The following capitalized terms shall have the meaning set forth below. Other defined terms shall have the meanings set forth where they are first underlined.
“Aggregated Data”. Digital Theatre may combine the Metadata with other similar data and use such combined data to create Aggregated Data in accordance with the license grant set forth in Section 2.1.
“Authorized User” means any of your current students, employees, consultants, or agents whom you authorize to access and use the Platform pursuant to this Agreement; provided, however, that any consultants’ or agents’ access and use of the Platform shall be limited to their provision of services to you. You are responsible for the acts and omissions of your Authorized Users and any other person who accesses and uses the Platform using any of your access credentials, and all obligations of yours under this Agreement shall apply fully to any such Authorized User or other person as if they were “You” under this Agreement.
“Business Day” means a day (other than a Saturday or Sunday) on which banks in The City of New York are open for general business.
“Content” means the collection of text, graphics, still pictures, video and/or audio material, software, database content and other information, data and materials created and compiled by Digital Theatre and made available for distribution by Digital Theatre to You and Authorized Users via the Platform as part of the Services.
“Documentation” means any part of the Content that is downloadable as a PDF by You and made available via the Platform for Educational Purposes. For the avoidance of doubt, this excludes all video and/or audio material.
“Destructive Elements” means computer code, programs, or programming devices that are intentionally designed to disrupt, modify, access, delete, damage, deactivate, disable, harm, or otherwise impede in any manner, including aesthetic disruptions or distortions, the operation of the Platform or any other associated software, firmware, hardware, computer system, or network (including, without limitation, “Trojan horses,” “viruses,” “worms,” “time bombs,” “time locks,” “devices,” “traps,” “access codes,” or “drop dead” or “trap door” devices) or any other harmful, malicious, or hidden procedures, routines or mechanisms that would cause the Platform to cease functioning or to damage or corrupt data, storage media, programs, equipment, or communications, or otherwise interfere with operations.
“Educational Purpose” means use for the purpose of education, teaching, private study and/or research.
“Extracted Data” means any data that You or Authorized Users enable Digital Theatre to access and extract from Your Systems to the Platform.
“Initial Subscription Term” means the initial period when Digital Theatre will provide You the Services, as set forth on the Order Form.
“Metadata” means information about one or more aspects of the data, such as the: (a) mode and/or method of creation; (b) purpose; (c) time and/or date of creation; (d) creator or author; (e) standards used and/or (e) location where the data was created.
“Normal Business Hours” means 9am to 5pm GMT, each Business Day.
“Open-Source Software” means individual software components that are provided with the Service, for which the source code is made generally available, and that are licensed under the terms of various published open-source software license agreements or copyright notices accompanying such software components.
“Order Form” means the order form signed by You and accepted by Digital Theatre during the subscription registration process or after registration setting forth the Service, the Account Parameters, and the applicable Subscription Fees, and pursuant to which You may order Services from Digital Theatre.
“Platform” means Digital Theatre’s proprietary, cloud-based platform where the Services are hosted and provided to You for distribution to Authorized Users, including, https://edu.digitaltheatreplus.com, https://auth.digitaltheatreplus.com, https://search.digitaltheatreplus.com, https://marc.digitaltheatreplus.com and https://support.digitaltheatreplus.com or any other hosted service that Digital Theatre makes available to You from time to time at its sole discretion.
“Prohibited Content” means content that: (a) is illegal under applicable law; (b) violates any third party’s intellectual property rights, including, without limitation, copyrights, trademarks, patents, and trade secrets; (c) contains indecent or obscene material; (d) contains libelous, slanderous, or defamatory material, or material constituting an invasion of privacy or misappropriation of publicity rights; (e) promotes unlawful or illegal goods, services, or activities; (f) contains false, misleading, or deceptive statements, depictions, or sales practices; (g) contains Destructive Elements; or (h) is otherwise objectionable to Digital Theatre in its sole, but reasonable, discretion.
“Renewal Subscription Terms” means any renewal periods after the Initial Subscription Term during which Digital Theatre will provide You the Services.
“Sensitive Personal Information” means the following types of data in respect of Authorized Users: (a) full name, maiden name, mother’s maiden name or alias; (b) street address; (c) personal telephone numbers or online contact information; (d) financial information which is personally identifiable or otherwise as defined by and subject to the Gramm-Leach-Bliley Financial Modernization Act of 1999 (“GLBA”); (e) country identification numbers, (including, without limitation, Social Insurance Number, Social Security Number, or other governmentally-issued identification number such as driver’s license or passport number); (f) personal data on a minor under the age of eighteen (18) that would be subject to the Children Online Privacy Protection Act (“COPPA”) without parental or legal guardian consent; (g) education records, as defined under the Family Educational Rights and Privacy Act 1974 (“FERPA”) without the consent of an Authorized User; or a parent or legal guardian if the record relates to a minor under the age of eighteen (18); (h) any protected health information subject to the Health Insurance Portability and Accountability Act (“HIPPA”); (i) retina scans; (j) voice signatures; (k) facial geometry; (l) photographic images; (m) fingerprints or handwriting; (n) special categories of personal data identified in Article 9 of the General Data Protection Regulation (EU) 2016/679 (“GDPR”); and (o) personal data relating to criminal convictions and offences.
“Services” means Digital Theatre’s provision to You of access to and use of the Platform and Content for distribution to Authorized Users as set forth in this Agreement (or any other hosted service, technology, or application that Digital Theatre makes available to You from time to time at its sole discretion).
“Subscription Fees” means the fees for the Services set forth on the Order Form.
“Subscription Term” means the Initial Subscription Term, and any Renewal Subscription Terms, collectively.
“Your Data” means collectively, the Extracted Data, and any other data imputed by You, Authorized Users, or Digital Theatre on Your behalf for the purpose of using the Services or facilitating Your use of the Services and any data generated by, or derived from Your use of the Services, whether hosted or stored on the Platform or elsewhere.
“Your Systems” means the systems and equipment owned or controlled by You or Your third-party hosting providers, which shall host the Extracted Data after it is extracted via the Platform.
2. License; Restrictions; Permitted Use
2.1. License Grants. Subject to the terms and conditions of this Agreement, including the payment of all applicable Subscription Fees, Digital Theatre hereby grants to You, solely for Your internal educational operations, a limited, non-exclusive, non-transferable, non-sublicensable, non-assignable, revocable, right and license during the Subscription Term to: (a) access and use the Platform, the Content, and the Services; and (b) permit Authorized Users to use the Platform and the Content.
2.2 Reservation of Rights; Restrictions. Digital Theatre owns all right title and interest in and to the Platform, the Content, and the Services (for purposes of this Section 2.2 only, collectively the “Digital Theatre Products”), and any derivative works thereof, and no other license is granted to You by implication, estoppel or otherwise. You agree not to (and will not authorize, permit, or encourage any third party to): (a) use Digital Theatre Products than for the licensed purposes; (b) allow anyone other than Authorized Users to access and use the Digital Theatre Products; (c) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Platform and the Content; (d) modify or adapt the Digital Theatre Products; (e) make any copies of the Digital Theatre Products; (f) transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer the Digital Theatre Products in whole or in part to any third party (unless otherwise expressly agreed between the Parties on an applicable Order Form); (g) alter or remove any proprietary notices in the Digital Theatre Products; (h) use the Digital Theatre Products in violation of any applicable law, rule or regulation, in order to build a competitive product or service, or for any purpose not specifically permitted in this Agreement; (i) introduce, post, upload, transmit, or otherwise make available to or from the Digital Theatre Products any Prohibited Content; (j) prepare derivative works from, modify, copy or use the Digital Theatre Products in any manner except as expressly permitted in this Agreement.
2.3 Permitted Use: You. Digital Theatre will permit You, for Educational Purposes only, to; display, download and print copies of Documentation and to distribute such Documentation to Authorized Users provided it is either duplicated in full, or a proper ownership acknowledgement is included.
2.4 Permitted Use: Authorized User Digital Theatre will permit Authorized Users, for Educational Purposes only, and provided proper ownership acknowledgement is always included, to; (a) modify the Metadata and create new Metadata; (b) if applicable, mount and use Metadata in bespoke and publicly available library systems to manage library operations or (c) if applicable, mount and use Metadata in bespoke and publicly available catalogs via machine-readable cataloging (also known as “MARC”) records (d) electronically save and print single copies of Documentation; (e) incorporate Documentation in printed and electronic course packs to be used in the course of instruction and/or in virtual learning environments hosted securely and only accessible by other Authorized Users; (f) incorporate Documentation, in printed or electronic form, in assignments, portfolios, theses and/or dissertations (“Academic Works”), and to make reproductions of the Academic Works for personal use and library deposit; (g) use the Content to perform and engage in text mining/data mining activities.
3. Account Access
3.1 Onboarding of Authorized Users. As agreed between the Parties in advance of the Effective Date, Authorized Users will authenticate using either: (a) SAML 2 Single Sign On (“SSO”) or (b) IP Authentication. When signing in for the first time, Authorized Users may be prompted to provide certain information that will assist in tailoring the Platform and/or Services to Authorized User’s needs. Each Authorized User authenticating by SSO shall be identified by an email address (“Email Address”). Each Authorized User authenticating by IP authentication will be identified by the IP address received by the Platform matching a valid Classless Inter-Domain Routing (“CIDR”) identifier. You shall be responsible for identifying and authenticating all Authorized Users, for approving access by such Authorized Users to the Services, for controlling against unauthorized access by such Authorized Users, and (if applicable) for maintaining the confidentiality and use of an Authorized Users’ Email Address, as well as for any use, misuse, or communications entered through the Platform. Digital Theatre is not liable for any harm caused by Authorized Users, including individuals who were not Authorized to have access to the Services. You shall be responsible for all activities that occur under Your account or as a result of Your or Authorized Users’ access to the Services. You will promptly inform Digital Theatre of any need to deactivate a username or password or change any Email Address. Digital Theatre reserves the right to delete or change an Email Address at any time and for any reason.
3.2 Age Restriction. For the avoidance of doubt, Authorized Users who are under eighteen (18) years of age (or under the applicable age of majority in their state or territory of residence), may only access the Services with the consent of a parent or guardian, including consent to this Agreement, on such Authorized Users behalf. If You onboard an Authorized User that is under the age of eighteen (18), it is Your responsibility to obtain any parental or guardian consents required under applicable law. Digital Theatre has no direct contact with an Authorized User’s parent or guardian.
3.3 Account Parameters and Maintenance. During the Subscription Term, Digital Theatre will provide You the Services subject to the terms and conditions of this Agreement, including, without limitation, the parameters within which You and Authorized Users may access and use the Platform, as set forth on the Order Form (“Account Parameters”). Digital Theatre shall make the Services available twenty-four (24) hours a day, seven (7) days a week except for unscheduled maintenance performed outside of Normal Business Hours, provided that Digital Theatre has used reasonable endeavors to give You at least two (2) Business Days’ notice in advance.
3.4 Compliance. Digital Theatre has the right to monitor Your compliance with the applicable Account Parameters and the other provisions of this Agreement. If any such monitoring reveals that You have exceeded any Account Parameters or other usage limitations or otherwise are not using the Services, the Content, or the Platform in compliance with this Agreement, then You will remedy any such non-compliance within five (5) Business Days of receiving notice from Digital Theatre. Any failure to remedy such non-compliance will be deemed a material breach of this Agreement.
3.5 Digital Theatre Modifications. Digital Theatre shall be entitled to remove Content with or without notice, and any replacement Content shall then be deemed to form part of the Services. If any such removal results in a reduction of more than thirty per-cent (30%) of the Content, measured as of the Effective Date, You may terminate this Agreement within ten (10) Business Days after such reduction, by providing Digital Theatre with one (1) month’s written notice, and Digital Theatre shall promptly refund You the pro-rata portion of the Subscription Fee paid by You for the remaining part of the Subscription Term.
4.1 Ownership of Intellectual Property. Except as otherwise provided in this Agreement, all right, title, and interest in and to the Services, the Platform, the Content, and the Aggregate Data, including without limitation, all modifications, improvements, adaptations, enhancements, or translations made thereto, and all intellectual property rights therein, shall be and remain the sole and exclusive property of Digital Theatre or its licensors. To the extent, if any, that this Agreement does not provide Digital Theatre with full ownership, right, title and interest in and to the Aggregated Data, You hereby irrevocably transfer, convey, and assign to Digital Theatre (with full warranty of title and free from all encumbrances) any and all of Your interest in and right and title to the Aggregated Data and all related intellectual property rights contained therein and related thereto, including without limitation, all right to and interest in all causes of action throughout the world, either in law or in equity for past, present, or future infringement based on the intellectual property rights.
4.2 Ownership of Your Data. Except as provided in Section 8.5 of this Agreement, all right, title and interest in and to all Your Data, including Extracted Data, and including, without limitation, all modifications, improvements, adaptations, enhancements, or translations made thereto, and all proprietary rights therein, shall be and remain Your sole and exclusive property.
5. Support Services
5.1 Support Services. As part of the Services, Digital Theatre will provide You with technical support services related to the use of the Platform and the Services, through the support center (“Support Services”). Support Services are provided to You and Authorized Users at no additional cost and solely for You and Authorized User’s internal use. You may not use the Support Services to supply any consulting, support, or training services to any third party. The Support Services are available during Normal Business Hours. Digital Theatre endeavors to respond to all Your Support Service requests within one (1) Business Day. Digital Theatre will not accept Support Services requests from Authorized Users who are under the age of eighteen (18). If an Authorized User under the age of eighteen (18) makes a Support Services request, it is Digital Theatre’s policy to revert such requests to You. Digital Theatre reserves the right to modify reasonably its policies in connection with Support Services, provided that in no event will Digital Theatre materially degrade or diminish the level and quality of Support Services provided during the Subscription Term.
5.2 Your Obligations. You agree to provide Digital Theatre with such cooperation, complete, accurate, up-to-date, and timely Extracted Data, materials, information, access, and support which Digital Theatre deems to be reasonably required to allow Digital Theatre to successfully provide the Support Services. You understand and agree that Digital Theatre’s obligations to provide Support Services are expressly conditioned upon You providing such cooperation, materials, information, access and support, and You causing Your personnel and third-party service providers to do the same.
6. Subscription Fees; Payment; Renewal
6.1 Subscription Fees. You agree to pay Digital Theatre the Subscription Fees. The Subscription Fees are due and payable as set forth in this Section 6.
6.2 Payment. Unless otherwise specified on an Order Form, Subscription Fees will be paid in US Dollars, inclusive of taxes (if any), without setoff, recoupment, counterclaim, deduction, debit or withholding for any reason. If You are tax exempt, You shall provide Digital Theatre with a certificate of exemption acceptable to the taxing authorities. You shall pay all amounts due under this Agreement: (a) by wire/electronic transfer to the nominated bank and currency account details set forth on the relevant invoice or such other account details as Digital Theatre designates in writing; or (b) by cheque made payable to Digital Theatre US LLC.
6.3 Renewal. Your Subscription Term will commence on the Effective Date and will only be renewed by mutual written agreement of the parties on each subsequent annual anniversary date of the Effective Date. You agree that prior to the commencement of any subsequent renewal date, the parties will enter good faith discussions regarding the continued use of the Services. For the avoidance of doubt, this Agreement does not automatically renew.
6.4 Invoice. Digital Theatre will invoice You for Subscription Fees as follows: (a) on the Effective Date, Digital Theatre will issue You an invoice for Subscription Fees payable in respect of the Initial Subscription Term; and (b) within at least thirty (30) Business Days prior to each annual anniversary of the Effective Date in respect of any Renewal Subscription Terms, only if agreed between the parties in accordance with Section 6.3. All Subscription Fees are payable within fifteen (15) Business Days of Your receipt of the invoice, unless otherwise specified on the applicable Order Form.
6.5 Failure to pay. Any amount not paid when due may be subject to interest at the rate of three percent (3%) per month, or the maximum rate permitted by law, whichever is greater, determined and compounded daily from the date due until the date paid. Digital Theatre shall be entitled to recover all reasonable costs of collection (including reasonable attorney’s fees, expenses, and costs) incurred in attempting to collect undisputed payments from You that are more than thirty (30) days delinquent.
6.6 Subscription Fee Variations. Digital Theatre shall not increase the Subscription Fees during the Initial Subscription Term. Digital Theatre may increase the Subscription Fees at the start of each Subscription Renewal Term.
6.7 Non-Refundable. Except as expressly stated in this Agreement, all Subscription Fees payable under this Agreement are non-refundable.
7. Term; Termination; Suspension
7.1 Term. This Agreement shall commence on the Effective Date and shall, unless earlier terminated under this Section 7, continue in force until the expiration of the applicable Subscription Term. The Subscription Term shall be set forth on the Order Form.
7.2 Termination by You. You may terminate the Services and this Agreement: (a) for convenience upon written notice to Digital Theatre within thirty (30) Business Days of signing the Order Form, in which case termination shall take immediate effect, and Digital Theatre will reimburse You with any Subscription Fees paid by You in full; or (b) more than thirty (30) Business Days after signing the Order Form, in which case termination shall take effect on the next annual anniversary date and You shall not be entitled to any refund and shall pay all unpaid fees due for the remainder of the applicable annual Subscription Term.
7.3 Termination by Either Party. Either Party may, upon written notice to the other Party, terminate this Agreement for: (a) material breach by the other Party if such Party has failed to cure such material breach within thirty (30) Business Days of receiving written notice of such material breach from the non-breaching Party; or (b) if such termination is required by applicable law, rule or regulation; or (c) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation, or assignment for the benefit of creditors, in which case the termination shall take immediate effect.
7.4 Digital Theatre Termination. Digital Theatre may terminate this Agreement upon written notice to You: (a) as a result of Your non-payment of the applicable Subscription Fees on the due date for payment which remain in default not less than thirty (30) Business Days after being notified in writing to make such payment; (b) under the circumstances set forth in Section 7.3; and (c) if You intentionally breaches the scope of the license granted in Section 2.1 of this Agreement.
7.5 Post Termination. Upon termination or expiration of this Agreement, for any reason, Digital Theatre will stop providing the Services, and You and Authorized Users shall promptly cease all access to and use of the Services, the Content, and the Platform. If Digital Theatre terminates this Agreement pursuant to this Section 7, You will promptly pay all unpaid Subscription Fees through the end of the Term.
7.6 Suspension of the Services. In addition to its other rights under this Agreement, Digital Theatre may suspend Your access to the Services upon written notice to: (a) comply with any law, regulation, court order, or other governmental request or order which requires immediate action; or (b) for Your non-payment of the applicable Subscription Fees, or for (c) any actual or suspected unauthorized use of the Services by You or any Authorized Users. Digital Theatre will not suspend the Services while You are disputing the applicable Subscription Fees reasonably and in good faith and are cooperating diligently to resolve the dispute. If suspended, Digital Theatre will restore use of the Services to You as soon as the event giving rise to the suspension has been resolved to Digital Theatre’s satisfaction.
7.7 Survival. All payment obligations under Section 6 (“Subscription Fees; Payment; Renewal”), plus Section 4 (“Ownership”); 7 (“Term; Termination; Suspension”); 8 (“Confidentiality; Your Data”); 9.3 (“Warranty Disclaimer and Limitations”); 10 (“Intellectual Property; Infringement Claims”); 11 (“Limitation of Liability”); 12 (“Governing Laws; Jurisdiction; Notices”); 13 (“Miscellaneous”); and 7.7 (“Survival”); shall survive any termination or expiration of this Agreement.
8. Confidentiality; Your Data
8.1 Confidential Information. Each Party (“Receiving Party”) agrees to retain in confidence any information provided to it by the other party (“Disclosing Party”) that Receiving Party knew, or should have known, was confidential due to the circumstances surrounding the disclosure by the Disclosing Party (“Confidential Information”). Confidential Information further means: (a) with respect to Digital Theatre, the Platform, the Content and any and all source code relating thereto, and any and all trade secrets and other non-public, confidential and/or proprietary information or material regarding Digital Theatre and its Affiliates (for the purposes of this Agreement, “Affiliates” shall mean, with respect to a Party an entity that controls, is controlled by, or is under common control with, such Party, where “control” means an ownership, voting, or similar interest representing fifty percent (50%) or more of the total interests then outstanding of the relevant entity) or any of its or their legal or business affairs, financing, technology, systems, output, activities, plans, properties, data, or software, in each case, that may be obtained or learned by or disclosed to You or Your Representatives (as defined below) in the course of, in connection with and during the Subscription Term; and (b) with respect to You, Your Data, Extracted Data and any other non-public, confidential and/or proprietary information or material regarding You and Your Affiliates or any of Your or their legal or business affairs, financing, input, activities, plans, properties, or data, in each case, that may be obtained or learned by or disclosed to You or any of Your Representatives in the course of, in connection with and during the Subscription Term.
8.2 Non-disclosure. The Receiving Party’s nondisclosure obligation shall apply to any information which the Receiving Party can document: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of, the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (d) is independently developed by the Receiving Party without reference to the other party’s Confidential Information; or (e) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). Each party will at all times, both during the Subscription Term and thereafter, keep in trust and confidence all Confidential Information of the other party and shall only disclose Confidential Information to its employees, agents, representatives, Affiliates and authorized contractors or subcontractors (collectively “Representatives”) having a need to know for the purposes of this Agreement. Each party will notify and inform such Representatives of each party’s limitations, duties, and obligations regarding use, access to, and nondisclosure of Confidential Information.
8.3 Disclosure by Law. Notwithstanding anything set forth in this Agreement, in the event the Receiving Party is legally compelled to disclose any of the Disclosing Party’s Confidential Information pursuant to applicable law, rule, regulation, regulator request of order, the Receiving Party will, to the extent permitted by such requirement, provide the Disclosing Party prompt prior written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section 8.3. If such protective order or other remedy is not obtained or the Disclosing Party waives compliance with the provisions of this Section 8.3, the Receiving Party may furnish only that portion of the Confidential Information which it is advised by counsel is legally required to be disclosed and will use its best efforts to ensure that confidential treatment shall be afforded such disclosed portion of the Confidential Information.
8.5 Sensitive Personal Information. Digital Theatre does not process Sensitive Personal Information. You agree to remove all Sensitive Personal Information before enabling Digital Theatre’s access to Your Extracted Data. Any access to Extracted Data that includes Sensitive Personal Information is at Your own risk. Digital Theatre will not have any liability that may result from Your disclosure of such information to Digital Theatre.
9. Representations and Warranties; Disclaimer and Limitations; Statutory Rights
9.1 Representations and Warranties of Digital Theatre. Digital Theatre represents and warrants to You that the Support Services shall be performed in a professional manner. Digital Theatre further represents and warrants to You that Digital Theatre will provide the Platform and the Services in a manner consistent with general industry standards, under normal use and circumstances during the Subscription Term.
9.2 Your Representations and Warranties. You represent and warrant to Digital Theatre that Your Extracted Data contains no Prohibited Content and that You have the right to provide Digital Theatre the Extracted Data in accordance with this Agreement.
9.3 Warranty Disclaimer and Limitations. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9.1 AND SECTION 9.2, THE SERVICES, THE PLATFORM, THE CONTENT, THE DOCUMENTATION, THEIR COMPONENTS, THE SUPPORT SERVICES, ANY OTHER MATERIALS PROVIDED HEREUNDER ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND DIGITAL THEATRE AND ITS LICENSORS MAKE NO WARRANTIES, WHETHER EXPRESSED, IMPLIED OR STATUTORY REGARDING OR RELATING TO THE SERVICES, THE PLATFORM, THE CONTENT, THE DOCUMENTATION, THEIR COMPONENTS, THE SUPPORT SERVICES, AND ANY OTHER MATERIALS FURNISHED OR PROVIDED TO YOU UNDER THIS AGREEMENT TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. DIGITAL THEATRE AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, MERCHANTABILITY, SATISFACTORY QUALIFY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE PLATFORM, THE CONTENT, AND SERVICES PROVIDED BY DIGITAL THEATRE HEREUNDER AND WITH RESPECT TO THE USE OF THE FOREGOING AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. FURTHER DIGITAL THEATRE DOES NOT WARRANT RESULTS OF USE OR THAT THE PLATFORM WILL BE ERROR-FREE OR THAT YOUR USE OF THE PLATFORM WILL BE UNINTERRUPTED TO THE EXTENT THAT EITHER PARTY MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW. WITHOUT LIMITING THE FOREGOING, NEITHER DIGITAL THEATRE, DIGITAL THEATRE’S AFFILIATES, NOR DIGITAL THEATRE’S LICENSORS, WARRANT THAT THE CONTENT YOU RECEIVE THROUGH THE SERVICES AND/OR THE PLATFORM IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICES, THE PLATFORM AND/OR THE CONTENT WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE, THE CONTENT AND/OR THE PLATFORM WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICES, THE CONTENT AND/OR THE PLATFORM ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES OR THE PLATFORM IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR SYSTEMS OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICES, THE CONTENT OR THE PLATFORM. DIGITAL THEATRE USES A THIRD-PARTY DATA CENTER TO HOST THE PLATFORM. YOU ACKNOWLEDGE THAT DIGITAL THEATRE DOES NOT CONTROL THE TRANSFER OF DATA OVER SUCH THIRD-PARTY FACILITIES, INCLUDING THE INTERNET, AND THAT THE PLATFORM MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH THIRD-PARTY FACILITIES. DIGITAL THEATRE IS THEREFORE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
9.4 Statutory Rights. NOTWITHSTANDING THE PROVISIONS OF SECTION 11.1, CERTAIN STATE LAWS DO NOT ALLOW THE LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES SET FORTH IN SECTION 9.3. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS IN SECTION 9.3 MAY NOT APPLY TO YOU. NOTHING IN THIS AGREEMENT SHALL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU.
10. Intellectual Property Infringement Claims
10.1 Obligations. Subject to the applicable conditions and limitations set forth in this Section 10, Digital Theatre will, at its expense: (a) defend, or at its option settle, a claim brought against You by an unaffiliated third party alleging that the Platform and/or the Content infringes such party’s patent registered in the United Kingdom, or any copyright or trademark of such party registered in the jurisdiction of Your use of the Platform and/or the Content, or makes intentional, unlawful use of such party’s trade secret (each an “Infringement Claim”) and (b) pay any settlement of such Infringement Claim consented to by Digital Theatre or pay any damages finally awarded to such party by a court of competent jurisdiction as the result of such Infringement Claim.
10.2 Remedies. If, during the Subscription Term, the Platform and/or the Content are, or in Digital Theatre’s reasonable opinion are likely to become, the subject of an Infringement Claim, Digital Theatre may, at its expense and option: (a) obtain the right for You to continue to use the Platform and/or the Content; (b) modify the Platform and/or the Content so that it becomes non-infringing and but is substantially functionally equivalent; or (c) in the event that neither (a) or (b) are commercially reasonable options, terminate Your license to use the Platform and/or the Content and promptly refund You the pro-rata portion of the Subscription Fee paid by You for the remaining part of the Subscription Term. This Section 10.2, together with the indemnity provided under Section 10.1, states Your sole and exclusive remedy, and Digital Theatre’s sole and exclusive liability, regarding infringement or misappropriation of any intellectual property rights of a third party.
10.3 Conditions. The obligations of Digital Theatre in Section 10.1 are conditioned upon You: (a) notifying Digital Theatre promptly of any threatened or pending Infringement Claim; (b) giving Digital Theatre reasonable assistance and information requested by Digital Theatre in connection with the defense or settlement of the Infringement Claim; and (c) tendering to Digital Theatre sole control over the defense and settlement of the Infringement Claim. Your counsel will have the right to participate in the defense of the Infringement Claim, at Your own expense. You will not, without the prior written consent of Digital Theatre, settle, compromise or consent to the entry of any judgment with respect to any pending or threatened Infringement Claim.
10.4 Exclusions. Digital Theatre will have no obligation to You to the extent any Infringement Claim is based upon or results from: (a) Your or Authorized User’s use of any version of the Platform and/or the Content not made available directly through Digital Theatre; (b) Your or Authorized User’s use of the Platform and/or the Content not in accordance with the this Agreement; (c) a modification of the Platform and/or the Content that is not performed by Digital Theatre; (d) the combination, operation, or use of the Platform and/or the Content with any other products, services, or equipment not provided by Digital Theatre; (e) an action, claim or proceeding arises from any use of the Platform and/or the Content for which they were not designed; (f) any intellectual property right owned or licensed by You, excluding the Platform or Content; or (g) any third party Open-Source Software.
10.5 Entire Liability. The Foregoing Provisions of this Section 10 state the entire liability and obligations of Digital Theatre, and Your exclusive remedy, with respect to any actual or alleged infringement of any patent, copyright, trade secret, trademark, or other intellectual property right by the Platform.
10.6 Indemnity. You shall indemnify Digital Theatre, its licensors, and its Affiliates, officers, directors, employees, and agents from and against any and all claims, costs, damages, losses, liabilities, and expenses (including reasonable legal fees and costs) arising out of or in connection with a claim of a third party alleging that: (a) You or an Authorized User breach or violate the terms and conditions of this Agreement; or (b) Your Data, Extracted Data and/or Digital Theatre’s use of any of the foregoing in accordance with this Agreement, has infringed the rights of, or otherwise caused harm to, a third party, or violated applicable law; provided in any such case that Digital Theatre (i) gives written notice of the claim promptly to You; (ii) gives You sole control of the defense and settlement of the claim; and (iii) provides You, all available information and assistance reasonably requested; and (iv) has not compromised or settled such claim.
11. Limitation of Liability
11.1 Disclaimer of Certain Damages. In no event shall You or Digital Theatre or its licensors be liable for any loss of profits, loss of use, business interruption, loss of data, cost of substitute goods or services, or for any indirect, special, incidental, or consequential damages of any kind in connection with or arising out of the use or inability to use the Platform, Content, or Services, whether alleged as a breach of contract or tortious conduct, including negligence, even if a Party has been advised of the possibility of damages. Digital Theatre will remain liable for death and personal injury. The Platform may be subject to limitations, delays, inaccessibility, and other problems inherent in the use of the internet. Digital Theatre is not responsible and disclaims all liability for any delays, failures or damages resulting from such problems. You are fully responsible for internet access, connectivity issues and for securing sufficient capacity on Your Systems to enable You and Authorized Users to download the Content and access the Platform and/or Services. The limitations of liability set forth in this Section 11.1 shall not apply to a breach through gross negligence or intentional misconduct by You of the scope of the license granted in Section 2.1, Your failure to pay any amounts due and owing, or to a breach by either Party of its obligations under Section 10 of this Agreement.
11.2 Damages Cap. Solely to the extent permitted under applicable law, neither Party’s aggregate cumulative liability under this Agreement shall exceed two times (2x) the Subscription Fees payable to Digital Theatre during the Initial Term or Subscription Renewal Term in which the event giving rise to liability occurred.
12. Governing Laws; Jurisdiction; Notices
12.1 Governing Law. The laws of the State of Illinois govern all claims, regardless of conflict of laws principles. The Parties hereby irrevocably agree that the Courts of the State of Illinois will have exclusive jurisdiction over any claim arising out of or in connection with this Agreement or subject matter or formation (including contractual disputes and claims). Certain State Laws do not allow the application of laws from any other State, if such laws apply to You, then the laws of the State where Your postal address for notices pursuant to Section 12.3 is located, govern all claims, regardless or conflict of law principles and the Courts of that State will have exclusive jurisdiction over any claim arising out of or in connection with this Agreement or subject matter or formation (including contractual disputes and claims).
12.2 Dispute Resolution. Any disagreement about the operation of this Agreement shall be settled by the matter being promptly referred to a senior executive of the Parties, authorized to agree a solution. The senior executives shall have thirty (30) Business Days from the raising of the disagreement to discuss and resolve the matter. If the senior executives cannot resolve the matter within sixty (60) Business Days, either Party may resort to formal legal action.
12.3 Notices. Any notice or other communication under this Agreement given by either Party to the other will be deemed to be properly given if delivered in writing by: (a) email; (b) hand courier; (c) first class pre-paid post; or (d) other next day delivery service to the addresses set out below. Either Party may from time to time change its address for notices by giving the other Party notice of the change in accordance with this Section 12.3. All such notices shall be deemed to have been received on the next Business Day.
- Your Notices: the email and/or postal address on the Order Form.
- Digital Theatre Notices: by email to email@example.com; or by post marked for the attention of:Digital Theatre Legal Officer
Digital Theatre (US) LLC
20 W. Kinzie St
13.1 Assignment. Neither Party may assign this Agreement, in whole or in part, without the prior written consent of the other Party; provided that either Party may assign this Agreement, in whole or in part, to: (a) any member of its group of companies; (b) an Affiliate; or (c) any company or legal entity that acquires all or substantially all of the assigning Party's assets or business to which the Agreement relates. Any assignment in violation of this Section 13.1 shall be null and void and of no effect. Subject to the foregoing, this Agreement is binding upon, inures to the benefit of and is enforceable by the Parties and their respective successors and assigns.
13.2 Identification. Digital Theatre may, upon Your written approval, identify You as a user of the Services on its website https://www.digitaltheatreplus.com, through a press release issued by Digital Theatre and in other promotional materials. You also agree to cooperate with Digital Theatre in writing a case study exposing how the Services are being used and the benefits You are deriving from this use.
13.3 Force Majeure. Neither Party will be liable for or considered to be in breach of or default under this Agreement, other than monetary obligations, as a result of any cause or condition beyond such Party’s reasonable control, provided that the other Party is notified of such an event and its expected duration.
13.4 Non-Waiver. Any failure of either Party to insist upon or enforce performance by the other Party of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement will not be interpreted or construed as a waiver or relinquishment of such Party’s right to assert or rely upon such provision, right or remedy in that or any other instance.
13.5 Independent Contractors. The Parties are independent contractors. Neither Party shall be deemed to be an employee, agent, partner, joint venturer, or legal representative of the other for any purpose, and neither shall have any right, power, or authority to create any obligation or responsibility on behalf of the other.
13.6 Severability. If any provision of this Agreement is found invalid or unenforceable, that provision shall be amended to achieve as nearly as possible the same economic effect as the original provision, and the remainder of this Agreement shall remain in full force and effect.
13.7 Third-Party Beneficiaries. Except as set forth in Section 13.1, there are no other third-party beneficiaries under this Agreement.
13.8 Accessibility. Digital Theatre commits to providing Services that are accessible to the widest possible audience and much of the Content is accessible. Digital Theatre’s Accessibility Statement describes Digital Theatre’s compliance with the Web Content Accessibility Guidelines, it is located at: https://edu.digitaltheatreplus.com/accessibility-statement. Digital Theatre’s Voluntary Product Accessibility Template (“VPAT”) can be downloaded at: https://support.digitaltheatreplus.com/vpat
13.9 Entire Agreement. This Agreement, any policies referenced herein, and any Order Form accepted by the Parties that references this Agreement (which is hereby incorporated herein by this reference), completely and exclusively state the entire agreement of the Parties regarding the subject matter herein, and it supersedes, and its terms govern, all prior proposals, agreements, or other communications between the Parties, oral or written, regarding such subject matter. The terms of this Agreement shall supersede and control over any conflicting or additional terms and conditions of any purchase order, acknowledgement, confirmation, or other document issued by You, unless the Parties execute a written agreement expressly indicating that such document shall modify this Agreement.
Last Updated: 7 April 2021