PRINCIPAL TERMS AND CONDITIONS
1. DEFINITIONS. All capitalized terms used herein and not otherwise defined in this Agreement shall have the meanings set forth below.
1.1. “Approved Format” means a digital electronic media file for transmission and storage in, Ultra High Definition, High Definition, or failing that Standard Definition resolution, which will be protected using the content protection system.
1.2. “Approved Device” means an individually addressed and addressable IP-enabled device that is capable of (i) implementing Content Protection Requirements and (ii) receiving a transmission of the Included Programs in the Approved Format via the Approved Transmission Means and exhibiting such Included Programs on a video monitor by means of (a) Internet browser installed on the device, or (b) on a Licensee designed App downloaded, preloaded or otherwise embedded and usable on Connected Televisions (CTVs), Personal Computer ( PC ) Mobile Device, Portable Media Device (Laptop and/or Tablet).
1.3. “Approved Transmission Means” means the Encrypted delivery via the streaming of audio-visual content over the public, free to the consumer (other than a common carrier/ISP charge) streamed via the Internet using technology currently known as Internet Protocol Television(“IPTV”), whether transmitted over Cable, DTH, FTTH, ADSL/DSL, Broadband over power lines or other means (“IPTV”).
1.4. “Availability Date” means, with respect to an Included Program, the date on which such title is first made available to Licensee for exhibition on an FVOD/AVOD basis hereunder (“FVOD Availability Date”) , as specified in Section 2.2 of the Principal Terms.
1.5. “Avail Term” shall have the meaning set forth in Section 2.2, 2.3, 2.4 and 2.5 of the Principal Terms.
1.6. “Encrypted” means, with respect to a signal, that both the audio and video portions of such signal have been changed, altered or encoded to securely and effectively prevent the intelligible reception of such signal without the use of fully authorized decoding equipment to restore both the audio and video signal integrity.
1.7. “Free Video-On-Demand” or “FVOD” means the point-to-point delivery of a single program to a viewer in response to the request of a viewer (i) the exhibition start time of which is at a time specified by the viewer in its discretion; (ii) which is susceptible of and intended for viewing by such viewer on the Approved Devices that received delivery of such program from the service provider; (iii) for which no charge is assessed to the viewer; and (iv) the exhibition of which is primarily supported by revenue derived by Licensee from advertising, referred to as AVOD in the industry. “FVOD” shall not include Subscription Video On Demand (SVOD), Transactional Video On Demand (TVOD), Pay-Per-View (PPV), Electronic Sell-Through (EST), In Store Digital-on-Demand, Manufacture-On-Demand, Premium Pay Television, or Basic Television or Free To Air Television broadcast (FTA) exhibition.
1.8. “Included Program” shall mean each Minisode, Webisode, Short Film, Feature length Movie, Documentary or Episode in a Series that Licensee wishes to license for exhibition on Connected Televisions (CTVs) like Roku, Mobile Cell Phones and Online on PC’s, Laptops or Tablets with the operating systems for iOS and Android, on an FVOD basis hereunder (“FVOD Included Program”), in accordance with Clause 2 and 3 of the Principal Terms.
1.9. “License Period” with respect to each Included Program shall mean the period during which Licensee shall make such Included Program available for exhibition on an FVOD basis hereunder (“FVOD License Period”), as specified in Clause 2.2, 2.3 and 3.2 and 3.3 of the Principal Terms.
1.10. “Licensed Language” for an Included Program shall mean its original language or, if its original language is not English, the original language dubbed or subtitled in English.
1.11. “Licensed Service” shall mean the FVOD programming service (“FVOD Service”), which in each case is (a) branded “HRVST,” or such other brand, or sub-brand that Licensee may choose (b) is accessed at the URL www.hrvs.tv or such other URL as Licensee shall advise from time to time, or on Connected TVs, Mobile devices, or Apps and (c) which licensed service will at all times be controlled and operated by Licensee.
1.12. “Personal Use” means the personal, private viewing of an Included program and shall not include theatrical exhibition, any viewing or exhibition for which (or in a venue in which) an admission, access or viewing fee is charged, or any other public exhibition or viewing
1.13. “Standard Definition” or “SD” shall mean resolution of 480i and 480p, in other words, any resolution equal to 480 lines of vertical resolution, and 720 lines of horizontal resolution.
1.14. “High Definition” or “HD” shall mean resolution of 720p and 1080p, in other words, two resolution formats equal to 720 lines of vertical resolution and 1080 lines of vertical resolution, and 1920 lines of horizontal resolution.
1.15. “4K” or “Ultra HD” shall mean resolution of 3840 x 2160 pixels, in other words, any resolution equal to 2160 lines of vertical resolution, and equal to than 3840 lines of horizontal resolution
1.16. “Streaming” shall mean the transmission of a digital file containing audio-visual content from a remote source for viewing concurrently with its transmission, which file may not be stored or retained (except for temporary caching or buffering) for viewing at a later time.
1.17. “Viewer” shall refer to each unique viewer of the content licensed hereunder on an Approved Device authorized to receive an exhibition of content as part of the Licensed Service, including without limitation, the Included Programs, as part of the FVOD Service (“FVOD Viewer”).
1.18. “Territory” shall mean World wide.
1.19. “Usage Rules” shall mean that, for each request by the Viewer for a delivery of an Included Program, Licensee shall authorize the transmission of an Included Program by the means of Approved Transmission Means for viewing on the Approved Devices and shall prohibit digital file copying, transfer, retransmission, burning, downloading, distributing, recording or other copying of an Included Program
1.20.1.“PVR Functionality” means the capability of a viewer to perform any or all of the following functions with respect to the exhibition of an Included Program: stop, start, pause, play, rewind and fast forward. PVR Functionality shall not include recording capability.
1.20.2. “Content” means all video files, metadata, thumbnails provided by the Licensor.
2. LICENSE.
2.1. Subject to Licensee’s full and timely compliance with its obligations hereunder, Licensor hereby grants to Licensee a limited non-exclusive, license to exhibit on the terms and conditions set forth herein, on HRVST channels only :
(a) each FVOD Included Program on an FVOD basis on the FVOD Service to an FVOD Viewer during its FVOD License Period in the Licensed Language and in the Territory, delivered in the Approved Format by the Approved Transmission Means, for reception as a Personal Use on an Approved Device, in accordance with the Usage Rules and subject at all times to the Content Protection. Licensee shall have the right to exploit the FVOD rights granted hereunder using PVR Functionality. Licensor shall not be subject to any holdback at any time with respect to the exploitation of any Included Program in any language or medium delivered by any means.
2.2. The initial term during which Licensor shall be requested to make programs available for licensing for Licensee shall be Twelve (12) Months from “License start date” and subject to payment terms being fulfilled and subject to material breach by either party which is not remedied within the prescribed days in clause 15.1 below, in which event (and sole event) the agreement may be terminated.
2.3. Thereafter, the parties may extend the Initial Avail Term by mutual written consent prior to the expiration of the then existing Avail Term.
2.4. Term. The “Term” of this Agreement shall commence on the date Licensee first publishes the Included Program/s which shall be after “License start date” and payment has been received by Licensor and shall expire on the earlier to occur of (i) the last day of the last License Period or (ii) the earlier termination of this Agreement. Licensee shall inform Licensor of the starting date.
2.5. Once content is published, the licensor permits Licensee to A/B Test the content on selected and affiliated channels.
3. ANTI-PIRACY EFFORTS.
Licensee shall include in relevant and conspicuous places on the Licensed Service information that promotes respect for intellectual property rights.
4. REMAINING TERMS.
The remaining terms and conditions of this Agreement are set forth in Schedule A attached hereto. In the event of a conflict between any of the terms of these documents this Agreement shall control over Schedules A.
Schedule A
Standard Terms and Conditions for Agreement
The following are the standard terms and conditions governing the license set forth in the Agreement to which this Schedule A is attached.
1. DEFINITIONS
1.1.“Business Day” shall mean any day other than (i) a Saturday or (ii) Sunday any day on which banks in the United States of America are closed or authorized to be closed.
1.2. “Event of Force Majeure” in respect of a party shall mean any reasonably unforeseeable act, cause, contingency or circumstance beyond the reasonable control of such party, including, without limitation, any governmental action, nationalization, expropriation, confiscation, seizure, allocation, embargo, prohibition of import or export of goods or products, regulation, order or restriction (whether foreign, federal or state), war (whether or not declared), civil commotion, disobedience or unrest, insurrection, public strike, riot or revolution, fire, flood, drought, other natural calamity, damage or destruction to plant and/or equipment, or any other accident, condition, cause, contingency or circumstance (including without limitation, acts of God within or without the United States of America), but shall not include an inability to pay for whatever reason.
1.3.“Territorial Breach” shall mean a Security Breach that creates a risk that any of the Included Programs will be delivered to persons outside the Territory, where such delivery outside the Territory may, in the sole good faith judgment of Licensor, result in actual or threatened harm to Licensor.
2. RESTRICTIONS ON LICENSE.
2.1. Licensee agrees that it is of the essence of this Agreement that, without the specific written consent of Licensor, or except as otherwise set forth herein: (a) the license granted hereunder may not be assigned, licensed or sublicensed in whole or in part other than to companies or subsidiaries under the control of Licensee; (b) no Included Program may be exhibited or otherwise shown to anyone other than for Personal Use; (c) no Included Program may be delivered, transmitted or exhibited other than as set forth at Section 2.1 of the Principal Terms; (d) no person or entity shall be authorized or permitted by Licensee to do any of the acts forbidden herein. Licensor reserves the right to inspect and approve the picture quality and user experience of the Licensed Service.
2.2. The licensee shall immediately notify Licensor of any unauthorized transmissions or exhibitions of any Included Program of which it becomes aware.
3. RESERVATION OF RIGHTS
3.1. All licenses, rights and interest in, to and with respect to the Included Programs, the elements and parts thereof, and the media of exhibition and exploitation thereof, not specifically granted herein to Licensee, including, without limitation, theatrical, subscription video-on-demand, pay-per-view, sell-through, in-store digital-on-demand, manufacture-on-demand, pay television, basic television, and free broadcast television, shall be and are specifically and entirely reserved by and for Licensor.
3.2. Without limiting the generality of the foregoing, Licensee acknowledges and agrees that Licensee has no right in the Included Programs or the images or sound embodied therein, other than the right to exhibit the Included Programs in strict accordance with the terms and conditions set forth in this Agreement. It is explicitly understood that the entering into of this Agreement shall not be construed as granting to Licensee or any other person or entity any interest in the copyright or any other right in the Included Programs or the images or sound embodied therein, and nothing contained in this Agreement is intended to convey or will convey to Licensee any
ownership or other proprietary interests in the Included Programs or the images or sound embodied there in and Licensor retains the right to fully exploit the Included Programs without limitation.
4. TERMS OF SERVICE.
Without limiting any other obligation of Licensee hereunder, prior to making an Included Program available hereunder, Licensee shall (i) provide conspicuous notice of the terms and conditions pursuant to which Viewers may use the Licensed Service and receive Included Programs (“Terms of Service” or “TOS”) and (ii) include provisions in the TOS stating, among other things and without limitation, that: (a) Viewer is obtaining a license under copyright to the Included Program; (b) Viewer’s use of the Included Program must be in accordance with the Usage Rules; (c) except for the rights explicitly granted to Viewer, all rights in the Included Program are reserved by Licensee and/or Licensor;
5. PROGRAMMING/NUMBER OF EXHIBITIONS.
1. All Included Programs shall be made available to Viewers with unlimited runs according to Licensees sole discretion during their License Periods across the various channel/s and genres of the Licensed service.
6.WITHDRAWAL OF PROGRAMS.
Licensor may withdraw any program and/or related materials at any time because of an Event of Force Majeure, loss of rights, unavailability of necessary materials or any pending or potential litigation, judicial proceeding or regulatory proceeding or if Licensor believes that the continued use, marketing, promotion, license, distribution and/or transmission of any Included Program hereunder may adversely affect Licensor. In the event of any withdrawal of an Included Program pursuant to this Clause 6 before the last day of the License Period for such program, Licensor shall promptly commence a good faith attempt to replace the Included Program, which Licensee would have the right to exhibit for the remainder of the License Period of the withdrawn program as well as such other rights and obligations as if such substitute program were an Included Program.
7.START DATE OF LICENSE
7.1 The license agreement date will commence after the signing of the agreement, and upon the delivery of all initial content as mentioned in the agreement.
8. PHYSICAL MATERIALS.
8.1 shall deliver or otherwise make available to Licensee, within thirty (30) days maximum of execution of this Agreement, digital files (“File Copies,”), together with, Metadata, Posters, and Thumbnails, and, where available, Advertising, Press Materials, and Trailers. Licensor shall also make best efforts to supply Licensee with title logos per video or series. File Copies provided by Licensor will be based on Licensee’s pre-determined format and specifications, and any costs related thereto shall be borne by Licensor. The licensee will be responsible for any necessary encoding, transcoding, handling, and delivery to its platform partners at Licensee’s sole expense.
8.2 The Licensor shall provide Full HD (1920x1080 pixels) and where possible, in 4K (3840 x 2160 pixels) via FTP or via connected API. Licensor shall supply notification to Licensee in order to download.
8.3 Licensor shall provide accurate metadata relating to the selected File Copies and make best efforts to provide title posters in both 1920x1080 pixels and 332x220 pixels.
8.4 Within thirty (30) days following the last day of the License Period with respect to each Included
Program, Licensee shall at Licensor’s election either return all Copies to Licensor or erase all such Copies and supply Licensor with a certification of erasure
8.5 Each Copy of the Included Programs are the property of Licensor, subject only to the limited right of use expressly permitted herein, and Licensee will not permit any lien, charge, pledge, mortgage or encumbrance to attach thereto
8.6 In no event shall Licensor be required to deliver Copies in any language version other than the original language version but make best efforts to provide subtitle files that are compliant with the format of the File Copies.
9. CONTENT PROTECTION & SECURITY.
9.1 Licensee represents and warrants that it has put in place secure and effective, security
systems and technologies to prevent theft, pirating, unauthorized exhibition (including, without limitation, exhibition to non-Subscribers and exhibition outside the Territory), unauthorized copying or duplication of any video reproduction or compressed digitized copy of any Included Program.
9.2. Licensor or its representative shall have the right to inspect and review Licensee’s security systems,
procedures, and technologies at the Licensee’s places of business provided such inspection is conducted during regular business hours and does not interfere materially with Licensee’s operations.
10. CUTTING, EDITING, AND INTERRUPTION.
Licensee shall not make, or authorize any others to make, any modifications, deletions, cuts, alterations or additions in or to any Included Program without the prior written consent of Licensor, Licensee shall not delete the copyright notice or credits from the main or end title of any Included Program or from any other materials supplied by Licensor hereunder.
11. PROMOTION.
11.1 Licensee shall have the right to use or authorize the use of written summaries, extracts, synopses,
photographs, trailers or other materials prepared and provided or made available by Licensor or, if not prepared by Licensor, approved in writing in advance by Licensor (“Advertising Materials”), for the purpose of advertising, promoting and publicizing the exhibition of the Included Programs on the Licensed Service.
11.2 Licensee shall have the right to promote on the Licensed Service and otherwise to the general public the upcoming availability of each Included Program during the period before its Availability Date and to continue promoting such availability through the last day of its License Period.
11.3 Licensee shall not promote any Included Program after the expiration of the License Period for such Included Program
11.4 Within thirty (30) calendar days after the last day of the License Period for each Included Program, Licensee shall destroy (or at Licensor’s request, return to Licensor) all Advertising Materials for such Included Program.
12. LICENSOR’S REPRESENTATIONS AND WARRANTIES.
Licensor hereby represents and warrants to Licensee that:
12.1 It is a company duly organized under the laws of the state of its organization and has all requisite corporate power and authority to enter into this Agreement and perform its obligations hereunder;
12.2 The execution and delivery of this Agreement by Licensor has been duly authorized by all necessary corporate action.
12.3 This Agreement has been duly executed and delivered by, and constitutes a valid and binding obligation of Licensor, enforceable against such party in accordance with the terms and conditions set forth in this Agreement, except as such enforcement is limited by bankruptcy, insolvency and other similar laws affecting the enforcement of creditors’ rights generally, and by general equitable or comparable principles; and The performing and mechanical reproduction rights to any musical works contained in each of the Included Programs, are controlled by Licensor to the extent required for the licensing of the exhibition of the Included Programs in accordance herewith.
13. LICENSEE’S REPRESENTATIONS AND WARRANTIES.
Licensee hereby represents, warrants and covenants to Licensor that:
13.1. It is a company duly organized under the laws of the state of its organization and has all requisite
corporate power and authority to enter into this Agreement and perform its obligations hereunder;
13.2 The execution and delivery of this Agreement by Licensee has been duly authorized by all necessary corporate action.
13.3 This Agreement has been duly executed and delivered by, and constitutes a valid and binding obligation of Licensee, enforceable against such party in accordance with the terms and conditions set forth in this Agreement;
13.4 Licensee has obtained and shall maintain all licenses and other approvals necessary to own and operate the Licensed Service in the Territory and otherwise exploit the rights granted hereunder and it shall comply with all applicable federal, state and local laws, ordinances, rules and regulations in exercising its rights and performing its obligations hereunder.
13.5 The Licensed Service does not infringe any third-party intellectual property rights.
13.6 No Included Program shall be transmitted or exhibited except in accordance with the terms and conditions of this Agreement. Without limiting the generality of the foregoing, no Included Program shall be transmitted or exhibited to any person other than FVOD, as applicable, or transmitted other than by Approved Transmission Means on the Licensed Service to Approved Devices, subject at all times to Licensees Usage Rules; and
13.7 Licensee shall not permit, and shall take all precautions to prevent, the reception of the Included Programs for anything other than Personal Use.
14. INDEMNIFICATION.
14.1 Licensor shall indemnify and hold harmless Licensee and its representatives (with respect to a party, its officers, directors, equity owners, employees and other representatives and its parents, subsidiaries and affiliates and their officers, directors, equity owners, employees and other representatives (collectively, the “Representatives”)) from and against any and all claims, damages, liabilities, costs and expenses, including reasonable counsel fees, arising from or in connection with the breach by Licensor of any of its representations or warranties or any material provisions of this Agreement and claims that any of the Included Programs, under U.S. law, infringe upon the trade name, trademark, copyright, music synchronization, literary or dramatic right or right of privacy of any claimant or constitutes a libel or slander of such claimant; provided that Licensee shall promptly notify Licensor of any such claim or litigation. In addition, Licensor shall not be required to indemnify Licensee or its Representatives for any claims resulting from Licensee exhibiting Included Programs or using Advertising Materials in a form other than as delivered by Licensor, or due to Licensee’s editing or modification of any Included Programs or Advertising Materials, or due to Licensee’s authorization of a third party to do any of the foregoing.
14.2 Licensee shall indemnify and hold harmless Licensor and its Representatives from and against any and all claims, damages, liabilities, costs and expenses, including reasonable counsel fees, arising from or in connection with (i) the breach of any representation, warranty or other provision of this Agreement by Licensee, (ii) the exhibition of any material (other than material contained in Included Programs or Advertising Materials as delivered by Licensor and exhibited in strict accordance with this Agreement and Licensor’s instructions therefore), in connection with or relating, directly or indirectly, to such Included Programs, (iii) the infringement upon or violation of any right of a third party other than as a result of the exhibition of the Included Programs in strict accordance with the terms of this Agreement; provided that Licensor shall promptly notify Licensee of any such claim or litigation. Notwithstanding the foregoing, the failure to provide such prompt notice shall diminish Licensee’s indemnification obligations only to the extent Licensee is actually prejudiced by such failure.
15. STATEMENTS; REPORTS; SCHEDULES.
15.1 FVOD Service Reporting. Licensee shall provide to Licensor and its designee, if any, a statement in electronic form (“FVOD Statement”) detailing the information/performance specified by Licensor for the FVOD Service from time to time including, but not limited to: (i) the actual number of viewings of each FVOD Included Program for such month on the FVOD Service, (ii) the actual number of unique FVOD Viewers who viewed each FVOD Included Program, and (iii) such other information that Licensor may reasonably request and in any event no less than provided to any other supplier of content. Licensee shall deliver the FVOD Statements within thirty (30) days following the end of each month of the Term;
15.2 Each payment of the FVOD License Fee made pursuant to this Agreement shall be accompanied by an accounting statement including the following information: (i) appropriate calculations of the FVOD License Fee, including the number of Actual FVOD Subscribers/Viewers for such month, (ii) appropriate calculation of the FVOD Ad Revenue Share, including total views per Included Program, Cost Per Mille (CPM) rate, ad campaigns, ad cost type and rate, impressions, booked and delivered revenue and (iii) such other information that Licensor may reasonably require and in any event no less than provided to any other supplier of content.
15.3 Licensee shall provide Statements on a monthly or more frequent basis to the Licensor.
15.4 To the extent such information is not subject to confidentiality restrictions, Licensee shall provide Licensor within thirty (30) days following the end of each calendar quarter of the Term with a report in electronic form setting forth pricing and performance data (aggregated and not reported on a title by title basis) for FVOD programming exhibited during such quarter on the Licensed Service including, but not limited to: (i) the average number of titles offered in each genre or category of the Licensed Service during such calendar quarter, (ii) the average number of FVOD program views per genre or category in such calendar quarter; and (iii) the average Cost Per Thousand impressions or Cost Per Mille (CPM) rate charged during such calendar quarter.
16. TERMINATION.
16.1 Without limiting any other provision of this Agreement and upon the occurrence of a non- curable material breach by Licensee (as defined below), Licensor may, in addition to any and all other rights which it may have against Licensee, terminate this Agreement or any license with respect to an Included Program by giving written notice to Licensee of Licensors termination with immediate effect should: :
a) The licensee be unable to pay its debts, a resolution is passed for the winding up of the Licensee’s company, or the Licensee becomes insolvent, bankrupt, or enters receivership, dissolution, or liquidation.
b) There is a substantive change of control of the shareholders in the company of Licensee
16.2 If Licensee fails to perform, has made or makes any material inaccuracy, or otherwise breaches, any of its obligations, covenants, or representations, including a) and b) listed below, and the failure, inaccuracy, or breach continues for a period of [7] Seven Business Days' after Licensor delivers notice in writing to Licensee detailing the breach and giving Licensee 30 ( Thirty) days to cure such breach if the following violations occur
a) Licensee fails to timely perform or fails to make timely payments of fees, or
b) Otherwise transfers this agreement in violation hereof
Then in both cases, clause 16.1 above and this clause 16.2 Licensor shall have no further obligation to deliver Copies or Advertising Materials to Licensee. In addition to any and all other remedies Licensor shall be entitled to recover from Licensee all payments past due from Licensee to Licensor hereunder, together with interest, compounded monthly, at the Prime Rate, plus reasonable attorney’s fees, and all costs and expenses, including collection agency fees, incurred by Licensor to enforce the provisions thereof. Furthermore, Licensor shall have the right to suspend delivery of all Included Programs and materials with respect thereto and/or suspend Licensee’s right to exploit any Included Programs, licensed hereunder, without prejudice to any of its other rights hereunder:
17. ASSIGNMENT.
Licensee shall not assign, transfer or hypothecate its rights hereunder, in whole or in part, whether voluntarily or by operation of law (including, without limitation, by merger, consolidation or change in control), without Licensor’s prior written approval.
18. NON-WAIVER OF BREACH; REMEDIES CUMULATIVE.
A waiver by either party of any of the terms or conditions of this Agreement shall not, in any instance, be deemed or construed to be a waiver of such terms or conditions for the future or of any subsequent breach thereof. No payment or acceptance thereof pursuant to this Agreement shall operate as a waiver of any provision hereof. All remedies, rights, undertakings, obligations and agreements contained in this Agreement shall be cumulative and none of them shall be in limitation of any other remedy, right, undertaking, obligation, or agreement of either party.
19. GOVERNING LAW.
This Agreement shall be interpreted and construed in accordance with the substantive laws (and not the law of conflicts) of the State of New York and The United States of America with the same force and effect as if fully executed and to be fully performed therein.
19.1 All claims, disputes, and controversies arising out of or in relation to the performance, interpretation, application, or enforcement of this agreement, including but not limited to breach thereof, shall be referred to mediation before, and as a condition precedent to, the initiation of any adjudicative action or proceeding, including arbitration.
19.2 In event of an unsuccessful mediation process, all claims and disputes arising under or relating to this Agreement are to be settled by binding arbitration in the state of New York.
19.3 Each arbitration shall be conducted by an arbitral tribunal (the “Arbitral Board”) consisting of a single arbitrator who shall be mutually agreed upon by the parties. If the parties are unable to agree on an arbitrator, the arbitrator shall be appointed by JAMS. The arbitrator shall be a retired judge with at least ten (10) years of experience in commercial matters. The Arbitral Board shall assess the cost, fees, and expenses of the arbitration against the losing party, and the prevailing party in any arbitration or legal proceeding relating to this Agreement shall be entitled to all reasonable expenses (including, without limitation, reasonable attorney’s fees).
19.4 Subject to a party's right to appeal pursuant to the above, neither party shall challenge or resist any enforcement action taken by the party in whose favor the Arbitral Board, or if appealed, the Appellate Arbitrators, decided. Each party acknowledges that it is giving up the right to a trial by jury or court. Neither party shall be entitled or permitted to commence or maintain any action in a court of law with respect to any matter in dispute until such matter shall have been submitted to arbitration as herein provided and then only for the enforcement of the Arbitral Board’s award; provided, however, at any time, either party may seek pendente lite relief in a court of competent jurisdiction in New York City, New York or, if sought by Licensor, such other court that may have jurisdiction over Licensee, without thereby waiving its right to arbitration of the dispute or controversy under this section. All arbitration proceedings (including proceedings before the Appellate Arbitrators) shall be closed to the public and confidential.
20. FORCE MAJEURE. Neither party shall in any manner whatsoever be liable or otherwise responsible for any delay or default in, or failure of performance resulting from or arising out of or in connection with any Event of Force Majeure, and no such delay, default in, or failure of performance shall constitute a breach by either party hereunder.
21. CONFIDENTIALITY. Other than as may be required by law, or governmental authority, neither party shall, without the express written consent of the other, publicly divulge or announce, or disclose to any third party, other than its attorneys, advisors, directors, employees, agents, shareholders, accountants, parent entities or auditors, any confidential information. Confidential Information means any oral, written, graphic or machine‑readable information related to any aspect of the disclosing party which is non-public, confidential and/or proprietary in nature.
22. AUDIT. Licensee shall keep and maintain complete and accurate books of account and records at its principal place of business in connection with each of the Included Programs and pertaining to Licensee’s compliance with the terms hereof, including, without limitation, copies of the statements Licensor shall have the right during business hours to audit and check at Licensee’s principal place of business, Licensee’s books and records pertaining to the accuracy of the statements and other financial information delivered to Licensor by Licensee and the amount of the license fees paid or payable hereunder. The exercise by Licensor of any right to audit or the acceptance by Licensor of any statement or payment, whether or not the subject of an audit, shall not bar Licensor from thereafter asserting a claim for any balance due, and Licensee shall remain fully liable for any balance due under the terms of this Agreement. If an examination establishes an error in Licensee’s computation of license fees due with respect to the Included Programs, the Licensee shall immediately pay the amount of underpayment, plus interest thereon from the date such error occurred. If such error is in excess of 5% of such license fees due for the period covered by such audit, Licensee shall, in addition to making immediate payment of the additional license fees due plus interest in accordance with the previous sentence, pay to Licensor (i) the costs and expenses incurred by Licensor for any audit, and (ii) reasonable attorney’s fees incurred by Licensor in enforcing the collection thereof. In the event that the rate of interest set forth in this Section exceeds the maximum permitted legal interest rate, such rate shall be automatically reduced to the maximum permitted legal interest rate, and all other terms and conditions of this Agreement shall remain in full force and effect.
23. LIMITATION OF LIABILITY. except for the indemnification obligations set forth in clause14 hereof, confidentiality obligations set forth in clause 22 hereof, and fraud or willful, intentional or grossly negligent conduct, under no circumstances will either party be liable to the other party for indirect, incidental, consequential, special, or exemplary damages arising from this agreement, even if that party has been advised of the possibility of such damages.
24. CAPTIONS/DRAFTING. Article, Section, Clause or other headings contained in this Agreement are for convenience only and shall not affect in any way the meaning or interpretation of this Agreement.
25. CONFLICTING LAW OR REGULATION. If any provision in this Agreement is determined by a court or arbitrator of competent jurisdiction to be invalid or unenforceable (for any reason, including, without limitation, in connection with “competition” legislation), such determination shall not affect any other provision, each of which shall be construed and enforced as if such invalid or unenforceable provision were not contained herein.
26. ENTIRE UNDERSTANDING. This Agreement includes the entire understanding of the parties with respect to the subject matter hereof, and all prior agreements (written or oral) with respect to such subject matter have been merged herein. No representations or warranties have been made other than those expressly provided for herein. This Agreement may not be modified, except in writing signed by the parties.