Bradmax HTML 5 Player Terms of Service
This Terms of Service are binding to all Publishers and Users. The use of the Player is tantamount with the acceptance of this Terms of Service. If you do not accept the terms of service you are prohibited from using the player. The Player is available in different Editions, including unpaid and paid options. Certain rights, obligations and features or restrictions vary by Edition. Unless otherwise stated this Terms of Service apply to all Editions. The Player requires a browser that supports HTML5 / MSE and H264. Older browsers like Internet Explorer 10 are not supported without additional plug-ins i.e. flash. The Player supports the following: (a) codecs: H264 for video and AAC for audio. MP3 is not supported with HTML5, (b) advertisements formats: VAST, VMAP, VPAID, (c) video formats: HLS and Smooth streaming integrated into the Player without plugins, Dash, MP4, Webm, live streaming.
The Player is adjustable to every device with internet connection, including smartphones, tablets, smart TV, desktops.
“Adaptation” means any work that modifies, adds to, deletes from, edits, affects the function of or is based on a Player or any previous Adaptation thereof, including but not limited to all plug-ins and other derivative works as such term is defined by the applicable law.
“Analytics Plug-In” means a plug-in or other code that enables Company to collect information regarding Publisher’s Use (such as browser type, Internet Service Provider, IP address and operating system). Company’s collection and utilization of such information is governed by these Terms of Service.
“Company” means Bradmax Sp. z o.o., Jana Pawła II 61/164, 01-031 Warsaw, NIP: 7010497796.
“Content” means media including videos, images, graphics, animations, sounds, text and music and any related submissions (e.g. viewer comments) hosted, streamed, or played through the Player.
“Data” means all transactional and Content data obtained by, processed by or provided to the Company in connection with the use of the Player. Data may include metadata (such as title, author, description and other information pertaining to Content), IP addresses, URLs, browser and operating system. Use of Data is governed by these Terms of Service.
“Distribute” means to sell, transfer, assign, circulate or make available to any third party, or the facilitation of the foregoing.
“Edition” means a particular edition of the Player, including the Free Edition, Basic Edition, Basic+ Edition, Pro Edition, Pro+ Edition, Infinity Edition and DRM Edition.
“Upgraded Edition” means a particular edition of the Player with extended features or functionalities offered for the higher price in comparison to the licensed Edition.
“Downgraded Edition” means a particular edition of the Player with limited features or functionalities offered for the lower price in comparison to the licensed Edition.
“Effective Date” means the earliest date a Player is Used by Publisher or User.
“End User” means an individual or entity that accesses or Uses Publisher’s or User’s Content.
“Fee” means the amount payable to the Company for Use of the Player.
“License Scope” means the features, rights, obligations and limitations authorized for a particular Edition of the Player.
“OEM” means incorporation of the Player into any goods or services other than Publisher’s websites, including SDK Applications and other goods and services.
“On-line Order Form” is an agreement between Company and Publisher setting forth custom pricing and terms for the use of Player and includes any contemporaneous Addendum thereto. In the event of any conflict between the terms of an On-line Order Form and these Terms of Service, the On-line Order Form shall take precedence.
“Play” means each instance of Content streamed, in whole or in part, through the Player. In case the Content is streamed with breaks without reloading, it shall be treated as a single act of Play.
“Player” means the Licensed Bradmax HTML 5 Player, software and any features, plug-ins and updates provided by Company, owned and developed by the Company together with associated services and/or SDK or SDK Applications.
“Publisher” any individual or entity running commercial activity with the Use of Player.
“User” any individual or entity using free of charge Edition of the Player.
“Publisher Information” means personal and non-personal information about Publisher including but not limited to Publisher’s name, address, email address, telephone number, and, if Publisher transacts business with the Company, financial information such as payment method (valid credit card number, type, expiration date or other financial information).
“Purpose” means (i) Use to facilitate Content playback and streaming on Publisher’s websites, (ii) Use of the SDK to develop and Distribute SDK Applications, (iii) other OEM Use.
“SDK” means the Player Software Development Kits for Android and iOS, including all components thereof (documentation, code, tools, libraries, data, files and materials) and all updates thereto[ARM4] .
“SDK Applications” means application software for Operating Systems, created with the SDK and incorporating the Player .
“Services” means services provided to Publisher under these Terms of Service, including cloud-hosted versions of the Player and SDK provided as software as a service (SaaS), hosting and streaming functionality and maintenance and support services.
“Terms of Service” means this document and any applicable addendum or new or revised versions.
“Free Edition” means the Edition of the Player for which Fees are not required.
“Use” means operating, accessing, downloading, installing, integrating or providing Content through a Player or Adaptation.
Publisher’s or User’s rights and licenses to Use Player are limited to the Editions for which it has enrolled, is eligible and has paid all Fees (for paid Editions) in accordance with these Terms of Service. Any Use of the Player other than as permitted by these Terms of Service is strictly prohibited. The Company reserves all rights and licenses not expressly granted hereunder.
The License Scope varies by Edition and the licenses granted hereunder are limited accordingly. Unless otherwise provided, licenses are personal to Publisher or User for its own Use.
Subject to the terms and conditions of these Terms of Service and Publisher’s (User’s) observance thereof, Company hereby grants to Publisher (User) and Publisher (User) hereby accepts a limited in time, non-exclusive, non-transferable, non-sublicensable, limited right and license to (a) Use, access and install the Player, solely for the Purpose, (b) Use, access, integrate and install the SDK for use in connection with the Purpose, (c) publicly Distribute SDK Applications for the Operating Systems, and (e) operate and allow end users of SDK Applications to operate the Player incorporated into such SDK Applications.
Use of the Free Editions with advertising of any kind is prohibited.
License Scope, Edition, Fees
Editions have the following License Scope (volume per month where applicable) per Play (views) as defined above. Invoice is issued by the Company in the electronic form within the term defined by the applicable law after the effective payment.
Change of the Edition
If you would like upgrading to the Upgraded Edition you have to file the upgrading form and pay the respective fee for the Upgraded Edition. In such a case, you may use the Upgraded Edition as of the date on which the Fee for the Upgraded Edition has been booked on the Company’s account. With that moment the previous license is terminated. All Fees paid before change to the Upgraded Edition are not refund.
If you would like downgrading to the Downgraded Edition you have to file the downgrading form. In such a case, you may use the Downgraded Edition after the expiration of the actual Edition licensed to you upon payment of the Fee for the Downgraded Edition, if applicable.
Publishers who are using Free Edition are strictly prohibited from using the Player in any manner to display advertisements. Such prohibition includes actions such as (i) the making or use of any Adaptation that enables any type of advertisement to be shown in, on or around the Player (e.g., a skin), (ii) interoperation of the Player with any software that serves advertisements and (iii) adding advertisements to a playlist.
Publisher and User must create a username and password as well as provide an accurate email address and name and surname. Publisher (User) is strictly prohibited from: (i) providing false sign-up information, (ii) using a name, address or email address owned or controlled by another person with the intent to impersonate that person or (iii) providing an email address subject to any rights of a person other than Publisher without appropriate authorization. The Company reserves the right to refuse registration or cancel any account that it reasonably believes is in violation of the foregoing. Publisher (User) shall be responsible for maintaining the confidentiality of its password and is liable for all activities that occur on its account. Publisher (User) agrees to immediately notify the Company of any unauthorized use of Publisher’s (User’s) username, password or other breach of security.
Adaptations and OEM
Publisher is authorized to make Adaptations reasonably necessary to exercise its rights under these Terms of Service, e.g., Adaptations to integrate the Player into Publisher’s websites. All Adaptations created by Publisher are strictly for its own Use. The Company reserves the right to prohibit the Use of any Adaptation in its sole discretion.
OEM is authorized only in connection with the paid Edition. Publishers who use Free Edition are strictly prohibited from incorporation of a Player into any goods or services[ARM8] .
Company may update the SDK at any time and is under no obligation to provide notice thereof. Updates may have features or functionality that differ from that of the current SDK. Company may identify certain updates as being critical by written notice (including e-mail to the address provided by Publisher). Publisher shall promptly incorporate such critical updates into its SDK Applications and, if such SDK Applications have been Distributed, shall provide a public update thereto no later than ten (10) days after such notice unless a different period is specified by the Company.
Publisher acknowledges that development for each Operating System may be subject to the applicable Operating System provider’s own rules, regulations, standards and requirements and that Company has no control or responsibility therefore. Publisher is solely responsible for its compliance with the foregoing and Company makes no representations or warranties of compatibility with any Operating System.
Except as specifically set forth herein, Publisher shall not Distribute, re-license, sell, lease, transfer, encumber, assign or make available for public use the Player or any Adaptation thereof. Any attempt to take any such actions is void, and will automatically terminate Publisher’s rights under these Terms of Service. Notwithstanding the foregoing, Publisher may duplicate the licensed programs delivered with the Player and its own permitted Adaptations solely for its own use, provided, all copyright notices, disclaimers and other identifications on the licensed programs must also be duplicated and displayed on any copies thereof.
The Player utilize Analytics Plug-In to power data tracking and reporting functionality. Information gathered by Analytics Plug-In is used in accordance with this Terms of Service. Publisher or User is strictly prohibited from removing, altering, disabling or circumventing Analytics Plug-In or otherwise interfering with the operation thereof.
The Company will not share personally identifiable information gathered from the Analytics Plug-In with any third party without Publisher’s or User’s express written consent, provided, nothing herein shall limit the Company’s right to use and share aggregated, non-personally identifiable data. Publisher and User grants Company a limited, royalty-free license to use the information collected by Analytics Plug-In to facilitate the operation of Player or other Company’s products, ensure compliance and for its internal business purposes.
These Terms of Service shall become effective on the Effective Date. For all Editions other than the Free Edition, these Terms of Service shall remain effective for a period of one (1) month (the “Initial Term”) and, upon the conclusion of the Initial Term, shall automatically renew for additional successive one (1) month terms (each a “Renewal Term” and together with the Initial Term, the “Term”).
Either party may elect to not renew these Terms of Service by notifying the other prior to the expiration of then-current Initial Term or Renewal Term. Notice for such termination must be provided in writing/email no later than thirty (30) days prior to such expiration.
These Terms of Service are subject to termination by the Company immediately if (a) Publisher fails to timely pay a Fee, (b) Publisher or User violates any term of these Terms of Service, (c) the Company has a reasonable basis to believe that Publisher or User is not abiding by the spirit of these Terms of Service, (d) Publisher becomes insolvent, declares bankruptcy or a receiver or trustee is appointed for Publisher, (e) the Company has a reasonable basis to believe that Publisher is impairing the Company’s business, (f) Publisher is or becomes engaged in a business that is directly or indirectly competitive with the Company’s business or (g) Publisher exceeds the license scope permitted for its Edition and Publisher fails to cure any of the foregoing within seven (7) days of notice thereof., (h) the Publisher or User uses the Player for the purposes violating law or honest business practices, (i) such termination is requested by the court judgment, including temporary injunctions or administrative decisions.
The Company may terminate Free Edition for its convenience at any time.
In the event of any termination by the Company pursuant to (a) – (i) above, the Company is under no obligation to provide a refund for the Fees received from Publisher or apply such fees to future services. In the event Publisher switches to a different Edition, any pre-paid Fee balance shall be applied towards the Fees due for such Edition until exhausted; no refund shall be available for Publishers switching to an Free Edition.
Effects of Termination
Upon termination of these Terms of Service for any reason, Publisher or User shall immediately cease Using the Player and uninstall, delete and destroy any copies of the software delivered by the Company with the Player.
Upon termination, all rights, obligations and licenses of the parties shall cease, except that all obligations that accrued prior to the effective date of termination and remedies for breach of these Terms of Service shall survive.
Maintenance and Support
The Company shall provide reasonable technical support and maintenance for the Player in its sole discretion. The Company shall have no obligation to provide additional technical support, maintenance, updates or enhancements to the Player or to provide customer service or support to Publisher’s End Users. All installation and maintenance of the Player by Publisher shall be at the sole expense of Publisher. The Company is not responsible for performance issues caused by low-performance end-user computers, low-bandwidth end user Internet connections, periodic network congestion among network providers, low-bandwidth connectivity from redirected image and video sources, improperly configured campaigns and low-bandwidth connectivity from any Publisher Content servers. In the event Company identifies slow performance due to its system, Company shall use commercially reasonable efforts to restore the Services to acceptable performance levels. Publisher’s sole remedy for any disruption or failure to provide support shall be a pro rata refund of 1/30 of the Fee paid by Publisher for the relevant period for each 24 hours of any foregoing disruption or failure.
The Company is the sole owner of all intellectual property rights pertaining to the Player and software or Services delivered with the Player, including but not limited to copyright, trademark and patent rights and all rights not expressly granted herein are reserved. If Publisher creates an Adaptation, Publisher shall obtain all intellectual property rights in and to the elements of such Adaptation created by Publisher and the Company shall retain all intellectual property rights in and to any elements of the Player incorporated in such Adaptation. Publisher is prohibited from creating any Adaptation that in any manner infringes the patents, trademarks, copyrights, trade secret rights or other rights of the Company or any third party.
Personal data protection
The Company is the collector of personal data of the User and the Publisher (“the Data”) .
The Data will be processed in order to provide the Service according to the Terms of Service. In this case the basis for processing the Data is article 6(1)(b) of the General Data Protection Regulation – the processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract.
The Data can also be processed by the Company for marketing purposes. The basis for processing the Data for this purpose is article 6(1)(f) of the General Data Protection Regulation – The Company’s legitimate interest (reaching with marketing communication to the specific group of recipients).
The Data will be stored for the duration of the Service or until the User or the Publisher object to the processing for marketing purposes, and after that period, for the purposes and for the period required by the provisions of law or to secure any claims.
The User and the Publisher have the right to request access to the data and order their rectification, erasure or restriction of processing, as well as the right to transfer the data. With regard to the processing of the data by the Company for direct marketing purposes, the User and the Publisher have the right to object at any time to such processing, to the extent that the processing of the data is related to such direct marketing. The User and the Publisher have also the right to lodge a complaint with a supervisory authority.
Providing the data is required to conclude a contract and the Service provision. Providing the data is voluntary, but the consequence of not providing personal data will be the inability to provide the Service.
Fees and Payment
Fees are published at www.bradmax.com or provided on an applicable On-line Order Form. Unless otherwise provided, Company may modify the Fees prior to the commencement of each Renewal Term. The Company shall provide to the Publishers written notice of any such modification no later than sixty (60) days prior to such commencement, with exception to Free Edition.
Publisher agrees to timely pay all Fees due during the Term. Company reserves the right to suspend Publisher’s access to Player or Editions if Fees are not timely paid. Such suspension shall not obviate Publisher’s duty to pay all Fees due under any On-line Order Form or Addendum or constitute termination of these Terms of Service absent Company’s notice of termination pursuant to the Termination section hereof. Past-due fees shall incur per month interest at an actual rate allowed by applicable law. Publisher shall be liable to, and fully reimburse, Company for all costs (including attorney’s fees) incurred in connection with Company’s collection of past-due Fees or other enforcement of this Terms of Service. All Fees are non-refundable except as otherwise provided in these Terms of Service. Publisher shall be responsible to pay all taxes due in connection with the Fees and Publisher’s use of the Products.
Periodic (e.g. annual) Fees are billed in advance and payment is due on receipt of invoice. In case of Paid Edition Publishers must provide a valid form of payment (e.g. credit card, debit card, PayPal account) and accurate billing information, do hereby authorize the Company to charge all Fees incurred to the designated payment form and acknowledge that periodic Fees may be charged automatically and without separate authorization.
By uploading Content, Publisher agrees to and hereby does grant, and does represent and warrant that it has the right to grant, the Company a royalty-free, fully paid up, worldwide license to use the Content solely in connection with the operation and provision of Services that entail the Company’s hosting, streaming or storage of such Content.
Publisher is solely responsible for any Content or other material that Publisher posts, uploads, submits or Distributes. The Company may review and delete any Content that violates the terms of this Section. Prohibited Content includes any Content that (i) infringes any copyright, trademark, patent, trade secret, right of publicity or other right of any person or entity, (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive, tortious, obscene, offensive, vulgar, pornographic, profane or is otherwise inappropriate as determined by the Company in its sole discretion, (iii) contains any virus, malicious code, Trojan horse or other program designed, intended or likely to disrupt, damage, limit or interfere with the proper function of any software, hardware or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of the Company or any person or entity, (iv) encourages illegal activity or (v) falsely suggests or implies sponsorship or endorsement by the Company.
Publisher is responsible for taking its own steps to backup its Content and Company recommends routinely archiving your Content. Company disclaims any responsibility for deleted, lost, corrupted or inaccessible Content, regardless whether Company hosts such Content.
Restrictions on Use
Publisher shall not (i) interfere or attempt to interfere with the proper operation of the Player or any activities conducted through the Player, (ii) use any robot, spider or other device to retrieve, index, scrape, data mine or in any way gather information, Content or other materials from the Player, (iii) decipher, decompile, disassemble, reverse engineer, simulate or derive any source code or algorithms from the Player or use any of the foregoing to create any software or service similar to the Player, (iv) create any derivative work or modification of the Player other than Adaptations permitted by these Terms of Service or (v) license, sublicense, sell, encumber, rent, lease, Distribute, transfer or similarly exploit the Player.
Representations and Warranties
Publisher (respectively User) represents and warrants that (i) if Publisher is an individual, Publisher is at least eighteen (18) years old, (ii) if Publisher is an entity, its consent to these Terms of Service has been duly ratified, (iii) all its Content conforms to the standards set forth in the Section of these Terms of Service titled Content and Restrictions on Use, (iv) all information provided during the registration process is true and accurate, (v) its Adaptations do not infringe the intellectual property rights of any third party and (vi) its Use of the Player is in compliance with all applicable laws and regulations.
Limited Product Warranty
The Company warrants that it will provide the Player (except Unpaid Editions) in a manner consistent with general industry standards reasonably applicable to the provision thereof. The Company does not warrant that the Player will be error-free or that any errors in the Player will be corrected.
EXCEPT AS OTHERWISE PROVIDED AND TO THE MAXIMUM EXTENT ALLOWED BY LAW, THE PLAYER AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS OTHERWISE PROVIDED, USE OF THE PLAYER IS AT PUBLISHER’S OWN RISK AND PUBLISHER IS SOLELY RESPONSIBLE FOR DETERMINING THE APPROPRIATENESS OF EXERCISING THE RIGHTS GRANTED UNDER THIS AGREEMENT AND ASSUMES ALL RISKS ASSOCIATED THEREWITH, INCLUDING BUT NOT LIMITED TO THE RISKS AND COSTS OF PROGRAM ERRORS, COMPLIANCE WITH APPLICABLE LAWS, DAMAGE TO OR LOSS OF DATA, PROGRAMS OR EQUIPMENT, SUITABILITY FOR HOSTING AND UNAVAILABILITY OR INTERRUPTION.
Limitation of Liability
EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW OR TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF ITS LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE, IN NO EVENT SHALL THE COMPANY BE LIABLE ON ANY LEGAL THEORY (A) FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES INCLUDING LOSS OF REVENUE, PROFITS OR GOODWILL, (B) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL, (C) FOR ANY LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USER OR COST OF PROCURING SUBSTITUTE TECHNOLOGY OR (D) DIRECT DAMAGES IN EXCESS OF THE TOTAL FEES PAID BY PUBLISHER TO THE COMPANY PURSUANT TO THESE TERMS OF SERVICE, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
Company shall be permitted to publicly identify Publisher as a user of the Player, including on Company’s websites and marketing materials. Publisher hereby grants Company a non-exclusive, non-transferable, non-sublicensable, royalty-free license during the Term to use Publisher’s name and marks solely for this purpose. Company agrees to state on all materials using Publisher’s marks that such marks are property of Publisher and to include the trademark registration symbol if applicable.
The parties hereto are independent contractors and nothing herein constitutes or creates an employer-employee, agency, joint venture or representative relationship between the parties.
Choice of Law and Jurisdiction
These Terms of Service shall be governed by and construed in accordance with the laws of the Republic of Poland and specifically excluding from application to this Agreement that law known as the United Nations Convention on Contracts for the International Sale of Goods. Each party irrevocably consents to the exclusive jurisdiction, forum and venue of the court proper to the Company’s registered seat over any and all claims, disputes, controversies or disagreements between the parties or any of their respective subsidiaries, affiliates, successors and assigns under or related to these Terms of Service or the subject matter thereof.
These Terms of Service constitute the entire agreement between the Company and Publisher with respect to the subject matter hereof and supersedes all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter.
The Company may modify the terms of these Terms of Service in its sole discretion and such modifications shall take effect and be binding on Publisher on the earliest date which they are posted to the Company’s publicly available website or delivered to Publisher via electronic or physical delivery. No one other than the Company has the right to modify these Terms of Service.
Publisher may not assign or transfer this agreement to any third party without the Company’s express written consent. Any assignment or transfer made in the absence of such consent shall be void and in the event of such unauthorized assignment or transfer the Company may immediately terminate these Terms of Service.
This Terms of Service enter into force on 01.06.2017.