Terms and Conditions
Terms and Conditions/Nutzungsbedingungen
INFORMATION ABOUT US
A-2.de and a-2.tv (cms.a-2.tv) are websites operated by A-2 Deal Advisory GmbH. (“We”, “Us”). We are a company registered in Germany under company number HRB 156687 B, Trade Register: Berlin-Charlottenburg, Tax Number: 29/201/30702, VAT number DE293671954 and have our registered office at Bülowstrasse 6, 10783 Berlin. We are a subsidiary of Look Investment GmbH.
A-2 Player and Platform (in the following also referred to as A-2)
Terms of Service
Please read these Terms of Service carefully before any Use of the Products. Your Use constitutes an unconditional agreement to be bound by these Terms of Service. IF YOU DO NOT ACCEPT THE TERMS OF SERVICE YOU ARE PROHIBITED FROM USING THE PRODUCTS.
The Products are available in different Editions, including. Certain rights, obligations and restrictions vary by Edition. Unless otherwise stated, terms apply to all Editions.
- “Adaptation” means any work that modifies, adds to, deletes from, edits, affects the function of or is based on a Product or any previous Adaptation thereof, including all derivative works of a Product as such term is defined by the Copyright Act. Examples of Adaptations may include SDK Applications, A-2 Showcase Implementations, OEM implementations (to the extent applicable) and plug-ins. Websites on which Products are used solely to facilitate Content playback and streaming (but not Software as a Service) are not Adaptations hereunder.
- “Application Package” means a Publisher product that incorporates Products in an OEM use case, as authorized on an applicable Order Form. Publisher agrees to notify Company in writing within ten (10) business days in the event such product’s name changes.
- “Claims” means claims, suits, demands and actions by third parties.
- “Company” means A-2 Deal Advisory GmbH, Incl.A-2 Player.
- “Content” means media including videos, images, graphics, animations, sounds, text and music and any related submissions (e.g., viewer comments) hosted, streamed or Played through the Products. “Content” includes “Recommended Content” (described further below).
- “Dashboard” means an on-line control panel that provides certain functionality including account monitoring, player configuration, video management and statistics reporting.
- “Developer Edition” means an Edition of the Product for which Fees are not required but that allows for Ad Plays, as set forth in the License Scope, below.
- “Documentation” means any technical or other specifications or documentation that Company may provide to Publisher for use in connection with Products.
- “Distribute” means to sell, transfer, assign, circulate, disseminate, distribute or make available to any third party, or the facilitation of the foregoing.
- “Edition” means a particular edition of A-2 Player.
- “Effective Date” means the earliest date a Product is Used by Publisher unless otherwise provided on an applicable Order Form.
- “End User” means an individual or entity (other than Company, Publisher or their agents acting on their behalf) that accesses or Uses Publisher’s Content or Adaptations.
- “Fee” means the amount payable to the Company for Use of a Product.
- “A-2 Platform” means all features of the A-2 Video platform (Cms.a-2.tv).
- “A-2 Player” means Publisher-hosted and cloud-hosted versions of the A-2 Player software and any, features, plug-ins and updates (other than new major versions) provided by Company therefor.
- “A-2 Showcase” means that certain web app builder for publishing A-2 Player-hosted video content.
- “A-2 Showcase Implementations” means stand-alone Websites created with A-2 Showcase and directed at End Users.
- “Licensed Programs” means Publisher-hosted versions of A-2 Player, the SDKs and A-2 Showcase.
- “License Scope” means the features authorized for a particular Edition and pricing plan, including advertising, the maximum volume of data, maximum number of domains, maximum Plays, maximum API requests, authorization to Use the SDKs, A-2 Showcase, OEM and A-2 Platform.
- “Losses” means damages, losses, costs and liabilities (including reasonable attorney and professional fees) arising from a Claim.
- “Monthly Usage Limits” means the maximum monthly number or volume, as applicable, of Content Plays, Ad Plays, Websites, Videos, Hosting, Streaming, and API requests for the applicable Edition and/or Pricing Plan, as set forth in the License Scope. If a partial month of Use is authorized, Monthly Usage Limits for such month will be prorated based on the number of days in such month.
- “OEM” means a Publisher that acts as an original equipment manufacturer of the Company by incorporating a Product with its own products into an authorized Application Package. For the avoidance of doubt, Publisher is not an OEM with respect to its Websites except to the extent a Product is incorporated into Software as a Service provided thereon.
- “OEM License” means a sublicense grant given to an OEM for Products to be used in an Application Package.
- “OEM Support” means support and maintenance for OEM’s sublicensees pursuant to an OEM License.
- “Operating System” means Microsoft Windows,, Apple iOS and/or Google Android.
- “Order Form” refers to an agreement between Company and Publisher setting forth custom pricing and terms for the use of Products and includes any contemporaneous Addendum thereto. In the event of any conflict between the terms of an Order Form and these Terms of Service, the Terms of Service shall take precedence.
- “Overages” means amounts payable to the Company for Use of one or more Products in excess of the Monthly Usage Limits. Except as set forth herein or on an applicable Order Form, Overages are calculated on a calendar-month basis (pro-rated for partial months) at the Company’s then-applicable overage rates.
- “Play” means each instance of Content streamed, in whole or in part, through the Products.
- “Products” means the Licensed Programs and Services (as applicable to the relevant Edition).
- “Prohibited Content” means any Content that (i) infringes any copyright, trademark, patent, trade secret, right of publicity or other right of any person or entity, (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive, tortious, obscene, offensive, vulgar, pornographic, profane or is otherwise inappropriate as determined by the Company in its sole discretion, (iii) contains any virus, worm, malicious code, Trojan horse, time bomb, spyware, malware or other computer code, file or program designed, intended or likely to disrupt, damage, limit or interfere with the proper function of any software, hardware or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of the Company or any person or entity, (iv) encourages illegal activity or (v) falsely suggests or implies sponsorship or endorsement by the Company.
- “Publisher” or “You” means you and any entity on whose behalf you Use Products.
- “Publisher Information” means personal and non-personal information about Publisher including but not limited to Publisher’s name, address, email address, telephone number, likeness, and, if Publisher transacts business with the Company, financial information such as payment method (valid credit card number, type, expiration date or other financial information).
- “Purpose” means (i) Use to facilitate Content playback and streaming on Publisher’s Website(s) and/or application(s), (ii) Use of the SDKs to develop and Distribute SDK Applications, (iii) Use of A-2 Showcase to implement and Distribute A-2 Showcase Implementations, and (iv) other OEM Use as a component of the Application Package, in each case, if and to the extent within the applicable License Scope.
- “Recommended Content” means Content of Publisher, Company or Recommended Content Partners that is recommended, displayed and/or played by Related Videos.
- “Recommended Content Partner” means a third party that provides Recommended Content.
- “Related Videos” means a feature of A-2 Player that, when enabled, automatically displays and/or plays recommended related Content following the playback of certain Publisher Content.
- “SDK” means the A-2 Player Software Development Kits, including all components thereof (Documentation, code, tools, libraries, data, files and materials) and all updates thereto.
- “SDK Applications” means application software for Operating Systems, created with the SDK, incorporating Products and directed at End Users.
- “Sensitive Data” means online account access credentials; a first name or initial and last name; a Social Security number; a driver’s license number or other state or government identification number; medical or health insurance information; personal biometric data; an account number, debit card number, or credit card number in combination with any required security code, access code, or password that would permit access to or use of such account or card; Protected Health Information (as defined by HIPAA); information pertaining to or obtained from any person known to be under 13, or from a Website or application directed to persons under 13; or special categories of personal data, as referenced in Article 9 of the GDPR.
- “Services” means services provided or made available to Publisher under these Terms of Service or otherwise offered by the Company to its customers, including cloud-hosted versions of A-2 Player, the SDKs and A-2 Showcase provided as software as a service (SaaS), hosting and streaming functionality, Live Streaming, the Dashboard, Related Videos and maintenance and support services, as well as data used within any of those features (such as for optimization or analytics).
- “Taxes” means all taxes, levies, duties, tariffs, imposts, deductions, charges or withholdings and all related liabilities, including interest, penalties or additions thereto.
- “Terms of Service” or “TOS” means this document, including any applicable, mutually ratified Order Form and/or Addendum, which shall be incorporated into these Terms of Service.
- “Use” means operating, accessing, downloading, installing, integrating or providing Content through a Product or Adaptation.
- “Website” means any website on which you use any Services.
These Terms of Service apply to A-2 Player in its actual version. Publisher’s rights and licenses to Use Products are limited to the Editions and Pricing Plans for which it has enrolled, is eligible and has paid all Fees in accordance with these Terms of Service. Any Use of the Products other than as permitted by these Terms of Service is strictly prohibited. The Company reserves all rights and licenses not expressly granted hereunder.
Subject to the terms and conditions of these Terms of Service and Publisher’s observance thereof, Company hereby grants to Publisher and Publisher hereby accepts a non-exclusive, non-transferable, non-sublicensable, limited right and license, solely for the Purpose, to (a) Use, access and install the Products, (b) Use, access, integrate and install the SDKs, (c) make and distribute Documentation internally, (d) publicly Distribute SDK Applications for the Operating Systems, (e) Use A-2 Player, and (f) operate and allow End Users of SDK Applications and A-2 Player Implementations to operate A-2 Player incorporated into such SDK Applications.
Upon explicit written approval by the Company to act as an OEM and subject to the terms and conditions of these Terms of Service and Publisher’s observance thereof, the Company grants, in object code form, to Publisher, a non-exclusive, limited subscription license, solely for the Purpose, to (a) incorporate the object code version of the applicable Products in the Application Package, (b) reproduce and distribute the applicable Products as incorporated into the Application Package, (c) modify and enhance the applicable Products as incorporated into the Application Package, and (d) reproduce and distribute any such modifications or enhancements, subject to the License Scope listed above. The foregoing rights may be sublicensed through multiple tiers of distribution, including resellers, provided each reseller or other distributor is contractually required to abide by the requirements of this Section. Publisher shall ensure that any Application Package incorporating the applicable Products shall be governed by a license agreement that is at least as protective to the Company as are the Company’s Terms of Service in the Application Package. Unless explicit written approval is given by Company to Publisher to act as an OEM, any references to OEM terms, such as an OEM License, OEM Support, or other OEM provisions, shall be inapplicable.
Publisher is strictly prohibited from incorporating a Product into any goods or services, other than with respect to the authorized Application Package and those authorized under subsections (i) – (iii) of the Purpose.
Publisher shall be responsible for all OEM Support under the OEM License. OEM may assign up to five (5) designated support contacts from OEM’s company to contact the Company by providing notice to the Company. OEM’s customers may not contact the Company directly for OEM Support. OEM further agrees, at its own expense, to be adequately trained on providing Product support to OEM’s customers.
The License Scope varies by Edition, Pricing Plans and the licenses granted hereunder are limited accordingly. Unless otherwise provided, licenses are personal to Publisher for its own Use. For details see: https://www.a-2.de/pricing/
In order to ensure maximum performance and protect the experience of all users, requests to the A-2 Platform API (presently accessed via api.A-2platform.com) may not exceed sixty (60) per minute, or any other limit set forth in the applicable technical documentation. For the avoidance of doubt, this does not limit Publisher’s Plays per minute and reflects a number of requests unlikely to be reached through normal Use, the excess of which would be abusive. In addition to any other remedies provided by these Terms of Service, the Company reserves the right to immediately suspend accounts that exceed the maximum API requests set forth herein and to terminate, block and/or blacklist such accounts if Company believes in its reasonable discretion that such excess is due to Publisher’s abusive behavior.
Live Streaming Usage shall also count against the Streaming limits.
Publisher is strictly prohibited from providing false or misleading sign-up information, including using a name, address or email address owned or controlled by another person without appropriate authorization. Company reserves the right to refuse registration or cancel any account that it reasonably believes is in violation of the foregoing. Publisher shall be responsible for maintaining the secrecy of its password and is liable for all activities that occur on its account. Publisher agrees to immediately notify the Company of any unauthorized use of Publisher’s username, password or other breach of account security.
Publisher is authorized to make Adaptations reasonably necessary to exercise its rights under these Terms of Service. All Adaptations created by Publisher are strictly for Use in connection with the Purpose. Publisher is solely responsible to ensure that its Adaptations (except the Products incorporated therein) comply with all applicable laws and regulations and do not infringe the intellectual property rights of any third party. Company reserves the right to prohibit the Use or Distribution of any Adaptation that it reasonably believes violates or is likely to violate such laws, regulations or rights and if Publisher fails to cure the foregoing within fifteen (15) days after written notice thereof.
Company may update the SDKs at any time and is under no obligation to provide notice thereof. Updates may have features or functionality that differ from that of the current SDKs. Company may identify certain updates as being critical (e.g., updates that address significant security issues) by written notice (including e-mail to the address provided by Publisher). Publisher shall incorporate such critical updates into its SDK Applications and, if such SDK Applications have been Distributed, shall use its best efforts to provide a public update thereto. Company shall not be liable for, and Publisher shall indemnify and hold Company harmless for, Losses due to Publisher’s failure to take the foregoing steps with respect to a critical update.
Publisher acknowledges that development for each Operating System may be subject to the applicable Operating System provider’s own rules, regulations, standards and requirements and that Company has no control or responsibility therefor. Publisher is solely responsible for its compliance with the foregoing and Company makes no representations or warranties of compatibility with any Operating System.
Company may update A-2 Showcases provided among others on https://www.a-2.de/content/ at any time and is under no obligation to provide notice thereof.
For the purposes of these Terms of Service, “Beta Products” means products, features, programs or services identified by Company as beta products, or which are made available by Company to Beta Participant and which are not yet generally available. If Publisher Uses any Beta Products, Publisher’s Use of any such Beta Product(s) a special agreement shall be entered with respect to such Beta Product(s).
Except pursuant to the Purpose or as otherwise specifically set forth herein, Publisher shall not Distribute, re-license, sell, lease, transfer, encumber, assign or make available for public use the Products or any Adaptation thereof. Any attempt to take any such actions is void and constitutes a material breach of these Terms of Service.
These Terms of Service shall become effective on the Effective Date. For all Editions other than the (i) Enterprise Trial Edition or (ii) Enterprise Edition if otherwise set forth on an applicable Order Form, these Terms of Service shall remain effective for a period of one (1) year (the “Initial Term”). Upon the conclusion of the Initial Term, these Terms of Service shall automatically renew for additional successive one (1) year terms, except in the case of the Enterprise Edition which shall renew for additional successive terms for the same period as the Initial Term (each a “Renewal Term” and together with the Initial Term and any Negotiation Period(s), the “Term”). Such renewal shall be at the then-current non-promotional rate, unless Publisher opts out of auto-renewal by electing to not renew these Terms of Service as set forth in the following paragraph. The Enterprise Trial Edition’s Term shall be 30 days unless otherwise mutually agreed by Publisher and Company and set forth on an applicable Order Form.
Either party may elect to not renew these Terms of Service by notifying the other prior to the expiration of the then-current Initial Term or Renewal Term. Such notice may be provided by Publisher either via email to customer support or through the Publisher dashboard. Notice for the Enterprise Edition must be provided in writing no later than thirty (30) days prior to such expiration. If Publisher terminates these Terms of Service, Publisher may use Publisher’s subscription until the end of Publisher’s then-current term and Publisher’s subscription will not be renewed after Publisher’s then-current term expires. However, Publisher won’t be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. IF PUBLISHER DOES NOT WANT TO CONTINUE TO BE CHARGED ON A RECURRING BASIS, PUBLISHER MUST CANCEL THE APPLICABLE TERMS OF SERVICE BY NOTIFYING COMPANY BEFORE THE END OF THE THEN-CURRENT INITIAL TERM OR RENEWAL TERM, WHICH FOR ENTERPRISE EDITION SHALL BE NO LATER THAN THIRTY (30) DAYS PRIOR TO THE END OF THE THEN-CURRENT INITIAL TERM OR RENEWAL TERM. THESE TERMS OF SERVICE CANNOT BE TERMINATED BEFORE THE END OF THE PERIOD FOR WHICH PUBLISHER HAS ALREADY PAID, AND EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, COMPANY WILL NOT REFUND ANY FEES THAT PUBLISHER HAS ALREADY PAID.
Publisher’s non-termination or continued use of Products or Editions reaffirms that Company is authorized to charge Publisher’s designated payment form for such Products, Pricing Plans or Editions. Company may submit those charges for payment and Publisher will be responsible for such charges. This does not waive Company’s right to seek payment directly from Publisher. Publisher’s charges may be payable in advance, in arrears, per usage, or as otherwise described when Publisher initially selected to use the Products, Pricing Plans or Editions.
If Company has provided notice of non-renewal in accordance with the above mechanism, and the parties are negotiating in good faith to agree a new Order Form, or Agreement and Publisher continues to Use the products beyond the effective date of expiration without such new Order Form or Agreement having been executed by a duly authorized representative of each party, Publisher will be deemed to have renewed for a one (1) month term (a “Negotiation Period”); provided that Company may in its sole discretion notify Publisher that such Negotiation Period will not occur, in which case these Terms of Service will expire as provided herein. Publisher will for the Negotiation Period be invoiced, and will pay in accordance with the payment terms herein, one-twelfth of the annual Fees provided on the applicable Order Form, and the License Scope for Content Plays, Hosting and Streaming will be one-twelfth of the annual limits provided on such Order Form. The Negotiation Period will not renew without the written consent (email sufficing) of Company. The foregoing shall not affect either party’s rights to terminate these Terms of Service as provided herein.
These Terms of Service are subject to termination by Company immediately and/or Publisher’s account may be suspended if (a) Publisher fails to timely pay a Fee or Overages, (b) Publisher violates any term of these Terms of Service, (c) Publisher becomes insolvent, declares bankruptcy or a receiver or trustee is appointed for Publisher, (d) Publisher is or becomes engaged in a business that is competitive with the Company’s business, or (e) Publisher exceeds the License Scope permitted for its Edition and Publisher fails to cure any of the foregoing within seven (7) days of notice thereof.
In the event of any termination by the Company, the Company is under no obligation to provide a refund for the Fees received from Publisher or apply such fees to future services. In the event of the Company’s termination for convenience, Publisher shall, on its request, be given a pro rata refund of unused pre-paid Fees. In the event Publisher switches to a different Edition, any pre-paid Fee balance shall be applied towards the Fees due for such Edition until exhausted; no refund shall be available for Publishers switching to a Free Edition or a Developer Edition.
Effects of Termination
Upon expiration or termination of these Terms of Service for any reason, Publisher shall immediately cease Use the Products and uninstall, delete and destroy any copies of the Licensed Programs under its control. In the event any Products are no longer under Publisher’s control (such as SDK Applications already in the marketplace), Publisher shall use its best efforts to cause use of such Products to promptly cease, including updating SDK Applications and other OEM uses.
Without limiting the foregoing, if Publisher fails to cease Use of the Products or Services following expiration or termination, Publisher will continue to pay the Fees and Overages. To the extent that such continued use is due to Products no longer under Publisher’s control, such Fees shall be pro rata based on the volume of ongoing Use, until such Use ceases.
Upon expiration or termination, Company may delete any Content, information, files or materials in or related to Publisher’s account, and Company will have no obligation whatsoever to save or make any such Content, information, files or materials available to Publisher or any other party. Publisher agrees that Company will have no liability whatsoever to Publisher or any other party related to termination of access to Publisher’s account or as a result of the deletion or loss of any Content, information, files or materials in or related to Publisher’s account.
Upon expiration or termination, all rights, obligations and licenses of the parties shall cease, except that all obligations that accrued prior to the effective date of expiration or termination and remedies for breach of these Terms of Service shall survive. The provisions of the Sections titled Effects of Termination, Intellectual Property, Privacy, Fees and Payment, Content, Representations and Warranties, Disclaimer, Limitation of Liability, Basis of the Bargain, Indemnity, Audit, Confidential Information, Severability, Choice of Law and Jurisdiction, Injunctive Relief, Complete Agreement and Waiver of Breach shall also survive.
Maintenance and Support
Company will provide technical support and maintenance for the Products in its sole discretion except as otherwise provided in a paid support package set forth on an applicable Order Form, and Company shall have no obligation to provide additional technical support, maintenance, updates or enhancements to the Products or to provide customer service or support to Publisher’s End Users. All installation and maintenance of Products by Publisher shall be at the sole expense of Publisher. Company is not responsible for performance issues caused by low-performance End-User computers, low-bandwidth End-User Internet connections, periodic network congestion among network providers, low-bandwidth connectivity from redirected image and video sources, improperly configured campaigns and low-bandwidth connectivity from any Publisher Content servers. In the event Company identifies slow performance due to its system, Company shall use commercially reasonable efforts to restore the Services to acceptable performance levels. Publisher’s sole remedy for any disruption (as determined by checking the response of a Product’s HTTP API) or failure to provide support shall be a pro rata refund of the Fee paid by Publisher for the relevant period. Company, at its discretion, may make available future upgrades or updates to the Products. Upgrades and updates, if any, may not necessarily include all existing or new features that Company releases for newer versions of the Products.
The Company shall retain all intellectual property rights pertaining to the Products, including but not limited to copyright, trademark and patent rights and all rights not expressly granted herein are reserved. If Publisher creates an Adaptation, Publisher shall obtain all intellectual property rights in and to the elements of such Adaptation created by Publisher and the Company shall retain all intellectual property rights in and to any elements of the Products incorporated in such Adaptation. Publisher is prohibited from creating any Adaptation that in any manner infringes the patents, trademarks, copyrights, trade secret rights or other rights of the Company or any third party.
In the event that you provide comments, suggestions, ideas, or recommendations to the Company with respect to the Products and Services (including, without limitation, with respect to modifications, enhancements, improvements and other changes) (collectively, “Feedback”), you hereby grant to the Company a worldwide, royalty free, irrevocable, transferable, perpetual license to use and otherwise incorporate any Feedback.
Publisher will register all video Content with a Media ID (an 8-digit identifier) in accordance with the Documentation and will initiate all Plays using the applicable Media ID. Publisher is strictly prohibited from removing, altering, disabling or circumventing the Licensing Key or Service Analytics or otherwise interfering with the operation thereof.
Company may use Publisher Information and Data to: deliver the Products; manage Publisher’s account; provide customer support; communicate with Publisher by email, postal mail, telephone and/or mobile devices; develop and display content and advertising tailored to your interests; enforce our Terms of Service; manage our business; and perform functions otherwise described to you at the time of collection. As part of Company’s continued development and improvement of the Products, Publisher authorizes Company to periodically conduct limited testing through the Products.
To the extent Publisher accesses or uses integrations with third-party services made available by Company or through the Products (e.g. services for the provision of advertising), Publisher shall be responsible for its obligations to any such third parties, and Company makes no representation as to the continued access or availability of any such third-party services and shall have no liability related to or arising from such third-party services.
Fees and Payment
Fees are published at https://www.a-2.de/pricing/. Company may modify the Fees prior to the commencement of each Renewal Term.
- Platform Only
We license our video platform and customers get access to the following features and functions:
- Pre-mid-post roll and overlay ads, fully VAST/VPAID compatible
- VAST/VPAID mobile autoplay and ad waterfalling
- Mobile in-page playback and adaptive/HLS/HD streaming
- Video encoding and storage
- Closed captions with no additional branding from us
- Outstream ad units
- Ad de-blocker integration (upon special arrangement)
- Advanced social integration and mobile SDK integration (upon special arrangement)
- Live Streaming and analytics with ComScore support
- Playlist widget and designer skins and custom logo
Some of the features are only available for licensees with commitments larger than $1,000 per month.
Plan 1: 8TB / month: $600 / month*
Plan 2: 12TB / month: $850 / month*
Plan 3: 16TB / month: $1100 / month*
Plan 4: 20TB / month: $1300 / month*
Plan 5: Above 20TB = 0,06 USD per GB.
*User selects a plan and is billed monthly in advance; overage is billed on monthly basis at 0,075 USD per GB for plans 1 – 4
- Platform and Monetization Plan
All Platform Only Features and Pricing of Platform Only Plan, plus
Backfill with A-2 ads program (with special arrangement, requires separate revenue arrangement with A-2 issuing monthly credit notes)
Full stack monetization with A-2 premium ads program (requires separate revenue arrangement with A-2 issuing monthly credit notes)
Partners with minimum commitment larger than $1,000 per month may apply for revenue share only plan (see Platform, Monetization, Video Content Plan)
- Platform, Monetization, Video Content Plan
All Platform and Monetization Features with all pricing options, plus video content from the A-2 video library.
50 % revenue share from all income generate with the A-2 platform (requires separate revenue generation and monetization arrangement with A-2 issuing monthly credit notes).
Publisher agrees to timely pay in U.S. Dollars, Euros or as otherwise agreed all Fees and Overages due during the Term. Company may invoice Publisher prior to the Effective Date. Company reserves the right to withhold or suspend Publisher’s access to Products or Editions if Fees or Overages are not timely paid and/or until Fees or Overages have been paid for the applicable period. Company may also withhold monies to be distributed to Publisher as part of a revenue share agreement to offset with costs associated with using the a-2 player and /or platform. Such offsetting or suspension shall not affect Publisher’s duty to pay all Fees or Overages due under any Order Form, Agreement or Addendum or constitute termination of these Terms of Service absent Company’s notice of termination pursuant to the Termination section hereof. Past-due Fees and Overages shall incur interest at a rate of one-and-one-half percent (1.5%) per month or the maximum rate allowed by law, whichever is lesser. Publisher shall be liable to, and fully reimburse, Company for all costs (including attorney’s fees) incurred in connection with Company’s collection of past-due Fees and Overages. All Fees are non-refundable except as otherwise provided in these Terms of Service. Publisher shall be responsible to pay all Taxes (except Company’s corporate taxes) and all other charges (for example, currency exchange settlements) due in connection with the Fees and Overages and Publisher’s use of the Products.
Periodic and one-time fees (e.g., quarterly or annual) Fees can be billed in advance and payment and is due upon receipt of invoice. Company reserves the right to charge one-time and/or periodic fees also on terminating the contract or at any other time during the period these Terms of Services apply. Publishers with and without an Order Form, must provide a valid form of payment (e.g., credit card, debit card, PayPal account) and accurate billing information. Publisher hereby authorizes Company to charge all Fees and Overages incurred to the designated payment form and acknowledges that periodic Fees and Overages may be charged automatically and without separate authorization. By choosing a recurring payment plan, Publisher acknowledges that such Products or Editions have an initial and recurring payment feature and Publisher accepts responsibility for all recurring charges prior to cancellation. COMPANY MAY SUBMIT PERIODIC CHARGES (E.G., QUARTERLY OR ANNUAL) WITHOUT FURTHER AUTHORIZATION FROM PUBLISHER, UNTIL PUBLISHER PROVIDES PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY COMPANY) THAT PUBLISHER HAS TERMINATED THIS AUTHORIZATION OR WISHES TO CHANGE PUBLISHER’S PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE COMPANY REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION, CONTACT COMPANY SUPPORT. TO CHANGE YOUR PAYMENT METHOD.
Related Videos is an optional feature of A-2 Player that is available to all Editions and Pricing Plans. By electing to Use Related Videos, Publisher automatically grants Company a limited, royalty-free license to perform analysis of Publisher’s Content in connection with Related Videos’ operation and authorizes Company to deliver Recommended Content to Publisher and End Users based thereon. (Company owns any models, algorithms, analysis, or other designs and know-how, used in or derived from performing such analysis and optimization.) Publisher may, for an additional Fee, determine all Recommended Content delivered to its End Users. Otherwise, Related Videos will deliver Recommended Content from Company and/or Recommended Content Partners. Publisher acknowledges that recommendations of Recommended Content are automatically generated and, while Company will use reasonable efforts to ensure the relevance of Recommended Content, all its Recommended Content and, if applicable, that provided by Recommended Content Partners, is provided AS-IS and Company disclaims any and all responsibility for the relevance or nature of Recommended Content.
By uploading Content, Publisher agrees to and hereby does grant, and does represent and warrant that it has the right to grant, the Company a limited, royalty-free, fully paid up, license to process, store, host, stream, deliver and Use such Content solely in connection with the operation and provision of the Products and more generally as described in these terms of Service.
Publisher is solely responsible for any Content or other material that Publisher posts, uploads, submits or Distributes. Any Content that violates the terms of this Section is subject to removal on written notice to Publisher. Publisher is prohibited from posting, uploading, submitting or Distributing Prohibited Content.
Publisher is responsible for taking its own steps to backup its Content, and Company recommends the Publisher routinely archive its Content. Company disclaims any responsibility for deleted, lost, corrupted or inaccessible Content, regardless of whether Company hosts such Content.
Restrictions on Use
Publisher shall not (i) interfere or attempt to interfere with the proper operation of the Products or any activities conducted through the Products or disable or bypass any measures that Company may use to prevent or restrict access to any Product, (ii) use any robot, spider or other device to retrieve, index, scrape, data mine or in any way gather information, Content or other materials from the Products, (iii) decipher, decompile, disassemble, reverse engineer, simulate, derive or attempt to discover any source code or underlying structure, ideas or algorithms from the Products, Data or Documentation or use any of the foregoing to create any software or service similar to the Products, (iv) create any derivative work or modification of the Products other than Adaptations permitted by these Terms of Service, (v) license, sublicense, copy, display, sell, pledge, encumber, assign, loan, rent, lease, Distribute, transfer or similarly exploit the Products, except as expressly set forth in these Terms of Service, (vi) remove, obscure or alter any proprietary notices on any Product (or any portion thereof), (vii) use any Product for any benchmarking purposes; or for application service provider, timesharing, service bureau or competitive purposes; or any purpose other than as contemplated by these Terms of Service or (viii) use any Product other than in accordance with these Terms of Service and all applicable laws and regulations.
Content transcoded via the Products may only be delivered to end users via the endpoints in the A-2 Platform Delivery API. Downloading transcoded content for delivery via other mechanisms or using A-2 Player’s CDN as an origin or shield for other CDNs is strictly prohibited and may result in account suspension, and/or termination, as determined by the Company at its sole discretion.
Appending randomized query string parameters to A-2 Player Delivery API requests or using aggressive HTTP cache-control headers to circumvent A-2 Player’s CDN edge caching (sometimes called “cache busting”) is strictly prohibited and may result in account suspension, and/or termination, as determined by the Company at its sole discretion.
If, in any given 24-hour period, Publisher uploads more than 10,000 minutes of videos to a particular account Property, Company may restrict the Management API rate limit on Publisher’s account(s).
Representations and Warranties
Publisher represents and warrants that (i) if Publisher is an individual, Publisher is at least eighteen (18) years old, (ii) if Publisher is an entity, its consent to these Terms of Service has been duly ratified, (iii) all information provided during the registration process is true, accurate and complete, and Publisher will promptly update Publisher’s registration information with any changes thereto, (iv) it is not (a) a resident of or located in (and will not Use the Products in) a country or territory that the U.S. government has embargoed for Use of the Products, including Cuba, Iran, North Korea, Syria, or the Crimea region, (b) it is not named on the U.S. Treasury Department’s list of Specially Designated Nationals Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, (c) it is not on the Department of Commerce’s Bureau of Industry and Security’s Entity List, Denied Persons List, or Unverified List, (d) it is not on or any other applicable export control or trade sanctions list of restricted parties nor is otherwise targeted by U.S. sanctions or export control restrictions, (e) it is not owned (at 50% or greater level), directly or indirectly, by, or acting on behalf of, any individual or entity that is described under (iv)(a) through (e); (v) its Content conforms to the standards set forth in the Sections of these Terms of Service titled Content and Restrictions on Use, (vi) its Adaptations shall not infringe the intellectual property rights of any third party, (vii) its Adaptations shall not violate any law or regulation in any jurisdiction where they are Used or Distributed, including privacy and data collection laws, (viii) its SDK Applications shall not be designed, marketed or Distributed for the purpose of harassing, abusing, threatening or otherwise violating the legal rights of others, (ix) all SDK Applications shall comply with the Documentation, (x) its Use of Products is in compliance with all applicable laws and regulations, including all applicable export control and trade sanctions laws and regulations as further described in (iv) above; (xi) it has obtained all necessary consents and permissions under applicable laws from individuals and other persons for its performance of this Agreement and its Use of the Products, including without limitation for all features and operations of the Products, (xii) it has obtained and will maintain on an ongoing basis a valid legal basis to collect, process and transfer to Company Data, as required under applicable law, rules and regulations, (xiii) none of its Content and none the websites or applications on which its Content appears are directed to anyone under the age of 13, that Publisher will not use the Services on any Website or application (or portion of any Website or application) that is directed to persons under the age of sixteen (13) years of age or in conjunction with any person known to be under the age of sixteen (13), and that Publisher is and shall be in compliance with the Children’s Online Privacy Protection Act of 1998 (“COPPA”), and (xiv) except for Publisher Information, it will not share, pass or transfer o Company any of the following data: Sensitive Data, or personal information from anyone under the age of 13 (or under the age of 16 in California)
Limited Product Warranty
The Company warrants that it will provide the Products (except Free Editions and Developer Editions) in a manner consistent with general industry standards reasonably applicable to the provision thereof. The Company does not warrant that the Products will be error-free or that any errors in the Products will be corrected.
EXCEPT AS OTHERWISE PROVIDED AND TO THE MAXIMUM EXTENT ALLOWED BY LAW, THE PRODUCTS AND RECOMMENDED CONTENT ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS OTHERWISE PROVIDED, USE OF THE PRODUCTS IS AT PUBLISHER’S OWN RISK AND PUBLISHER IS SOLELY RESPONSIBLE FOR DETERMINING THE APPROPRIATENESS OF EXERCISING THE RIGHTS GRANTED UNDER THIS AGREEMENT AND ASSUMES ALL RISKS ASSOCIATED THEREWITH, INCLUDING BUT NOT LIMITED TO THE RISKS AND COSTS OF PROGRAM ERRORS, COMPLIANCE WITH APPLICABLE LAWS, DAMAGE TO OR LOSS OF DATA, PROGRAMS OR EQUIPMENT, SUITABILITY FOR HOSTING AND UNAVAILABILITY OR INTERRUPTION.
Limitation of Liability
EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW OR TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF ITS LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE, IN NO EVENT SHALL THE COMPANY BE LIABLE UNDER ANY EQUITY, COMMON LAW, CONTRACT, ESTOPPEL, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER THEORY (REGARDLESS OF THE FORM OF ACTION) (A) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING LOSS OF PROFITS, REVENUES, SAVINGS, CUSTOMERS, OPPORTUNITIES OR GOODWILL), (B) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL OR (C) FOR ANY LOSS, CORRUPTION OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE COMPANY’S CUMULATIVE AGGREGATE LIABILITY ARISING OUT OF THESE TERMS OF SERVICE FROM ANY CAUSE OF ACTION WHATSOEVER EXCEED THE TOTAL FEES PAID BY PUBLISHER TO THE COMPANY PURSUANT TO THESE TERMS OF SERVICE DURING THE SIX (6) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
EACH PARTY AGREES AND DOES WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT AGAINST THE OTHER PARTY FOR ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THESE TERMS OF SERVICE. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST COMPANY MORE THAN ONE YEAR AFTER THE DATE OF RELATED SERVICES UNDER THESE TERMS OF SERVICES.
Basis of the Bargain
THE PARTIES AGREE THAT THE SECTIONS ON DISCLAIMER AND LIMITATION OF LIABILITY HEREIN FAIRLY ALLOCATE THE RISKS BETWEEN THE PARTIES AND ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES SUCH THAT THE PARTIES WOULD NOT HAVE ENTERED INTO THESE TERMS OF SERVICE WITHOUT SUCH SECTIONS.
Except as otherwise set forth in these Terms of Service, Publisher will indemnify, defend and hold harmless the Company and its employees, officers and agents from and against all Claims, and for all resulting Losses (including attorney’s fees) that result or arise from Claims, which in whole or in part, pertain to any Publisher Adaptation or arise from Publisher’s Use, reproduction, Distribution or other exploitation of the Products, any breach of Publisher’s representations and warranties or violations of Publisher’s obligations in these Terms of Service. Publisher will pay all amounts agreed to in a monetary settlement of the Claims and all Losses that result or arise from the Claims. Notwithstanding the foregoing, Publisher shall have no duty to indemnify or defend the Company from Claims which primarily allege that Products, as provided to Publisher by the Company and used in accordance with the terms hereof, infringe the copyright, patent or trademark rights of a third party.
Publishers shall keep complete and accurate records of all Use during the Term and for two (2) years thereafter. Company may periodically conduct audits of such Publishers to confirm the accuracy of Fees paid and compliance with the applicable License Scope. Such audits shall be conducted no more than one (1) time per year, by an independent certified public accountant, at the place of business where Publisher customarily keeps such records, during normal business hours, and upon fifteen (15) days’ advance written notice. Company shall bear the full cost of all audits, provided, if an audit reveals that Fees or Overages have been underpaid or the License Scope has been exceeded by at least five percent (5%), Publisher shall, in addition to payment of any underpaid Fees and Overages and any other remedies due under these Terms of Service, reimburse Company for its professional fees and out-of-pocket expenses incurred in conducting such audit.
Publisher acknowledges that it may have access to certain confidential information of the Company, such as information concerning its business, plans, customers, technology and products (“Confidential Information”). Confidential Information will include all information in tangible or intangible form that is marked or designated as confidential or that, under the circumstances of its disclosure, should reasonably be considered confidential. “Confidential Information” shall not include (a) information that becomes known to the general public without breach of the nondisclosure obligations of these Terms of Service; (b) information that is already known to Publisher at the time that it is disclosed to the receiving party; (c) information that is obtained from a third party without breach of a nondisclosure obligation and without restriction on disclosure; and (d) information that has been independently developed by Publisher without reference to any of the disclosing party’s Confidential Information.
Publisher agrees that it will not use Confidential Information in any way for its own account or the account of any third party, except as expressly permitted by, or required to achieve the purposes of, these Terms of Service, nor will it disclose to any third party (except as required by law or its attorneys, accountants and other advisors as reasonably necessary) any of the Confidential Information and it will take reasonable precautions to protect the confidentiality of such information, at least as stringent as it takes to protect its own Confidential Information. Upon termination or expiration of these Terms of Service for any reason or at Company’s request at any time, Publisher will return or destroy, at the Company’s request, all Confidential Information and all documents or media containing any such Confidential Information and any and all copies or extracts thereof.
Company shall be permitted to publicly identify Publisher as a user of the Products, including on Company’s websites and marketing materials. Publisher hereby grants Company a non-exclusive, non-transferable, non-sublicensable, royalty-free license during the Term to use Publisher’s name and marks for this purpose. Company agrees to state on all materials using Publisher’s marks that such marks are property of Publisher and to include the trademark registration symbol if applicable. All goodwill arising out of any use of any of the Publisher’s marks by Company will inure solely to the benefit of Publisher.
Company may display the words “Powered by A-2 Player” and the A-2 Player version number in the menu that appears when an End User right clicks (or other equivalent action) on a video. Publisher is prohibited from disabling this feature unless otherwise provided on an applicable Order Form.
The parties hereto are independent contractors and nothing herein constitutes or creates an employer-employee, agency, joint venture or representative relationship between the parties.
Publisher agrees and certifies that it will not export or re-export, directly or indirectly, the Products contrary to the laws of Germany or any other country from or to which such export or re-export may occur.
If for any reason a court of competent jurisdiction finds any provision of these Terms of Service, or portion thereof, to be unenforceable, that provision of the Terms of Service shall be enforced to the maximum extent permissible so as to effectuate the intent of the parties, and the remainder of these Terms of Service shall continue in full force and effect.
Choice of Law and Jurisdiction
These Terms of Service shall be governed by and construed in accordance with the laws of Germany and specifically excluding from application to this Agreement that law known as the United Nations Convention on Contracts for the International Sale of Goods. Each party irrevocably consents to the exclusive jurisdiction, forum and venue of the Commercial Division of the Court of Berlin over any and all claims, disputes, controversies or disagreements between the parties or any of their respective subsidiaries, affiliates, successors and assigns under or related to these Terms of Service or the subject matter thereof.
Publisher acknowledges and agrees that unauthorized Use of the Products or disclosure of Confidential Information may cause the Company irreparable harm for which its remedies at law may be inadequate. Publisher hereby agrees that the Company will be entitled, in addition to any other remedies available to it at law or in equity, to obtain immediate injunctive relief to prevent such unauthorized actions.
These Terms of Service constitute the entire agreement between the Company and Publisher with respect to the subject matter hereof and supersedes all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. ANY PURCHASE ORDER OR OTHER SIMILAR DOCUMENT PROVIDED BY OR RECEIVED FROM A PARTY SHALL NOT MODIFY THESE TERMS OF SERVICE OR GOVERN PUBLISHER’S USE OF THE PRODUCTS UNLESS EXECUTED BY BOTH PARTIES’ DULY AUTHORIZED REPRESENTATIVES. EACH PARTY REJECTS ANY TERMS CONTAINED IN PURCHASE ORDERS OR SIMILAR DOCUMENTS PROVIDED BY THE OTHER PARTY, AND ANY SUCH TERMS SHALL BE VOID AND HAVE NO LEGAL EFFECT. RESTRICTIVE ENDORSEMENTS OR OTHER STATEMENTS ON CHECKS ACCEPTED BY COMPANY SHALL NOT BE ENFORCEABLE.
The Company may modify the terms of these Terms of Service in its sole discretion and such modifications shall take effect and be binding on Publisher on the earliest date on which they are posted to the Company’s publicly available website or delivered to Publisher via electronic or physical delivery to the last known physical or email address provided to the Company. No one other than the Company has the right to modify these Terms of Service. Notwithstanding the foregoing, no modification or amendment to a mutually ratified Addendum or Order Form shall be effective unless in writing and executed by a duly authorized representative of each party.
Publisher may not assign or transfer this agreement to any third party without the Company’s express written consent. Any other assignment or transfer shall be void and in the event of such unauthorized assignment or transfer the Company may immediately terminate these Terms of Service.
Waiver of Breach
No term or provision of these Terms of Service shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the Company. Any consent by the Company to, or waiver of, a breach by Publisher whether expressed or implied, shall not constitute consent to, waiver of, or excuse for, any other breach or any subsequent breach, except as may be expressly provided by the Company.
Last Revised: August 15, 2020