BRIGHTCOVE MASTER SERVICE AGREEMENT
This Brightcove Master Service Agreement (the “Agreement”) is by and
between Brightcove Inc. (“Brightcove”) and the entity or individual
(“Company”) identified in the order executed by Brightcove and Company
or identified in connection with the Brightcove Account registration process (in each case, an “
Order”), and governs Company’s use, and Brightcove’s provision,
of the Brightcove Service. Each Order, and any exhibit to an Order, is subject to this Agreement and is
incorporated herein by reference. If you are an individual and are entering into this Agreement on behalf of an
entity, you represent and warrant that you have the authority to bind such entity to all of the terms and
conditions of this Agreement.
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The Brightcove Service.
The “Brightcove Service” means those online services that
Company has ordered from Brightcove, including Video Cloud, Video Marketing Suite, Brightcove SSAI, Zencoder
and/or such other online services as Brightcove makes available to Company from time to time. The various
services comprising the Brightcove Service enable Company to upload, transcode, manage and distribute
Company’s Content online. “Content” means all content, data,
video, templates or information in any form that is uploaded to or made available in Company’s Account(s)
by Company or on Company’s behalf. The Brightcove Service does not include Company’s Content or the
Content of any other Brightcove customer. By using the online, user interfaces or APIs (collectively, the
“U/I”) provided as part of the Brightcove Service, Company may make
choices about its Content, including, depending on the particular Brightcove Service being used by Company,
the presentation, management and distribution of Content. Company may change its selections as permitted by
the Brightcove Service. In all cases, however, Company’s most recent selections in the U/I, as reflected
in Brightcove’s database, shall be conclusive in the event of any dispute concerning Company’s
selections.
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Access to the Brightcove Service; Free Accounts; Beta Services.
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Access to the Brightcove Service. Access to Company’s Brightcove
Service Account(s) shall be enabled by use of username(s) and password(s)
(“Credentials”) selected by Company.
An “Account” is a single point of entry via the U/I through
which Company accesses and uses the Brightcove Service. Except where Brightcove has actual notice of
loss, theft or unauthorized use of Company’s Credentials, (i) Company is responsible for all
activity occurring in Company’s Account(s) and (ii) Brightcove shall have the right, without
further inquiry, to rely on the provision of Company’s Credentials as sufficient to authenticate
Company’s use of the Brightcove Service.
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Free Accounts. Brightcove may from time to time offer free Brightcove
Service Accounts, such as trial Accounts. Unless otherwise specified during the Account registration
process, the terms and conditions of this Agreement shall govern the use of such free Accounts.
Brightcove may terminate any free Account at any time without notice, in its sole discretion.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE BRIGHTCOVE SERVICE IS PROVIDED
“AS IS” AND WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND IN CONNECTION WITH FREE
ACCOUNTS.
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Beta Services. Brightcove may from time to time offer products or
services that are not generally available to all Brightcove customers
(“Beta Services”). Unless otherwise indicated, all Beta
Services will be offered at no cost and will be identified as “beta” or in a manner that
indicates that the Beta Service is in limited release or pre-release. Such Beta Services are still in
development and Brightcove may change aspects of the Beta Services at any time, including prior to
general release. Company will not be obligated or required to use any Beta Services. Brightcove may
cease offering any Beta Services, or cease offering such services at no cost, at any time and without
notice, in its sole discretion. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, BETA
SERVICES ARE PROVIDED “AS IS” AND WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND.
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Company’s Obligations.
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Restrictions on Use. Company covenants that it will not (i) use the
Brightcove Service in any illegal or unlawful manner or for any illegal or unlawful purpose or (ii)
perform any act which is intended to harm Brightcove or the Brightcove Service. Brightcove will not
review or screen Content on a regular basis for compliance with this Agreement or applicable law, and
Brightcove shall have no obligation to do so, provided, however, that in addition to any other rights
Brightcove may have, Brightcove reserves the right to suspend Company’s access to and/or use of
the Brightcove Service, or any particular Content, to the extent that Brightcove reasonably determines,
in good faith, that such suspension is necessary to comply with applicable law (including without
limitation a take-down notice under the Digital Millennium Copyright Act) or to prevent significant
harm to any end user or the Brightcove Service; provided further, however, that in such event,
Brightcove shall use commercially reasonable efforts to suspend only that portion of the Brightcove
Service, or the particular Content, as is reasonably necessary to prevent the occurrence or
continuation of such violation and/or harm.
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Obligation to Pay. Company shall pay Brightcove the fees set forth in
each Order in accordance with the payment terms set forth in this Agreement and the Order. Company
shall be responsible for and shall pay any applicable sales, use or other taxes or duties, tariffs or
the like applicable to Company’s Orders (except for taxes on Brightcove’s income). All
payments shall be made without deduction for withholding taxes. Late payments may be subject to fees at
the rate of 1.5% per month or, if lower, the maximum rate allowed by law. If Company fails to pay
applicable fees when payment is due, then in addition to any other rights Brightcove may have,
Brightcove shall have the right to suspend delivery of all or a portion of the Brightcove Service to
Company, provided that Brightcove has supplied Company prior notice and 5 days’ opportunity to
cure. If Brightcove pursues collection efforts against Company due to Company’s failure to pay
fees due under this Agreement, Company shall pay Brightcove’s reasonable costs of collection,
including any attorneys’ fees related thereto.
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Brightcove’s Obligations. Brightcove agrees to (a) make
the Brightcove Service available to Company in accordance with this Agreement, including any current Order;
and (b) perform any other obligations expressly identified in any current Order.
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Term.
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Term of this Agreement. This Agreement commences on the Effective Date
and shall remain in effect until all of Company’s Orders have expired or have been terminated
in accordance with the terms of this Agreement (the “Term”).
The “Effective Date” of this Agreement shall be the date
specified in Company’s initial Order or, if such Order was submitted online, the date Company
submits the online Order. If Company is using the Brightcove Service pursuant to a trial Account and
does not submit an Order prior to the conclusion of the trial period, this Agreement will terminate
at the end of the trial period or, if later, the date Brightcove closes such trial Account.
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Term of Orders. The initial term of each Order shall commence on the
date specified in the Order or, if such Order was submitted online, the date Company submits the
online Order (the “Order Effective Date”). Unless earlier
terminated in accordance with this Agreement, each Order shall remain in effect for 1 year from the
Order Effective Date (unless a different term is set forth in Company’s Order)
(“Initial Term”), following which the Order shall
automatically renew for successive 1-year periods on the first day following the end of the Initial
Term (each, a “Renewal Term”) unless either party hereto
has provided notice to the other of non-renewal at least 60 days in advance of the end of the Initial
Term or, if applicable, the current Renewal Term. Notwithstanding the prior sentence, all Orders for
free Accounts, unless earlier terminated by either Company or Brightcove, shall remain in effect for
the period of time indicated during the Account registration process.
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Termination. Unless otherwise prohibited by law, either party
may terminate this Agreement, including any outstanding Orders: (a) if the other party is adjudicated bankrupt
or otherwise seeks to avoid its performance obligations under applicable bankruptcy or insolvency laws; or (b)
upon the occurrence of a material breach of this Agreement by the other party if such breach is not cured
within 30 days after written notice identifying the matter constituting the material breach. In the event of
the termination or expiration of this Agreement, all licenses granted under this Agreement shall terminate
automatically. Upon an early termination of this Agreement for any reason, all current Orders shall terminate
and, unless such termination resulted from a material, uncured breach of this Agreement by Brightcove, all
fees and expenses payable under any such Orders shall become immediately due and payable.
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Title. As between the parties, Brightcove owns all right,
title and interest in and to the Brightcove Service. This Agreement does not convey to Company any ownership
interest in or to the Brightcove Service, but only a limited license to use the Brightcove Service that is
revocable as set forth in this Agreement. As between the parties, Company owns all right, title and interest
in and to the Content. This Agreement does not convey to Brightcove any ownership interest in or to the
Content, but only a limited license to the Content that is revocable as set forth in this Agreement.
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Licenses.
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License to Use the Brightcove Service. Brightcove hereby grants Company
a limited, revocable (as set forth in this Agreement), non-transferable (except as provided in Section
17(b)), non-exclusive, worldwide license to use the applicable Brightcove Service for which Company
has submitted an Order or registered online. All rights not expressly granted to Company are reserved
by Brightcove. Except as expressly permitted by Brightcove, Company shall not: (i) sublicense, resell,
transfer, assign, distribute or otherwise commercially exploit or make available to any third party
the Brightcove Service or any part thereof in any way; or (ii) modify or make derivative works based
upon the Brightcove Service or reverse engineer, decompile or disassemble the Brightcove Service.
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License to Content. Company hereby grants Brightcove a limited,
revocable (as set forth in this Agreement), non-transferable (except as provided in Section 17(b)),
non-exclusive, royalty-free, worldwide license to perform all such acts with respect to the Content
as are necessary for Brightcove to provide the Brightcove Service in accordance with this Agreement
and Company’s selections made through the U/I. All rights not expressly granted to Brightcove
are reserved by Company.
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License to Feedback, Suggestions or Recommendations. Company hereby
grants to Brightcove an unlimited, irrevocable, perpetual, transferable, non-exclusive, royalty-free,
worldwide license to use and/or incorporate into the Brightcove Service any feedback, suggestions
and/or recommendations provided to Brightcove by Company regarding the Brightcove Service.
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Representations and Warranties.
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The Brightcove Service. Brightcove represents and warrants that (i) it
either owns fully and outright or otherwise possesses and has obtained all rights, approvals, licenses,
consents and permissions as are necessary to perform its obligations hereunder, exercise its rights
hereunder and to grant the licenses granted by it under this Agreement and (ii) the Brightcove Service,
as used by Company in accordance with this Agreement, does not, and shall not, infringe, violate or
misappropriate any third party’s rights.
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Content. Company represents and warrants that (i) it either owns fully
and outright or otherwise possesses and has obtained all rights, approvals, licenses, consents and
permissions as are necessary to perform its obligations hereunder, exercise its rights hereunder and
to grant the licenses granted by it under this Agreement and (ii) the Content, and its use through the
Brightcove Service, as enabled by Company, directly or indirectly, does not, and shall not, infringe,
violate or misappropriate any third party’s rights.
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Indemnification. Each party agrees to indemnify the other
party and such other party’s officers, employees, directors, agents, affiliates, subsidiaries,
successors and assigns from and against any and all damages, liabilities, loss, government fines, costs and
expenses (including reasonable attorney’s fees and litigation expenses) arising out of a claim, action
or demand brought by a third party for a breach of any representation, warranty or covenant made by the
indemnifying party in this Agreement (each a “Claim”) upon the
entry of a full and final judgment of such Claim against the indemnified party.
The indemnification obligations in this section are conditioned upon: (a) written notice by the
indemnified party to the indemnifying party within 30 days of the indemnified party’s receipt of any
Claim for which indemnification is sought; (b) counsel for the indemnified party reasonably acceptable to
the indemnifying party; (c) approval by the indemnifying party of any settlement of the Claim for which
indemnification is sought; and (d) such reasonable cooperation by the indemnified party in the defense as the
indemnifying party may request. Notwithstanding anything to the contrary contained herein, the indemnifying
party shall not, without the prior written consent of the indemnified party, settle, compromise or consent
to the entry of any judgment with respect to any pending or threatened Claim unless the settlement, compromise
or consent provides for and includes an express, unconditional release of such Claim against the indemnified
party.
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DISCLAIMERS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT,
BRIGHTCOVE MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND TO COMPANY, EITHER EXPRESS OR IMPLIED,
AS TO ANY MATTER INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE,
MERCHANTABILITY, WORKMANLIKE QUALITY, NON-INFRINGEMENT, TITLE, SUITABILITY, COURSE OF DEALING, USAGE OF
TRADE OR OTHERWISE OR THAT THE BRIGHTCOVE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT AS
EXPRESSLY SET FORTH HEREIN, THE BRIGHTCOVE SERVICE IS PROVIDED ON AN “AS IS” BASIS ONLY. NO
ADVICE OR INFORMATION OBTAINED BY COMPANY FROM BRIGHTCOVE SHALL CREATE ANY REPRESENTATION OR WARRANTY NOT
EXPRESSLY STATED IN THIS AGREEMENT.
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EXCLUSIONS/LIMITATIONS OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED
BY LAW, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER UNDER ANY THEORY OF LIABILITY
FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM THE PERFORMANCE OR FAILURE OF PERFORMANCE OF ANY
PROVISION OF THIS AGREEMENT (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES), SUCH AS, WITHOUT
LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. UNDER NO CIRCUMSTANCES WILL EITHER
PARTY BE LIABLE TO THE OTHER FOR DAMAGES (OR AMOUNTS) IN EXCESS OF THE TOTAL FEES PAID AND/OR PAYABLE
FOR THE APPLICABLE ORDER FOR THE FULL INITIAL TERM OR RENEWAL TERM IN WHICH THE INCIDENT GIVING RISE TO
THE CLAIM HEREUNDER AROSE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE PRECEDING SENTENCE, IF COMPANY
IS USING THE BRIGHTCOVE SERVICE VIA A FREE ACCOUNT, COMPANY’S MAXIMUM LIABILITY TO BRIGHTCOVE IN
CONNECTION WITH SUCH FREE ACCOUNT SHALL NOT EXCEED AN AMOUNT EQUAL TO THE DAMAGES INCURRED BY
BRIGHTCOVE.
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Third-Party Services. Brightcove may, from time to time,
inform its customers of third-party services that can be used in connection with the Brightcove Service.
Company’s use of any third-party service in connection with the Brightcove Service, and any terms,
conditions, representations and/or warranties associated with such use, are solely between Company and such
third-party service provider. Brightcove makes no representation or warranty with regard to any such
third-party service, even if such provider is certified by Brightcove or selected as a premier provider
(or similar designation) by Brightcove, and Brightcove shall not be responsible to Company in any manner for
any such third-party service. Brightcove does not, unless otherwise expressly set forth in writing, provide
maintenance or support for third-party services.
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Confidentiality. Each party agrees not to disclose the other
party’s Confidential Information without the other party’s prior written consent.
“Confidential Information” includes, without limitation: (a) all
intellectual property; (b) financial and business information (including pricing); and (c) any other
information designated in writing as “Confidential.” Confidential Information does not include
(v) Content; (w) information that has become publicly known through no breach by Company or Brightcove of
these confidentiality obligations; (x) information that is independently and lawfully developed or obtained
without access to Confidential Information, as evidenced in writing; (y) information required to be disclosed
by law; or (z) the fact that Company is a customer of Brightcove.
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Identification Rights. Brightcove shall have the right to
identify Company as a customer, and to use Company’s logo in Brightcove’s general marketing
materials, and Company shall have the right to identify Brightcove as the provider of the Brightcove Service,
and to use Brightcove’s logo in connection with Company’s use of the Brightcove Service.
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Notices. All notices under this Agreement must be in writing
and delivered either by hand, e-mail, certified mail (return receipt requested, postage pre-paid) or
nationally recognized overnight delivery service (all delivery charges pre-paid) and addressed, if to Company,
to the contact identified in Company’s most recent Order and, if to Brightcove, to Brightcove Inc.,
290 Congress Street, Boston, MA 02210, attn: General Counsel or general_counsel@brightcove.com.
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General. (a)
Independent Contractors: Brightcove and Company are independent contractors
under this Agreement and nothing herein shall be construed to create a partnership, joint venture or agency
relationship; (b) Assignment: Neither party may assign performance of this
Agreement or any of its rights or delegate any of its duties under this Agreement without the prior written
consent of the other, except that each party may assign this Agreement without the other party’s prior
written consent in the case of a merger, acquisition or other change of control, and in such event this
Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors
and assigns; (c) Governing Law: This Agreement shall be governed by the laws
of the Commonwealth of Massachusetts applicable to contracts entered into and wholly to be performed therein;
(d) Forum Selection: Any and all disputes arising out of or related to this
Agreement or performance hereof shall be brought exclusively in the Federal or state courts in the
Commonwealth of Massachusetts and the parties hereby waive any objection thereto; (e)
Jury Trial Waiver: Company and Brightcove each waive any right to a jury
trial in connection with any and all disputes arising out of or related to this Agreement; (f)
Limitation on Claims: Notwithstanding
any law providing a longer statute of limitations, any claim or cause of action arising out of or related to
this Agreement and/or Company’s use of the Brightcove Service must be filed within 1 year after such
claim or cause of action arose, without regard to the date such claim or cause of action was discovered, or
such claim or cause of action shall be forever barred; (g)
Export Compliance: Each party shall comply
with all applicable United States and international export control laws and regulations. Company specifically
represents that (i) it is not located in any country or jurisdiction that is subject to U.S. economic
sanctions, nor is it acting on behalf of the government of any such country and (ii) it is not identified
on the U.S. Department of the Treasury’s Office of Foreign Assets Control’s Specially Designated
Nationals List, as amended from time to time, nor is it owned or controlled by any such entity; (h)
Effect of Waivers: The waiver by either party of a breach or a default of
any provision shall not be construed as a waiver of any succeeding breach of the same or any other provision;
(i) Survival: All terms of this Agreement which by their nature extend beyond
the termination of this Agreement remain in effect until fulfilled and apply to respective successors and
assigns; (j) Counterparts; Delivery; Acceptance: This Agreement may be
executed in counterparts, all of which are considered one and the same agreement, and becomes effective
when one or more counterparts have been signed by each of the parties and delivered to the other party,
or upon Company’s submission of an online Order (whichever occurs first). Delivery by facsimile or
e-mail and online acceptance are all as effective as physical delivery of an originally executed copy hereof;
(k) Integration; Amendment: This Agreement, including any Orders entered into
hereunder, constitutes the entire understanding of the parties hereto with respect to the matters
contemplated hereby, supersedes all previous agreements between the parties concerning the subject matter
hereof and cannot be amended except by a writing signed by authorized representatives of both parties;
(l) No Reliance: No party hereto has relied on any statement, representation
or promise of any party or representative thereof except as expressly set forth in this Agreement; (m)
Severability: If any term, provision, covenant or condition of this Agreement
is held invalid or unenforceable for any reason, the remainder of the provisions will continue in full
force and effect as if this Agreement had been executed with the invalid portion eliminated. The parties
further agree to substitute for the invalid provision a valid provision that most closely approximates the
intent and economic effect of the invalid provision; (n) Government Entities:
The Brightcove Service is licensed to the U.S. government or any entity acting on its behalf as a
Commercial Item, as that term is defined at 48 C.F.R. §2.101, and licensed only with those rights as
are granted to all other entities or individuals entering into an agreement to use the Brightcove Service;
(o) Purchase Orders/Instruments: Any instruments, including purchase orders,
work orders, acknowledgments and vendor registration forms not signed by both parties
(“Instruments”) shall not add to, supersede or modify, the terms
of this Agreement and in the event any term of an Instrument purports to add to, supersede or modify any
term of this Agreement, such term of the Instrument shall be void and without effect; and (p)
Foreign Language Translation of Agreement: For Company’s convenience only,
Brightcove may provide Company with a non-English translation of this Agreement. Any such non-English
language version of this Agreement is for reference purposes. Company acknowledges and agrees that the English
language version of this Agreement shall, in all instances, govern the parties’ relationship.
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Additional Terms for Credit Card Orders.
If Company is purchasing Video Cloud Express, Video Marketing Suite or Enterprise Video Suite, or
Zencoder, with a credit card, additional terms apply. Credit Card Terms applicable to Video Cloud
Express credit card orders can be found at
https://accounts.brightcove.com/en/msa-vce/. Credit Card
Terms applicable to Video Marketing Suite and Enterprise Video Suite credit card orders can be found
at https://accounts.brightcove.com/en/msa-vms-evs/.
Credit Card Terms applicable to Zencoder credit card
orders can be found at https://accounts.brightcove.com/en/msa-zen/.
© Brightcove Inc. 2017
(Last updated June 1, 2017)