Definitions

Account

means a unique account established by the Customer to enable its Authorised Users to access and use the Subscription Services.

Affiliate

means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity, where control means the ownership of a majority share of the stock, equity or voting interests of such entity.

Authorised Users

means any employee or contractor of the Customer who is registered under the Account and authorised by the Customer to use the Subscription Services.

Business Day

a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Buyer

any company and/or individual in the business of acquiring Program(s) for exploitation on a channel and/or platform.

Customer Content

in addition to Program Content, shall mean any other Customer content including company name, company trade marks and company logos made available via the Subscription Services by or on behalf of Customer.

Customer Data

any data inputted by the Customer, Authorised Users, or TRX on the Customer’s behalf, for the purpose of using the Subscription Services or facilitating the Customer’s use of the Subscription Services.

Documentation

any additional documentation relating to the Subscription Services TRX makes accessible via www.trx.tv from time to time, including but not limited to the security documentation.

License Agreement

a license agreement entered into directly between Customer and Buyer in respect of a Program made available via the Subscription Services.

Non-TRX Application

any software application, website or product which is integrated with the Site via the TRX API.

Normal Business Hours

9:30am to 5:30pm local UK time, each Business Day.

Order Form

means the order form specifying certain details relating to the Subscription Services to be provided hereunder that is entered into between Customer and TRX, including any addenda and supplements thereto.

Program

means any television, film and online programming content made accessible via the Site.

Program Content

any Program related content (including but not limited to metadata, screeners and promos, trade marks, logos, synopsis, images, and rights avails) which is uploaded, embedded, linked, hosted, or made accessible via the TRX API on the Site or via the Subscription Services by or on behalf of Customer.

Site

www.trx.tv and any other online locations, data feeds, messaging services or mobile applications which are owned or operated by TRX.

Subscription Fees

the subscription fees payable by the Customer to TRX in consideration for use of the Subscription Services, as set out in the Order Form.

Subscription Services

means TRX’s proprietary online rights licensing solution made available via the Site on a subscription basis by TRX to the Customer under this Agreement, as may be more particularly described in the Order Form.

Term

shall mean collectively the Fee Free Period, Subscription Period and any renewal of the Subscription Period.

TRX API

means the application programming interface made available by TRX that supports integration of Non-TRX Applications with the Site.

The subscription services

During the Term and subject to this Agreement TRX shall: (i) make the Subscription Services available to the Customer and its Authorised Users for the Customer’s internal business operations only; and (ii) provide the Customer as part of the Subscription Services with TRX’s standard customer support services, at no extra charge (unless upgraded support is purchased and detailed in the Order Form) during Normal Business Hours.

TRX shall verify the identity of each prospective Buyer that registers with TRX to determine whether they are a bona fide Buyer prior to activation of an account. The Customer’s Program Content shall not be visible on the Site to any thirty party distributors that are registered users of the Site. Nothing in this Agreement shall be construed to make TRX a party to any deal agreed or License Agreement facilitated via the Subscription Services, nor shall TRX have the authority to conclude any such agreement itself.

Performance. TRX shall use commercially reasonable endeavours to make the Subscription Services available 24 hours a day, seven days a week excluding: (i) planned downtime, of which TRX shall use reasonable endeavours to notify Customer of in advance and (ii) unscheduled downtime caused by circumstances outside TRX’s reasonable control, including for example Internet service provider failure or delay, denial of service attack or other reason of Force Majeure. TRX shall provide the Subscription Services with reasonable care and skill and shall be responsible for the performance of and compliance with this Agreement of TRX personnel (including employees and contractors), except as otherwise specified herein. Notwithstanding the foregoing, TRX: (i) does not warrant that the Customer’s use of the Subscription Services will be uninterrupted or error-free, or that the Subscription Services and/or the information obtained by the Customer through the Subscription Services will meet the Customer’s requirements; (ii) reserves the right to modify or discontinue individual features within the Subscription Services at any time in its sole discretion; and (iii) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the Internet.

Security. TRX shall maintain the appropriate administrative, physical and technical safeguards designed to protect the security, confidentiality and integrity of the Subscription Services, Customer Content and Customer Data, as further described in the Documentation.

Fee free period and payment

Fee Free Period. TRX shall make the Subscription Services available to the Customer on a trial basis free of charge until the earlier of (i) the end of the Fee Free Period; (ii) the start date of any Subscription Period; or (iii) termination by either party in accordance with clause 11.

Payment. Commencing on the start date of the Subscription Period, the Customer shall pay the Subscription Fees to TRX in twelve (12) equal monthly instalments over the duration of the Subscription Period in accordance with this clause 3.2 and the Order Form. TRX shall issue an invoice to the Customer at least two (2) weeks prior to the invoice due date. The Customer shall pay each monthly payment on the due date in accordance with the invoice. The parties shall discuss the Subscription Fee payable in respect of any renewal of the Subscription Period in good faith prior to each anniversary of the Subscription Period.

All amounts and fees stated or referred to in this Agreement shall be: (i) payable in pounds sterling; (ii) are, subject to clause 4, non-cancellable and non-refundable; and (iii) are exclusive of value added tax, which shall be added to TRX’s invoices at the appropriate rate.

Late Payment. If TRX has not received payment within 30 days of the invoice due date, and without prejudice to any other rights and remedies, TRX may without liability to the Customer, suspend the Customer’s Account access and shall be under no obligation to provide any or all of the Subscription Services while the invoice(s) concerned remain unpaid. Interest shall accrue on a daily basis on such due amounts at an annual rate equal to 5% above the then current base lending rate of TRX’s bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

Use of the subscripton services

Customer’s use of the Subscription Services shall be in accordance with the Order Form and these Terms and Conditions together with TRX’s website policies which include TRX Website Terms of Use, Privacy Policy and Cookie Policy (together, “Mandatory Policies”) made available at www.trx.tv, as amended by notification to the Customer from time to time.

Customer shall be responsible for the use of the Subscription Services by any Authorised User and any party who accesses the Subscription Services with Customer’s or Authorised User’s account credentials, and undertakes that (i) each Authorised User shall preserve and maintain confidentiality by logging out after use and maintaining a strong password to access the Site; (ii) each Authorised User shall adhere to the Mandatory Policies; and (iii) it shall notify TRX in the event an Authorised User is no longer working for or associated with the Customer in order to withdraw that Authorised User’s account affiliation. If TRX deems Customer’s use of certain Subscription Service features to be unreasonable and/or excessive, TRX may impose usage restrictions on the Customer’s Account. The Customer shall be responsible for maintaining the confidentiality of its Account names and passwords and shall use commercially reasonable endeavours to prevent unauthorised access to, or use of, the Subscription Services. In the event of any such unauthorised access or use, it shall promptly notify TRX at contact@trx.tv.

Customer acknowledges that Customer, and not TRX, is solely responsible for the fulfilment of all aspects of any deal or agreement with a Buyer facilitated via the Subscription Services. In the event Customer elects to use the Site to facilitate full execution of a License Agreement, it acknowledges and agrees that (i) it shall be responsible for ensuring that use of electronic signature is deemed legally binding and admissible in Customer’s jurisdiction; and (ii) DocuSign (or such other third party electronic signature provider that TRX may notify Customer of from time to time) shall be entitled to store a copy of the License Agreement which shall be stored securely and confidentially in accordance with DocuSign’s terms and conditions.

Where Customer elects to integrate a Non-TRX Application with the Site via the TRX API, the Customer shall remain responsible for (i) ensuring the security of any Non-TRX Applications integrated with the Site; (ii) user access to Non-TRX Applications and any actions taken by those users; (iii) ensuring that its network and systems comply with the relevant specifications provided by TRX from time to time; (iv) procuring and maintaining its network connections and telecommunications links from its systems to TRX’s data centres; and (v) all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the Internet or Non-TRX Application.

Proprietary rights and licenses

TRX is the owner of all intellectual property and technology rights associated with the Subscription Services and the Site, including patent, copyright, trade secret, database and trade mark (whether registered or unregistered) rights. Except as expressly stated herein, this Agreement does not grant the Customer or any Authorised User any rights or licences in respect of the Subscription Services or the Site.

TRX acknowledges and agrees that the Customer is the owner and/or controller of all intellectual property rights in and to the Customer Content and Customer Data it makes available on the Site and via the Subscription Services, including patent, copyright, trade secret, database and trade mark (whether registered or unregistered) rights. Except as expressly stated herein, this Agreement does not grant TRX any rights or licences in respect of the Customer Content or Customer Data.

The Customer hereby grants TRX a non-exclusive, limited-term, non-transferable, worldwide license to access, use, host, display and publish the Customer Content and Customer Data, and any Non-TRX Application as is reasonably necessary, in accordance with the provision and maintenance of the Subscription Services during the Term, subject to clause 11.4.2. Notwithstanding any other provision in this Agreement, the Customer grants TRX and its Affiliates a worldwide, perpetual, irrevocable and royalty free license to: (i) use and incorporate into the Subscription Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Authorised Users relating to the operation of the Subscription Services; and (ii) compile Customer Data with other data in an aggregate and anonymous manner to derive statistical and performance analytics related to the market, provision and operation of the Subscription Services, and make such information publicly available, provided that it shall not include any data that would enable the identification of the Customer or Buyer or disclose any Customer Confidential Information. TRX retains all rights, title and interest to such data and shall determine its use in its sole discretion.

Third Party Services

The Customer acknowledges that the Subscription Services may enable or assist it to access the website content of, correspond with, and purchase products and services from third parties via third-party websites and that it does so solely at its own risk. TRX makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not TRX. TRX recommends that the Customer refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. TRX does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Subscription Services.

Limitation of Liability

Except as expressly and specifically provided in this Agreement:

the Customer assumes sole responsibility for all Customer Content and Customer Data made available via the Subscription Services and its use of the Subscription Services and Site, including all results obtained or conclusions drawn. TRX shall have no liability for any damage caused by errors or omissions in any information, instructions, scripts, Non-TRX Applications provided to TRX by the Customer in connection with the Subscription Services, or any actions taken by TRX at the Customer’s direction;

the Customer assumes sole responsibility for any deals agreed or License Agreements entered into by the Customer via the Site or as a result of the Subscription Services. Any deal or agreement facilitated via the Subscription Services is between the Customer and a Buyer, and not TRX. Customer acknowledges and agrees that TRX shall not be held liable in the event that a Buyer does not fulfil its obligations or breaches any term of a contract.

all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement and the Subscription Services and the Site are provided to the Customer on an “as is” basis.

Nothing in this Agreement excludes the liability of either party (i) for death or personal injury caused by TRX’s negligence; or (ii) for fraud or fraudulent misrepresentation.

Neither party shall be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses howsoever arising under this Agreement.

TRX’s total aggregate liability in contract (including in respect of the indemnity at clause 8), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Subscription Fees paid during the 12 months immediately preceding the date on which the claim arose.

Indemnity

By Customer. The Customer shall defend, indemnify and hold harmless TRX, its officers, directors and employees against any claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Subscription Services subject to clause 8.3 below, excluding to the extent a claim is based on Customer Content or Customer Data, Non-TRX Application or third party technology or software, or use of Subscription Services not in accordance with this Agreement.

By TRX. TRX shall defend, indemnify and hold harmless the Customer, its officers, directors and employees against any claim that the Subscription Services or Site infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, subject to clause 8.3 below.

As a condition of this clause 8, the party seeking indemnification must (i) provide prompt notice of any such claim to the indemnifying party; (ii) provide reasonable co-operation in the defence and settlement of such claim at the expense of the indemnifying party; and (iii) give the indemnifying party sole authority to defend or settle the claim, provided that the indemnifying party may not settle any claim unless it unconditionally releases the indemnified party from all liability.

Representations and warranties

Mutual Warranties. Each party represents and warrants to the other that it has the full right and power to enter into this Agreement.

Customer Warranties. The Customer represents and warrants that:

it is and shall at all times during the Term be the owner and/or controller of the Customer Content, and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all Customer Content and Customer Data made available via the Subscription Services;

it shall obtain and maintain all necessary rights, licenses, consents and permissions necessary to make the Customer Content available via the Services without any further payment of any kind becoming due and payable to any third party by TRX;

It is not a competitor of TRX and it shall not, and shall ensure that Authorised Users do not, directly or indirectly: (i) make the Subscription Services available to anyone other than Authorised Users or use the Subscription Services for the benefit of an unrelated third party; (ii) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the software in any form or media or by any means; (iii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Subscription Services; or (iv) access all or any part of the Subscription Services in order to build or support or assist a third party in building products or services competitive to the Subscription Services.

TRX Warranties. TRX represents and warrants that:

the Subscription Services under normal use will perform materially in accordance with this Agreement, and shall be provided in a manner consistent with generally accepted industry standards;

it will not materially decrease the overall security of the Subscription Services as set out in the Documentation;

it shall not make any material alteration to the Customer Content, other than as may reasonably be necessary for the purposes of ensuring the Customer Content fits within the Site’s framework and shall only use the Customer Content subject to and in accordance with the terms of this Agreement.

Disclaimer. Except as expressly provided herein, neither party makes any additional representation or warranty of any kind, whether express, implied, statutory or otherwise as to any matter whatsoever. Each party expressly disclaims all implied warranties of merchantability and fitness for a particular purpose.

Confidentiality

Each party may be given access to information that is proprietary, designated as confidential or should reasonably be understood to be confidential given the nature of the information and circumstances of disclosure (“Confidential Information”) from the other party in order to perform its obligations under this Agreement. The Confidential Information of each party includes all Order Forms (including pricing) as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. Confidential Information shall not be deemed to include information that: (i) is or becomes publicly known other than through any act or omission of the receiving party; (ii) was in the other party’s lawful possession before the disclosure; (iii) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or (iv) or is independently developed by the receiving party, which independent development can be shown by written evidence.

Subject to clause 10.3, each party shall hold the other’s Confidential Information in confidence and shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access to is not used for any purpose other than the implementation of this Agreement. Each party shall limit access to Confidential Information of the other party to those of its Affiliates, employees and contractors who require access for purposes consistent with this Agreement and who have signed confidentiality agreements containing protections not materially less protective of the Confidential Information than those herein. Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 10.3, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

The Customer acknowledges that details of the Subscription Services, and the results of any performance tests of the Subscription Services, constitute TRX’s Confidential Information. TRX acknowledges that the Customer Data is the Confidential Information of the Customer.

The above provisions of this clause 10 shall survive termination of this Agreement, howsoever arising.

Term and termination

Term. Unless sooner terminated in accordance with the below, this Agreement shall commence on the Effective Date stated in the Order Form and shall continue for the Term specified in the Order Form.

Termination without Cause. Either party may terminate this Agreement without cause on thirty (30) days’ prior written notice. The Customer shall remain liable for any Subscription Fee due and payable during the termination period.

Termination for Cause. Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if: (i) the other party commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so. Failure of the Customer to make timely payment to TRX of any amounts owing will constitute a material breach of this Agreement; or (ii) an order is made or resolution passed for the liquidation, winding up or dissolution of the other party (otherwise than for the purposes of reconstruction or amalgamation) or if it becomes unable to pay its debts as they fall due.

Post Termination Obligations. On termination of this Agreement for any reason:

Customer shall pay to TRX any amounts that have accrued prior to and remain unpaid as of the date of termination.

Customer grants to TRX a limited license to retain certain Customer Data and Customer Content metadata for the purposes of establishing a digital audit trail or as otherwise set out in this Agreement, provided that any such data that constitutes Confidential Information will at all times maintain that status and TRX will comply with its obligations set out in clause 10. All other licences granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Subscription Services and/or the Site;

TRX may destroy or otherwise dispose of any of the Customer Content and Customer Data in its possession unless TRX receives, no later than ten (10) days after the effective date of the termination of this Agreement, a written request for the delivery to the Customer of the Customer Content and any License Agreement. Upon written request by Customer TRX shall delete Customer Data and Customer Content, subject always to clause 11.4.2 and excluding License Agreements which shall require the consent of both parties (Customer and Buyer) prior to deletion.

Clauses 9.2.3(ii), (iii) (iv), 10 and 11.4.2 shall survive the expiry or termination of this Agreement for any reason and shall continue in full force and effect.

any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.

Data protection

Both parties shall comply with all applicable requirements of the General Data Protection Regulation ((EU) 2016/679) (“GDPR”) and any national implementing laws, regulations or secondary legislation, as amended or updated from time to time in the UK (together, the “Data Protection Legislation”). This clause 12 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.

TRX’s Privacy Policy available at www.trx.tv sets out the scope, nature and purpose of processing of personal data by TRX. TRX may transfer or store personal data outside the EEA or the country where the Customer and the Authorised Users are located in order to carry out the Subscription Services and TRX’s other obligations under this Agreement. TRX shall comply with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred outside of the European Economic Area and the United Kingdom.

Without prejudice to the generality of clause 12.1, the Customer shall ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to TRX for the duration and purposes of this Agreement so that TRX may lawfully use, process and transfer the personal data in accordance with this Agreement on the Customer’s behalf.

The Customer acknowledges and agrees that TRX may appoint third-party processors of personal data from time to time to facilitate the operation of the Services (for example, DocuSign processes limited personal data relating to the name of a signatory of a License Agreement). TRX confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement substantially on that third party’s standard terms of business. As between the Customer and TRX, TRX shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 12.

General provisions

Governing law and jurisdication. This Agreement and any dispute or claim arising out of it shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement.

Force majeure. TRX shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of TRX or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of TRX or sub-contractors, provided that the Customer is notified of such an event and its expected duration.

Conflict. If there is an inconsistency between any of the provisions in these Terms and Conditions and the Order Form, the Order Form shall prevail.

Waiver. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

Publicity. Each party may use the other party’s company name and logo (subject to any applicable standard trade mark usage guidelines as provided from time to time) as a reference for marketing or promotional purposes on their website and in other public or private communications with existing or potential customers.

Notices. Any notice to be given under this Agreement shall be in writing and signed by or on behalf of the party giving it and shall be served either by delivering it personally, or by sending it by recorded delivery to the address specified in the Order Form (or such other address as may be communicated between the parties from time to time). A notice shall be deemed to have been received: (i) if delivered personally, upon delivery at the address specified in the Order Form; and (ii) if sent by recorded delivery, two (2) Business Days if sent in the UK (or four (4) Business Days if sent overseas) after the date of posting.

No partnership or agency. Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

Modifications. As TRX’s business evolves, these Terms and Conditions (excluding the Order Form) may be updated from time to time. If TRX makes a material change to these Terms and Conditions, it will provide Customer with reasonable notice prior to the change taking effect, either via email or an in-app notification. Customer can review the most current version of the terms and conditions at any time by visiting www.trx.tv. The materially revised terms and conditions will become effective upon posting of the change, and if Customer (or any Authorised User) accesses or uses the Subscription Services after the effective date, that will constitute the Customer’s acceptance of any revised terms and conditions.

Third party rights. This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

Assignment. Neither party shall assign its rights or obligations under this Agreement without the prior written consent of the other party (not to be unreasonably withheld or delayed). Notwithstanding the foregoing, either party may assign this Agreement without consent of the other party to an Affiliate or in connection with a merger, acquisition, corporate reorganisation or sale of all or substantially all of its assets.

Entire agreement. This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.  Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.