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Switcher, Inc.
Terms and Conditions for Remote Production Services

Last updated September 29, 2020

Please read these Terms and Conditions for Remote Production Services (the “Customer Terms”) carefully. By purchasing the Remote Production Services or otherwise accepting the Customer Terms, you and the entity on whose behalf you are entering into the Customer Terms (“Customer”) agrees to be bound by the Customer Terms. If you are accepting these Customer Terms on behalf of an entity, you represent that you are authorized to bind the entity to the Customer Terms.

 

1. Remote Production Services.

1.1    Services.

Switcher, Inc. (“Switcher”) will provide live remote video production services to Customer as described in the Customer Terms and all applicable Orders (“Remote Production Services”). Switcher’s performance of the Remote Production Services is contingent on Customer having an active, paid subscription to Switcher’s Plus Plan online video production platform accessible through https://www.switcherstudio.com/ (“Switcher Platform”). The Remote Production Services will consist of Switcher: (a) producing, directing, and editing live video content (“Video Content”) taken at events identified by Customer (“Live Events”); (b) streaming the Video Content to Customer’s social media or other properties (“Streaming Platforms”); (c) providing other video-creation services, including video production consulting services, as mutually agreed by the parties; and (d) other services mutually agreed-upon by the parties in writing. Switcher will perform all Remote Production Services using the Switcher Platform.

1.2    Orders.

Customer will purchase Remote Production Services in tiers/packages identified in the order submitted by the Customer through Switcher’s ordering process (“Order”). Each Order will identify the total runtime of Video Content with respect to which Switcher will be performing Remote Production Services (“Runtime”), the period of time that Customer has to request that Switcher perform the Remote Production Services (“Subscription Term”), the maximum number of Customer-provided assets that Switcher will include in the Video Content, and the maximum number of concurrent guests that can be included in Video Content. The Subscription Term will measured from the date that Customer has paid all fees for the Remote Production Services. Runtime is measured on a per-broadcast basis and rounded up to the nearest hour (e.g., a 45 minute broadcast will count as an hour against a customer’s purchased Runtime). Customer may purchase additional Runtime at a per-hour rate identified by Switcher to Customer. Customer can check the remaining Runtime and Subscription Term associated with its account by contacting Switcher.

1.3    Events; Assets.

    1. Customer must notify Switcher in writing at least ten (10) business days in advance of any Live Event for which Customer would like Switcher to perform Remote Production Services. Customer will provide the date, time, and anticipated length of each such Live Event, as a well as any other details reasonably requested by Switcher. Switcher will promptly notify Customer if it is available to perform the Remote Production Services for such event; provided however, Switcher will have no obligation to perform Remote Production Services for such Live Event if Switcher’s resources are otherwise allocated for the time of such Live Event or if the Live Event will take place during a national or Federal holiday in the United States. 
    2. All logos, photos, videos, text, titles, descriptions, or other assets (“Assets”) that Customer would like included in the Video Content must be provided by Customer to Switcher at least seventy-two (72) hour prior to the applicable Live Event. Switcher will include no more than five hundred (500) Assets in Video Content per Live Event.

1.4    Customer’s Responsibilities.

Customer is responsible for providing Switcher with all login and administrative information necessary for Switcher access to Customer’s designated Streaming Platforms in order to stream the Video Content. Customer is also responsible for setting up and managing its third party RTMP-capable service, if applicable, and Customer will provide to Switcher all necessary credentials in order for Switcher to use the RTMP-capable service as the streaming destination for the Video Content. For the avoidance of doubt, Switcher will have no responsibility for setting or managing the RTMP-capable service on Customer’s behalf. Customer must identify to Switcher all requirements, including industry requirements, that Switcher must comply with in connection with performing the Remote Production Services for the Live Event, and Switcher will have no obligation to comply with any requirement that imposes an unreasonable burden on Switcher, as determined by Switcher in its reasonable discretion.

1.5    Video Content Backup.

Switcher will make available to Customer a copy of the Video Content recorded pursuant to the Remote Production for at least seven (7) days after Switcher has finished performing the Remote Production Services for such Video Content. After such seven-day period, Switcher will have no obligation to make a copy of Video Content available to Customer. All Video Content will be made available to Customer in .MOV format, or such other format as mutually agreed upon by the parties.

1.6    Compliance Requirements.

Customer is solely responsible for obtaining for Switcher all required consents, permissions, and authorizations necessary for Switcher and its employees, contractors, and agents to perform the Remote Production Services, including all necessary consents for individuals appearing in the Video Content, authorizations to use the Assets, as well as all permissions to access and use Customer’s selected Streaming Platforms and any applicable third party services that Customer directs Switcher to use in connection with performance of the Remote Production Services.

1.7    Subcontracting.

Switcher may subcontract or otherwise delegate performance of its obligations under the Customer Terms or the Order without Customer’s approval, in which case Switcher will be liable for the acts and omissions of such persons that, if performed by Switcher, would constitute a breach of the Customer Terms or the Order.

 

2. Fees.

2.1    Fees.

Customer shall pay to Switcher all fees set forth in the Order before Switcher will have any obligations under the Customer Terms, including any obligations to perform Remote Production Services. Any additional payments (e.g., purchase of additional Runtime hours) will be administered through Switcher’s designated ordering mechanism, and Switcher shall have no obligation perform any such services or deliver any such products until all amounts associated therewith have been paid to Switcher in full. Fees paid by Customer are non-refundable.

 

3. Term; Termination.

3.1    Term.

The Customer Terms will commence on the date that an Order has been placed by Customer and, if not terminated sooner in accordance with the terms of the Customer Terms, will automatically terminate at the conclusion of the Subscription Term.

3.2    Termination

Switcher may immediately terminate the Customer Terms upon written notice to Customer if (a) Customer fails to pay any amounts due under the Customer Terms and fails to remedy such failure within thirty (30) days of Switcher delivering notice of such failure to Customer, or (b) Customer becomes insolvent or files for bankruptcy. Customer may immediately terminate the Customer Terms upon written notice to Switcher if (i) Switcher fails to meet deadlines for performance of the Remote Production Services and does not remedy such failure within thirty (30) days of Customer delivering notice of such failure to Switcher, or (ii) Switcher becomes insolvent or files for bankruptcy.

3.3    Effect of Termination

Neither party shall be liable to the other party for damages of any kind solely as a result of terminating the Customer Terms. The following Sections shall survive (in accordance with their terms, to the extent applicable) any expiration or termination of the Customer Term: 3.3, 4, 5, 6.2, 7, 8, and 9.

 

4. Ownerships and Proprietary Rights.

4.1    Ownership of Work.

As between Switcher and Customer, Customer will own all right, title, and interest in and to the Video Content created by Switcher in performance of the Services. Customer hereby grants to Switcher a non-exclusive, sublicensable, royalty-free license to distribute and use the Video Content and all assets provided by Customer to Switcher under the Customer Terms (including all trademarks and logos), in each case in connection with Switcher’s performance of the Services.

 

5. Confidentiality.

5.1    Confidential Information.

Confidential Information” means: (i) all data, information, or material that a party (“Discloser”) or any of its representatives has disclosed or otherwise made available to the other party (“Recipient”) or any of its representatives, or which Recipient has observed or otherwise obtained from Discloser, whether made available orally, in writing or in electronic format, provided that such information, data, or materials: (a) is marked as “proprietary” or “confidential” at the time of disclosure; or (b) if disclosed in a form not susceptible to marking, is described and designated as “proprietary” or “confidential” in a writing provided to Recipient within thirty (30) days of such disclosure; or (c) should reasonably be deemed confidential under the circumstances; and (d) any copies, extracts, portions, and derivatives of any of the foregoing. Notwithstanding the foregoing, “Confidential Information” does not include any data, information or material that: (1) is or becomes publicly known through no wrongful act or omission of Recipient (or any third party acting for Recipient); (2) was rightfully known by Recipient before receipt from Discloser; (3) becomes rightfully known to Recipient without confidential or proprietary restriction from a source other than Discloser that does not owe a duty of confidentiality to Discloser with respect to such Confidential Information; or (4) is independently developed by Recipient without the use of or reference to the Confidential Information of Discloser.

5.2    Restrictions on Use and Disclosure.

Recipient shall not use any Confidential Information of Discloser for any purpose other than as required to exercise its rights and perform its obligations under the Customer Terms (the “Purpose”). Except to the extent expressly permitted by the Customer Terms or by Discloser in writing, Recipient shall hold all Confidential Information of Discloser in strict confidence and shall not publish, disseminate or otherwise disclose, or permit or facilitate the disclosure of, any Confidential Information to any third party. Recipient may disclose the Confidential Information only to its employees, officers, agents, and representatives who have a need to know such Confidential Information to carry out the Purpose and are bound in writing by restrictions regarding use and disclosure of such Confidential Information comparable to, and in no event less restrictive than, those set forth in the Customer Terms. Recipient shall be responsible for all acts and omissions by its employees, officers, agents, and representatives as if such acts or omissions were acts or omissions of Recipient. Any copy, extract, portion, or derivative of any Confidential Information of Discloser shall be identified by Recipient as belonging to Discloser and prominently marked “Confidential.”

5.3    Compelled Disclosure.

The Customer Terms shall not prevent Recipient from disclosing Confidential Information of Discloser to the extent required by a governmental authority, provided that, in such event and to the extent permitted by applicable laws, Recipient shall promptly notify Discloser to allow intervention (and shall cooperate with Discloser) to contest or minimize the scope of the disclosure (including application for a protective order to the extent permitted by applicable laws). Recipient shall advise Discloser in writing of any misappropriation or misuse of Confidential Information of Discloser of which Recipient becomes aware.

 

6. Competent Work.

6.1

All Remote Production Services will be performed by Switcher in a competent fashion in accordance with applicable standards of the profession.

6.2

EXCEPT AS EXPRESSLY PROVIDED IN THE CUSTOMER TERMS, ALL VIDEO CONTENT AND RESULTS OF ANY REMOTE PRODUCTION SERVICES ARE PROVIDED “AS IS” AND SWITCHER DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, RELATING THERETO INCLUDING: (a) ANY IMPLIED WARRANTIES OF ACCURACY, TITLE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE; (b) ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE; AND (c) ANY WARRANTIES REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE VIDEO CONTENT OR THE RESULTS OF ANY SERVICES. UNDER NO CIRCUMSTANCES WILL SWITCHER HAVE ANY RESPONSIBILITY OR LIABILITY FOR ANY ACTIONS OR OMISSIONS OF A STREAMING PLATFORM, ANY CONFIGURATION IMPLEMENTED BY CUSTOMER IN CONNECTION WITH CUSTOMER’S STREAMING PLATFORM ACCOUNT, ANY FAILURE OF A STREAMING PLATFORM TO PROPERLY FUNCTION, OR ANY HARM CAUSED AS A RESULT OF SUCH ACTIONS, OMISSIONS, MISCONFIGURATIONS, OR FAILURES.

 

7. Indemnity.

7.1

Customer will indemnify, defend, and hold harmless Switcher and its officers, directors, agents, representatives, contractors, and employees from and against any and all any loss, cost, expense (including attorney’s fees), damage or liability resulting from any suit, claim, demand, investigation, proceeding, cause of action or action brought or threatened by any third party arising out of: (a) the events captured in the Video Content; (b) Switcher’s use or distribution of any Assets provided by Customer to Switcher; (c) Switcher’s access to any Streaming Platforms or third-party services as directed by Customer in connection with the Customer Terms; (d) any breach or alleged breach of the Customer Terms by Customer; (e) any violation by Customer of any applicable laws (including national, international, federal, provincial, state, or common laws) or regulations concerning publicity, data security, or privacy; or (f) any violation industry compliance regulations or broadcast rights in connection with Switcher’s performance of the Services.

 

8. Limitation of Liability.

8.1

IN NO EVENT WILL SWITCHER OR ITS AFFILIATES BE LIABLE TO CUSTOMER FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH THE CUSTOMER TERMS OR THE REMOTE PRODUCTION SERVICES, EVEN IF SWITCHER OR ITS AFFILIATES HAD BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.

8.2

IN NO EVENT WILL SWITCHER’S AND ITS AFFILIATES AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THE CUSTOMER TERMS AND THE REMOTE PRODUCTION SERVICES (REGARDLESS OF THE FORM OF ACTION GIVING RISE TO SUCH LIABILITY, WHETHER IN CONTRACT, TORT OR OTHERWISE) EXCEED THE AMOUNTS PAID TO SWITCHER UNDER THE CUSTOMER TERMS.

 

9. Miscellaneous.

9.1    Independent Contractor.

Nothing contained herein or any document executed in connection herewith, shall be construed to create an employer employee partnership or joint venture relationship between Customer and Switcher. Switcher is an independent contractor and not an employee of Customer or any of its subsidiaries or affiliates. The consideration set forth in Section 2.1 shall be the sole consideration due Switcher for the services rendered hereunder.

9.2    Choice of Law and Venue.

The Customer Terms will be governed by and construed in accordance with the internal laws of the Commonwealth of Kentucky without giving effect to any choice of law rule that would cause the application of the laws of any other jurisdiction. Each party (a) hereby irrevocably submits itself and consents to the exclusive jurisdiction of the federal and state courts located in Louisville, Kentucky in connection with any controversy, claim, or dispute arising out of or relating to the Customer Terms; and (b) hereby waives any and all objections to venue in those courts. Any applicable state law implementation of the Uniform Computer Information Transactions Act (including any available remedies or laws) shall not apply to the Customer Terms and is hereby disclaimed.

9.3    Force Majeure.

Switcher will not be liable to Customer for any failure to perform under the Customer Terms if said failure results, directly or indirectly, from causes beyond its reasonable control, including acts of God, civil or military authority, acts of the public enemy, war, riots, civil disturbances, insurrections, explosions, fires, earthquakes, floods, epidemics, or acts of government, its agencies, or officers.

9.4    Notices.

Any notice, request, demand, or other communication required or permitted hereunder will be in writing, will reference the Customer Term and will be deemed to be properly given: (a) when delivered by e-mail; (b) seven (7) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (c) two (2) business days after deposit with a private industry express courier, with written confirmation of receipt. Notices to Switcher will be sent to our contact address listed in our website. Notices to you will be sent to the address associated with your Order or account.

9.5    Severability.

In case any one or more of the provisions contained in the Customer Terms shall be held invalid, illegal, or unenforceable in any respect, such provision(s), to the extent held to be invalid or unenforceable, shall be stricken and the validity, legality, and enforceability or the remaining provisions contained in the Customer Terms shall not in any way be affected or impaired thereby. However, in the event any such provision or portion thereof shall be held invalid, illegal, or unenforceable due to its scope, breadth, or duration, then it shall be modified to the scope, breadth, or duration permitted by law and shall continue to be fully legal, valid, and enforceable to the extent so modified.

9.6    Assignment; Successors and Assigns; Third Party Beneficiaries.

Customer shall not assign the Customer Terms, or any of its rights or obligations hereunder, without Customer’s prior written consent, and any assignment in violation of the foregoing shall be null and void. Subject to the foregoing, the Customer Terms shall be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns. There are no third-party beneficiaries to the Customer Terms.

9.7    Entire Agreement.

The Customer Terms constitute the entire agreement between the parties with respect to the subject matter thereof and supersedes all prior agreements, representations, and understandings between the parties, written, oral, or otherwise, with respect to such subject matter. Nothing in these Customer Terms will supersede any terms applicable to the Switch Platform for Switcher’s mobile application.