AUTONETTV SUBSCRIPTION AGREEMENT
This Subscription Agreement is between AutoNetTV Media, Inc. (“AutoNetTV”) and the Client identified in the accompanying Order (“Client”). This Agreement is effective between Client and AutoNetTV as of the date Client accepts this Agreement by signing below (the “Effective Date”). In consideration of the payments and mutual commitments set forth in this Agreement, the parties agree as follows:
(a) “AutoNetTV Programs” means any video, graphic, animation or other content programming provided by AutoNetTV to Client, in any format or through any medium, including any modifications, fixes and updates provided by AutoNetTV to Client. The specific AutoNetTV Programs to which Client is granted a license or access rights are specified in the Order.
(b) “Client Location(s)” means Client’s business address(es) listed above, where use of the AutoNetTV Programs is permitted.
(c) “Order” means the electronic or written document(s) for Client to place orders hereunder for AutoNetTV Programs, Players and/or other products or services of AutoNetTV.
(d) “Player” means a digital media player (set-top box that connects to a TV). Players are required in order to use some AutoNetTV Products.
(e) “Term” means the term of this Agreement, as specified in the Order (for example, month-to-month or a specified term of years). “Term” includes any renewal periods.
2. Grant of Rights and Licenses. Different AutoNetTV Programs include various content and materials, some of which are hosted online by AutoNetTV or its hosting service, and others (such as the Car Care Mobile App and certain content) that may be downloaded, as specified in AutoNetTV’s documentation.
(a) For downloadable AutoNetTV Programs and content, AutoNetTV grants to Client a nontransferable, nonexclusive, limited license to play AutoNetTV Programs and use the downloaded content only at the Client Location(s), only within the AutoNetTV application(s), and only during the Term. However, in the case of the Car Care Mobile App, Client may use such app on Client’s authorized mobile devices at any location, provided that such use is solely for the benefit of the agreed Client Location(s).
(b) For hosted AutoNetTV Programs and content, AutoNetTV grants to Client a non-transferable, non-exclusive right to access and use such hosted materials during the Term, solely for the benefit of the agreed Client Location(s).
(c) Notwithstanding Section 4(a) below, the “Car Care Web” AutoNetTV Product includes certain text articles that Client is hereby granted a license to copy, modify, and insert into Client’s blogs and websites. This license is solely for the Term; upon termination of this Agreement for any reason, Client must delete and remove all of AutoNetTV’s content from its websites, blogs, computer systems and any other places where such content may have been copied and used by Client’s personnel, including any modified versions of such content.
3. AutoNetTV Obligations. AutoNetTV will provide the AutoNetTV Programs to Client for the Term of this Agreement. AutoNetTV shall also provide any services (e.g., implementation or training) agreed upon by the parties in writing. During AutoNetTV’s business hours, AutoNetTV will provide Client with a reasonable amount of telephone and/or web-based technical support services to assist Client in utilizing the AutoNetTV Products and resolve material problems. AutoNetTV
will use reasonable, good faith efforts to correct material errors in the AutoNetTV Products. AutoNetTV reserves the right to update and modify AutoNetTV Products, contents, documentation, and other AutoNetTV materials at any time, in its sole discretion. If AutoNetTV modifies any of its products or materials for its customers generally, it will make such modifications available to Client hereunder. AutoNetTV may modify and update its support and maintenance policies from time to time, in its sole discretion.
4. Client Obligations.
(a) Client will not record, copy, download, save, replicate, modify, edit or change any of the AutoNetTV Programs or their content, except as expressly permitted by AutoNetTV in writing. Client will not show or allow others to show the AutoNetTV Programs at locations other than the specified Client Location(s). In particular, AutoNetTV’s videos, images and audiovisual content may not be copied or used except with the AutoNetTV Program and only at the authorized Client Location. Client may not reverse engineer or decompile any software component of the AutoNetTV Products.
(b) Client is responsible for its employees’ and personnel’s compliance with the restrictions and terms in this Agreement.
(c) Client understands that the AutoNetTV Players are not compatible with RCA or Insignia-branded televisions.
(a) As between the parties, AutoNetTV owns all rights, title and interest in the AutoNetTV Programs, their contents, and other materials provided by AutoNetTV to Client, including all related copyrights, patents, trademarks, trade secrets and other intellectual property rights, will at all times remain in AutoNetTV, subject to the rights and licenses given to Client in this Agreement. This Agreement does not change AutoNetTV’s sole ownership of any pre- existing software or other content or materials. Some content or software in the AutoNetTV Programs may be owned by third parties and licensed to AutoNetTV to make available to its clients. Any rights not expressly granted herein are
reserved by AutoNetTV. All software is licensed or provided on a subscription service basis, not sold, to Client. Client shall not remove any trademark, copyright or other proprietary rights notices from any copies of the AutoNetTV Products or other AutoNetTV materials on which they appear. AutoNetTV reserves all rights not specifically granted in this Agreement.
(b) AutoNetTV shall have a royalty-free, worldwide, irrevocable, perpetual license to use all suggestions, enhancement requests, complaints and other feedback from Client and its users, and incorporate such feedback into AutoNetTV’s software, products and services. AutoNetTV shall exclusively own all right, title and interest in and to any software and intellectual property developed or delivered to Client in the performance of this Agreement, regardless of whether it is based on or incorporates any feedback.
(c) Client retains sole ownership of all of its proprietary content and materials that it may provide to AutoNetTV in connection with this Agreement. Client consents to AutoNetTV providing Client’s and its users’ testimonials and other response information to AutoNetTV’s business partners and associates. AutoNetTV may also share Client’s basic contact information with other potential clients or business partners, such as suppliers of media content. The AutoNetTV Products track metadata and other usage data related to Client’s and use of the AutoNetTV Products and subscription service (“Usage Data”) and provides such data to AutoNetTV. AutoNetTV shall own such Usage Data
and may use and disclose it for any legal purposes. AutoNetTV may aggregate such data by market area for statistical reporting. Client agrees that AutoNetTV shall have the perpetual right to collect, aggregate, use, distribute and sell such Usage Data for any legal purpose, including without limitation for the purposes of providing services and improving the AutoNetTV Products and its services. AutoNetTV may retain and use Usage Data permanently.
(a) Client agrees to pay all monthly fee amounts and terms are to be directed by and subject to the terms of a separate Purchase Order or Statement of Work agreement by and between AutoNetTV and Nissan North America for making payments on behalf of Client.
7. Term and Termination.
(a) Term. This Agreement begins on the Effective Date and will continue for the Term specified in the Order. If the Term is for a specified period of months or years, and if 30 days’ prior written notice of termination is not given by either party before the end of such period, this Agreement will continue automatically on a month-to-month basis at AutoNetTV’s then-current Content Usage rates or as otherwise agreed in writing by the parties, subject to termination as set forth below. All of Client’s rights and licenses to the AutoNetTV Programs and their contents are limited to the T erm.
(b) Termination of Service.
(i) If the Term is month-to-month, Client may terminate this Agreement at any time, with or without cause, upon 30 days’ prior written notice to AutoNetTV.
(ii) If the Term is for a specified period of months or years, Client may terminate this Agreement upon 30 days’ notice to AutoNetTV prior to the end of such Term or any renewal term. Additionally, Client may terminate at any time due to a material breach of this Agreement by AutoNetTV, subject to 30 days’ prior written notice of the breach and opportunity to cure the breach.
(iii) If the Term is for a specified period of months or years, AutoNetTV may terminate this Agreement (1) upon 30 days’ notice to AutoNetTV prior to the end of such Term, or (2) at any time during such Term, upon written notice, if Client materially breaches this Agreement. Otherwise AutoNetTV reserves the right to
terminate this Agreement at any time in its sole and absolute discretion, upon notice to Client, including any during any month-to-month renewal terms. AutoNetTV will incur no penalties for early termination or cancellation of this Agreement.
(c) Effect of Termination. Termination shall not affect any obligations of Client to pay any amounts due and owing at the time of termination. No refunds or credits will be provided by AutoNetTV for early termination or for a partial month of service. Upon termination of this Agreement, upon AutoNetTV’s request, Client agrees to return any Player(s) to AutoNetTV for the purpose of removing all proprietary content from the Player(s). Upon its completion of removal of proprietary content, AutoNetTV will return the Player(s) to the Client if Client so requests and pays for return postage. If Client fails to return any Player within 30 days of AutoNetTV’s request, a $150 fee may be assessed to Client’s account for each Player not returned. Client will promptly return to AutoNetTV all Confidential Information and proprietary information of AutoNetTV and delete any copies of such information or materials from its systems and files. Sections 4, 5, 6(a)(ii), 7(c), 8(c), 9, 10, and 11 will survive termination of this Agreement.
8. Limited Warranty:
(a) If Client has obtained a Player from AutoNetTV, AutoNetTV provides the following limited warranty for the Player. During the warranty period, which is the entire duration Client maintains a subscription for a product that requires the usage of a Player, AutoNetTV will repair or replace the Player or parts thereof that prove to be defective because of improper material or workmanship, under normal operating conditions and usage. Any repaired or replacement Player is warranted under these same terms.
(i) To obtain warranty service, Client must first contact AutoNetTV to determine the problem and the most appropriate solution to remedy any device malfunction. Client must report any warranty-covered defects to AutoNetTV before the end of the warranty period. If AutoNetTV requests that Client return the Player, Client must
do so within 30 days. The Player must not have been altered or repaired by anyone except persons specifically authorized by AutoNetTV.
(ii) This limited warranty covers only defects in material and workmanship in the Product as delivered by AutoNetTV, and that occur under normal usage conditions. It does not cover any defects or problems caused by:
• improper handling, storage, installation or operation (other than by AutoNetTV).
• accidents, acts of nature, negligence, or the actions of any person other than AutoNetTV and its
(b) Except as otherwise expressly set forth in this section, all AutoNetTV Products are provided to Client on an “AS IS” basis. AutoNetTV makes no other representations or warranties of any kind, express or implied, with respect to its products or services, including any implied warranties of merchantability, non-infringement or fitness for a particular purpose.
9. Limitation of Liability. IN NO EVENT SHALL AUTONETTV BE LIABLE FOR, AND CLIENT COVENANTS NOT TO BRING ANY CLAIM FOR, ANY SPECIAL, CONSEQUENTIAL, INDIRECT, OR PUNITIVE DAMAGES (INCLUDING LOST DATA, LOST BUSINESS OR PROFITS, AND INTERRUPTION OF BUSINESS), WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE. THE TOTAL CUMULATIVE LIABILITY OF AUTONETTV FOR ANY CLAIMS
ARISING OUT OF THIS AGREEMENT (INCLUDING WITH RESPECT TO PRODUCTS SOLD HEREUNDER) IS LIMITED TO THE TOTAL AMOUNTS PAID BY CLIENT TO AUTONETTV DURING THE PRIOR ONE MONTH PERIOD.
10. Confidential Information. Client shall keep confidential all non-public information provided to Client by AutoNetTV
(“Confidential Information”), including the substantive terms of this Agreement, sales and marketing plans and strategies, future product plans, price lists, financial and business information, trade secrets, etc. Client shall not use such Confidential Information for any purpose other than the authorized purposes of this Agreement. Client may disclose Confidential Information only to its employees who need to know such information, and who are bound to keep such information confidential. Client shall give such Confidential Information at least the same level of protection as it gives its own confidential information of similar nature, but not less than a reasonable level of protection.
(a) This Agreement contains the entire agreement of the parties with respect to its subject matter and supersedes any prior agreements or understandings, whether oral, written or implied. No term of this Agreement may be amended or waived unless in a written document signed by both parties.
(b) Client may not assign this Agreement or any of Client’s rights or obligations under this Agreement without prior written consent of AutoNetTV.
(c) Any notice under this Agreement shall be given to the other party in writing by certified or registered mail, confirmed email, personal delivery, or commercial express delivery service. Notices will be sent to the party’s address set forth below (or such other address as a party may notify the other of in writing).
(d) This Agreement shall be governed by Utah law, excluding conflicts of laws provisions. Utah state and federal courts shall have exclusive jurisdiction in any legal action arising out of this Agreement. The parties agree to submit to personal jurisdiction of such courts and waive any objection as to venue in the State of Utah. If action is necessary to enforce the terms of this Agreement, the prevailing party shall be entitled to recover reasonable costs and attorneys’ fees, whether or not any suit is filed.
(e) If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, such provision shall be modified by such court to the minimum extent necessary to make it valid and enforceable. If the provision cannot be so modified, it shall be severed, and the remainder of this Agreement shall remain in full force and effect.
(f) Any press releases or other public statements regarding this Agreement may be made only with the other party’s consent, which shall not be unreasonably withheld, except that a party may make public disclosures to the extent required by law, and AutoNetTV is permitted to include Client’s name on customer lists that may be posted on AutoNetTV’s website or provided to potential customers and other third parties.
(g) A party shall be excused from delays or failure to perform its duties, other than payment obligations, to the extent such delays or failures result from acts of nature, riots, war, acts of public enemies, fires, epidemics, labor disputes, or any other causes beyond its reasonable control. The parties will promptly inform and consult with each other as to any of the above causes that in their judgment may or could be the cause of a substantial delay in the performance of this Agreement.
(h) Client agrees that if it draws, types or attaches their signature or any other text, symbol or image in a box or space associated with an Order or any other terms and conditions related to this Agreement, Client is agreeing to be legally bound by such terms and conditions. Client agrees that such action constitutes an “Electronic Signature,” which shall have the same force and effect as an original signature. No third party certification or verification is necessary to validate an Electronic Signature.
**THIS AGREEMENT AND ALL OF ITS CONTENTS ARE CONFIDENTIAL AND ARE INTENDED FOR THE RECEIVING PARTY ONLY**
BY AGREEING, I ATTEST THAT I AM AUTHORIZED TO BIND CLIENT LEGALLY AND FINANCIALLY