiled
or interpreted and which are owned by, or licensed to, Make.TV;
(e) transfer any of its rights hereunder (except as specified in
Section 14.8) (f) reverse engineer the Subscription Service, or (g)
access the Subscription Services in order to build a competitive
product or service or to copy any features, functions or graphics
of the Subscription Service.
2.3. Acceptable Use Policy & Customer Content. Customer
acknowledges and agrees that Make.TV does not monitor or
police communications, Customer Content, or data transmitted
through the Subscription Services and that Make.TV shall not be
responsible for the content of any such Customer Content,
communications, or transmissions. Customer shall use the
Subscription Services in accordance with Make.TV’s AUP and
exclusively for authorized and legal purposes, consistent with all
applicable laws, regulations and the rights of others. Customer
shall not use the Subscription Services to transmit any bulk
unsolicited commercial communications. Customer shall keep
confidential and not disclose to any third parties, and shall
ensure that Editorial Users keep confidential and do not disclose
to any third parties, any user identifications, account numbers
and account profiles. Editorial User credentials may not be
shared or otherwise used by two or more individuals at any time.
3. CUSTOMER OBLIGATIONS
3.1. Enforcement. Customer shall ensure that all Editorial Users
comply with the terms and conditions of this Agreement,
including, without limitation, with Customer’s obligations set
forth in Sections 2.2 and 2.3. Customer shall promptly notify
Make.TV of any suspected or alleged violation of the terms and
conditions of this Agreement and shall cooperate with Make.TV
with respect to: (a) investigation by Make.TV of any suspected or
alleged violation of this Agreement and (b) any action by
Make.TV to enforce the terms and conditions of this Agreement.
Make.TV may suspend or terminate any Editorial User’s access
to the Subscription Services upon notice to Customer in the
event that Make.TV reasonably determines that such Editorial
User has violated the terms and conditions of this Agreement.
Customer shall be liable for any violation of the terms and
conditions of this Agreement by any Editorial User.
3.2. Customer Technology, Telecommunications, and Internet
Services. Customer acknowledges and agrees that: (a)
Customer’s and its Editorial Users’ and End-Users’ access to the
Subscription Services is dependent upon access to
telecommunications, Internet services, and Customer
Technology; and (b) proper functioning of the Subscription
Services requires that Customer Technology meet the minimum
system specifications and capacities set forth in the applicable
Subscription Order. Customer shall be solely responsible for
acquiring and maintaining all telecommunications, Internet
services, Customer Technology, and other hardware and
software required to access and use the Subscription Services,
including, without limitation, any and all costs, fees, expenses,
and taxes of any kind related to the foregoing. Make.TV shall
not be responsible or liable for: (i) any loss or corruption of data
or content, lost communications, or any other loss or damage of
any kind arising from any such telecommunications, Internet
services, or Customer Technology; or (ii) damage to, or loss of,
Customer Technology.
3.3. Customer Distribution. Customer shall, at its expense, be
solely responsible for all aspects of the Customer’s website,
broadcasting and other mechanisms for distributing Customer
Content, including without limitation development of its
features, functionality and technology, and any adaptation
and/or reconfiguration thereof as may be necessary for
purposes of providing access to and use of Subscription
Services.
3.4. Customer Content. Customer shall, at its expense, be solely
responsible for all matters relating to Customer Content,
including without limitation: (i) obtaining any and all intellectual
property rights, privacy rights, publicity rights, and all associated
therewith; (ii) compliance with all laws and regulations that
apply to the collection, use, sharing, display, and presentation
of Customer Content (including all privacy laws and regulations);
and (iii) all costs, obligations and liabilities associated with the
creation, hosting, presentation, and distribution of Customer
Content. Make.TV assumes no responsibility for any Customer
Content or distributing, delivering, publishing, storing,
streaming, or transmitting Customer Content, nor shall it have
any liability to Customer or any third party in connection with
such activities. Make.tv shall not be responsible, or have any
liability, for the security of Customer Content or any theft,
hacking, or diversion of Customer Content or any third-party
unauthorized access or distribution thereof. Customer shall be
solely responsible for obtaining, and for bearing all costs,
obligations and liabilities for, any necessary clearance for
Customer Content required by any third party, any act or
regulation of any government, and any necessary broadcast,
rebroadcast or retransmission rights or permissions required
for Customer Content.
4. FEES; EXPENSES; TAXES
4.1. Fees. In consideration for Make.TV providing the Services,
Customer shall pay to Make.TV the Fees, in accordance with the
terms set forth herein and in the applicable Subscription Order.
4.2. Usage. Unless otherwise stated in a Service Order, any usage
based products and services, including Incidentals, shall be
billed in arrears each month based on actual usage.
4.3. Other Expenses. Customer shall pay all actual and reasonable
expenses (including, but not limited to, travel and lodging)
incurred by Make.TV in performing the Implementation Services
(collectively, “Expenses”). Customer may choose to (i)
reimburse Make.TV for Expenses for bookings that Make.TV
makes on its own or (ii) to make bookings on behalf of Make.TV
and pay the vendor directly.
4.4. Invoices; Payment; Late Payment. Make.TV shall invoice
Customer in advance on an annual basis for all Subscription
Services and on a monthly basis in arrears for all Overage Fees
and Expenses. Each invoice is due and payable thirty (30) days
following the invoice date. If Make.TV has not received payment
within five (5) days after the due date, interest shall accrue on
past due amounts at the rate of one and one half percent (1.5%)
per month, but in no event greater than the highest rate of
interest allowed by law, calculated from the date such amount
was due until the date that payment is received by Make.TV.
Customer shall reimburse Make.TV for the reasonable costs of
collection, including reasonable fees and expenses of attorneys.
If any amount owing by Customer under this or any other
agreement for the Subscription Service is 30 or more days
overdue, Make.TV may, without limiting Make.TV’s other rights
and remedies, may suspend the Subscription Services to
Customer until such amounts are paid in full.
4.5. Taxes. All amounts and fees stated or referred to in this
Agreement are exclusive of taxes, duties, levies, tariffs, and
other governmental charges (including, without limitation, VAT)
(collectively, “Taxes”). Customer shall be responsible for
payment of all Taxes and any related interest and/or penalties
resulting from any payments made hereunder, other than any
taxes based on Make.TV’s net income.
5. OWNERSHIP. As between Make.TV and Customer: (a) the Subscription
Services and Software (and all copies of the Software and derivatives,
improvements, enhancements or extensions of the Subscription
Services and Software), and all Intellectual Property Rights therein or
relating thereto, are and shall remain the exclusive property of
Make.TV; and (b) Customer reserves all of its rights, title and interest in
and to the Customer Data and Customer Technology. No rights are
granted to Make.TV hereunder with respect to the Customer Data,
except that: (i) Make.TV may store, copy, process, and transmit such
Company Data for purposes of providing the Subscription Service to
Customer; and (ii) Customer hereby grants to Make.tv a license to use,
reproduce, distribute, and display Customer Data for any purpose
related to providing the Subscription Services hereunder.
6. CONFIDENTIALITY
6.1. Definition. By virtue of this Agreement, the parties may have
access to each other’s Confidential Information. “Confidential
Information,” as used in this Agreement, means any written,
machine-reproducible and/or visual materials that are clearly
labeled as proprietary, confidential, or with words of similar
meaning, and all information that is orally or visually disclosed,
if not so marked, if it is identified as proprietary or confidential
at the time of its disclosure or in a writing provided within thirty
(30) days after disclosure, and any information of any nature
described in this Section 6 as confidential. Make.TV Confidential
Information includes, without limitation, the Subscription
Services and any Software whether in source or executable
code, documentation, nonpublic financial information, pricing,
business plans, techniques, methods, processes, and the results
of any performance tests of the Subscription Services or the
Software. The terms and conditions of this Agreement shall be
deemed the Confidential Information of both parties and
neither party shall disclose such information except to such
party’s advisors, accountants, attorneys, investors (and
prospective investors), and prospective acquirers as have a
reasonable need to know such information, provided that any
such third parties shall, before they may access such
information, either (a) execute a binding agreement to keep
such information confidential or (b) be subject to a professional
obligation to maintain the confidentiality of such information.
6.2. Exclusions. Confidential Information shall not include
information that: (a) is or becomes publicly known through no
act or omission of the receiving party; (b) was in the receiving
party’s lawful possession prior to the disclosure; (c) is rightfully
disclosed to the receiving party by a third party without
restriction on disclosure; or (d) is independently developed by
the receiving party, which independent development can be
shown by written evidence. For clarity, Customer Content is not
Confidential Information and Make.tv has no obligation to treat
it as such.
6.3. Use and Nondisclosure. During the Term and for a period of
five (5) years after expiration or termination of this Agreement,
neither party shall make the other’s Confidential Information
available to any third party or use the other’s Confidential
Information for any purposes other than exercising its rights
and performing its obligations under this Agreement. Each
party shall take all reasonable steps to ensure that the other’s
Confidential Information is not disclosed or distributed by its
employees or agents in violation of the terms of this Agreement,
but in no event will either party use less effort to protect the
Confidential Information of the other party than it uses to
protect its own Confidential Information of like importance.
Each party will ensure that any agents or subcontractors that are
permitted to access any of the other’s Confidential Information
are legally bound to comply with the obligations set forth herein.
Notwithstanding the foregoing, Confidential Information may be
disclosed as required by any governmental agency, provided
that before disclosing such information the disclosing party
must provide the non-disclosing party with sufficient advance
notice of the agency’s request for the information to enable the
non-disclosing party to exercise any rights it may have to
challenge or limit the agency’s authority to receive such
Confidential Information.
7. WARRANTY
7.1. Warranty for Subscription Services. Make.TV warrants that
the Subscription Services will provide the functionality set forth
in the applicable Subscription Order, and that Make.TV’s delivery
of the Subscription Services will meet the requirements set forth
in the SLA. Make.TV’s sole and exclusive remedy for any breach
of the warranty set forth in this Section 7.1 will be as set forth
in the SLA.
7.2. Disclaimers.
(a) Customer assumes sole responsibility and
liability for results obtained from the use of the Subscription
Services and for conclusions drawn from such use. Make.TV
shall have no liability for any claims, losses, or damage caused
by errors or omissions in any information provided to Make.TV
by Customer in connection with the Subscription Services or
any actions taken by Make.TV at Customer’s direction. Make.TV
shall have no liability for any claims, losses or damages arising
out of or in connection with Customer’s or any Editorial User’s
use of any third-party products, services, software or web sites
that are accessed via links from within the Subscription
Services.

(b) Make.TV shall not be responsible for and
disclaims all liability resulting from any loss, destruction,
alteration, or corruption of Customer Data or the unauthorized
access, theft, diversion, distribution, or disclosure of Customer
Data by any third-party. Make.TV shall not be responsible for
and disclaims all liability resulting from any failure of the
Subscription Service that is caused by or results from: (i)
combination, operation or use of the Subscription Service with
Customer’s or a third party's applications, software or systems,
unless the foregoing are furnished by Make.TV; or (ii) use of the
Subscription Service other than in accordance with the terms
of this Agreement. Customer is solely responsible for any and
all Customer Data and Make.TV will have no, and hereby
disclaims, any and all risk and liability caused by or related to
Customer Data.
(c) EXCEPT AS EXPRESSLY PROVIDED IN SECTION
7.1, MAKE.TV MAKES NO REPRESENTATIONS OR WARRANTIES
OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN
CONNECTION WITH THIS AGREEMENT OR THE SERVICES.
WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY
PROVIDED IN SECTION 7.1, MAKE.TV DISCLAIMS ANY
WARRANTY THAT THE SUBSCRIPTION SERVICES WILL BE ERROR
FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE
CORRECTED. MAKE.TV FURTHER DISCLAIMS ANY AND ALL
WARRANTIES WITH RESPECT TO THE SUBSCRIPTION SERVICES
AS TO MERCHANTABILITY, ACCURACY OF ANY INFORMATION
PROVIDED, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.
MAKE.TV FURTHER DISCLAIMS ANY AND ALL
WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE
OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR
WRITTEN, OBTAINED FROM MAKE.TV OR ELSEWHERE SHALL
CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS
AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE
EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN
CIRCUMSTANCES. ACCORDINGLY, SOME OF THE LIMITATIONS
SET FORTH ABOVE MAY NOT APPLY.
8. TECHNICAL SUPPORT
Service Levels and Technical Support. Make.TV shall provide service
and technical support in accordance with and subject to the terms of
the Subscription Order and/or the SLA. Customer is solely responsible
for providing all technical support to End Users. Make.TV shall have no
obligation to provide End Users with any technical support.
9. TERM AND TERMINATION
9.1. Term. This Agreement shall commence on the Effective Date
shall continue and unless terminated earlier as provided in this
Agreement. Expiration or termination of an individual
Subscription Order shall not terminate any Services under other
Subscription Orders, and notice of non-renewal for any
particular Subscription Service will not affect obligations to
accept and pay for any other Subscription Service covered by a
Subscription Order.
9.2. Discretionary Termination. Either party may terminate this
Agreement upon written notice to the other party at any time
that a Subscription Order is not then in-effect.
9.3. Termination for Cause. Either party may terminate this
Agreement and/or a Subscription Order upon written notice if
the other party materially breaches this Agreement and fails to
correct the breach within thirty (30) days following written
notice specifying the breach; provided that the cure period for
any default with respect to payment shall be five (5) business
days.
9.4. Termination for Insolvency. Subject to Title 11 of the United
States Code, if Customer becomes or is declared insolvent or
bankrupt, is the subject of any proceedings relating to its
liquidation, insolvency, or for the appointment of a receiver or
similar officer for it, or makes an assignment for the benefit of
any creditor, then Make.TV may terminate this Agreement upon
thirty (30) days’ written notice.
9.5. Rights and Obligations Upon Expiration or Termination.
Upon expiration or termination of this Agreement, Customer’s
and Editorial Users’ right to access and use the Subscription
Services shall immediately terminate, Customer and its Editorial
Users shall immediately cease all use of the Subscription
Services, and each party shall return and make no further use of
any Confidential Information, materials, or other items (and all
copies thereof) belonging to the other party. If, for any reason
other than a breach by Make.TV, this Agreement is terminated
prior to the end of the Term or a Subscription Order is
terminated prior to the end of the Subscription Term, Customer
shall pay Make.TV a termination charge (which Customer
acknowledges reflects a reasonable measure of actual damages
and not a penalty) equal to 100% of the fees that would have
become due for the remained of the then-current Term, in
addition to all fees outstanding at the date of termination.
9.6. Survival. The rights and obligations of Make.TV and Customer
contained in Sections 4 (Fees, Expenses and Taxes), 5
(Ownership), 6 (Confidentiality), 7.2 (Disclaimers), 9.5 (Rights
and Obligations Upon Expiration or Termination), 9.6 (Survival),
10 (Indemnification), 11 (Limitation of Liability), 12
(Acknowledgement), 13 (Non-Solicit), and 14 (General) shall
survive any expiration or termination of this Agreement.
10. INDEMNIFICATION
10.1. Indemnification by Customer. Customer shall defend (or
settle), indemnify and hold harmless Make.TV, its officers,
directors and employees, from and against any liabilities, losses,
damages and expenses, including court costs and reasonable
attorneys’ fees, arising out of or in connection with any thirdparty
claim that: (i) a third party has suffered injury, damage or
loss resulting from Customer’s or an Editorial User’s use of the
Subscription Services (other than any claim for which Make.TV is
responsible under Section 10.2); or (ii) Customer or any Editorial
User has used the Subscription Services in a manner that
violates Sections 2.2 or 2.3 of this Agreement, or (iii) caused by
the nature, collection, sharing, use, presentation, or substance
of any Customer Content, including but not limited to any noncompliance
with laws or regulations or infringement or violation
of any intellectual property, publicity, privacy rights or other
rights of any third-party rights resulting from the Customer
Content. Customer’s obligations under this Section 10.1 are
contingent upon: (a) Make.TV providing Customer with prompt
written notice of such claim (provided that any delay in
providing such notice that does not materially prejudice
Customer’s defense of such claim will not relieve Customer of its
indemnification obligations); (b) Make.TV providing reasonable
cooperation to Customer, at Customer’s expense, in the defense
and settlement of such claim; and (c) Customer having sole
authority to defend or settle such claim.
10.2. Indemnification by Make.TV. Make.TV shall defend (or settle)
any suit or action brought against Customer to the extent that it
is based upon a claim that the Subscription Services infringe or
misappropriate any United States patent, copyright, trademark
or trade secret of any third party, and will pay any costs,
damages and reasonable attorneys’ fees attributable to such
claim that are finally awarded against Customer. Make.TV’s
obligations under this Section 10.2 are contingent upon: (a)
Customer providing Make.TV with prompt written notice of such
claim (provided that any delay in providing such notice that does
not materially prejudice Make.TV’s defense of such claim will not
relieve Make.TV of its indemnification obligations); (b) Customer
providing reasonable cooperation to Make.TV, at Make.TV’s
expense, in the defense and settlement of such claim; and (c)
Make.TV having sole authority to defend or settle such claim. In
the event that Make.TV’s right to provide the Subscription
Services is enjoined or in Make.TV’s reasonable opinion is likely
to be enjoined, Make.TV may obtain the right to continue
providing the Subscription Services, replace or modify the
Subscription Services so that they become non-infringing, or, if
such remedies are not reasonably available, terminate this
Agreement without liability to Customer. THE FOREGOING
STATES THE ENTIRE OBLIGATION OF MAKE.TV AND ITS
LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL
INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL
PROPERTY RIGHTS BY THE SUBSCRIPTION SERVICES. Make.TV
shall have no liability under this Section 10.2 to the extent that
any third-party claims described herein are based on (i) use of
the Subscription Services in a manner that violates this
Agreement or the instructions given to Customer by Make.TV or
(ii) combination of the Subscription Services with any
technologies or services not provided by Make.TV.
11. LIMITATION OF LIABILITY.
11.1. EXCEPT FOR LIABILITY ARISING FROM A BREACH OF SECTIONS
2.3 OR 2.4 OR SECTION 6, IN NO EVENT SHALL EITHER PARTY BE
LIABLE TO THE OTHER PARTY FOR ANY LOSS OF INCOME, DATA,
PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR ANY
INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL
DAMAGES, OR COST OF SUBSTITUTE SERVICES, OR OTHER
ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND
WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF
CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND
STRICT LIABILITY) OR OTHERWISE. MAKE.TV WILL HAVE NO
LIABILITY AND HEREBY DISCLAIMS ALL LIABILITY ARISING FROM
THE STORAGE, LOSS, SECURITY, OR CORRUPTION OF CUSTOMER
CONTENT.
11.2. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS
AGREEMENT, IN NO EVENT SHALL MAKE.TV’S AGGREGATE
LIABILITY TO CUSTOMER AND ANY THIRD PARTY IN CONNECTION
WITH THIS AGREEMENT OR CUSTOMER’S ACCESS TO AND USE OF
THE SUBSCRIPTION SERVICES EXCEED THE TOTAL MONTHLY
SUBSCRIPTION FEES PAID BY CUSTOMER IN THE TWELVE MONTH
PERIOD PRECEDING THE CLAIM OR ACTION, REGARDLESS OF THE
FORM OR THEORY OF THE CLAIM OR ACTION.
12. ACKNOWLEDGEMENT. The parties acknowledge that the limitations
and exclusions contained in Section 11 and elsewhere in this
Agreement have been the subject of negotiation between the parties
and represent the parties’ agreement based upon the perceived level
of risk associated with their respective obligations under this
Agreement, and the payments made hereunder. Without limiting the
generality of the foregoing, the parties acknowledge and agree that (a)
the provisions hereof that limit liability, disclaim warranties or exclude
consequential damages or other damages or remedies shall be
severable and independent of any other provisions and shall be
enforced as such, regardless of any breach hereunder, and (b) all
limitations of liability, disclaimers of warranties, and exclusions of
consequential damages or other damages or remedies shall remain
fully valid, effective and enforceable in accordance with their respective
terms, even under circumstances that cause an exclusive remedy to fail
of its essential purpose.
13. NON-SOLICITATION. During the Term of this Agreement and
continuing through the first anniversary of the termination of this
Agreement, Customer will not, and will ensure that its Affiliates do not,
directly or indirectly, solicit or attempt to solicit for employment any
individual persons employed by Make.TV or contracted by Make.TV.
14. GENERAL
14.1. Governing Law. This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the State of Washington, without regard to its conflict of law provisions. Any legal action or proceeding relating to this Agreement shall be brought exclusively in the state or federal courts located in the Western District of Washington. Make.TV and Customer hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.
14.2. Waiver. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or
subsequent default or breach.
14.3. Notices. All notices, including notices of address change,
required to be sent hereunder shall be in writing and shall be
sent to the addresses set forth below or in the subscription
oder(s) below or delivered in person. The notices shall be
deemed to have been given upon: (a) the date actually delivered in person; (b) the day after the date sent by overnight courier; or (c) three (3) days following the date such notice was mailed
by first class mail. Notices may be confirmed by email or fax.
Make.TV: Customer:
Make.TV Corporation
Attn: Attn:
14.4. Severability. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.
14.5. Force Majeure. Neither party shall be liable hereunder by
reason of any failure or delay in the performance of its
obligations hereunder (except for the payment of money) on
account of events beyond the reasonable control of such party,
which may include without limitation denial-of-service attacks,
strikes, shortages, riots, insurrection, fires, flood, storm,
explosions, acts of God, war, terrorism, governmental action,
labor conditions, earthquakes and material shortages (each a
“Force Majeure Event”). Upon the occurrence of a Force
Majeure Event, the non-performing party will be excused from
any further performance of its obligations effected by the Force
Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume
performance.
14.6. Compliance with Laws. Each party agrees to comply with all applicable laws and regulations with respect to its activities
hereunder, including, but not limited to, any export laws and
regulations of the United States.
14.7. Relationship Between the Parties. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.
14.8. Assignment/Successors. Neither party may assign or transfer this Agreement, in whole or in part, without the other party’s written consent, except that either party may assign this
agreement to a third-party that merges with or acquires the
majority of voting stock of such party or acquires all or
substantially all of the assets of such party. Notwithstanding the foregoing, Customer may not assign this Agreement to any
entity that is a competitor of, or affiliated with a competitor of,
Make.TV. Subject to the foregoing restrictions, this Agreement
shall inure to the benefit of the successors and permitted
assigns of the parties. Notwithstanding the foregoing, Customer may not assign this Agreement to a competitor of Make.TV.
Make.TV may subcontract all or any part of its obligations under this MSA or associated SLA, provided, however, that Make.TV shall remain primarily responsible for such obligations.
14.9. Entire Agreement. This Agreement together with the
Subscription Orders and other exhibits hereto constitutes the
complete and exclusive agreement between the parties
concerning its subject matter and supersedes all prior or
contemporaneous agreements or understandings, written or
oral, concerning the subject matter of this Agreement. This
Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party. If a term in the Subscription Order conflicts with a term in the main
terms of this Agreement, the term of the Subscription Order will take precedence.
14.10. Non-Exclusive Remedies. Except as set forth in Section 10.2 and in the SLA, the exercise by either party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
14.11. Equitable Relief. Each party acknowledges that a breach by the other party of any confidentiality or proprietary rights provision of this Agreement may cause the non-breaching party irreparable damage, for which the award of damages would not
be adequate compensation. Consequently, the non-breaching
party may institute an action to enjoin the breaching party from
any and all acts in violation of those provisions, which remedy
shall be cumulative and not exclusive, and a party may seek the
entry of an injunction enjoining any breach or threatened
breach of those provisions, in addition to any other relief to
which the non-breaching party may be entitled at law or in
equity.
14.12. No Third-Party Beneficiaries. This Agreement is intended for
the sole and exclusive benefit of the signatories and is not
intended to benefit any third party. Only the parties to this
Agreement may enforce it.
14.13. Counterparts. This Agreement may be executed in
counterparts, each of shall constitute an original, and all of
which shall constitute one and the same instrument.
14.14. Customer Reference. Customer and Make.tv agree that
Make.tv is authorized to make reference to third-parties that
Customer is a customer of Make.tv and the Subscription
Services.
14.15. Headings. The headings in this Agreement are for the
convenience of reference only and have no legal effect.