BRIGHTCOVE SERVICE TERMS — EXPRESS EDITION

BRIGHTCOVE SERVICE TERMS — EXPRESS EDITION

These Brightcove Service Terms – Express Edition (the “Service Terms”), together with any order form or online order submitted by you (each, an “Order”), and any exhibit or attachment thereto, comprise the entire agreement (the “Agreement”) by and between Brightcove and the entity or individual (“Company”) identified in the Order concerning Company’s use, and Brightcove’s provision, of the Brightcove Service. If you are an individual and are entering into this Agreement on behalf of an entity, you represent that you have the authority to bind such entity to all of the terms and conditions of this Agreement.

The Brightcove Service. The “Brightcove Service” is an online video platform that enables Company to upload, manage and distribute Company’s Content. From time to time, Brightcove may offer different editions of the Brightcove Service (currently Express, Basic, Pro and Enterprise). Company is entitled to access and use only those features included in the edition to which Company has subscribed. As used herein, “Content” means all content, data or information in any form that is uploaded to the Brightcove Service 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, publisher interface (the “P/I”) provided as part of the Brightcove Service, Company may make choices about the presentation, management and distribution of the Content. Company may change Company’s selections as permitted by the Brightcove Service. In all cases, however, Company’s last selections in the P/I, as reflected in Brightcove’s database, shall be conclusive in the event of any dispute concerning Company’s selections.
Access to the Brightcove Service; Trials
1. Access to the Service. Access to Company’s Account(s) shall be limited by use of username(s) and password(s) (“Credentials”) selected by Company. 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.
2. Free Trials of the Brightcove Service. Brightcove may, from time to time, offer free trials of the Brightcove Service. Unless otherwise indicated expressly by the offer, any such trial will be effective for a period of 30 days after such trial is commenced by Company or until Company places an Order with Brightcove (whichever occurs first). Content uploaded to the Brightcove Service by Company during a trial, and any selections made by Company within the P/I during a trial, may be deleted unless Company places an Order with Brightcove prior to the conclusion of the trial period. Brightcove may terminate any free trial at any time in its sole discretion. NOTWITHSTANDING SECTION 9 OF THESE SERVICE TERMS, THE BRIGHTCOVE SERVICE IS PROVIDED “AS-IS” AND WITHOUT ANY REPRESENTATION OR WARRANTY DURING TRIALS.
Company’s Obligations.
1. 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 interferes with or disrupts 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 right Brightcove may have, Brightcove reserves the right to suspend Company’s access to and/or use of the Brightcove Service to the extent that Brightcove determines, in good faith, that such suspension is necessary to comply with applicable law or to prevent significant harm to any end user or the Brightcove Service; provided further, however, that in such event, Brightcove shall only suspend that portion of the Brightcove Service as is reasonably necessary to prevent the occurrence or continuation of such violation and/or harm.
2. Obligation to Pay. Company shall pay Brightcove the fees set forth in this Agreement, including any applicable Order, exhibit, attachment or amendment to the Agreement, in accordance with the payment terms set forth herein. 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 Order (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. 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.
Brightcove’s Obligations. Brightcove agrees to (a) operate and make available to Company the Brightcove Service in accordance with this Agreement; and (b) perform any other obligations expressly identified in this Agreement.
Term. The term (“Term”) of this Agreement shall commence when the credit card information Company has submitted in connection with its Order has been validated and accepted. The Term shall continue until the Agreement is terminated by either Company or Brightcove in accordance with the provisions of the Agreement.
Termination. Unless otherwise prohibited by law, either party may terminate this Agreement: (a) if the other party is adjudicated bankrupt or otherwise seeks to avoid its performance obligations under applicable bankruptcy or insolvency laws, (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 or (c) by following the cancellation instructions set forth herein. In the event of a termination of this Agreement, all licenses granted under this Agreement shall terminate automatically. Upon an early termination of this Agreement for any reason (other than a termination resulting from a material, uncured breach of this Agreement by Brightcove), all fees and expenses payable under this Agreement shall become immediately due and payable.
Title. As between the parties, Brightcove owns all right, title and interest in and to the Brightcove Service. This Agreement does not convey any ownership interest in or to the Brightcove Service to Company, but only a limited license 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.
Licenses.
1. 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 Sections 18(b) and (c)), non-exclusive, worldwide license to use the Brightcove Service. All rights not expressly granted to Company are reserved by Brightcove and its licensors. Except as expressly permitted by Brightcove or to the extent expressly authorized by the Brightcove Service, Company shall not: (a) 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 (b) modify or make derivative works based upon the Brightcove Service or reverse engineer, decompile or disassemble the Brightcove Service.
2. License to Content. Company hereby grants Brightcove a limited, revocable (as set forth in this Agreement), non-transferable (except as provided in Sections 18(b) and (c)), 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 P/I. For avoidance of doubt, although Brightcove shall have the right hereunder to host, store, encode, reproduce and/or distribute the Content (among other things) in order to provide the Brightcove Service in accordance with this Agreement, the parties expressly agree that Brightcove does not hereby take legal title to any Content supplied by Company.
3. License to Marks. Brightcove hereby grants Company, and Company hereby grants Brightcove, a limited, revocable (as set forth in this Agreement), non-transferable (except as provided in Sections 18(b) and (c)), non-exclusive, royalty-free, worldwide license to reproduce and display the other’s logos, trademarks, trade names and other similar identifying material (the “Marks”). Any and all use of a party’s Marks hereunder shall inure exclusively to the benefit of the owner of the Marks. This Agreement does not convey any ownership interest in or to the other party’s Marks, but only a limited license that is revocable as set forth in this Agreement. Brightcove shall only reproduce and display Company’s Marks that Company uploads into the Brightcove Service and in accordance with Company’s selections made through the P/I. Company shall only reproduce and display Brightcove’s Marks as such Marks are incorporated into and made available to Company as part of the Brightcove Service.
4. License to Feedback, Suggestions or Recommendations. Company hereby grants 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.
Representations and Warranties.
1. 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.
2. The 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.
Indemnification. Company agrees to indemnify, defend and hold harmless Brightcove and Brightcove’s officers, employees, directors, agents, affiliates, subsidiaries, successors and assigns from and against any and all third party claims, damages, liabilities, loss, government fines, costs and expenses (including reasonable attorney’s fees and litigation expenses) (each a “Claim”), arising out of or related to any alleged or actual breach of any representation, warranty or covenant made by Company in this Agreement.

Brightcove agrees to indemnify, defend and hold harmless Company and Company’s officers, employees, directors, agents, affiliates, subsidiaries, successors and assigns from and against any and all third party Claims arising out of or related to any alleged or actual breach of any representation, warranty or covenant made by Brightcove in this Agreement.
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. 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.
LIMITATIONS/EXCLUSIONS OF LIABILITY. 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 IN EXCESS OF $10,000. NOTWITHSTANDING ANY OF THE FOREGOING IN THIS ENTIRE SECTION, THE LIMITATIONS SET FORTH IN THIS SECTION SHALL NOT APPLY IN THE CASE OF (I) BREACHES OF SECTION 3(A) (“RESTRICTIONS ON USE”), (II) AMOUNTS PAYABLE PURSUANT TO SECTION 10 (“INDEMNIFICATION”), (III) DAMAGES RESULTING FROM INTENTIONAL TORTS, (IV) FEES PAYABLE BY COMPANY UNDER THIS AGREEMENT OR (V) BREACHES OF SECTION 14 (“CONFIDENTIALITY”).
Third-Party Services. Brightcove may, from time to time, inform customers of third-party services that can be used by customers in connection with the Brightcove Service, including services from companies associated with Brightcove’s Alliance program, and Company may opt to use these or other third-party services 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.
Confidentiality. Each party agrees not to disclose the other party’s Confidential Information without its prior written consent. “Confidential Information” includes, without limitation: (a) all intellectual property; (b) financial information (including pricing) and business information; and (c) any other information designated in writing as “Confidential.” Confidential Information does not include (w) Content; (x) information that has become publicly known through no breach by Company or Brightcove of these confidentiality obligations; (y) information that is independently and lawfully developed or obtained without access to Confidential Information, as evidenced in writing; or (z) information required to be disclosed by law.
Identification Rights. Brightcove shall have the right to identify Company as a customer and Company shall have the right to identify Brightcove as the provider of the Brightcove Service.
Notices. All notices required to be given under this Agreement must be given 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., One Cambridge Center, Cambridge, MA 02142, attn: General Counsel.
Brightcove Express.
1. Express Plan Entitlements. From time to time, Brightcove may offer one or more “Express” editions to customers (each, an “Express Plan”). The usage entitlements (the “Entitlements”), which include a defined allotment of Titles and bandwidth (GBs), the features and the fees for each Express Plan shall be described on the Brightcove website or otherwise communicated to Company by Brightcove.
2. Credit Card Charges. By submitting an Order for an Express Plan, Company agrees that Brightcove is and will continue to be authorized to charge a monthly service fee and any applicable additional usage fees to the credit card Company provided in connection with its Order until this Agreement is terminated. Company acknowledges and agrees that the amount charged may vary from month to month due to additional usage fees incurred by Company pursuant to its Express Plan and/or changes Company makes to its Express Plan. Company authorizes Brightcove to charge Company’s credit card for such varying amounts. All fees are payable in US dollars.
  1. Monthly Service Fees. Upon submission of an Order, Brightcove will charge Company’s credit card for the first month of the Express Plan Company has selected, prorated for the number of days remaining in the month in which the Order is submitted. Thereafter, monthly service fees will be charged to Company’s credit card in advance on or around the first day of each calendar month until this Agreement is terminated. Brightcove does not guarantee that Company’s credit card will be charged by a specific day of the month.
  2. Additional Usage Fees. If Company exceeds any of the monthly Entitlements in its Express Plan at any point during the month, Brightcove will charge Company’s credit card the applicable additional usage fees identified in Company’s Order on or around the first day of the calendar month following the month in which such additional usage fees are incurred by Company. Brightcove does not guarantee that Company’s credit card will be charged by a specific day of the month.
3. No Refunds. All fees are nonrefundable. For clarity and avoidance of doubt, Brightcove shall have no obligation to issue refunds or credits for any unused Entitlements, partial months or in connection with any downgrade, cancellation, termination or otherwise.
4. Fees Charged by Company’s Credit Card Issuer, Bank or Financial Institution. Company is solely responsible for any and all fees charged to Company’s credit card by Company’s credit card issuer, bank or financial institution including, without limitation, membership, overdraft, insufficient funds and over-the-credit-limit fees.
5. Changes to Company’s Express Plan.
  1. Upgrades to Another Express Plan. Company may upgrade to a different Express Plan at any time through the Brightcove Studio. Upgrades to Company’s Express Plan will be effective upon submission of the completed upgrade request through the Brightcove Studio. Company’s credit card will, at the time the upgrade request is completed, be billed the price difference between Company’s old Express Plan and its new Express Plan, prorated for the number of days remaining in the then-current calendar month. Entitlements for the month in which Company upgrades its Express Plan are not prorated – Company’s monthly Entitlements for the month in which the upgrade goes into effect shall be those Entitlements included in the upgraded plan.
  2. Upgrades to Pro or Enterprise Editions. Company may upgrade to either a Brightcove Pro edition plan or a Brightcove Enterprise edition plan at any time by contacting the Brightcove sales team via the Brightcove website at http://www.brightcove.com/en/about-us/contact or by calling +1 (888) 882-1880 or +1 (617) 500-4947.
  3. Downgrades to Another Express Plan. Company may downgrade to a different Express Plan at any time by completing the downgrade process described in the “Support” section of the Brightcove Studio. The features of the Brightcove Service available to Company will be changed to those of the downgraded Express Plan upon completion of the downgrade request. Company’s Express Plan Entitlements will not change to those of the downgraded plan until the first day of the next billing cycle.
6. Order Information. Company agrees to provide Brightcove with true, accurate and complete information in connection with its Order, including, without limitation, Company’s legal name, address, telephone number, email address and billing information (i.e., credit card number and expiration date) (“Order Information”). Company agrees, throughout the Term, to maintain and promptly update Company’s Order Information and any other information Company provides to Brightcove in connection with its use of the Brightcove Service.
7. Billing Information. Company may change Company’s credit card information or its billing information by updating the “Billing Information” section within the Brightcove Studio. Only the User who initially provided the credit card information is entitled to access and change Company’s credit card information in the Brightcove Studio. Company acknowledges and agrees that Brightcove may (though is not required to) contact Company from time to time to verify Company’s Order Information, including credit card expiration date, provided, however, that Company remains solely responsible for providing accurate and current payment information to Brightcove throughout the Term and if such information is not received by Brightcove, Brightcove may suspend Company’s use of the Brightcove Service.
8. Locked Accounts for Payment Failure. If Brightcove is unable to charge Company’s credit card for any reason, Brightcove may, in addition to any other rights Brightcove may have, suspend Company’s use of the Brightcove Service until such time as all applicable charges are successfully applied to Company’s credit card.
9. Cancellations. The monthly service fees (and any applicable additional usage fees) for Company’s Express Plan will continue unless and until this Agreement is terminated pursuant to Section 6 or cancelled pursuant to this section.
  1. Cancellation by Company. Company may cancel any Company Order at any time pursuant to the procedures described in the “Support” section of the Brightcove Studio. Company’s cancellation must be finalized prior to 11:59 pm (Pacific Time) on the last day of the then-current calendar month in order to avoid charges for the following month. Any final charges (monthly service fees and/or any additional usage fees) that have not been charged to Company’s credit card prior to cancellation will be charged to Company’s credit card following cancellation.
    
    Brightcove is not responsible for Company’s failure to properly cancel an Order, nor is Brightcove responsible for any credit card charges and fees Company may incur as a result of such failure.
  2. Cancellation by Brightcove. In addition to any other termination right Brightcove has under these Service Terms, Brightcove may, with at least 30 days prior notice to Company, cancel Company’s Order at any time in its sole discretion. Any final charges (monthly service fees and/or additional usages fees) that have not been charged to Company’s credit card prior to cancellation will be charged to Company’s credit card following cancellation.
    
    For clarity and avoidance of doubt, if Company is subject to more than one Order, any cancellation of an Order pursuant to this section shall terminate this Agreement with respect to such Order only.
10. Company’s Credit Card Information. Company agrees that Brightcove may share Company’s Order Information with third-party credit card processing companies for the purpose of verifying the accuracy of Company’s Order Information and processing and charging Company’s credit card for Company’s Order.
11. Express Plan Definitions. The following terms have the definitions provided below:
  1. Account. Means a single point of entry into the Brightcove Service through which User(s) access and use the Brightcove Service.
  2. GB. Means 1,000,000,000 bytes and is the measurement of bandwidth usage. Company shall pay for all GBs transferred by Brightcove, including all ingress traffic and egress traffic related to the Brightcove Service.
  3. Title. Means a video stored by Company in Company’s Brightcove Service Account.
  4. User. Means a single person, authorized by Company, to use the Brightcove Service on Company’s behalf, with unique Brightcove Credentials. No more than a single person may use a User’s Credentials.
12. Changes to Fees and the Agreement. With at least 30 days prior notice to Company, Brightcove may, in its discretion, change the terms (including the fees) and/or Entitlements of Company’s Express Plan. If Company does not agree to such changes, Company will have an opportunity to cancel or change its Order prior to such changes going into effect. If Company does not cancel or change its Order within such time, Company hereby acknowledges and agrees that its failure to cancel or change its Order shall constitute Company’s affirmative acceptance of the changes.
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; (c) Merger or Acquisition: Notwithstanding the provisions of subsection (b) above, 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; (d) 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; (e) Forum Selection: Any and all disputes arising out of or related to this Agreement or performance hereof, shall be brought in the Federal or state courts in the Commonwealth of Massachusetts and the parties hereby agree to the jurisdiction thereof for such purposes and waive any objection thereto; (f) 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; (g) Export Compliance: Each party shall comply with all applicable United States and international export control laws and regulations and, for avoidance of doubt, Company represents that it is not on a list of embargoed or restricted organizations/individuals or located within an embargoed or restricted destination; (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: 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. Delivery by facsimile or e-mail is as effective as physical delivery of an originally executed copy hereof; (k) Integration; Amendment: This Agreement 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, except as otherwise set forth in this Agreement, 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; and (m) Purchase Orders/Instruments: Any instruments, including purchase orders, work orders and acknowledgments, issued by Company in connection with this Agreement (“Instruments”) shall not add to, supersede or conflict with, the terms of this Agreement and in the event any term of an Instrument purports to add to, or conflicts with, any term of this Agreement, such term of the Instrument shall be void and without effect.

Version 1.0 (last updated November 16, 2009)