General Terms and Conditions for IMG_Play Services

1. GENERAL

1.1 These general terms and conditions (the “Terms”) apply to the Agreement between IMG_Play and the Customer regarding IMG_Play’s Services. They constitute an appendix to the Agreement and form an integral part of the Agreement. In the event of a conflict between these Terms and the provisions of the Agreement, the provisions of the Agreement shall prevail.

2. DEFINITIONS

Agreement: The agreement between IMG_Play and the Customer under which the Customer engages IMG_Play to supply the Services.

Customer: IMG_Play’s customer under the Agreement.

End-consumer: A third party which, as a result of the Services, receives content which IMG_Play as part of the Services has transcoded, and/or stored, and/or distributed, and/or otherwise processed on behalf of the Customer.

Party/Parties: IMG_Play and/or the Customer.

IMG_Play: IMG Denmark Aps, CVR 3700 0728.

Services: The Services supplied by IMG_Play to the Customer under the Agreement.

Working Day: Monday to Friday excluding public holidays in Denmark.

3. CUSTOMER’S RESPONSIBILITY

3.1 IMG_Play might as part of the Services provide the Customer with user names and passwords for the Customer to gain access to Services provided online (such as the possibility for the Customer to upload content to servers). The Customer is responsible for all handling of user names and passwords and undertakes in particular to not disclose the user names and/or passwords to any unauthorized person or otherwise allow any unauthorized person to access the Services under Customer’s user names and/or passwords. If the Customer has reason to believe that an unauthorized person has gained access to the Customer’s user names and/or passwords the Customer must immediately inform IMG_Play. The Customer is responsible for ensuring that all Customer’s personnel comply with the provisions of this section.

3.2 The Customer is responsible for all use of the Services under the user names and/or passwords provided to Customer by IMG_Play.

3.3 The Customer is responsible for the quality of all content provided to IMG_Play. When using the Services, such as e.g. when uploading content to the server, the Customer shall follow instructions provided by IMG_Play from time to time.  IMG_Play is not liable for any delay or disruption in transmission of content or in the End-consumer’s video or audio quality or other disturbances, failures or malfunctions caused by (i) the quality of the content provided to IMG_Play, (ii) the Customer’s mistake when uploading content (whether in breach of IMG_Play’s instructions or not), including but not limited to the Customer providing incorrect format information when uploading content or (iii) otherwise by the Customer’s incorrect use of the Services.

3.4 IMG_Play may conduct transcoding of content as part of the Services, but the Customer may also transcode content itself. IMG_Play is not liable for any delay or disruption in transmission of content or in the End-consumer’s video or audio quality or other disturbances, failures or malfunctions caused by the Customer’s incorrect transcoding.

3.5 Regardless of delivery method (which may include but is not limited to delivery via e-mail, live feed or by the Customer uploading content directly to IMG_Play’s servers) the transfer of content from the Customer to IMG_Play is at the Customer’s risk.

3.6 The Customer guarantees that it owns or otherwise controls all necessary rights to the content for the purpose of IMG_Play providing the Services.

3.7 The Customer agrees to not provide IMG_Play with any content (including but not limited to by uploading content to IMG_Play’s servers) which (i) contains pornography, (ii) contains viruses, corrupted data, malicious software or other programs that may harm computers or other property or (iii) is defamatory, constitutes agitation against an ethnic group, infringes the rights of any third party or is otherwise unlawful. IMG_Play has the right to immediately cease the distribution of (and remove from IMG_Play’s servers) any content that IMG_Play in its sole discretion deems is in breach of this section. IMG_Play shall without undue delay notify the Customer thereof.

4. IMG_PLAY’S RESPONSIBILITY

4.1 If the Parties have entered into a Service Level Agreement (SLA), IMG_Play’s responsibility for Services is regulated in such SLA. These Terms shall equally apply to such SLA, unless otherwise stated therein.

4.2 The SLA shall clearly state the applicable territory where the Service is provided by IMG_Play, and any effects on delivery in territories on for example definition on working days, time zone impact, imposed customs, tariffs or taxes, impact on warranties and similar, must specifically be agreed to as an appendix to the SLA. Above mentioned effects is not included in the fee set out in the Agreement, and might be subject to additional costs.

4.3 If the Parties have not entered into a SLA, IMG_Play assumes no liability for the delivery, accessibility or other functionality of the Services.

4.4 For clarity, IMG_Play is in no event liable for any delay or disruption in transmission of content or in the End-consumer’s video or audio quality or other disturbances, failures or malfunctions caused by the Customer’s or the End-consumer’s internet connection or equipment.

4.5 IMG_Play is not responsible for any disturbances the Services may cause to any other software when the Services are used together with such software or otherwise.

5. RIGHTS

5.1 All copyright, patent or other intellectual property rights attributable to the Services are owned by or licensed to IMG_Play. The Services, and any software included therein, may only be used by the Customer during the Term and as described in the Agreement and may only be copied by the Customer to the extent it is permitted by IMG_Play in writing.

5.2 Without limiting the generality of the foregoing, in the event that IMG_Play as part of the Services delivers any services, material or applications tailored for the Customer (“Customer Applications”), both IMG_Play and the Customer shall be owners of all such Customer Applications.

5.3 For clarity, neither Party shall acquire any right under the Agreement to the other Party’s trademarks, product trademarks, distinctive marks and other symbols which are used in connection with the Services and any use of such marks or symbols of the other Party requires such party’s prior written consent.

6. PERSONAL DATA

6.1 The Customer is involved in the collection and processing of personal data and determines the purpose for and the manner in which such personal data will be processed. Thus, within the meaning of the applicable personal data act the Customer is regarded as a data controller. When delivering the Service, IMG_Play processes personal data on behalf of the Customer (“Customer’s Personal Data) and is thus within the meaning of the personal data act regarded as data processor. The Customer is, as data controller, responsible for the processing of personal data in accordance with the personal data act, such as including but not limited to obtaining all necessary consents from data subjects. IMG_Play shall, as data processor, process the Customer’s Personal Data only to provide the Service and only in accordance with the Agreement and Customer’s written instructions from time to time. IMG_Play shall implement and maintain appropriate technical and organisational measures to protect Customer’s Personal Data. The measures shall provide a level of security that is appropriate taking into consideration (i) the technical possibilities available, (ii) the cost for implementing such measures, (iii) the special risks that exist with processing of personal data, and (iv) how sensitive the processed personal data is.

7. STATISTICS AND VIEWER DATA

7.1 IMG_Play is entitled to use any and all non-personal viewer data and other statistics resulting from the Services, such as including but not limited to statistics regarding the Customer’s number of End-consumers and statistics on End-consumer behaviour. IMG_Play shall not be entitled to keep and use all such statistics and data upon expiry of the Agreement.

8. FEES AND PAYMENT TERMS

8.1 The fees shall be set out in the Agreement.

8.2 All fees shall be invoiced in the currency set out in the Agreement.

8.3 If an invoice is more than thirty (30) days overdue and the Customer has not paid such invoice within ten (10) days from a reminder, IMG_Play is entitled to immediately suspend provision of the Services.

8.4 Value added tax will be added to all fees to the extent required by law. In the event that value added tax is not initially charged, IMG_Play shall be entitled to charge value added tax at a later stage should relevant tax authorities decide that value added tax should be charged.

8.5 Fees for expenses incurred – as part of delivery of the services stipulated in the Agreement – by IMG_Play and/or IMG_Play´s employees, such as travel, equipment rental, voiceover, delivery, shipping, printing, stock photography, digital retouching are not included in the Fee set out in the agreement, unless specifically stipulated in the Agreement, and will be invoiced separately.

8.6 All tax and VAT implications for the Customer when buying Services from IMG_Play is the responsibility of the Customer, fx. imposed tariffs or duty on purchased hardware delivered by IMG_Play to the Customer.

9. TERMINATION

9.1 Outside of regular termination each Party shall be entitled to terminate the Agreement by written notice with immediate effect by written notice if:

(i) the other Party is in material breach of the Agreement and does not remedy such breach (where possible to remedy) within thirty (30) days from written notice thereof,

(ii) the other Party is declared bankrupt, enters into liquidation, commences proceedings for a corporate reconstruction and/or when it otherwise becomes apparent that a Party is insolvent in some other way. 

10. EFFECT OF TERMINATION

10.1         Upon termination of the Agreement, IMG_Play will delete all content provided by the Customer, unless Customer notifies IMG_Play otherwise within fourteen (14) days from the termination of the Agreement.

11. LIMITATION OF LIABILITY

11.1         IMG_Play shall not be liable for any loss of profits, loss of production, reduced turnover in business and similar costs or losses or any indirect damages. IMG_Play’s total liability as a result of the Services is limited to direct damages up to an amount corresponding to one monthly fee for the Services.

12. RELIEF

12.1 If a Party is prevented from fulfilling its commitments in accordance with the Agreement, by circumstances beyond its control that it could not reasonably be expected to have foreseen, and the result of which the Party could not reasonably be expected to have avoided or overcome such as including but not limited to strike, labour conflict, war, warlike hostilities, insurrection or riot, mobilization or general military call-up, civil war, requisition, seizure, fire, lightning, earthquake, flood or water damage, altered decisions by authorities, intervention by authorities, legislation or official restrictions, currency restrictions, export or import restrictions, general shortage of goods, lack of bandwidth and faults or delays in services from a subcontractor, such Party shall be relieved from liability for a failure to perform any obligation under the Agreement.

12.2 Any Party that invokes relief in accordance with the above shall inform the other Party thereof without delay. If the performance of any obligation is prevented for a period longer than three (3) months as a result of any such circumstance stated above, each Party is entitled to terminate the Agreement free from liability to compensate the other Party.

13. SUBCONTRACTORS

13.1 IMG_Play shall be entitled to engage subcontractors to fulfil its undertakings under the Agreement. IMG_Play shall be responsible for all work performed by the subcontractor as though the work had been performed by IMG_Play.

14. ASSIGNMENT

14.1 IMG_Play and the customer may assign its rights or obligations under the Agreement to an affiliated company or to an entity to which IMG_Play or the customer has transferred its business operations. 

15. CONFIDENTIALITY

15.1 Each Party undertakes not to disclose to any third party details of the Agreement or information regarding the other Party’s activities which may be deemed as business or professional secrets, without the other Party’s express written consent. Information which the Party states to be confidential will always be deemed to be business or professional secrets. The duty of confidentiality does not include such information which a Party can prove has come to its knowledge other than through the Services, or which is generally known, nor does the duty of confidentiality apply where a Party is obligated under law to supply the information.

15.2 Each Party undertakes to supervise that employees or other engaged persons do not convey confidential information to any third party.

15.3 The duty of confidentiality shall apply during the Term of this agreement and three (3) years thereafter.

16. MARKETING

16.1 All PR, public announcements and marketing with respect to the Agreement shall be jointly approved by the Parties. IMG_Play shall however be entitled to publish the Customer’s name and logotype on its website and to refer to the Customer as IMG_Play’s customer in marketing and promotion material.

17. NOTICES

17.1 Any notice given by one Party to the other shall be deemed properly given if specifically acknowledged by the receiving Party in writing (e-mail is sufficient) or when delivered to the receiving Party by hand, registered mail or courier during normal business hours. 

18. GOVERNING LAW AND DISPUTES

18.1 This Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by substantive Danish law.

18.2 Any dispute, controversy or claim arising out of or in connection with the Agreement or any non-contractual obligation arising out of or in connection with the Agreement shall be finally settled by arbitration administered by the Danish Institute of Arbitration. The place of arbitration shall be the capital of the country where the Services are provided to Customer. The language used in the proceeding shall be Danish, unless the Parties agree otherwise.

18.3 The Rules for Expedited Arbitrations shall apply where the amount in dispute does not exceed EUR 100,000. Where the amount in dispute exceeds EUR 100,000 the Arbitration Rules shall apply. The Arbitral Tribunal shall be composed of a sole arbitrator where the amount in dispute exceeds EUR 100,000 but not EUR 1,000,000. Where the amount in dispute exceeds EUR 1,000,000, the Arbitral Tribunal shall be composed of three arbitrators.