This VOS®.io Service Agreement is between you (“Customer”) and Harmonic Inc. or its Affiliates (“Harmonic”).
Customer’s use of and access to the Service and Harmonic’s obligations related to performing the Service are governed by this VOS.io Service Agreement, the Appendices attached hereto, and the terms of the Plan (collectively referred to as the “Agreement”). The Agreement is the parties’ entire agreement on this subject and merges and supersedes all related prior and contemporaneous agreements. By agreeing to these terms, Customer represents warrants and covenants that Customer is authorized to enter into this Agreement and will to be bound by its terms. This Agreement applies to all Plans entered into under this Agreement.
1. DEFINED TERMS. The following words used in this Agreement have the following meanings:
“Acceptable Use Requirements” means the Acceptable Use Requirements for the Service set forth in Section 6.1.
“Affiliate” means any legal entity that Controls, is Controlled by, or is under common Control with a party.
"Authorized Users” means collectively, those persons or entities such as but not limited to employees and contractors of Customer who are authorized by Customer to access and use the Service and have been supplied user identifications and passwords by Customer or by Harmonic at Customer’s request.
“Confidential Information” means (a) with respect to Harmonic, Harmonic’s server configurations, software configurations, Service configurations, Harmonic Material (excluding Documentation that is displayed on Harmonic’s website), Harmonic Technology and Harmonic’s audit reports; and (b) with respect to both Harmonic and Customer, (i) any Personal Data, non-public Customer Content and non-public information and data transmitted to or from, or stored on, the Service infrastructure, (ii) information that is conspicuously marked as “confidential” or “proprietary,” (iii) information disclosed verbally that is designated as “confidential” or “proprietary” at the time of disclosure, (iv) the terms of this Agreement, and (v) information that, by its nature, would reasonably be considered as confidential to any other person, firm or corporation.
“Control” means ownership of more than a 50% interest of voting securities in an entity or the power to direct the management and policies of an entity.
“Customer Content” means any text, graphics, images, music, sound, media, video, audio, trademarks, trade names, service marks, advertisements or other content that Customer (i) uploads, uplinks or otherwise deploys to the Service and/or (ii) creates, modifies, stores or processes using the Service.
“Customer Service Data” means Service-related information and usage data related to Customer’s account, such as resource identifiers, metadata tags, security and access roles, rules, usage policies, permissions, usage statistics and analytics. Customer Service Data excludes Customer Content and Customer’s Personal Data.
“Data Processing Agreement” means the Data Processing Agreement for the Service attached to this Agreement as Appendix B.
“Documentation” means collectively, any and all documentation which Harmonic makes generally available to its customers in connection with the Service, its use and functionality, through the Hub or the Marketplace.
“Excluded Issues” means i) issues arising from or relating to services, applications or products not provided by Harmonic including any public cloud infrastructure provider; ii) custom integration scripts (other than those provided directly or indirectly by Harmonic), unless affected by a change in the Service that had not been previously communicated to the Customer by Harmonic with at least seven (7) days notice; (iii) issues with sources, satellite feeds, files or other sources related to peripheral equipment outside of, but required for, the operation of the Service, other than any source, feed or file provided directly or indirectly by Harmonic; (iv) bandwidth (open internet or direct link) degradation between Customer’s contribution site and the Service environment; (v) last mile issues to Customer’s end-user subscribers (e.g. in-home network degradation or stability, Customer applications, and Customer video decoding and decryption), except to the extent caused by or attributable to Harmonic; (vi) use of the Service by Customer that is in breach of this Agreement or not in compliance with Harmonic’s guidelines or Documentation or specification, including through configuration changes performed by Customer via the Service’s manager user interfaces or application programming interfaces; or (vii) issues relating to Customer’s internal network for content acquisition or connectivity disconnection and/ or degradation between the contribution site and the Internet.
“Fee(s)” means the fees and expenses set forth in the purchased Plan by Usage Categories, to be paid by Customer pursuant to this Agreement.
“Harmonic Material” means utility and deployment scripts, customizations to templates, code extending the functionality of third-party applications licensed to Harmonic, Documentation, and other data that Harmonic has developed or may develop at its own expense before and during the term of the Agreement.
“Harmonic Technology” means collectively i) Harmonic’s domain name, logos, product names, services names associated with the Service and other trademarks and service marks; ii) certain audio and visual information, documents, software and other works of authorship; and iii) other technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information.
“Hub” means the internet web page, which is maintained or operated by Harmonic or its agent from which Customer can get access to the Service, manage users, view connected runtime reports, and request purchased Support Services.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Marketplace” means Azure Marketplace and AppSource Marketplace.
“Offering” means all services, websites (including hosting), solutions, platforms, and products identified in a Plan that Harmonic makes available under or in relation to the Agreement, including the software, equipment, technology, and services necessary for Harmonic to provide the foregoing. Offering availability may vary by region.
“Personal Data” means any data, either alone or in combination with other information, by which a natural person can be identified or located.
“Plan” means Customer’s purchase through the Marketplace of an Offering, which includes the terms and conditions of the Offering, a detailed description of the purchased Service, including but not limited to, the Fees and other required information, and is incorporated into and made a part of the Agreement.
“Service” means the Harmonic VOS.io that is (i) comprised of several service elements, such as ingest, playout, graphics, transcoding, encryption and delivery, that enable the creation and delivery of playout, live, time-shift, cloud DVR and VOD streaming services directly to consumer devices, (ii) hosted in Marketplace infrastructure and managed and operated by Harmonic and offered as a subscription software-as-a-service (SaaS), and (iii) accessed by Authorized Users through the Hub.
“Service Availability” or “SLA” means the applicable monthly uptime percentage, as described in Appendix A. Part B, excluding Permitted Downtime, during which the Service is operational and accessible to Customer and its Authorized Users.
“Support Services” means support services set forth in a purchased Support Agreement (Appendix A Part. A).
“Subscription Term” means the time period during which Customer uses the Service, as set forth on the Plan and starting from the Subscription Commencement Date set forth in the Plan unless otherwise terminated in accordance with this Agreement.
“Taxes” means sales, use and other taxes, export and import fees, customs duties, tariffs, levies and similar charges applicable to the transactions contemplated by this Agreement required by law or any governmental or regulatory authority.
“Usage” means utilization of elements, features or functionalities of the Service for, subscription access, media processing and delivery including ingest, playout, compression, encryption, packaging, origin, or delivery of Content as purchased or authorized by Customer.
“Usage Category” means the Usage of the Service classified into broad groups such as, subscription access, media processing and delivery, as further described in the applicable Plan.
2. ORDERING PROCESS. A subscription to the Service requires Customer to confirm electronically its acceptance to purchase a selected Plan and to receive the Harmonic purchase confirmation. Harmonic will create Customer’s Service account based on the information set forth in the Plan and provide Customer with Hub login information. All access and use of the Service under Customer’s account by Authorized Users will be Customer’s sole responsibility.
3. ACCESS AND USE OF THE SERVICE; CERTAIN RIGHTS.
3.1 Grant of Use Rights. Harmonic grants Customer and its Authorized Users a worldwide, non-exclusive, non-transferable (except in connection with a permitted assignment of the Agreement), non-sub-licensable right and license to (a) access and use the Service for Customer’s business purposes in accordance with the terms of the Agreement and the applicable Plan, for the Subscription Term and (b) use the Documentation in support of Customer’s authorized use of the Service. The rights granted under this Agreement are conditioned on Customer’s and Authorized Users’ compliance with the Agreement.
3.2 Reservation of Rights. Customer acknowledges (a) that in providing the Service, Harmonic utilizes Harmonic Technology and (b) that the Harmonic Technology is covered by intellectual property rights owned or licensed by Harmonic, as further described below in Section 10 (collectively, "Harmonic IP Rights"). Other than as expressly set forth in the Agreement, no license or other rights in or to the Harmonic Technology or Harmonic IP Rights are granted to Customer, and all such licenses and rights are hereby expressly reserved.
3.3 Restrictions. Customer and its Authorized Users shall not (a) modify, copy or create derivative works based on the Service or Harmonic Technology, or (b) disassemble, reverse engineer, or decompile the Service, any software provided by Harmonic or Harmonic Technology, or access it in order to (i) build a competitive product or service, (ii) build a product or service using similar ideas, features, functions or graphics of the Service, (iii) copy any ideas, features, functions or graphics of the Service; (iv) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit the Service, or make the Service, available to any third party, other than as contemplated by the Agreement; (v) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (vi) attempt to gain unauthorized access to the Service or its related systems or networks.
4. SERVICE CHANGES.
4.1 Modifications. Harmonic reserves the right to modify the Service, Hub and any programmatic interfaces at any time. Harmonic may transition to new programmatic interfaces with or without advanced written notice to Customer.
4.2 End of Service. From time to time, Harmonic may cease to offer or support certain elements of the Service (any such event, an “End of Service”). If the Service or a material element of the Service will become subject to an End of Service, Harmonic will announce the End of Service event. Harmonic may attempt to replace such Service element with a functional equivalent at no extra charge to Customer or, alternatively, Customer may terminate the Plan that is affected by the End of Service event without further liability upon written notice to Harmonic, and Harmonic will, if applicable, refund to Customer the unused portion of Customer’s pre-paid Fees. An End of Service event is not a breach of the Agreement.
5. FEES AND BILLING.
5.1 Generally. Fees for a given Plan is set forth in the purchased Plan. All Fees are excluding Taxes. Microsoft will invoice and charge Customer under the terms of the Microsoft Commercial Marketplace Terms and Use available under market place terms and the applicable purchased Plan.
6. ADDITIONAL POLICIES AND NOTICES.
6.1 Acceptable Use Requirements. Customer agrees to comply with, and will cause its Authorized Users to comply with, the following Acceptable Use Requirements applicable to the Service. For purposes of this Section 6.1, Customer and Authorized Users shall be referred to as “Customer Users”.
a. shall not upload any Content that violates applicable law;
b. shall comply with all laws applicable to their use of the Service;
c. shall not upload any Malicious Code or any other code or Content intended to interfere with or disrupt the operation of the Service;
d. shall not upload any Content that infringes anyone’s intellectual property or other rights (such as personality or publicity rights) or for which they have not procured the necessary rights;
e. shall not impersonate any other person or otherwise misrepresent their identity;
f. shall not tamper with the Service and in particular shall not tamper with the Service in a manner designed to avoid payment for use of the Service;
g. shall not access the Service other than through the Marketplace and the permitted customer and subscriber interfaces as set forth in the user Documentation for the Service; and
h. shall not hack or attempt to reverse engineer the Service or attempt to circumvent any security or authentication functions in the Service.
6.2 Privacy Notice. Harmonic’s Privacy Notice as updated by Harmonic from time to time, will apply to Customer’s use of the Service and Hub and other Harmonic websites. Customer also acknowledges and understands that Customer may be subject to the privacy notices or policies of third-party partners and suppliers Harmonic may use for certain processes, features and aspects of the Service.
7. DATA COLLECTION.
7.1 Customer Service Data. Harmonic and its suppliers involved with providing the Service may collect, share (amongst Harmonic and such suppliers only) and use Customer Service Data for Harmonic’s internal business purposes, including: (a) developing updates and improvements to the Service; (b) facilitating the provision of purchased Support Services; and (c) billing, auditing and verifying compliance with the Agreement. Harmonic and such suppliers will not use or share Customer Service Data in a manner other than as described above.
7.2 Personal Data. Customer may provide Harmonic with the Personal Data of employees, Authorized Users and third parties under the Agreement and in connection with using the Service, including information relating to certain Customer contacts, affiliates, agents and administrators. Customer will obtain all required consents from such employees and third parties under applicable privacy and data protection laws before providing such information to Harmonic.
7.3 User Names. Any public or private names, identifiers or addresses allocated for Customer and its Authorized Users to use in connection with the Service (“Names”) will remain allocated to Customer until (i) Customer releases the Name; (ii) Customer’s use of the Service is terminated; or (iii) Harmonic decides to change any Name, which Harmonic may do at any time and in its sole discretion by providing Customer with five (5) days’ prior notice of the change in accordance with the notice provisions in Section 16 below. Upon termination of the Agreement, Customer will no longer use any Names that Harmonic provided for Customer’s use in connection with the Service.
7.4 Data Processing Agreement. Harmonic and Customer agree to comply with the terms and conditions of the Data Processing Agreement, which incorporates the European Standard Contractual Clauses. Any reference in the DPA to a VOS360 agreement concluded between the parties shall be understood as a reference to the present Agreement.
8. PROTECTION OF CUSTOMER CONTENT.
8.1 Customer Responsibilities. Customer will: (a) operate the Service using the user interface for: (i) live channel creation, activation and offline channels, (ii) uploading video-on-demand (“VOD”) files and set the transcode profile, and (iii) upload playout files and build the schedule; (b) obtain uplink internet capacity; (c) be solely responsible for the nature, quality and accuracy of the Customer Content; (d) ensure that the Customer Content (including the storage or transmission thereof) complies with the Agreement and any and all applicable laws and regulations; (e) promptly handle and resolve any notices and claims relating to the Customer Content; (f) promptly handle and resolve any notices sent to Customer by any person claiming that any Customer Content violates any person’s rights, including take-down notices pursuant to the Digital Millennium Copyright Act and any other notices; and (g) maintain appropriate security, and protection of its computer, laptop and other computing devices accessing the Service.
8.1.1 Harmonic shall have no liability whatsoever to Customer or any third party as a result of (a) any unauthorized disclosure or access to Customer’s account or Customer Content as a result of Customer’s or an Authorized User’s misuse of the Service or loss or theft of any Authorized User’s password or username; or (b) any deletion, destruction, damage or loss of Customer Content caused by or at the direction of Customer or an Authorized User.
8.2 Harmonic Responsibilities. Harmonic will: (a) host the Service on the Marketplace ; (b) guarantee the availability of the user interface; (c) pre-configure compression and destination and delivery templates; (d) update the Service to add or improve functionality; (e) ensure the Service Availability stated in Appendix A. Part B; and (f) implement commercially reasonable administrative and technical measures, including disaster recovery procedures, for the Service that are designed to secure the Customer Content against accidental or unlawful loss, access or disclosure.
9.1 No Disclosure. In the performance of the Agreement, Customer and Harmonic may have access to or be exposed to the other’s Confidential Information. A party shall not disclose or allow the disclosure of the other party’s Confidential Information to any third party, except on a need-to-know basis to its attorneys, accountants, consultants, independent contractors, agents, suppliers, employees and representatives (collectively, the “Representatives”) who are subject to confidentiality restrictions and obligations at least as stringent as those stated in the Agreement for purposes of performing its obligations under the Agreement or, in the case of Customer, for purposes of using the Service and/or exercising its rights granted hereunder. Each party will be responsible for any breach of the Agreement by its respective Representatives. Each party agrees to take the necessary precautions to maintain the confidentiality of the other party’s Confidential Information by using at least the same degree of care as such party employs with respect to its own Confidential Information of a like-kind nature, but in no case less than a commercially reasonable standard of care to maintain confidentiality.
9.2 Exclusions. Confidential Information shall not include information, which, (a) was known by the receiving party without any confidentiality restrictions prior to its receipt from the disclosing party or is or becomes public knowledge without the fault of the recipient, (b) is received by the recipient without any confidentiality restrictions from a source other than the disclosing party to the Agreement, or (c) is independently developed by or on behalf of the receiving party without causing a breach of the terms hereunder, or (d) a party is required to disclose in response to an order by a court or governmental agency, provided that advance notice of the disclosure is provided to other party.
9.3 Duration. The confidentiality obligations set forth in this Section with respect to Confidential Information shall continue for three (3) years following termination of the Agreement, and with respect to trade secrets, shall continue for so long as such information remains a trade secret under applicable law. Each party’s Confidential Information shall remain the property of that party, and no license or other rights to such party’s Confidential Information is granted or implied hereby.
10. INTELLECTUAL PROPERTY RIGHTS. Except for the rights provided in the Agreement, the Agreement does not convey to either Harmonic or Customer any ownership right or license to use, sell, exploit, copy or further develop the other party’s Confidential Information or intellectual property, including patents, copyrights, trademarks, trade names and trade secrets, and nothing herein will be deemed or interpreted to grant any license to, or transfer any ownership of, any Harmonic IP Rights to Customer, or any Customer intellectual property rights in Customer Content to Harmonic, whether by implication, estoppel, or otherwise, including as may arise out of or in connection with providing the Service to the Customer. Rights to access or use Offerings on a device do not give Customer any right to use Harmonic’s patents or Harmonic’s Material, or other intellectual property in any software or devices.
10.1 Harmonic Material. In connection with Customer’s use of the Service, Harmonic may provide Customer with Harmonic Material. Harmonic Material is the property of Harmonic and its licensors, and accordingly, Customer may not use Harmonic Material other than in connection with the access and use of the Service in accordance with the terms and conditions of the Agreement.
10.2 Customer Content. Customer shall be solely responsible for Customer’s intellectual property rights to, and the selection, compatibility, licensing, development, accuracy, performance, operation, maintenance, and support of, all Customer Content. Harmonic may immediately (upon issuance of prompt written notice setting forth the basis for its action) remove or block access to any Customer Content on the Service (i) that Harmonic believes in good faith violates the terms and conditions of the Agreement or any of the Acceptable Use Requirements; or (ii) pursuant to a subpoena or an order issued by a court of competent jurisdiction or government agency.
11. SUPPORT SERVICES. Customer may purchase the support agreement proposed in Appendix A. Part A attached hereto ("Support Agreement”) at the price set forth in the Plan. In the event Customer elects not to purchase the Support Agreement, the Customer will only have access to an online forum, available via public portal and no committed response time will apply.
12. TERM; SUSPENSION; TERMINATION.
12.1 Term of Agreement. The term of the Agreement is the period for which a purchased Plan is in effect.
12.2 Term of a Plan. A Plan is valid for the entire purchased Subscription Term. If the Customer selected “ON”, in the Recurring Billing tab, the Subscription Term will be extended, and the Plan will continue to be in force, unless terminated pursuant to Sections 12.3 or 12.4 below.
12.3 Termination Without Cause. Unless otherwise set forth in a Plan, either party may terminate the Agreement or any Plan without cause with fifteen (15) days prior notice. Harmonic will not provide refunds or credits for any partial subscription period(s) if the Agreement or a Plan is terminated without cause. Customer shall pay for any of its Usage prior to the termination date.
12.4 Termination for Cause. Without limiting other remedies, a party may have, either party may terminate the Agreement or any Plan immediately with written notice if (i) the other party materially breaches the Agreement or a Plan, and fails to cure such breach within thirty (30) days after receipt of notice of the breach; or (ii) upon the other party filing or the institution of bankruptcy, reorganization, liquidation or receivership proceedings.
12.5 Upon Termination. All access and rights to use the Service granted under the Agreement and a Plan will terminate immediately, and all amounts due under any unpaid invoices will become immediately due and payable. Termination will not affect Customer’s obligation to pay any outstanding amounts and the amount related to the Usage of the Service incurred through the termination date. If Harmonic is in breach, Customer will receive a credit for any subscription fees, including amounts paid in advance for unused consumption for any Usage period after the termination date on a sole remedy basis.
12.6 Suspension of Service. Harmonic or any entity authorized by Harmonic (including the Marketplace) may suspend Customer’s or its Authorized User’s access to, or use of, the Service if Harmonic believes in its sole reasonable discretion that (a) Customer is causing a significant threat to the functionality, security, integrity, or availability of the Service or any content, data, or applications in the Service, (b) Customer or its Authorized Users are violating the Acceptable Use Requirements or (c) Customer is otherwise in breach of its obligations under the Agreement. When reasonably practicable and lawfully permitted, Harmonic will provide Customer with advance notice of any such suspension. Harmonic will use reasonable efforts to lift the Service suspension promptly after Harmonic has determined that the issue causing the suspension has been resolved to Harmonic’s satisfaction. Any suspension under this Section 12.6 shall not excuse Customer from its obligation to make payments under the Agreement. If Customer does not adequately address the reason for suspension within sixty (60) days after suspension, then Harmonic may terminate the Agreement and the applicable Plans.
12.7 Effect of Termination. Effective immediately upon the termination of the Agreement, (a) the Service will no longer be available to Customer and Harmonic will permanently erase all Customer Content and data stored by Harmonic on the Service , and (b) all Harmonic Confidential Information, including all copies thereof, must be returned to Harmonic or permanently destroyed and upon Harmonic’s written request, Customer agrees to certify in writing that Customer is no longer in possession of any Harmonic Confidential Information.
12.8 Survival. In the event of termination, all terms of the Agreement that should by their nature survive termination will survive, including, Section 5 (Fees and Billing), Section 9 (Confidentiality) Sections 12.5 and 12.7 (Effect of Termination), 13 (Warranties, Representations, Disclaimers), 14 (Indemnification), 15 (Limitation of Liability), and 18.3 (Governing Law and Disputes).
13. WARRANTIES; REPRESENTATIONS; DISCLAIMERS.
13.1 Both Parties. Each party represents and warrants that it has the legal authority to enter into this Agreement.
13.2 Harmonic Warranties; Remedies for Breach.
Harmonic warrants that during the Subscription Term the Service will be available and perform substantially in accordance with the Documentation. If the Service does not substantially meet the descriptions in the Documentation, Customer should promptly notify Harmonic immediately either via email at firstname.lastname@example.org
, or through the Hub in the event that Customer has purchased support services through a Support Agreement.
- HARMONIC DOES NOT WARRANT THAT THE SERVICE WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, THAT HARMONIC WILL CORRECT ALL SERVICE ERRORS, OR THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS. HARMONIC IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION, AVAILABILITY, OR SECURITY OF THE SERVICE THAT ARISE FROM (A) CUSTOMER CONTENT, (B) ANY EXCLUDED ISSUES, OR (C) ANY THIRD-PARTY CONTENT OR SERVICES.
- FOR ANY BREACH OF THE WARRANTY FOR THE SERVICE, CUSTOMER’S EXCLUSIVE REMEDY AND HARMONIC’S ENTIRE LIABILITY SHALL BE TO PROVIDE I) COMMERCIALLY REASONABLE EFFORTS TO CORRECT THE ISSUE THAT CAUSED THE BREACH OF WARRANTY OR II) IF A SUPPORT AGREEMENT IS PURCHASED TO PROVIDE SUPPORT SERVICES TO CORRECT THE ISSUE THAT CAUSED THE BREACH OF WARRANTY OR TO PROVIDE ANY OTHER REMEDIES AS DESCRIBED IN APPENDIX A-PART B. IF HARMONIC CANNOT SUBSTANTIALLY CORRECT OR RESOLVE THE ISSUE IN A COMMERCIALLY REASONABLE MANNER, CUSTOMER MAY END THE SERVICE AND HARMONIC WILL REFUND TO CUSTOMER THE USAGE FEES FOR THE TERMINATED SERVICES THAT CUSTOMER PRE-PAID TO HARMONIC (IF ANY) FOR ANY REMAINDER MONTHS IN THE SUBSCRIPTION TERM AS CUSTOMER’S SOLE REMEDY.
13.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, HARMONIC MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. HARMONIC HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, FOR NON IP INFRINGEMENT OR CONDITIONS INCLUDING FOR SOFTWARE, HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
13.4 Customer Representations. Customer represents and warrants to Harmonic that (i) the Customer information provided on the Plan is accurate and complete; (ii) Customer Content deployed on the Service and Customer’s use of the Service will comply with the Acceptable Use Requirements, and (iii) the execution and delivery of this Agreement will not conflict with or violate any provision of Customer’s company charter, by-laws or other governing documents.
14.1 Indemnification by Customer. Customer shall indemnify, defend and hold Harmonic and its employees, agents, shareholders, officers, directors, successors and assigns harmless from and against any and all third party claims, damages, liabilities, costs, settlements, penalties and expenses (including attorneys’ fees, expert’s fees and settlement costs) arising out of or relating to any suit, action, proceeding, arbitration, subpoena, claim or demand brought or asserted by a third party pursuant to any theory of liability against Harmonic arising out of or relating to any one or more of the following: (i) a breach by Customer or its Authorized Users of the Agreement or of a Plan; (ii) the use of the Service by Customer or its Authorized Users or other representatives or agents, or any Customer Content or information on the Service not in accordance with the Agreement; (iii) the alleged or actual infringement or misappropriation of any intellectual property right or other proprietary right by Customer or its Authorized Users or its other agents or representatives; (iv) Customer’s or its Authorized Users failure to use reasonable security precautions for the Service login process or while using the Service and (v) Customer’s or its Authorized Users failure to fulfill its obligations to the Marketplace as they relate to this Agreement or a Plan. Harmonic will provide Customer with written notice of the existence of any basis for indemnification and Harmonic will select its defense counsel. Customer will have the right to approve any settlement, but Customer may not unreasonably withhold its approval. Customer agrees to indemnify Harmonic from all costs, expenses and liabilities as they become due.
14.2 Indemnification by Harmonic. Subject to the Agreement, Harmonic agrees to (a) indemnify Customer, defend, or at its option settle, any claim, demand, action or legal proceeding made or brought against Customer by a third party alleging that the use of the Service as contemplated hereunder infringes the intellectual property rights of a third party (“Claim”), and (b) pay (i) any final judgment or award directly resulting from such Claim to the extent such judgment or award is based upon such alleged infringement or (ii) those damages agreed to by Harmonic in a monetary settlement of such Claim; provided, that Customer (a) promptly gives written notice of the Claim to Harmonic; (b) gives Harmonic sole control of the defense and settlement of the Claim (provided that Harmonic may not settle or defend any Claim unless it unconditionally releases Customer of all liability); and (c) provides to Harmonic, at Harmonic’s cost, all reasonable assistance. Customer will have the right to participate in the defense, including retention of and/or advice of separate counsel, at its own expense. The parties acknowledge and agree that this Section 14.2 shall not be applicable to third party claims made by the Marketplace as they relate to this Agreement or the Plan.
15. LIMITATION OF LIABILITY. EXCEPT TO THE EXTENT THE FOLLOWING LIMITATIONS ARE PROHIBITED BY APPLICABLE LAW WITHOUT THE POSSIBILITY OF CONTRACTUAL WAIVER:
15.1 IN NO EVENT WILL HARMONIC BE LIABLE UNDER THE AGREEMENT OR ANY PLAN FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, SALES, DATA, DATA USE, GOODWILL, OR REPUTATION; AND
15.2 IN NO EVENT SHALL THE AGGREGATE LIABILITY OF HARMONIC ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNTS ACTUALLY PAID FOR THE SERVICE UNDER THE PLAN GIVING RISE TO THE LIABILITY FOR THE SUBSCRIPTION TERM IN WHICH THE EVENT GIVING RISE TO SUCH LIABILITY OCCURRED.
16.1 From Harmonic. Except as otherwise provided herein, notices Harmonic sends to Customer under the Agreement will be sent by email to the email address set forth on the Plan, as may be updated by Customer in writing from time to time. Customer is responsible for keeping the primary contact email address current and accurate at all times.
16.2 From Customer.
Except as otherwise provided herein, notices Customer sends to Harmonic under the Agreement must be in writing and sent at Customer’s by email to email@example.com.
16.3 When Effective. A notice under the Agreement is effective when received.
17. EXPORT CONTROL. Each party shall comply with all applicable import, export and re-export control laws and regulations, including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, and the sanctions maintained by the Treasury Department’s Office of Foreign Assets Control.
18.1 No Waiver. Failure of Harmonic to enforce at any time any of the provisions hereof will not be construed to be a waiver of the right of Harmonic thereafter to enforce any such provision.
18.2 Assignment. Customer will not assign or transfer (including but not limited to by operation of law, merger, or reverse merger) the Agreement, a Plan or any portion hereof without the prior written consent of Harmonic, and any such attempt at assignment or transfer will be void. Harmonic may assign or transfer all or any portion of the Agreement or a Plan.
18.3 Governing Law and Dispute. The Agreement will be governed by and construed in accordance with the laws of the State of California, United States of America. The United Nations Convention on the International Sale of Products will not apply. Any suit hereunder will be brought solely in the federal or state courts of Santa Clara County, California, USA, and Customer hereby submits to personal jurisdiction in those courts.
18.4 Force Majeure. Harmonic will not be liable for any delay or failure to perform its obligations hereunder due to any occurrence beyond Harmonic’s reasonable control, pandemic; electrical, internet, or telecommunication outage that is not caused by Harmonic’s negligence, acts of God, fires, floods, earthquakes, explosions, riots, war, terrorism, sabotage, nuclear incidents, lockouts, strikes, other organized labor disruption, or the Excluded Issues.
18.5 Modifications. No modification to the Agreement, nor any waiver of any rights, shall be effective unless agreed to in writing by both parties.
18.6 Severability. If any portion of the Agreement is held invalid, the parties agree that such invalidity shall not affect the validity of the remaining portions of the Agreement, and the parties shall seek in good faith to agree to substitute for the invalid provision a valid provision that most closely approximates its terms.
18.7 Entire Agreement. The Agreement supersedes all proposals, oral or written, all negotiations, conversations or discussions between the parties relating to the Agreement. Customer represents that it has not relied on any representation or warranty other than those contained herein in entering into the Agreement. The terms and conditions of the Agreement, its appendices and all Plans subject to the Agreement contain the entire understanding and agreement of the parties with respect to the subject matter hereof.
Part A. VOS.io SUPPORT AGREEMENT (“Support Agreement”).
This Support Agreement is subject to and incorporated into the VOS.io Service Agreement (the “Agreement”) between Harmonic and Customer and applies only if Customer has purchased the support services under a Plan.
This Support Agreement provides terms and conditions for single VOS.io instance.
A. SUPPORT SERVICES AND RESPONSE.
- Availability. Technical support for the Service is available 24 hours a day, 7 days a week, 365 days a year, and shall apply only to production systems.
- Support Contact and Response.
Harmonic Support Contact
Online support resources are available via the Hub.
1 Hour Response Time is measured from when Customer first reports a Service failure, degradation, problem or issue (an “Issue”) and requests Support Services , until Harmonic takes the first action or responds to Customer’s Support request on the Issue.
- Support Process.
a. Harmonic’s obligation to provide Support Services under this Support Agreement exclude support services for any Excluded Issues, as defined in the Agreement.
b. Customer will cooperate with Harmonic and provide reasonably detailed information requested by Harmonic for each Issue submitted in order to facilitate the provision of Support Services.
4. Customer Contact Persons.
Customer will appoint up to two (2) designated support contact persons for purposes of contacting Harmonic’s support team regarding support issues, including reporting technical support issues at the Hub.
Part B. SERVICE AVAILABILITY/SLA.
Harmonic will use commercially reasonable efforts to make VOS.io available to Customer with the applicable Monthly Uptime Percentage described below. In the event the calculated Service Availability for the specified VOS.io feature or function does not meet the applicable targeted availability, Customer will be eligible to receive a Service Credit as described in Section C below.
- Service Availability for Linear Channel and Playout Services.
a. Harmonic targets Service Availability for VOS.io at 99.9 %.
b. Service Availability is calculated as follows:
(Maximum Available Minutes - Downtime Minutes) ÷ (Maximum Available Minutes)
"Maximum Available Minutes” means the total number of minutes in a calendar month VOS.io should be available under the Plan.
“Downtime Minutes” means the total number of minutes in which VOS.io was not available for the Customer.
Part C. SERVICE CREDITS.
If Harmonic fails to meet the applicable Service Availability commitments set forth above in any calendar month during the Subscription Term, Harmonic will issue a credit to Customer in accordance with the process set forth below. Service Credits provided in accordance with this clause shall be Harmonic’s sole liability, and Customer’s sole and exclusive remedy, for Harmonic’s failure to meet the applicable Service Availability commitment. For the avoidance of doubt, any refund by the Marketplace shall make the following Service Credits inapplicable.
Service Credits for VOS.io.
a. Credits will be calculated based on the total value of the applicable Service usage by Customer during the month in which credits are earned as the result of a Service Availability issue in that month.
Percentage of Service Availability (per calendar month)
Service Credits for VOS.io (calendar days of Service)
< 100% but ≥ 99.9%
<99.9% but ≥ 99.7
< 99.7% but ≥ 99.5%
- Other Service Credit Terms.
a. Breach or default. Notwithstanding the foregoing, Customer will not be eligible to receive any Service Credits if Customer is past due or in default with respect to any payment to Harmonic, the Marketplace (as it relates to this Agreement or any other Customer agreement with the Marketplace) or is in material breach of the Agreement.
b. Service Credit Exclusions Due to Permitted Downtime. Customer will not receive Service Credits for any Permitted Downtime. “Permitted Downtime” means Downtime that is: (a) resolved in less than five seconds; (b) due to scheduled maintenance, upgrades or modifications relating to the Service, where Customer has received reasonable prior notice from Harmonic; (c) caused by or resulting from an Excluded Issue; (d) due to Customer’s breach of its obligations under the Agreement; (e) required by law or regulation as determined by Harmonic in its reasonable discretion; or (f) intentionally caused by Harmonic in its reasonable discretion as being necessary to protect the Service and/or Service customers from unauthorized access to the Service or a hacking or other cyber-attack on the Service.