PLEASE READ CAREFULLY. BY CLICKING THE “BUY NOW” BUTTON, YOU ARE ENTERING INTO A LEGAL CONTRACT WITH ADVERGENT.COM
This ADVERGENT SERVICE AGREEMENT (“Agreement”) is made and effective on today’s date (“Effective Date”) by and between ADVERGENT, a division of Mediarazzi, located at 5409 Holston Hills Rd., Knoxville, TN 37914 (“Advergent”) and you (“Publisher”).
Advergent is in the business of providing custom “Roku Channels,” application development, channel design and content management services (the “Services”) for distributing digital content via the Internet to Roku devices and Publisher desires to utilize Advergent’s Services.
NOW, THEREFORE, in consideration of the mutual agreements and covenants herein contained the parties hereto agree as follows:
As used in this Agreement, the following terms have the following definitions:
“Services” means the development, design, coding, storage, delivery and management services and solutions provided by Advergent, as listed for purchase on the Advergent.com website, including:
- Roku channel design and development;
- content ingestion and storage;
- coding of MRSS XML and JSON feed files,
- hosting of content and feed files;
- content storage and delivery services,
- Roku Channel management and updating;
- and/or other services or solutions as available now or that may be listed in the future, for purchase on Advergent.com.
“Publisher Content” means audio, video, and other digital content that are owned or licensed by Publisher.
“Roku” means Roku, Inc, a privately held company located at 12980 Saratoga Ave, Saratoga, CA 95070.
“Roku Channel” means a software package that can be installed onto a Roku Player and associated configuration files. When the software package is executed on a Roku Player, it causes Publisher Content to be delivered. The specific functionality of the Roku Channel is at the sole discretion of Advergent.
“Roku Player” means a device that provides a means to execute a Roku Channel in order to display, reproduce, or playback Publisher Content on a suitable display, reproduction, or playback device or system.
DESCRIPTION OF SERVICES
Advergent will create a Roku Channel for Publisher. Publisher understands and agrees that approval of the Roku Channel for inclusion in the Roku Channel Store, and the timing for approval, if at all, is outside of Advergent’s control and is at Roku’s sole discretion. Payment for the Roku Channel is due and payable whether or not Roku approves Publisher’s Roku Channel so long as non-approval is not the result of gross negligence of Advergent.
As set forth below, Advergent is granting to Publisher a license to use Advergent Services in order to distribute Publisher Content via the Internet to the Roku Platform and Roku Players.
- At any time, Advergent may include, without compensation to publisher, an accreditation or an advertisement which promotes Advergent, anywhere in a Roku Channel as the same is delivered or updated by Advergent, and in Advergent’s sole discretion.
- Advergent will provide Publisher with technical support via email for Roku Channels designated as “Starter,” or “Basic,” and via email and telephone for Roku Channels designated as “Advanced,” or “Enterprise”.
- All Publisher Content will be hosted or served by Advergent via Advergent’s own Content Delivery Network (CDN) or server, and/or via a Content Delivery Network (CDN) or server contracted and/or leased by Advergent. Advergent will manage and maintain access to said CDN account for the duration of Publisher’s account, at Advergent’s discretion.
Subject to the terms and conditions of this Agreement, Advergent hereby grants to Publisher, and Publisher hereby accepts from Advergent, a non-exclusive, nontransferable, revocable license to use the Services for purposes set forth herein. Except as expressly permitted by Advergent, Publisher shall not: (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services in any way; (ii) modify or make derivative works based upon the Services; (iii) reverse engineer, decompile, modify, translate, disassemble (except to the extent that this restriction is expressly prohibited by law) or create derivative works based upon Publisher’s access to or usage of the Services; (iv) rent, lease or otherwise transfer rights to any aspect of the Services; or (v) take any act to remove, obscure, interfere with or modify the presentation or functionality of any aspect of the Services.
Publisher agrees that upon termination or expiration of this license, Publisher shall no longer have the right to use the Services or any Roku Channel created using the Services or otherwise provided by Advergent.
This license shall terminate automatically upon the termination or expiration of this Agreement.
The Services set forth herein shall start on the Effective Date and continue on a month to month basis until terminated by either party, for any reason whatsoever and with or without cause, by giving notice to the other party by email.
Publisher can terminate by sending a notice of termination to email@example.com.
Advergent can terminate this agreement by sending a notice of termination to the email address that Publisher provides to Advergent as the appropriate Publisher contact. It is Publisher’s responsibility to ensure that contact information is current and accurate.
Publisher understands that if the agreement is terminated mid-month, it will be billed for the entire month and that it will be responsible for all charges incurred prior to Advergent receiving notice of termination.
Publisher shall pay Advergent an agreed upon “one-time setup fee” followed by the corresponding, recurring “monthly fee” based on the Roku Channel “Plan” selected and purchased via the Advergent.com website.
Beyond the one-time, setup fee, Publisher shall pay Advergent for the Roku Channel on a monthly, recurring basis beginning 30 days after Publisher’s Roku Channel is considered “live” on the Roku platform (“Monthly Fee”). Monthly fees will be billed to Publisher via online invoice and are due within 15 days of invoicing. Roku Channels will be suspended after 15 days if monthly fee is not made, and will remain suspended until outstanding monthly fee is paid. Channels will be unpublished after 30 days of non-payment of any outstanding monthly fees.
Publisher may at their discretion, opt for one, annual payment of Monthly Fees to save TWO MONTHS fees.
For purchases of additional Roku Channels by Publisher, annual or monthly fees may be prorated by Advergent to consolidate monthly billing.
If Publisher wishes to delete or “cancel” a Roku Channel before the end of the Roku Channel’s monthly billing period, there is no refund of any prorated remainder of said monthly fee. A refund will however be granted for any remaining months if paid-up annually, not including the current month.
Roku Channel Setup fees are not refundable for any reason whatsoever. In the event Publisher’s Roku Channel does not go live, Publisher does not follow-through with Roku Channel development or launch, or Roku Channel is unpublished, suspended, cancelled or deleted by Roku, Publisher or Advergent, for any reason, no refund of setup fees will be issued to Publisher.
Publisher shall be liable for all late fees, credit card charges and collection fees, if any.
REPRESENTATIONS, WARRANTIES AND LIMITATION OF LIABILITY
Each party warrants that (i) it has the legal right to enter into this Agreement and perform its obligations hereunder, and (ii) the performance of its obligations will not violate any applicable U.S. laws or regulations or cause a breach of any agreements with any third parties.
Advergent warrants that it will operate the Services in a manner consistent with industry standards. In the event of a breach of the warranties set forth in this Section, Publisher’s sole remedy is termination of this Agreement pursuant to Section 4(B). Except for the express warranty as set forth in this Section 6(B), the Services are provided on an “AS IS” basis and Advergent disclaims ALL OTHER EXPRESS OR IMPLIED WARRANTIES, WHETHER ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, EVEN IF ADVERGENT HAS BEEN INFORMED OF SUCH PURPOSE. PUBLISHER AGREES THAT ADVERGENT SHALL NOT IN ANY EVENT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS OR OTHER ECONOMIC LOSS ARISING UNDER THIS AGREEMENT OR IN CONNECTION THE SERVICES, PLATFORM AND PUBLISHER CONTENT.
Advergent does not and cannot guarantee or control the flow of data to or from its servers or Content Delivery Networks (CDNs). Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or omissions of such third parties can impair or disrupt Publisher’s connections to the Internet (or portions thereof). Although Advergent will use commercially reasonable efforts to take actions it deems appropriate to remedy and avoid such events, Advergent cannot guarantee that such events will not occur. Accordingly, except to the extent of the express warranties set forth in this Agreement, Advergent disclaims any and all liability resulting from, or related to, such events.
CONTENT AND INDEMNIFICATION
Publisher shall not distribute any content using the Services that encourages conduct that would be considered a criminal offense or bring forth civil liability, violate any law, or is otherwise inappropriate.
Publisher shall not publish content that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless Publisher is the owner of such rights or has permission from the rightful owner to publish such content.
Publisher shall indemnify and hold Advergent, its agents and employees, harmless from any loss, damage or liability for infringement, slander, libel, breach of this Agreement or any other cause of action with respect to the Publisher Content or content published by Publisher.
Publisher retains all right, title and interest in and to Publisher Content, including all intellectual property rights related to Publisher Content. (Publisher retains all ownership, rights and license to content presented on and distributed on Publisher’s Roku Channel. Advergent makes no claim to ownership or rights in any content.)
Advergent retains all right, title and interest in and to the Services, its servers and/or Content Delivery Networks (CDNs) and any materials created, developed or provided by Advergent in connection with this Agreement, including all intellectual property rights related to each of the foregoing.
Publisher is not required to provide any feedback or suggestions to Advergent. To the extent Publisher does provide any such feedback or suggestions, Publisher agrees to assign and hereby does assign all right, title and interest in and to such feedback or suggestions to Advergent.
Assignment. Neither this Agreement, nor any right or license under this Agreement may be sublicensed, assigned or otherwise transferred by Publisher without Advergent’s prior written consent.
Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original instrument, but all of which together shall constitute only one and the same instrument.
Law to Govern and Arbitration. The construction, interpretation and performance of this Agreement and all transactions related thereto shall be governed by and construed in all respects in accordance with the laws of the State of Tennessee, U.S.A., without giving effect to the principles of conflicts of law thereof. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Any controversy or claim arising out of or relating to this Agreement shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The decision of the arbitrator shall be final and unappealable. The arbitration shall be conducted in Harrisburg, Pennsylvania and judgment on the arbitration award may be entered into any court having jurisdiction thereof. Notwithstanding anything to the contrary, Advergent may at any time seek injunctions or other forms of equitable relief from any court of competent jurisdiction.
Agreement. Advergent may modify this Agreement at its sole discretion and Advergent shall have no obligation to apprise Publisher of changes to the Agreement. Advergent’s then-current Agreement shall be the agreement that governs the rights and obligations of the parties. Publisher may terminate this Agreement upon notice should it not agree with the revised terms and conditions.
Publicity. Advergent may use Publisher’s name and logo in marketing materials as it deems appropriate.
Notice. Any notice or communication required or permitted to be given hereunder may be sent to the email address referenced in Section 4(B).
Relationship of Parties. Advergent and Publisher are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between the parties.
Force Majeure. Neither party is responsible for delays due to causes or occurrences beyond its control including, but not limited to, civil disobedience, acts of God, casualty or accident, war, labor disputes, government actions, or the like.
Survival. Sections 6(B), 7(C) and 9(C) shall survive termination of this Agreement.
For questions or more information about these Terms & Conditions, please contact firstname.lastname@example.org.