Watching That Standard Licence Agreement
updated July 5th 2022
This Agreement is entered into between Watching That and Company and shall be effective from the Start Date set out in the Order Form.
Watching That has developed the Watching That Licence Edition to allow for the reporting, monitoring and analysis of OTT and streaming video of the Company. Company wishes to use the Watching That Licence Edition to report, monitor and analyse Company’s OTT video.
Agreement means this Watching That Licence Agreement including the 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;
Force Majeure means any circumstances beyond a party’s control including strikes or industrial disputes, acts of God, acts of government, refusal of licence, failures or outages of any utilities (including telecommunications and data communication equipment or services), epidemic or pandemic, denial of service attacks, fire, explosion, floods, cyclone, tsunami or other extreme weather events, aircraft unserviceability or unavailability, war, terrorism or civil disturbance, or impossibility of obtaining material and/or data;
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;
Output Data means all reports and other data that is output from the Licence Edition pursuant to this Agreement;
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;
- 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.
- 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.
- 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) the Licence Edition shall not infringe the Intellectual Property rights of any third party; and (ii) it shall comply with the Service Levels.
4.3 Company represents and warrants that: (i) it will not share any login details or otherwise enable unlawful access to the Licence Edition by any other person; (ii) it will not decompile, disassemble, translate, replicate or otherwise reverse engineer any portion of the Licence Edition; and (iii) it will not seek to circumvent any data security measures employed by Watching That.
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. Watching That makes no representation or warranty that the Licence Edition and any Output Data will be error-free, correct, accurate, complete, reliable, secure, current or up-to-date.
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 clause 4.2 or clause 9.
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 of clause 4.3 or clause 9.
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.
- Limitation of Liability
6.1 Subject to clause 6.3, 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.
6.2 Subject to clause 6.3, 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.
6.3 Nothing in this Agreement shall limit or exclude either party’s liability for death or personal injury resulting from its negligence, fraud or fraudulent misrepresentation; or (i) any matter which cannot be limited or excluded by law.
- 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) the other party is insolvent or subject to a winding up petition.
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.
Watching That may, in its sole discretion, suspend Company’s access to the Licence Edition without liability to the Company if (i) Company is in breach of this Agreement; (ii) an event of Force Majeure occurs; (iii) it has any systems or security concerns; or (iv) due to any maintenance.
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.
- Intellectual Property
10.1 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.
10.2 Watching That shall have the right to use the Output Data in perpetuity for any purpose provided that it has been anonymised.
10.3 If at any time all or any part of the Licence Edition becomes subject to any infringement claim, Watching That may, at its own expense and option, elect to: (i) modify or replace the affected software so that it is non-infringing; or (ii) obtain for Company the right to continue using the Platform. If neither option is, in Watching That’s opinion, commercially reasonable, Watching That shall have the right to terminate this Agreement on written notice.
- 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 customer.
- General provisions
12.1 Watching That may modify these terms and conditions from time to time by posting an updated version on the Watching That website. Any material modifications will be sent by email 90 days before they take effect.
12.2 All notices shall be in writing and delivered by post or email to the address of the respective party on the Order Form. Any notice delivered by post must also have a copy sent via email.
12.3 This Agreement constitutes the entire agreement between the parties about its subject matter. In the event of any conflict between the Terms and Conditions and any Order Form, the Order Form shall take precedence.
12.4 Neither party may assign this Agreement without the other party’s prior written consent (not to be unreasonably withheld) provided that assignments incidental to a sale of all or substantially all assets by either party shall not require any such consent and, in the case of Watching That, assignment to an affiliate shall not require any such consent. Watching That shall have the right to sub-contract any of its obligations under this Agreement provided that Watching That remains solely liable to Company for the provision of any such obligations in accordance with this Agreement.
12.5 Nothing in this Agreement will be taken as giving rise to a relationship of employment, agency, partnership or joint venture. Each party to this Agreement is an independent contractor and neither party has any authority to bind the other.
12.6 No provision of this Agreement shall be enforceable by anybody who is not a party to it.
12.7 This Agreement is governed by English law and is subject to the exclusive jurisdiction of the courts of London.
EXHIBIT 1: SERVICE LEVEL AGREEMENT
- 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.
- 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)”.
- 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 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.
- 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 firstname.lastname@example.org 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.