dcafe Digital LLP (dcafe) General Terms and Conditions

1. DEFINITIONS

“Acceptable Use Policy” or “AUP” shall have the meaning set forth in Section 2.2.a.
“Accepted” or “Acceptance” means a Party’s authorized execution of a document.
“Affiliate” means an entity directly or indirectly Controlled by, Controlling or under common Control with a Party, now or in the future. An entity shall “Control” another entity when it owns more than 50% of the equity or other voting interests, or otherwise has primary management or operational responsibility.
“Agreement” means (i) these General Terms and Conditions, (ii) Service Order and/or Statement of Work executed by the Parties; and (iii) any other document that is expressly incorporated by reference in this Agreement, a Service Order and/or a Statement of Work.
“Change of Control” means one or more transactions whereby (a) Control of a Party is transferred, directly or indirectly, whether by operation of law or otherwise, (b) all or substantially all of such Party’s assets or equity securities are acquired by a person, firm or entity or (c) such Party is merged or consolidated with or into another entity; provided that, in any case, such Party’s equity owners of record immediately before such transaction(s) shall, immediately after such transaction(s), hold less than 50% of the voting power of the succeeding, acquiring or surviving entity.
“Confidential Information” means proprietary, nonpublic or trade secret information, disclosed in written, oral or visual form, that the disclosing Party, its Affiliates or agents (each, a “Disclosing Party”) provides to the receiving Party, its Affiliates or agents (each, a “Receiving Party”) and that Disclosing Party designates as being confidential or, if disclosed orally, states to be confidential at the time of initial disclosure.
“Customer” means a customer that uses or purchases Services pursuant to this Agreement solely for such customer’s use. “Customer” includes a Resale Customer as defined herein.
“Customer Content” means any digital assets and data provided by Customer and/or Resale Customer to dcafe for storage, delivery or other processing associated with the Services.
“Customer Data” shall have the meaning set forth in Section 5.1.
“dcafe” means dcafe Digital LLP.
“Effective Date” means the effective date of the Agreement. Unless otherwise specified in the Service Order and/or Statement of Work, the Effective Date is the date on which the last party signs the Service Order.
“End User” means a subscriber to, member of or other visitor to an online site or service owned and/or operated by Customer or Resale Customer who uses, benefits from or accesses the Services.
“End User Data” shall have the meaning set forth in Section 5.1.
“Force Majeure Event” shall have the meaning set forth in Section 14.4.
“Intellectual Property Rights” means all rights in, to, or arising out of patents, inventions, copyrights, trademarks, domain names, trade secrets and other proprietary rights anywhere in the world.
“MRC” means the monthly recurring charge for Services.
“Open-Source Component” means any software component that is subject to any open-source copyright license agreement.
“Parties” means dcafe Digital LLP or Customer; “Party” means dcafe or Customer.
“Resale Customer” means a Customer that purchases Services through a Reseller.
“Reseller” means an entity authorized by dcafe to sell Services.
“Service Order” or “SO” means a specification of Services to be performed by dcafe and the associated fees or charges, as agreed by the Parties.
“Services” or “Platform/Services” shall have the meaning set forth in Section 1 of Exhibit A.
“Service Supplement” means any attachment to this Agreement setting forth the description, rates, service levels and other applicable terms for the Service identified.
“Statement of Work” or “SOW” means a specification of the non-standard Services to be performed by dcafe and the associated fees or charges, as agreed by the Parties.
“Taxes” means any applicable taxes, tax-like charges, tax-related charges and other charges or surcharges.
“Term” shall have the meaning set forth in Section 12.1.

2. SERVICES

Services. dcafe shall provide the Platform/Services to Customer as specified in a mutually Accepted SO, SOW or Service Supplement, subject to the terms and conditions herein (including any terms or conditions in the applicable SO, SOW and/or Service Supplement). All SOs and SOWs must be in writing and Accepted by an authorized representative of each Party and refer to the Agreement by number or by title and date. Customer shall not white label or otherwise re-brand the Services for resale without advance written consent from dcafe.
Acceptable Use, Technical Cooperation
1. Customer is responsible for and assumes all liabilities arising out of or related to Customer Content. Customer acknowledges that dcafe is a mere intermediary (i.e., passive conduit) for transmission of Customer Content and does not exercise editorial or other control over Customer Content. The applicable dcafe Privacy Policy (“Privacy Policy”) and dcafe Acceptable Use Policy (“AUP”) for the Services are available at www.dcafe.io/terms/ or other URL designated by dcafe. Customer shall not provide to dcafe any Customer Content that may compromise the Services, is inappropriate and/or violates or is inconsistent with the AUP. If dcafe determines, in its sole discretion, that Customer Content or any use of Services violates the AUP or otherwise adversely impacts the Services, dcafe reserves the right to take remedial measures including blocking or disabling access. dcafe shall use commercially reasonable efforts to limit such measures to the extent necessary to resolve the adverse impact without undue interruption of Services. The Parties shall work together in good faith to resolve the problems or issues causing, in whole or part, the adverse impact. For purposes of this Agreement, “adversely impacts” does not mean an unscheduled increase in End User traffic.
2. For Services to function as intended, Customer and Resale Customer should cooperate in good faith with dcafe to configure and enable Services. When Customer or Resale Customer elects to send or receive Customer Content using the Services, Customer or Resale Customer is solely responsible for modifying its content identifiers, consistent with guidance that dcafe provides, to enable dcafe to deliver the selected Customer Content. This may include changing the alias information in Customer’s or Resale Customer’s DNS record so that hostname addresses of page objects resolve to dcafe’s servers.
3. Given the nature of the Services, Customer is solely responsible for (i) all bandwidth usage or activity occurring on Customer’s dcafe account (e.g., leeching or hotlinking/direct linking to Customer Content), (ii) all resulting charges and costs and (iii) implementing any monitoring, defensive or protective tools or measures (whether offered by dcafe or a third Party) related to Customer’s account. Customer is solely responsible for implementing token authentication and maintaining the security of Customer’s dcafe account login credentials and any other information used to gain access to Services. Customer is solely responsible for backing up all Customer Content and Customer Data.
Use of Affiliates/Suppliers/Subcontractors. dcafe may at any time, and without notice, use one or more Affiliates, suppliers or sub-contractors in connection with the performance of its obligations under this Agreement.
Service Level Agreement (“SLA”).
1. The applicable SLA for a Service shall be set forth in the Service Supplement(s). To be eligible for a Credit under an applicable SLA, Customer must be in good standing with no delinquent invoices, in addition to any other SLA requirements. If Customer is eligible to receive more than one Credit attributable to the same SLA failure, Customer shall only receive one Credit equal to the highest of all Credits then available. dcafe may modify any SLA from time to time, effective upon notice to Customer or posting of the revised SLA on dcafe’s website or other Service specific website as applicable. Continued use of Services 15 days after the date of such notice or posting shall constitute assent to the modified SLA.
2. SLA Exceptions. For the Services, Customer shall not be eligible to receive a Credit and dcafe shall not be held responsible for a SLA failure, if a Services Outage (as defined in the applicable SLA) or other service level failure occurs due, directly or indirectly, to the following (collectively, the “SLA Exceptions”): (i) Force Majeure Events; (ii) DNS issues beyond dcafe’s direct control; (iii) scheduled maintenance and emergency maintenance and upgrades; (iv) failure or unavailability of hardware that Customer or Resale Customer provides or controls, including any Customer or Resale Customer origin server; (v) failure or unavailability of any third Party or public network or system, or software applications or code that Customer provides to dcafe; (vi) negligent acts or omissions, willful misconduct or breach of an applicable SO, SOW, Services Supplement or the Agreement by Customer or others engaged or authorized by Customer; or (vii) stream buffering that occurs due to conditions beyond dcafe’s network or immediate control.
Order of Precedence. To the extent there is any conflict between a SO or SOW, a Service Supplement and the terms and conditions of this Agreement, the order of precedence is: (a) the terms and conditions of this Agreement, (b) the SO, (c) the SOW, and (d) the Service Supplement (solely with respect to the Services being provided under that Service Supplement).

3. CHARGES AND PAYMENT

Taxes. All charges are exclusive of Taxes, which Customer must pay. If Customer provides dcafe with a valid, duly executed tax exemption certificate, dcafe shall exempt Customer from Taxes in accordance with the law, effective on the date dcafe receives the exemption certificate. If Customer disputes the application of any Tax, Customer must give dcafe written notice of the dispute within one month of the date of the invoice. Otherwise, such application of Taxes, as between dcafe and Customer, shall be deemed correct and binding on Customer. If Customer is required by law to make any deduction or withholding from any payment due hereunder to dcafe, then notwithstanding anything to the contrary in this Agreement, the gross amount payable by Customer to dcafe shall be increased so that, after any such deduction or withholding for taxes, the net amount received by dcafe shall not be less than dcafe would have received had no such deduction or withholding been required.
Payment.
1. Payment is due within 30 days of invoice date. All invoices may be provided to Customer electronically. Customer shall remit payment to dcafe at its principal offices, unless dcafe provides notice to Customer otherwise. All charges shall be invoiced and payable in United States dollars, unless otherwise mutually agreed in writing.
2. If an invoice is unpaid within 30 days of the invoice date (i.e., the invoice becomes delinquent), dcafe may, in its sole discretion and effective upon notice to Customer, (i) suspend Services, (ii) apply a late charge on the unpaid amount equal to the lesser of 1.5% interest per month or the maximum rate allowed by law, (iii) require Customer to provide a cash deposit or other security to guarantee payment and/or (iv) pursue any other remedy available under this Agreement, at law or in equity.
3. If Customer desires to dispute in good faith an invoiced amount, Customer shall, within 30 days of the invoice date, (i) pay the invoiced amount and (ii) provide notice of the details of the dispute, together with all supporting documentation. The Parties shall work diligently to promptly resolve the dispute and upon resolution, (1) dcafe shall promptly credit to Customer any amount found to be owed to Customer or (2) Customer shall promptly pay to dcafe all amounts found to be owed to dcafe. If Customer does not timely submit a documented dispute notice per this Section, Customer waives all rights to dispute such amounts, including any claim of set-off or reimbursement.
4. If dcafe reasonably deems itself insecure with respect to Customer’s ability to pay (e.g., due to Customer’s withdrawal of credit card authorization for automatic payment), dcafe may, in its sole discretion and effective upon notice to Customer, (i) modify Customer’s payment terms (e.g., by changing from monthly to quarterly invoicing of MRCs) and/or (ii) require Customer to provide a cash deposit or other security to guarantee payment.

4. GRANT OF RIGHTS, INTELLECTUAL PROPERTY

dcafe grants to Customer the right to access and use the Services during the Term solely for the internal business purposes of the Customer. Subject only to the foregoing, dcafe retains all worldwide rights, title and interest in and to the Services, dcafe equipment, network and methodologies, software and Intellectual Property Rights embodied therein or related thereto, whenever developed. Customer shall not and shall require that Resale Customers do not either directly or indirectly reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any Services (including any related software, hardware or information).
Customer grants to dcafe, and its agents, suppliers and subcontractors, the right to access and use, ingest, reproduce, duplicate, format, store, distribute, display and perform Customer Content and associated metadata as necessary to provide the Services. Subject only to the foregoing, Customer retains all rights, title and interest in and to Customer Content and Intellectual Property Rights embodied therein or related thereto. dcafe shall not, either directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from Customer Content.

5. DATA

The Parties acknowledge and agree that (a) dcafe, its Affiliates and agents shall, by virtue of providing Services, come into possession of Customer Data and End User Data, (b) any processing of such data occurs exclusively at the direction and discretion of Customer, as exercised through workflows or other agreed means and (c) dcafe, its Affiliates and agents may use, process and/or transfer Customer Data, End User Data and Customer Content (including transfers to entities in countries that do not provide statutory protections for personal data) (i) in connection with providing Services and (ii) as applicable, to incorporate Customer Data into databases controlled by dcafe and its Affiliates for the purpose of administration, provisioning, invoicing and reconciliation, verification of Customer identity and solvency, maintenance, support and product development, fraud detection and prevention, sales, revenue and Customer analysis and reporting, marketing and Customer use analysis.

“Customer Data” means information that identifies Customer or a Resale Customer, that is provided to dcafe for purposes of account creation, billing, authentication, authorization or configuration, and may include name, contact and billing information, IP address, hostnames and other metadata required for Services configuration (e.g., delivery or ingest) of Customer or a Resale Customer.

“End User Data” means information that identifies an End User and is necessary to implement and use the HTTP or HTTP/S protocol in connection with providing the Services, including IP address.

6. CONFIDENTIALITY

During the Term and for three years thereafter, Receiving Party shall not use, copy or disclose Confidential Information except as permitted herein. All copies of Confidential Information remain the sole property of Disclosing Party. Receiving Party shall protect Disclosing Party’s Confidential Information using at least the same procedures as it uses to protect its own Confidential Information, but no less than reasonable procedures.
Receiving Party may disclose Confidential Information to its employees, consultants and contractors who have a need to know in connection herewith and who have executed a confidentiality agreement at least as stringent as that provided in this Section 6 or to attorneys or other consultants or contractors who are legally required to maintain the confidentiality of such Confidential Information.
Receiving Party also may disclose Confidential Information pursuant to applicable law, regulation, subpoena or other order of a court of competent jurisdiction (collectively, “Legal Requirement”) or to establish rights or obligations under this Agreement in any proceeding; provided that:
1. reasonable prior notice, unless legally prohibited, is provided to Disclosing Party sufficient to provide Disclosing Party an opportunity to contest such disclosure,
2. Receiving Party cooperates with Disclosing Party in complying with any applicable protective order or equivalent, and
3. Receiving Party discloses Confidential Information only to the extent necessary to comply with the Legal Requirement or to establish such rights or obligations.
Receiving Party shall notify Disclosing Party upon discovery of any unauthorized use or disclosure of Confidential Information and shall cooperate to help Disclosing Party prevent further unauthorized use or disclosure.
dcafe shall not be deemed to have received, obtained, discovered, processed, stored, maintained, been given access or required access to Customer’s Confidential Information solely because (x) Customer receives, transmits, obtains or otherwise exchanges such information by using the Services or (y) dcafe’s provision of the Services may involve hosting, storage, transport or other similar handling of such information.
Receiving Party acknowledges that Disclosing Party’s Confidential Information is valuable and unique, and that unauthorized use or disclosure may result in irreparable injury to Disclosing Party for which monetary damages are inadequate. If Receiving Party violates or threatens to violate this Section 6, Disclosing Party shall be entitled to seek injunctive relief without the need to post bond, in addition to any other available legal or equitable remedies.

7. REPRESENTATIONS AND WARRANTIES

Each Party represents and warrants that:
1. it possesses the full right, power and authority to enter into and fully perform the Agreement and grant the rights granted herein;
2. it has obtained and shall comply with, and make any necessary payments due in connection with, all required authorizations, approvals, licenses or permits from all third Parties, government authorities or otherwise in order for it to enter into and perform its obligations herein;
3. it is not bound by any contractual or other legal obligation that would prevent it from entering into or performing its obligations herein;
4. the execution, delivery and performance of this Agreement has been duly authorized by all necessary corporate action; and
5. it shall comply with all applicable laws, rules and regulations in its performance hereunder.
Customer represents and warrants that it has obtained and maintains all legally required consents and permissions for the use, processing and transfer of Customer Content, Customer Data and End User Data provided to dcafe.
Customer represents and warrants that none of Customer’s known End Users are:
1. designated on any U.S. Government or other governmental list of restricted Parties, including the List of Specially Designated Nationals and Blocked Persons administered by the Office of Foreign Asset Controls at the U.S. Department of the Treasury;
2. located in or otherwise ordinarily resident in any country where U.S. or other governmental sanctions or embargo provisions prohibit the provision of the Services; or
3. otherwise prohibited from using, benefiting from or accessing the Services.

8. DISCLAIMER

dcafe PROVIDES THE SERVICES “AS IS” AND DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE, TO THE FULLEST EXTENT PERMITTED BY LAW.

9. LIMITATION OF LIABILITY

IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING LOST REVENUES, PROFITS OR GOODWILL, LOST OR DAMAGED CUSTOMER CONTENT OR DATA, LOST CUSTOMERS, BUSINESS INTERRUPTION OR REPLACEMENT SERVICES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY, WHETHER OR NOT SUCH PARTY KNEW OR HAD REASON TO KNOW OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT THE REMEDIES PROVIDED FOR HEREIN FAIL OF THEIR ESSENTIAL PURPOSE, OR WHETHER FORESEEABLE OR NOT, ARISING FROM THE PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT, OR ANY ACTS OR OMISSIONS ASSOCIATED THEREWITH OR RELATED TO DCAFE SYSTEMS, NETWORKS, COMPONENTS OR PROCESSES, ANY DCAFE SERVICES, EQUIPMENT, SOFTWARE OR DOCUMENTATION.

dcafe SHALL HAVE NO LIABILITY FOR BANDWIDTH THEFT (E.G., LEECHING OR HOTLINKING/DIRECT LINKING TO CUSTOMER CONTENT), DENIAL OF SERVICE ATTACKS OR OTHER MALICIOUS ACTS BY THIRD PARTIES. dcafe’s AGGREGATE LIABILITY FOR ANY AND ALL CAUSES OF ACTIONS, CLAIMS AND DAMAGES IN CONNECTION WITH THIS AGREEMENT IS LIMITED TO THE LESSER OF (1) DIRECT DAMAGES PROVEN BY CUSTOMER OR (2) THE AMOUNT OF FEES OR CHARGES PAID BY CUSTOMER TO dcafe DURING THE 6-MONTH PERIOD BEFORE THE DATE ON WHICH ANY CLAIM AROSE.

10. INDEMNIFICATION

Indemnification. Customer shall, at its cost, defend, indemnify and hold harmless dcafe and its officers, directors, employees, agents and permitted successors and assigns (each a “dcafe Indemnitee”) through final judgment or settlement, from and against any third-party claim, action, suit, proceeding, judgments, settlements, losses, damages, expenses (including reasonable legal fees and expenses) and costs (including allocable costs of in-house counsel) (“Claim”) brought against a dcafe Indemnitee arising out of or based upon:
1. bodily injury, death or loss of or damage to real or tangible personal property to the extent such Claims were alleged to have been proximately caused by any negligent act, omission or willful misconduct of Customer, its agents or employees;
2. operation or use of Customer’s or Resale Customer’s products, websites or services;
3. Customer Content;
4. unauthorized use of or access to the Services or dcafe equipment by Customer, Resale Customer or End User;
5. dcafe’s compliance with Customer or Resale Customer specifications;
6. a combination or modification of the Services or dcafe equipment by or on behalf of Customer or Resale Customer by anyone other than dcafe or its authorized agents;
7. distribution (including by sale or importation), decoding, decrypting, duplication, storage, display/playback, modification or any other use of Customer or Resale Customer information by any non-dcafe entity; or
8. use of other than the then-current, unaltered release of any dcafe-provided software used in the Service.
Process. The dcafe Indemnitee shall:
1. promptly provide notice to Customer of any Claim for which indemnity is claimed (provided that any delay in providing notice shall not relieve Customer of its obligations hereunder except to the extent Customer is materially prejudiced by such delay);
2. permit Customer to control the defense of any such Claim; and
3. provide reasonable assistance at Customer’s reasonable cost.
Subject to the foregoing, Customer may select legal counsel to represent the dcafe Indemnitee (such counsel to be reasonably satisfactory to the dcafe Indemnitee) and control the defense. If Customer elects to control the defense, the dcafe Indemnitee may participate at its own cost. If Customer fails within a reasonable time to defend the dcafe Indemnitee, the dcafe Indemnitee may defend and settle the Claim at Customer’s cost. Customer may not consent to entry of any judgment or settlement imposing liability or obligations on the dcafe Indemnitee without prior written consent of the dcafe Indemnitee, such consent not to be unreasonably withheld or delayed.

10A. REMEDIES IN EVENT OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS

In the event any portion of the Services is held or believed by dcafe to infringe Intellectual Property Rights of any third party (the “Infringing Materials”), dcafe shall, at its sole expense and at its option: (a) obtain from such third party the right for Customer to continue to use the Infringing Materials; (b) modify the Infringing Materials to avoid and eliminate such infringement; (c) upon mutual agreement with Customer, remove and disable the Infringing Materials; or (d) if none of the foregoing remedies is commercially feasible, terminate this Agreement.

This Section 11 contains Customer’s sole and exclusive remedy and dcafe’s entire liability (except as provided by Section 10 for acts occurring prior to the assertion of the Claim) with respect to infringement or alleged infringement of third-party Intellectual Property Rights.

11. BRANDING

dcafe shall have the right to refer to Customer as a Customer of dcafe Services. Customer may use dcafe’s name, logo, trade name, service marks, trademarks or printed material in promotional or advertising materials only with dcafe’s prior written consent.
Customer covenants and agrees that it:
1. will not use, register or assert ownership interest in any mark that is confusingly similar to dcafe’s trademarks;
2. will not use dcafe’s trademarks in any manner that may jeopardize dcafe’s ownership or the distinctiveness, validity or value of dcafe’s trademarks; and
3. will not contest the validity of dcafe’s trademarks.
Customer agrees that any rights, interests and goodwill that might be acquired through use of dcafe’s trademarks shall inure solely to the benefit of dcafe. Customer acknowledges that it has no ownership rights in dcafe’s trademarks other than the limited rights granted herein.
Customer agrees to comply with rules set forth by dcafe regarding the appearance and manner of use of dcafe’s trademarks.
Customer shall comply with all laws and regulations relating to proper use and designation of trademarks and shall identify dcafe’s trademarks in advertising and printed materials with notices specified by dcafe.
Unless otherwise agreed in writing, upon expiration or termination of this Agreement all licenses and rights granted under this Section shall immediately terminate, and Customer shall discontinue all use of dcafe’s trademarks and destroy or return all materials bearing dcafe’s trademarks.

12. TERM AND TERMINATION

Term. The Agreement shall begin on the Effective Date and shall continue until the earlier of (a) its termination pursuant to the terms of the Agreement, or (b) the expiration or termination of all SOWs and SOs between the Parties (the “Term”).
Termination for Cause.
1. By Customer. Customer may terminate this Agreement for cause, upon notice to dcafe if:
  1. a receiver or administrator is appointed for dcafe or its property;
  2. dcafe makes a general assignment for the benefit of its creditors;
  3. dcafe commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law which are not dismissed within 60 days;
  4. dcafe is liquidated or dissolved;
  5. dcafe ceases to do business or otherwise terminates its business operations; or
  6. dcafe materially breaches this Agreement and such breach continues unremedied for 30 days after receipt of notice from Customer.
  For clarity and subject to Section 14.5 (Force Majeure), a Services Outage as defined in the applicable SLA is not grounds to terminate this Agreement for cause; Customer’s sole remedy for a Services Outage is set forth in the applicable SLA.
2. By dcafe. dcafe may terminate this Agreement for cause and/or suspend Services upon notice to Customer if:
  1. a receiver or administrator is appointed for Customer or its property;
  2. Customer makes a general assignment for the benefit of its creditors;
  3. Customer commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law which are not dismissed within 60 days;
  4. Customer is liquidated or dissolved;
  5. Customer ceases to do business or otherwise terminates its business operations;
  6. Customer fails to pay all invoiced fees or charges within 30 days from the invoice date, in accordance with this Agreement; or
  7. Customer breaches this Agreement and such breach continues unremedied for 30 days after receipt of notice from dcafe.
  dcafe may terminate, interrupt or suspend Service without prior notice if necessary to (1) prevent or protect against fraud, (2) protect dcafe’s customers, personnel, facilities, equipment, network or services, (3) prevent violation of Section 7 (Representations and Warranties) or infringement upon the rights of others, or (4) prevent potential material liability.
Termination by dcafe for Change of Control. In the event Customer undergoes a Change of Control, dcafe may terminate the Agreement upon 30 days’ notice to Customer’s successor or transferee; provided that dcafe has determined in its sole discretion that Customer’s successor or transferee:
1. is unable to meet dcafe’s standards for creditworthiness;
2. is unable to assume and fulfill Customer’s obligations under the Agreement;
3. otherwise presents an undue financial or credit risk; or
4. is a competitor of dcafe.
Effect of Termination.
1. Upon expiration or termination of the Agreement and/or applicable SO, SOW or Service Supplement for any reason:
  1. all Customer rights to access or use Services and any other dcafe Intellectual Property Rights shall terminate and dcafe shall cease providing them;
  2. Customer shall pay to dcafe all fees or charges accrued but unpaid;
  3. all liabilities accrued before the date of expiration or termination shall survive; and
  4. as directed by each Disclosing Party, each Receiving Party shall return or destroy all copies of Confidential Information and certify such destruction in writing.
2. If Customer terminates the Agreement, SO, SOW or Service Supplement early without cause, or if dcafe terminates for cause, Customer shall be invoiced and pay an early termination charge as set forth in the applicable SO, SOW or Service Supplement. Such early termination charge is agreed by the Parties to be liquidated damages and not a penalty.

13. PUBLICITY

During the Term, except as otherwise set forth herein, the Parties may not issue press releases or other public communications regarding the Parties’ relationship created by this Agreement or the Services without express prior consent.

Customer shall not use dcafe’s name, logo, trademarks, service marks, trade names, trade dress or other proprietary identifying symbols or otherwise identify or refer to dcafe, except as specifically permitted under this Agreement or otherwise with dcafe’s express prior consent.

Customer grants dcafe permission to use Customer’s logo and/or name on the dcafe website, in dcafe sales presentations, for marketing purposes and promotional materials, and to identify Customer as a customer of the Services in response to requests for information and responses to proposals.

All other uses of Customer’s name, logo, trademarks, service marks, trade names, trade dress or other proprietary identifying symbols shall be subject to Customer’s consent, which shall not be unreasonably withheld.

14. MISCELLANEOUS

Non-Solicitation. During and for one year after the Term, Customer shall not, and shall ensure that its Affiliates do not, directly or indirectly solicit for employment any person employed by dcafe to provide Services. Notwithstanding the foregoing, employment that is initiated by indirect solicitation (such as general newspaper advertisements or general online job postings not targeted at dcafe’s employees) shall not be considered a recruitment or solicitation hereunder.
No Third-Party Beneficiaries. dcafe has been authorized by its Partners as their authorized reseller or service provider of certain Platform Services (“Platform Services”) and such Partner(s) shall also act as a named beneficiary under the present agreement. Save for such named Partners, there are no third-party beneficiaries to this Agreement, including any insurance providers or Resale Customers.
Notices. Any notices to be given hereunder to any other Party, including any notice of a change of address, shall be in writing and shall be deemed validly given if:
1. delivered personally;
2. sent by overnight or second day express delivery service;
3. sent by registered or certified mail, postage prepaid, return receipt requested; or
4. sent by confirmed facsimile.
If to dcafe:
dcafe Digital LLP
Second Floor, Sai Hira, Mundhwa,
Pune, Maharashtra 411036, India
Attention: ______________________ If to Customer:
__________________________
__________________________
__________________________
Attention: __________________ Either Party may change its contact information upon notice to the other Party. If a notice is not received because the receiving Party failed to notify the other Party of a change of address or because receipt is refused, such notice shall be deemed to have been conclusively made seven days after delivery was reasonably initiated.
Force Majeure. Neither Party shall be liable for failure or delay in performance of its obligations due to events beyond reasonable control, including acts of God, civil disorder, terrorism, rebellion, fires, explosions, floods, vandalism, sabotage, equipment unavailability, labor disputes, natural disasters, war, governmental action, cyber attacks, denial-of-service attacks, DNS spoofing attacks or other malicious online attacks (each a “Force Majeure Event”), provided the affected Party takes commercially reasonable steps to prevent such attacks. Customer’s obligation to pay for Services or products provided before a Force Majeure Event may be delayed but shall not be excused. dcafe may limit use of Services due to such an event. The affected Party shall promptly notify the other Party and its obligations shall be suspended to the extent caused by the Force Majeure Event for as long as it continues. If performance is prevented for 30 days, the affected Party may terminate the affected Service by notice. In the case of termination by Customer, Customer must first provide dcafe a reasonable opportunity to replace the affected Service with a comparable Service. Upon termination, dcafe is entitled to payment of all accrued but unpaid fees through the date of termination. Each Party shall bear its own costs and dcafe shall have no further obligation to perform the affected Services.
Choice of Law, Forum. This Agreement shall be construed and enforced in accordance with the laws of India, without regard to conflict of laws principles. Any dispute arising from this Agreement shall be brought only in a court of competent jurisdiction located in Pune, India. Each Party consents to the jurisdiction of such courts and waives objections to such jurisdiction. The prevailing Party shall be entitled to recover reasonable attorneys’ fees and costs. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
Relationship of Parties. The Parties are independent contractors and this Agreement does not establish a partnership, association, joint venture, agency relationship or other cooperative entity between the Parties.
Waiver, Amendments. No failure or delay by either Party to exercise any right shall operate as a waiver of that right. This Agreement may be amended only by a written document signed by authorized representatives of both Parties.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable or contrary to law, the remainder of the Agreement shall remain enforceable and the provision shall be interpreted to best accomplish its intended objectives within the limits of applicable law.
Assignment. Neither Party may assign this Agreement without the other Party’s prior consent, except that dcafe may assign its rights and obligations to a parent, Affiliate, or in connection with a Change of Control. This Agreement shall bind and benefit permitted successors and assigns. Any assignment made in violation of this section shall be null and void.
Export Controls. Each Party acknowledges that Services, Confidential Information, hardware, software, technology or materials provided under this Agreement may be subject to United States export control laws and similar non-US regulations. Their use, import, export or re-export may require licenses. Each Party agrees not to export or re-export such materials to any restricted destination or entity without obtaining required approvals and consent from the disclosing Party.
Survival. The rights and obligations in Sections 3.2(c) (Invoice Disputes), 4 (Intellectual Property), 6 (Confidentiality), 8 (Disclaimer), 9 (Limitation of Liability), 10 (Indemnification) and 14 (Miscellaneous) shall survive termination or expiration of this Agreement.
Entire Agreement. This Agreement, including AUPs, Service Supplements, SLAs, Exhibits, SOs, SOWs and Addenda, constitutes the entire agreement between the Parties and supersedes all prior representations, understandings or agreements relating to the subject matter.
Remedies. Unless otherwise stated, the Parties’ rights and remedies are cumulative and in addition to any rights or remedies available at law or equity.
Construction. Headings are for convenience only and do not affect interpretation. The terms “include” or “including” mean “including without limitation.” “Day” means calendar day unless otherwise specified. Industry and technical terms shall be interpreted according to their customary meanings. Any rule that ambiguities are interpreted against the drafting Party shall not apply.

Exhibit – A

Service Supplements

List of Service Supplements	Description
Delivery Services	Digital media management, CDN, network capacity and storage services

SERVICE SUPPLEMENT

dcafe’ OTT Platform/Services

dcafe’ OTT Platform/Services – Description. dcafe’ shall provide to Customer the following Services and products in connection with live, linear and video on-demand streaming of Customer Content (collectively, the “OTT Platform/Services”):
1. Platforms. A limited, non-exclusive, non-sublicensable, non-transferable right to access and use dcafe’ Proprietary CMS and Screens. “dcafe’ OTT Platform” means dcafé’s Platform including related know-how, which may be used for Web and Devices, Analytics, Billing, CMS, CRM/Customer Support, Devices, End User Authentication, Engagement, Performance, Video Player, Recommendations, Search, Technical Ops and distributing audio and video content via the Internet.
2. Encryption. The use of standard encryption for Customer’s key consumer data.
3. Storage. Server storage for Customer’s consumer data.
4. Support. Technical support to resolve issues with the OTT Platform/Services, both via telephone and email.
5. Reporting and Analytics. High level usage, subscription, asset playback, live, vod, linear playback, ads, revenue data and other metrics on a daily and monthly basis, as well as access to low level usage logs that Customer may optionally use for custom analytics and reporting.
Customer Conditions.
1. Restrictions. dcafe’ provides the OTT Platform/Services as a tightly integrated package of products and services that combine to provide a single, end-to-end platform for delivery of linear, live and on-demand Customer Content through various screens. All Customer Content encoded and/or stored using the OTT Platform/Services shall be delivered using the OTT Platform/Services. Customer shall not (and shall not allow any third party to):
  1. modify, translate, or create derivative works based on all or any part of the OTT Platform/Services;
  2. copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to all or any part of the OTT Platform/Services;
  3. use the OTT Platform/Services for timesharing or service bureau purposes or for the benefit of a third party other than its consumers;
  4. remove any proprietary notices or labels from all or any part of the OTT Platform/Services.
  Any use of OTT Platform/Services shall be in compliance with the rights granted hereunder and with all applicable laws. Customer shall not allow any lien to attach to any portion of the OTT Platform/Services.
2. Equipment. Customer shall be responsible for the maintenance, security and operation of any equipment or hardware, including modems, hardware, servers, software, operating systems, networking and web servers (“Equipment”) owned or operated by Customer, its Affiliates, partners or subcontractors. Customer shall also be responsible for all uses of Customer accounts or Equipment, with or without Customer’s knowledge or consent.
3. Forecasts. Each quarter, Customer shall participate in a quarterly cadence call to review service performance and volume forecasts for the following 90-day period, including uses that may require additional resources.
4. Video Player. Flow through agreement for the Video Player will be applicable.
5. Analytics. Flow through agreement for the Analytics platform will be applicable.
Charges and Payment. Any Credit granted under the applicable SLA shall be applied to the next applicable invoice against any charges for usage.
Early Termination Fee. For the purpose of the OTT Platform/Services, the Early Termination Fee will be an amount equal to the sum of:
Service Level Agreement.
1. SLA Application. The applicable SLA for the Services shall be set forth in the Service Supplement(s). To be eligible for a Credit under an applicable SLA, Customer must be in good standing with no delinquent invoices, in addition to meeting any other SLA requirements. If Customer is eligible to receive more than one Credit attributable to the same SLA failure, Customer shall only receive one Credit equal to the highest of all Credits then available.
2. SLA Exceptions. Customer shall not be eligible to receive a Credit and dcafe’ shall not be held responsible for an SLA failure if a Services Outage (as defined in the applicable SLA) or other service level failure occurs, directly or indirectly, due to an SLA Exception.
Definitions. In addition to the definitions in the Master Terms and Conditions, the following Service-specific definitions apply:

Definitions	Definition
CDN	Content Delivery Network
Claim	Means any third-party claim, action, suit, proceeding, judgments, settlements, losses, damages, expenses (including reasonable legal fees and expenses) and costs (including allocable costs of in-house counsel).
Credit	Means a credit under in applicable SLA as defined in that SLA
Customer Content	Means content, software, data, video, information and equipment of Customer and/or Customer’s customers, including third-party content, software, data and equipment, provided or made available to dcafe’ for storage, delivery or otherwise in connection with the Services.
ICP	Means Internet Content Provider
Partner	Means any federated CDN operators used to provide the China CDN Services
SLA Exceptions	Means (a) force majeure events, including acts of God, computer viruses or worms, computer sabotage, ‘Denial of Service’ attacks, domain name system (“DNS”) spoofing attacks or other malicious online attacks (provided, that the Party claiming such cause has taken commercially reasonable steps to prevent such attacks) or other cause beyond such Party’s reasonable control; (b) DNS issues beyond dcafé’s direct control; (c) scheduled maintenance and emergency maintenance and upgrades; (d) failure or unavailability of hardware that Customer or Customer provides or controls, including, but not limited to, any Customer or Customer origin server; (e) failure or unavailability of any third Party or public network or system, or software applications or code that Customer provides to dcafe’, or the interactions of these items; (f) negligent acts or omissions, willful misconduct, or breach of the Agreement by Customer or others engaged or authorized by Customer; (g) stream buffering that occurs due to, or associated with conditions beyond dcafe’ Facilities or dcafé’s immediate control; or (h) failure of the dcafe’ control center, dcafe’ reporting system or any dcafe’ measurement system.

dcafe’ dcafe’ OTT PLATFORM/SERVICES

SERVICE LEVEL AGREEMENT

This Service Level Agreement (“OTT Platform/Services SLA”) only applies to the OTT Platform/Services.

Definitions.

“Base Charge” consists solely of the committed base monthly charge paid by Customer for the applicable OTT Platform/Services and excludes all other fees that might be paid by Customer including, but not limited to, setup fees, charges for additional services, incremental bandwidth usage, professional services and any other type of optional additional services.
“Customer Content” meansfor purposes of this Video Streaming SLA, a video file or images delivered from a Delivery Server.
“Delivery Server” means servers for delivering OTT Services (each, a “POP”).
“Services Outage” means an instance in which a Service covered by the 99% uptime guarantee is completely unavailable for more than 15 consecutive minutes.
“Origin Server” means either dcafé’s or Customer’s Internet web server, where Customer Content is stored for retrieval by Delivery Servers.

Guarantee of 99% Uptime.

Subject to the SLA Exceptions set forth in the Agreement, dcafe’ provides an uptime guarantee of 99% to Customer covering uptime of dcafe’ OTT Platform uptime and availability. Subject to the terms and conditions of this OTT Platform/Services SLA, dcafe’ shall issue to Customer a credit for a Services Outage in an amount equal to one day’s worth of the Base Fee paid by Customer (“Credit”), multiplied by each 24-hour period in which Customer experiences a Services Outage during a particular month. Periodically (i.e., every 15 minutes or more often)’ dcafe’ shall measure OTT Platform availability by requesting representative Screens.

Credit.

All Credits are calculated on the basis of a 30-days month. Notwithstanding anything in this OTT Platform/Services SLA to the contrary, total Credits issued to Customer in connection with any calendar month shall not exceed the Base Charge paid by Customer for such month for the OTT Platform/Services. To be eligible for Credit, Customer must follow dcafé’s published instructions for use of the Services; improper use shall result in ineligibility. To receive Credit under this Delivery Services SLA, Customer must submit a request in writing via email to sla_request@dcafe.io. The request must include Customer’s (a) company name, (b) contact name, (c) email address and (d) phone number, as well as (e) the date of the suspected Services Outage and (f) a reasonably detailed description of the reason for the Credit request. dcafe’ must receive the Credit request within 30 days after the suspected Services Outage has occurred.

Miscellaneous.

dcafe’ reserves the right to periodically change the measurement points and methodologies it uses without notice. This SLA sets forth Customer’s sole and exclusive remedy for a Services Outage and other issues related to the OTT Platform/Services provided to Customer.

Support and Maintenance

Definitions:

“Error” means a failure of the dcafe’ Solution to function in accordance with the applicable documentation provided here: https://app.swaggerhub.com/apis/DCafe1/Dcafe/2.0
“Excluded Problem” means any failure or problem that is the result of:
1. misuse of the dcafe’ Solution, or use other than in accordance with documentation or the Agreement, or Customer negligence or misconduct;
2. problems caused by Customer Content, systems or other resources provided by Customer;
3. treatment beyond the reasonable limits of normal use for the dcafe’ Solution;
4. a Force Majeure Event;
5. Customer’s use of a major release older than the immediately two prior major releases;
6. failure, interruption, outage or other problem with software, hardware, network, facility or other matter not supplied by dcafe’; or
7. malicious intrusions by third parties or virus attacks.
“Business Hours” means 9:00 am – 5:00 pm IST (India Standard Time) except weekends and holidays. Customer can obtain a copy of the holiday calendar from dcafé’s account manager.
“Initial Response Time” means the window of time for dcafe’ to intake and acknowledge Error notifications received from Reseller, measured from the time Reseller provides sufficient detail (such as logs or screenshots).
“Workaround” means dcafe’:
1. enables Customer or Reseller to use the dcafe’ Solution; or
2. provides a commercially reasonable workaround or fix that mitigates a reported Error until a final fix is provided.

Business Support:

The following technical support terms and conditions shall apply to the dcafe’ Solution (collectively “Business Support”):

dcafe’ will provide Customer or Reseller with configuration and technical support via e-mail and/or telephone during Business Hours.
dcafe’ will make all minor releases and new releases that it generally makes available to its customers available for Customer’s or Reseller’s use under the Agreement.
Available Documentation and API Documentation:
- Help Center: https://helpcenter.dcafe.io/
- API Documentation: https://app.swaggerhub.com/apis/DCafe1/Dcafe/2.0
Product updates and new releases are included with self-service installation in accordance with dcafé’s release timeline.

Support Ticket Process:
- Customer or Reseller shall submit via phone or email a technical support ticket (“Support Ticket”) with contact details to dcafe’ for any Error experienced with the OTT Platform/Services. dcafe’ will provide Customer or Reseller with dedicated Jira Support Ticket tracking.
- If dcafé’s first-line technical support team member (“First Line Support”) is unable to resolve a Support Ticket issue, the ticket will be escalated to second-line support and continue through dcafé’s support chain of command depending on urgency and complexity.
- If Customer or Reseller suspects an issue with dcafe’, they may open a ticket via email at support@dcafe.io.
Details to be provided along with the Support Ticket:
- Client Name
- Domain information [Stage / Pre-prod / Prod]
- Error information (including screenshot if applicable) and steps taken to replicate the error
dcafe’ will communicate directly with Customer’s or Reseller’s contact after the ticket has been submitted and will provide updates to the Network Operations Center (“NOC”) until resolution. Once resolved, the Customer’s or Reseller’s contact will confirm resolution to the NOC, after which the ticket will be closed. Escalation Matrix:
Customer can obtain a copy by requesting it via email from dcafe’s account manager. Official Incident Report and Root Cause Analysis When Customer or Reseller-impacting incidents occur on dcafe’, an Official Incident Report (OIR) will be provided upon request within 48 hours of the incident describing the cause of the service-impacting event. dcafe’ will then follow internal procedures for postmortem analysis. Based on the investigation and review findings, a formal Root Cause Analysis (RCA) document will be created and provided to Customer or Reseller within 5 business days.
Support Procedure: The support parameters for dcafe’s intake and initial response for particular support issues listed below shall apply.

Severity Error Level	Description of Severity Errors	Initial Response Time During Business Hours (Standard)	Initial Response Time During Business Hours (Tier 1)	Initial Response Time During Business Hours (Tier 2)	Initial Response Time During Business Hours (Tier 3)
High Severity Error	Errors resulting in 100% loss of functionality of the Services. No reasonable Workaround is available. High Severity Errors will be escalated immediately to senior engineering staff.	4 Hours	30 mi nutes	30 minutes	30 minutes
Medium Severity Error	The Error impacts critical features and functionality resulting in the dcafe’ Solution being significantly restricted in use. To be a Medium Severity Error there must be no Workaround or alternative workflows that can be implemented to resolve the problem.	24 hours	24 hours	2 Hours	2 Hours
Low Severity Error	Error may be circumvented by implementation of a Workaround without major difficulties or if the Error concerns minor functionality issues of the dcafe’ Solution.	24 hours	8 hours during Business Hours	6 Hours	4 Hours
Minor Features and Cosmetic Issues	Errors related to minor features or cosmetic issues relating to non-urgent questions.	24 hours	24 hours during Business Hours	24 Hours	24 Hours

For avoidance of doubt, Errors related to the user interface or visual defects will be considered Medium Severity Errors unless they result in 100% loss of functionality of the dcafe’ Solution.

Excluded Problem. dcafe’ will have no responsibility to provide support and maintenance services for Excluded Problems.

Resources. dcafe’ will provide Reseller with: (i) access to the dcafé’s offshore on-call support team during Business Hours via email and a direct phone number, (ii) a dedicated Jira Support Ticket tracking, and (iii) a dedicated Slack Channel in order for Reseller to communicate with the dcafe’ Engineering support team.

Integration and Upgrade Support. dcafe’ will provide commercially reasonable support and maintenance services to Reseller for: (i) architectural design and scaling guidance, and (ii) during Customer’s planned events, product launches and migrations; provided that Reseller provides dcafe’ with reasonable prior written notice of such events.

Reseller Assistance. Reseller will make available all reasonably required technical resources required to assist and cooperate with dcafe’ in troubleshooting and seeking to resolve any Support Ticket. The Parties acknowledge and agree that for dcafe’ to troubleshoot a Support Ticket, dcafe’ may require specific access to certain of the Customer’s records including, without limitation, as appropriate, log analysis, database access, and administrative privileges. Subject to Customer’s data security policies, Customer will provide reasonable access to the relevant Customer records referred to in the previous sentence but may not be able to provide all records.

Training. dcafe’ will provide training to Reseller staff via a webinar at no additional cost.

Business Hours.

Tier	Business Hours
Standard	9:00 am – 5:00 pm IST (India Standard Time) except weekends and Holidays
Tier 1	8×5 hrs coverage except weekends and Holidays
Tier 2	16×5 hrs coverage except weekends and Holidays
Tier 3	24×7 hrs coverage