Watching That Standard Licence Agreement

updated December 21 2021

This Agreement is entered into between Watching That and Company and shall be effective from the Start Date set out in the Order Form.

INTRODUCTION

Watching That has developed the Watching That Licence Edition to allow for the measurement, monitoring and analysis  of OTT  video of the Company.  Company wishes to use the Watching That Licence Edition to measure, monitor and analyse Company’s OTT video.

  1. Definitions

Agreement means this Watching That Licence Agreement including the Watching That Order Form;

Add Ons means any features provided to Company in addition to the Licence Edition as specified on the Order Form;

Business Day means any day that is not a Saturday, a Sunday or other day on which banks are required or authorised by law to be closed in England and Wales;

Initial Term means the period of time from the Start Date as set out in the Order Form;

Intellectual Property means all intellectual property rights including patents, trade secrets, trademarks, service marks, trade or business names, copyright and other rights in works of authorship (including rights in computer software), rights in logos and get up, inventions, ideas, algorithms, processes, specifications, moral rights, design rights, domain names, know-how, database rights and semiconductor topography rights, software, source and object code and all intangible rights and privileges of a similar nature analogous or allied to any of the above in every case whether or not registered or unregistered, the right to sue for passing off or unfair competition and all rights or forms of protections of a similar or equivalent form in any relevant jurisdiction and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

Licence Edition means the edition of the Watching That platform that is licensed to Company under this Agreement as set out in the Order Form.  The features of each edition are available here;

Licence Fee means the licence fee payable by Company to Watching That as set out on the Order Form;

Renewal Term shall be as defined in clause 7;

Service Levels means the service levels as described in Exhibit 1;

Start Date means the date specified on the Order Form;

Term means the Initial Term plus any renewal terms, if applicable;

Watching That Licence Edition means Watching That’s cloud based product that allows Company to measure, monitor and analyse their OTT video;

  1. Grant of Licence

Watching That grants to Company a limited, revocable, non-exclusive, worldwide, non-transferable and non-sublicensable licence to access and use the Licence Edition together with any Add Ons during the Term. All rights not expressly granted to Company are reserved by Watching That.

  1. Fees and Invoicing

3.1 Watching That shall issue invoices monthly in advance, according to the Licence Fee stated on the Order Form.

3.2 The Licence Fee (together with any other fees that may be quoted to Company) are exclusive of sales taxes.

3.3 Company shall pay all undisputed invoices within 30 days of receipt. All payments must be made without demand, deduction, withholding, set-off or counterclaim.

3.4 If Company disputes an invoice it must notify Watching That within 10 Business Days of the date of receipt of the invoice.

3.5 Any undisputed amounts not paid when due will be subject to interest at a rate of 4% per annum above the Bank of England base rate, calculated on a daily basis.

  1. Representations and Warranties 

4.1 Each party represents and warrants that: (i) it has the full power and authority to enter into this Agreement and to perform its obligations hereunder; (ii) it has obtained all necessary licenses, permissions and

clearances to grant the rights granted hereunder and for the performance of its obligations hereunder; and (iii) it will at all times comply with all applicable laws, rules and regulations.

4.2 Watching That represents and warrants that: (i) it has all necessary licenses and clearances to permit Company to use the Licence Edition in the manner authorised by this Agreement; and (ii) the Licence Edition shall not infringe the Intellectual Property rights of any third party.

4.3 Other than as set out in clauses 4.1 and 4.2, Watching That makes no warranties or representations, express or implied, either in fact or by operation of law, statutory or otherwise, including warranties of merchantability or fitness for a particular purpose.

  1. Indemnity

5.1 Watching That shall defend, indemnify and hold Company, its representatives and affiliates harmless from and against any damages, liabilities, costs and expenses (including reasonable legal fees) resulting from Watching That’s breach of its warranties under clause 4.2 or any breach of its obligations under clause 8.

5.2 Company shall defend, indemnify and hold Watching That, its representatives and affiliates harmless from and against any damages, liabilities, costs and expenses (including reasonable legal fees) resulting from Company’s breach or alleged breach of its warranties under clause 5.1 or any breach of its obligations under clause 8.

5.3 The obligations under the foregoing indemnities are subject to the condition that the indemnified party: (i) gives the indemnifying party prompt written notice of any claim or action for which indemnity is sought (provided, that any failure or delay in providing such notice shall not relieve the indemnifying party of its obligations hereunder unless actually prejudiced thereby); (ii) gives the indemnifying party control of the defence and settlement thereof (provided that any compromise or settlement of a claim or action shall require the prior written consent of both parties hereunder, such consent not to be unreasonably withheld or delayed); and (iii) cooperates with the indemnifying party (at the indemnifying party’s expense) in such defence.

  1. Limitation of Liability

6.1 Except as expressly and specifically provided in this Agreement, all warranties, conditions and other terms implied by statute, common law or otherwise are, to the fullest extent permitted by law, excluded from this Agreement.

6.2 Subject to clause 6.4,  neither party shall be liable for any consequential, special, incidental, or indirect damages arising from or related to this Agreement, whether for breach of warranty or any obligation arising therefrom or otherwise, however caused and on any theory of liability (including negligence or strict liability), and irrespective of whether the party has advised or been advised of the possibility of any such loss or damage.

6.3 Subject to clause 6.4, the total aggregate liability of either party in contract, tort (including negligence or breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising out of or in connection with this Agreement shall be the amount of Licence Fees actually paid by Company pursuant to this Agreement.

6.4 Nothing in this Agreement shall limit or exclude either party’s liability for (i) death or personal injury resulting from its negligence, fraud or fraudulent misrepresentation, (ii) any matter which cannot be limited or excluded by law, or (iii) third-party claims subject to indemnification.

  1. Term and termination

7.1 This Agreement shall be legally binding with effect from the date of the Order Form.

7.2 This Agreement shall continue for the Initial Term after which it shall automatically renew for additional periods of 12 months (each a “Renewal Term”) unless either party provides the other with at least sixty (60) days’ written notice prior to the commencement of a renewal term.

7.3 This Agreement may be terminated by either party immediately on written notice (a) if the other party breaches any of its obligations under this Agreement and such breach remains uncured for fifteen (15) days following receipt of written notice by the breaching party of such breach; or (b) upon: (i) the filing of any voluntary petition by the other party, or upon the filing of any involuntary petition against a party that is not dismissed within thirty (30) days after filing; (ii) any appointment of a receiver for all or any portion of the other party’s business or operations; (iii) any assignment of all or substantially all the assets of the other party for the benefit of creditors; (iv) the other party is adjudged bankrupt by a court with competent jurisdiction; (v) the other party becomes insolvent; (vi) the other party ceases all or substantially all of its operations; or (vii) if Company fails to meet the uptime SLA set out in the Order Form for three (3) calendar months within any six (6) month period.

7.4 Upon termination of this Agreement for any reason, the licence granted shall terminate immediately and Company’s access to and use of the Licence Edition shall immediately cease.

7.5 Termination of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination.

7.6 Clauses which expressly or by implication have effect after termination shall continue in full force and effect.

  1. Confidentiality

The parties agree to treat all confidential information relating to the business of the other party (Confidential Information) in the strictest confidence. Neither party shall disclose any Confidential Information without the prior written consent of the other party unless required by law or an applicable regulator.

  1. Intellectual Property

Company agrees and acknowledges that all Intellectual Property developed or created by Watching That during the Term and arising out of or connected with this Agreement, including Company’s use of the Licence Edition, shall be owned by and be the exclusive property of and vest absolutely and immediately upon development and creation in Watching That. To the extent that such Intellectual Property does not immediately and absolutely vest in Watching That, Company hereby assigns (by way of present assignment of all such Intellectual Property including all future rights of rights not yet created) all right, title and interest in and to such Intellectual Property to Watching That, with full title guarantee. Company shall take all steps and sign all documents and procure all such acts are taken as may be necessary to give effect to this clause.

  1. Marketing Activities

During the Term, Watching That may refer to Company in a general listing of its Watching That customers in its marketing, promotional, and other communications, including placing a copy of Company’s logo or other trademarks on Watching That’s website(s) to identify Company as a Company.

  1. General provisions

11.1 Headings. The headings of the clauses included in this Agreement are for ease of reference only and are not intended to affect the meaning or substantive interpretation of this Agreement.

11.2 Notices. All notices, requests, directions or other communications hereunder shall be in writing and deemed to have been sufficiently served if (i) hand delivered, (ii) sent by email with confirmation of receipt, or (iii) sent by registered post, to the address of the respective party set forth in the Order Form (or to such other address as a party notifies the other in accordance with this clause 11.2). Notices pursuant to this clause 11.2 are effective and deemed to have been served, unless there is evidence of it having been received earlier, (i) if hand delivered, at the time of delivery to the correct addressee; (ii) if sent by email, at the time of confirmation of receipt, or (iii) if sent by registered post, within five (5) Business Days after posting it.

11.3 Entire Agreement. This Agreement constitutes the entire agreement and understanding of the parties with respect to the subject matter of this Agreement, and supersedes any and all prior understandings and agreements, whether oral or written, between the parties. In the event of any conflict between the Watching That Licence Agreement and the Watching That Order Form, the Watching That Order Form shall take precedence.

11.4 Assignment. The parties agree that this Agreement shall be binding upon the successors and assigns of each party and shall inure to the benefit of, and be enforceable by, such successors and assigns, and any officers or directors thereof. Neither party may assign this Agreement to a third party without the prior written consent of the other party, which consent shall not be unreasonably withheld; provided that assignments to an Affiliate of such party or incidental to a sale of control, merger, acquisition, sale of all or substantially all assets or other similar transaction by either party shall not require any such consent.

11.5 Waiver. The parties agree that a party’s failure or delay at any time to require performance of any provision of this Agreement or to exercise any right, power or privilege under this Agreement shall in no way affect such party’s right at a later time to enforce the same. No waiver by a party of a breach of a term contained in this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of such breach of any other term of this Agreement.

11.6 Governing Law and Jurisdiction. This Agreement is governed by and shall be construed and interpreted according to the laws  of England and Wales without regard to its conflict of laws provisions. Each party irrevocably submits to the exclusive jurisdiction of the courts located in England and Wales with respect to any proceedings which may be brought at any time relating to this Agreement (including non-contractual disputes or claims).

11.7 Relationship of the parties. The parties are independent contractors, and nothing in this Agreement shall be construed as creating an agency, partnership, joint venture or any other form of legal association between the parties. No party shall have authority to act as agent for, or to bind, the other party in any way.

11.8 Corporate Authority. The parties represent that the person signing on behalf of each applicable party below has full authority to enter into this Agreement and to bind such party to this Agreement, and that such action does not and will not conflict with or result in a default or violation under any other agreement, instrument, contract, arrangement or understanding by which such party is bound.

11.9 Amendment. This Agreement may be amended only if in writing and signed by both parties.

1.12 Enforceability. If any provision, clause or part-clause of this Agreement is held to be invalid, void, illegal or otherwise unenforceable by any judicial body, the remaining provisions of this Agreement shall remain in full force and effect to the extent permitted by law.

11.13 No Third party Beneficiaries. No provision of this Agreement shall be enforceable by any person who is not a party to it.

11.14 Force Majeure. Neither party will be liable to the other for any default or delay in performance of any of its obligations under this Agreement if such default or delay is caused directly or indirectly by fire, flood, earthquake or other acts of God; wars, rebellions, terrorist acts, sabotage, explosions, riots or civil disorders; accidents or unavoidable casualties; interruptions in transportation, power or communications facilities; labor strikes or lockouts; government action; or any other cause beyond such party’s reasonable control. No such failure or delay shall give the other party the right to terminate this Agreement, unless such failure or delay occurs for a period of 30 consecutive days or more. Each party shall advise the other as soon as possible with respect to any threatened or existing circumstance that may result in failure or delay of performance and shall use commercially reasonable efforts to remove or otherwise address the circumstance as soon as possible.

EXHIBIT 1: SERVICE LEVEL AGREEMENT

  1. Uptime Commitment. Watching That will use commercially reasonable efforts to ensure that the Licence Edition is available 24 hours a day, 7 days a week with a minimum monthly uptime commitment of 99.9% for the data collection and processing pipeline features of the Licence Edition (“Collector Uptime”) and a minimum monthly uptime commitment of 99.5% for the cloud based application, automated reports generator and automated alerts features of the Licence Edition (“App/Services Uptime”). Collector Uptime and App/Services Uptime are calculated by taking the total number of minutes in a calendar month less the number of minutes of Collector Downtime or App/Services Downtime, as applicable, in the calendar month, divided by the total number of minutes in the calendar month.
  2. Definition of Downtime. (a) Data Collection and Processing Pipeline: If player plugins are not being distributed by Watching That or the Watching That Service is not accepting and responding to Collector API requests, subject to paragraph 3, such events will qualify as “Collector Downtime”. (b) App/Services Features: If the Watching That application, reporting or alerting services are not available to Company, subject to paragraph 3, such events may qualify as “App/Services Downtime”. Collector Downtime and App/Services Downtime shall be referred to herein collectively as “Downtime” or as “Downtime Event(s)”.
  3. Exclusions. Downtime Events resulting from causes beyond Watching That’s reasonable control shall not be included in the calculation of Downtime. In addition, scheduled maintenance on the Watching That Service (“Scheduled Maintenance”) or emergency maintenance resulting in a Downtime Event or any other suspension of the Licence Edition by Watching That under clause 8.1 of the Licence Agreement shall not be included in the calculation of Downtime. Watching That may conduct up to 8 hours of Scheduled Maintenance per calendar month (the “Maintenance Limit”). All Scheduled Maintenance shall either be conducted (i) between the hours of 12:00AM (GMT) and 6:00AM (GMT) or (ii) at any time after supplying Company with 3 days’ advance notice (the “Maintenance Windows”). Any Scheduled Maintenance conducted in excess of the Maintenance Limit or outside the Maintenance Window shall be included in the calculation of Downtime.
  4. Remedy for Excess Downtime: If Watching That fails to satisfy either (or both) the Collector Uptime commitment and/or the App/Services Uptime commitment during a calendar month, and provided Company is not in breach of the Agreement, Watching That will issue an SLA Credit in the form of a reduction of the following month’s Licence Fee in an amount equal to the following:

“SLA Credit” = Total cumulative minutes of Collector Downtime less than the Collector Uptime commitment plus total cumulative minutes of App/Services Downtime less than the App/Services Uptime commitment multiplied by the effective per minute rate of the monthly Licence Fees payable by Company to Watching That in the prior billed month (meaning, the prior calendar month’s Licence Fee divided by the total number of minutes in such month).

The provision by Watching That of the SLA Credit is Company’s sole and exclusive remedy for Downtime and any failure to meet the terms of this Service Level Agreement. To request an SLA Credit, Company must contact Watching That at support@watchingthat.com within 30 days after the end of the month in which the SLA Credit was earned. Recorded testing by Watching That of the Licence Edition from an external network (i.e. not the Watching That Service) shall be determinative as to the existence and duration of a Downtime Event. Multiple Downtime Events occurring simultaneously shall be considered a single Downtime Event. Collector Uptime and App/Services Uptime are separate metrics; Collector Downtime does not affect or count against App/Services Uptime and App/Services Downtime does not affect or count against Collector Uptime. A Downtime Event that causes both Collector Downtime and App/Services Downtime shall be treated as Collector Downtime only.