Version 1.1 Revised April 15, 2020

Thank you for your interest in PLAY’A Video Player API Services. Please read this Agreement carefully. Your Use of PLAY’A Video Player’s API constitutes an unconditional agreement to be bound by this Agreement which is a part of PLAY’A Video Player Terms of Service. IF YOU AS LICENSEE DO NOT AGREE WITH OR ACCEPT THIS AGREEMENT, PLAY’A VIDEO PLAYER’S TERMS OF SERVICE AND PLAY'A VIDEO PLAYER’S PRIVACY POLICY YOU AS LICENSEE ARE PROHIBITED FROM USING THE API. BY ACCEPTING, YOU OR THE ENTITY OR THE COMPANY THAT YOU REPRESENT ("LICENSEE") ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS LICENSE AGREEMENT ("AGREEMENT"). LICENSEE’S CONTINUED USE OF THE DOWNLOADED MATERIALS SHALL ALSO CONSTITUTE ASSENT TO THE TERMS OF THIS AGREEMENT. IF LICENSEE DOES NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, LICENSEE MUST IMMEDIATELY CEASE USING THE PLAY’A VIDEO PLAYER API AND DEVELOPER TOOLS. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.

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1. API and Content Description.

   Licensee desires to license certain of PLAY’A Video Player’s (operated by Swearl, LLC, collectively the “Company”) Application Programming Interfaces and their associated tools and documentation, (“APIs”), that are designed to permit Licensee to receive data and content (“Content”) from Company’s proprietary database so that Licensee can create an application or service or enhance an existing application, website or service (Licensee’s “Application”).

2. API and Content License.

   Subject to the terms and conditions of this Agreement, Company grants Licensee an unlimited, non-exclusive, sublicensable, transferable, assignable license under Company’s intellectual property rights during the term of this Agreement (a) to use the APIs to develop, test, and support the Application; (b) to distribute or allow access to Licensee’s integration of the APIs within the Application to End Users of the Application; and (c) to display the Content received from the APIs within the Application.

3. Developer Documentation.

   Licensee’s use of the APIs and display of the Content must comply with the technical documentation, usage guidelines, and other documentation (“Developer Documentation”) maintained at Company’s developer site located at https://playavr.com/playa-api (“Developer Site”). Company may consent in writing (email acceptable) to increase the call volume limits, in which case such increased limits shall apply unless and until Company revokes such consent (email acceptable). In the event of any conflict between the Developer Documentation and this Agreement, this Agreement shall control.

4. Restrictions.

   Except as expressly and unambiguously authorized under this Agreement or by Company in writing, Licensee shall not:

   • Use the APIs for any illegal, unauthorized or otherwise improper purposes, or in any manner which would violate this Agreement or the Developer Documentation, or breach any laws or regulations, or violate the rights of third parties;

   • Remove any legal, copyright, trademark or other proprietary rights notices contained in or on materials Licensee receive or access pursuant to this Agreement, including but not limited to, the APIs, the Developer Documentation, and the Content;

   • Use the APIs in a manner that, as determined by Company in its sole discretion, exceeds reasonable request volume, constitutes excessive or abusive usage, or otherwise fails to comply or is inconsistent with any part of the Developer Documentation;

   • Interfere with or disrupt Company services or servers or networks connected to Company services, or disobey any requirements, procedures, policies or regulations of networks connected to Company services, or transmit any viruses, worms, defects, Trojan horses, or any items of a destructive nature through your use of the APIs.

   This Agreement does not include any right for Licensee to use any trademark, service mark, trade name or any other mark of Company or any other party or licensor. No rights or licenses are granted except as expressly and unambiguously set forth herein. If Licensee violates any of the foregoing restrictions, Company shall own all right, title and interest relating to any and all inventions, works of authorship, designs, know-how, ideas and information made or conceived or reduced to practice, in while or in part, using the API. Licensee hereby agrees to make all assignments necessary to accomplish the foregoing ownership.

    

5. Proprietary Rights.

   As between the parties, Company owns all rights, title, and interest in and to the APIs and to all output and executables of the APIs, and, subject to the foregoing, Licensee owns all rights, title, and interest in and to the Application. Subject to the unlimited licenses expressly provided in this Agreement, nothing in this Agreement transfers or assigns to Company any of Licensee’s Intellectual Property Rights in its Applications or Licensee’s Marks or other technology, and nothing in this Agreement transfers or assigns to Licensee any of Company’s Intellectual Property Rights in the Services, the API, the Marks, or Company’s other technology or the respective Intellectual Property Rights in any Service Data of Company or its Subscribers, Agents or End-Users. Except to the limited extent expressly provided in this Agreement, neither party grants, and the other party shall not acquire, any right, title or interest (including, without limitation, any implied license) in or to any property of the first party. All rights not expressly granted herein are deemed withheld.

6. Conditions Applicable to All Applications Developers and User Agreements:

    

   • LIcensee will comply with all laws and regulations (including those applying to personally identifiable information), the PLAY’A Terms of Service, and the PLAY’A Privacy Policy.

   • LIcensee will not mislead End Users.

   • LIcensee will comply with any API best practices published by Company.

   • LIcensee will make it easy for End Users to disconnect from licensee’s Application.

   • LIcensee will not reverse engineer or decompile the PLAY'A API.

   • LIcensee will not introduce malware through the Application.

   • LIcensee will only request, use, and retain PLAY'A Content as necessary to operate, optimize, and modify Your Application.

   • LIcensee will not make API calls exceeding a reasonable amount per day.

   • LIcensee will immediately forward to us any notices made pursuant to the Digital Millennium Copyright Act with respect to any PLAY'A Content.

   • "Licensee will provide and adhere to a published privacy policy for each of your Applications that clearly and accurately states that Licensee does not collect or store any user information. Licensee shall ensure that the privacy policy explicitly communicates that no user information is collected, stored, used, processed, or shared by Licensee or any third parties in relation to the Applications.
     Furthermore, Licensee agrees to immediately notify us of any data breach or vulnerability that may result in the actual or potential unauthorized disclosure of any user information. This includes any incident or potential risk that could compromise the privacy and security of End User information, even if Licensee does not collect or store such information. Prompt notification will enable us to take appropriate actions to address the situation and protect the interests of the End Users."

   • Licensee shall enter into a valid and binding End User license agreement with all users of Licensee’s Application (the “EULA”) that contain provisions that contain all of the restrictions on the use of the Content as those contained in this Agreement. Additionally such EULA shall contain limitations of liability and warranty disclaimers with respect to the Content consistent with the limitations contained herein.

   • Licensee is responsible for maintaining the confidentiality of End User’s passwords and account access, if any, and is fully responsible for any and all activities that occur under those passwords or account access. Company will not be liable for any loss or damage arising from Licensee’s failure to comply with this Section.

    

7. Fees.

   Licensee shall access Company’s public APIs at no charge. Company maintains full control of API and/or Platform access. Company may revoke this license at any time for any reason. Company may also limit calls from Licensee’s Application at any time for any reason. Upon revocation or termination of the license, Licensee will immediately cease using the PLAY’A API and Developer Tools.

8. Support.

   Licensee agrees to report to Company any errors or difficulties discovered and the characteristic conditions and symptoms of such errors and difficulties. Company is in no way obligated to provide Licensee with any error correction or support, but may provide whatever error correction and/or support services Company may determine in its sole discretion (and anything it provides in connection therewith will be deemed part of the API). This Agreement does not entitle Licensee to any support for the Services or the API, unless Licensee makes separate arrangements with Company for such support. Licensee is solely responsible for providing all support and technical assistance to End-Users of its Applications and Subscribers who access, deploy and/or purchase its Applications. Licensee acknowledges and agrees that Company has no obligation to provide support or technical assistance to the users of Applications and Licensee shall not represent to any such users that Company is available to provide such support. Licensee agrees to use commercially reasonable efforts to provide reasonable support to users of its Applications.

9. Interoperability.

   Licensee shall endeavor to inform Company with respect to the interoperability and compatibility of Licensee’s products with Company’s management systems as contemplated herein, and any issues or problems with respect thereto; Licensee will use its best efforts to achieve full interoperability and compatibility.

10. Confidentiality.

    Company’s communications to Licensee and the API services (including, without limitation, all improvement, derivatives, modifications and the like) may include Company’s confidential information (“Confidential Information”) with subsequent access gained by Licensee to such Confidential Information. Licensee hereby agrees:

    • To hold the Confidential Information in confidence and to take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions Licensee employs with respect to its own confidential materials),

    • Not to divulge any Confidential Information to any third person (except consultants, subject to the conditions stated below),

    • Not to use any Confidential Information except for the purposes set forth in this Agreement, and

    • Not to copy or reverse engineer any Confidential Information.

    Any employee or consultant given access to the Confidential Information must have a legitimate “need to know” and shall be similarly bound in writing. Licensee acknowledges and agrees that due to the unique nature of the Company’s Confidential Information, there can be no adequate remedy at law for any breach of its obligations hereunder and therefore, that upon any such breach or any threat thereof, Company shall be entitled to appropriate equitable relief in addition to whatever remedies it might have at law.

11. Indemnity.

    Licensee will indemnify, defend (at Company’s option) and hold Company, its Affiliates, and Related Parties harmless against any claim, costs, losses, damages, liabilities, judgments, fees (including reasonable fees of attorneys and other professionals), and expenses arising out of or in connection with any claim, action or proceeding (any and all of which are "Claims") by a third party arising out of:

    • Access to, or any use of any Company API Services by Licensee, those acting on Licensee’s behalf, or any of Licensee’s End User(s);

    • Actual or alleged violation of the Agreement (or any portion thereof) by Licensee, those acting on Licensee’s behalf, or any of Licensee’s End User(s), including actual or alleged infringement of any third-party right (including any intellectual property or other proprietary right, confidentiality, privacy right, or right of publicity) by Licensee, those acting on Licensee’s behalf, or any of Licensee’s End User(s);

    • Any content, data, technology or materials provided or contributed by, or through, Licensee, those acting on Licensee’s behalf, or any of Licensee’s End User(s, and not by Company, its Affiliates and Related Parties.

12. Warranty Disclaimer.

    ALL ASPECTS OF THE SERVICES AND THE API, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND COMPANY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU AS LICENSEE ACKNOWLEDGE THAT COMPANY DOES NOT WARRANT THAT THE SERVICE OR API WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU AS LICENSEE FROM COMPANY OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

13. Limitation of Liability.

    TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY, ITS AFFILIATES AND RELATED PARTIES ARE NOT RESPONSIBLE FOR LOST PROFITS, LOSS OF GOODWILL, REVENUES, OR DATA, FINANCIAL LOSSES OR DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR OTHER LIABILITY, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY, ITS AFFILIATES AND RELATED PARTIES ARE NOT LIABLE FOR ANY LOSS OR DAMAGE WHETHER OR NOT COMPANY, ITS AFFILIATES AND RELATED PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, COMPANY’S AGGREGATE LIABILITY TO LICENSEE OR ANY THIRD PARTY ARISING OUT THIS AGREEMENT, SHALL IN NO EVENT EXCEED ONE HUNDRED U.S. DOLLARS ($100.00). ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT WITHIN ONE (1) YEAR OF THE FIRST EVENT OR OCCURRENCE GIVING RISE TO THE CLAIM. Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to Licensee. IN THESE JURISDICTIONS, COMPANY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. The limitations set forth in this Section 13 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY, ITS AFFILIATES AND RELATED PARTIES ARE NOT LIABLE FOR ANY DAMAGES THAT MAY RESULT FROM: PROVIDING, REMOVING, MODIFYING, SUSPENDING OR TERMINATING ANY ASPECT OF THE COMPANY API SERVICES (INCLUDING FEATURES, FUNCTIONS, SUPPORT FOR COMPANY API SERVICES (IF ANY), API DATA, AND ANY CONTENT INCLUDING AUDIO VISUAL CONTENT (IN WHOLE OR IN PART)), OR THE AGREEMENT (IN WHOLE OR IN PART), WITH RESPECT TO ANY SPECIFIC COMPANY API SERVICES USER OR API CLIENT, CATEGORY OF USERS OR API CLIENTS, OR ALL USERS, OR API CLIENTS; OR CONTENT SUBMITTED TO COMPANY WEBSITES, APPLICATIONS, SERVICES AND PRODUCTS BY USERS OR OTHER THIRD PARTIES, OR FOR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY SUCH PERSONS OR ENTITIES.

14. Termination.

    This Agreement shall continue until terminated as set forth in this section or for the term set forth in the applicable services or order form entered into by the parties. Notwithstanding anything to the contrary, Company reserves the right to (i) suspend or terminate access to, or use of, any aspects of the Company’s API Services by Licensee, Licensee’s API Client(s) and those acting on Licensee’s behalf), and (ii) terminate the Agreement (or any portion thereof), as applied to any specific user or API Client, category of users or API Clients, or all users or API Clients at any time. Licensee may terminate this Agreement at any time. Any termination of this Agreement shall also terminate the licenses granted hereunder. Upon termination of this Agreement for any reason, Licensee shall destroy and remove from all computers, hard drives, networks, and other storage media all copies of Company’s Confidential Information, and shall so certify to Company that such actions have occurred. Sections 4, 5 and 10 through 17 (and any accrued rights to payment) shall survive termination of this Agreement.

15. Government Use.

    If Licensee is part of an agency, department, or other entity of the United States Government ("Government"), the use, duplication, reproduction, release, modification, disclosure or transfer of the API are restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The API is a "commercial item," "commercial computer software" and "commercial computer software documentation." In accordance with such provisions, any use of the API by the Government shall be governed solely by the terms of this Agreement.

16. Modifications.

    Licensee acknowledges and agrees that Company may modify this Agreement, the Services, the API, the General API Policies, and the Privacy Policy, from time to time (a “Modification”). Licensee will be notified of a Modification to this Agreement, the Company API or the General API Policies through notifications or posts on the Company Developer Website. All other Modifications shall be communicated through the Services, Company’s Sites, or any other website owned and operated by Company or through a form of direct communication from Company to Licensee. Licensee further acknowledges and agrees that such Modifications may be implemented at any time and without any notice to Licensee. Licensee shall, within thirty (30) days from the date of first notice of any Modification(s) (or such shorter period of time specified in the notice of the Modification(s)) (the “Conformance Period”) comply with such Modification(s) by implementing and using the most current version of the API and making any changes to Applications that may be required as a result of such Modification(s). Licensee acknowledges that a Modification may have an adverse effect on Applications, including but not limited to changing the manner in which Applications communicate with the API and display or transmit Service Data. Company shall have no liability of any kind to Licensee or any user of Licensee’s Applications with respect to such Modifications or any adverse effects resulting from such Modifications. Licensee’s continued access to or use of the Services or API following the Conformance Period shall constitute binding acceptance of the Modification(s) at issue. Company reserves the right to make changes to the Agreement at any time. In this event, Company may notify Licensee of the changes by email. Licensee declares to agree with the implementation of the amended Agreement if Licensee does not object to the changes in writing within a period of two weeks, beginning on the date following the notification of the changes. Should Licensee object within this time period, the contractual relationship will continue under the existing conditions; however, in this case, Company is entitled to cancel the contract with a period of a two (2) week's notice at the end of the month.

17. General.

    This Agreement shall be governed by and construed under the laws of the State of California without giving effect to the principles of conflicts of law and without application of the UN Convention on Contracts for the International Sale of Goods. All disputes arising in connection with this Agreement shall be subject to the sole and exclusive jurisdiction and venue of the state and Federal courts located in Los Angeles, California. The prevailing party in any action arising out of this Agreement shall be entitled to an award of its costs and attorneys’ fees. No waiver of rights under this Agreement by either party shall constitute a subsequent waiver of any right under this Agreement and all waivers must be in writing. In the event that any term of this Agreement is held by a court to be unenforceable, such provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. Licensee may not assign or transfer this Agreement (or any part hereof) without the prior written consent of Company. Company shall have the right to freely assign or otherwise transfer this Agreement (in whole or part). All notices required or permitted under this Agreement will be in writing and will be sent (i) if to Company: support@playavr.com, and if Licensee: such email address as Licensee provides to Company on registering for the API(or, in either case, such other address as a party may designate in writing). This Agreement, together with the Terms of Use and the Privacy Policy, constitutes the entire agreement among the parties with respect to the subject matter of this Agreement and replaces any prior oral or written communications between the parties with respect thereto. Either party’s failure to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of this Agreement.

18. Relationship of the Parties.

    The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.

19. Severability.

    If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

20. Translations.

21. Any local language translation (where applicable) exists for reference purposes only, and only the English version will be legally binding. If there is any inconsistency between the two versions, the English version shall control.

 

If you have any questions, please contact Company at support@playavr.com.