Index
The following terms in this Agreement shall have the meanings attributed to them below:
“Agreement” means this Master Subscription Agreement, as well as any respective Order Form, Service Level Agreement (“SLA”), and Statement of Work (“SoW”), including any subsequent annexes, appendices and/or amendments thereto. If the Services include the Merchant Product, then Merchant Schedule applies in addition to the previously listed documents.
“Affiliate” means an entity affiliated with either Cleeng or the Customer that (a) is directly or indirectly controlled by the contracting party; (b) directly or indirectly controls the contracting party; or (c) is under common control with the contracting party, where ‘control’ refers to ownership of more than 50% of voting shares.
“Authenticated User” means a User intending to be a subscriber or a pay-per-view buyer who does not have valid entitlement to access the Customer Content in a given month.“
B2B Support” means comprehensive assistance provided by Cleeng to the Customer and its Users, aimed at ensuring effective use of the Services and addressing any Issues that may arise, being an integral part of the Services, as described in detail in Service Level Agreement.
“Cleeng”/”we”/”us” means Cleeng contracting party as specified in the Order Form and, as relevant, all its Affiliates engaged in provision of Services and assisting in the performance of the Agreement.
”Cleeng SaaS” means the online environment, APIs and front-end components made available to the Customer by Cleeng within the scope specified under the Agreement, in which the Customer can provide instructions and information, manage settings, access and review reports in the visual dashboard. Cleeng SaaS consist of Products and they can include Third-Party Services contracted by Cleeng.
“Customer”/”You” means a beneficiary of Cleeng’s services, being a contracting party as specified in the Order Form.
”Customer’s Content” means Digital Content distributed by the Customer or on the Customer’s behalf to Managed Users.
“Customer’s Data” means all electronic data or information submitted by the Customer or Users to the Cleeng SaaS. Customer’s Data shall not include any component of the Cleeng SaaS or material provided by or on behalf of Cleeng.
“Digital Content” means data produced and supplied in digital form, including video content, audiobooks, audio files, e-books, games and/or apps, supplied electronically, delivered over the Internet or electronic network, in intangible form, like streaming or downloading, the nature of which renders their supply essentially automated and involving minimal human intervention.
“Documentation” means the standard documentation, as updated from time to time by Cleeng, in electronic format, available on our website, describing and provided together with the Cleeng SaaS (excluding Third-Party Services). The Documentation is released in English language version only.
“End Date” means the date being the last day of providing the Subscription Services under the Agreement, as specified in an Order Form.
“Fee(s)” means a fee for provision of the Subscription Services due for a given settlement period of the Subscription Term, specified in an applicable Order Form or other relevant document, which shall be paid by the Customer to Cleeng according to the conditions specified by the Agreement.
“Index” means the Harmonised Index of Consumer Prices (HICP) for Subscription Services, currently published by the European Central Bank at https://data.ecb.europa.eu/main-figures/inflation.
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
”Managed User” means a User being a subscriber or a buyer who has a valid entitlement to access the Customer Content in a given month, regardless of the offer type (a web/mobile application, live/svod), payment gateway (Cleeng Merchant, or external), or discount (including access to free trials of an otherwise paid offer);
”Minimum Commitment” means a minimum number of Managed Users or transactions on which the base Fees are calculated, being a minimum obligation that the Customer agrees to pay for over the Subscription Term. Minimum Commitment is specified in an applicable Order From.
”Order Form” means an (electronic) document executed between the Customer and Cleeng specifying commercial terms of the Subscription Services ordered by the Customer and provided by Cleeng under the Agreement.
“Production Environment” means the technical environment in which the Customer uses the Cleeng SaaS for day-to-day business operations.
”Product” means a component of the Cleeng SaaS being a product & service package as further specified in an Order Form and in the Documentation, provided by Cleeng to its Customers.
“Professional Services” mean consultancy services provided by Cleeng during the term of Agreement, associated with the implementation of the Cleeng.
“Restricted Jurisdiction” means those countries or territories targeted by country-wide or territory-wide Sanction Laws that extensively and comprehensively restrict activities with the target country or territory and its government, and include, but are not limited to, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, the so-called Donetsk People’s Republic and Luhansk People’s Republic regions of Ukraine, or any other country or region embargoed or sanctioned during the Subscription Term.
“Restricted Person” means persons, entities or other parties that are (a) located, domiciled, resident or incorporated in any Restricted Jurisdiction; (b) specifically designated or listed under Sanction Laws; or (c) owned or controlled by, or acting on behalf of, persons, entities or other parties specified in (a) or (b).
“Sanctions Authority” means: (a) the United States; (b) the United Nations Security Council; (c) the European Union; (d) European Union member states; (e) the United Kingdom; or (f) the respective governmental institutions of any of the foregoing including, without limitation, OFAC, the U.S. Department of Commerce, the U.S. Department of State, any other agency of the U.S. government, and Her Majesty’s Treasury.
“Sanction Laws” means economic or financial sanctions, restrictive measures, trade embargoes or export control laws imposed, administered, or enforced from time to time by any Sanctions Authority.
“Sandbox”/“Test Environment” means the technical environment in which the Customer uses the Cleeng SaaS for test, validation and training purposes only.
“Start Date” means the date of signing of this Agreement by both parties or another date, as specified in an Order Form.
“Subscription Services” means Cleeng SaaS, including updates, B2B Support and other add-on services (if any), purchased by the Customer in the scope set out in an applicable Order Form(s).
“Subscription Term” means a term commencing on the Start Date and ending on the End Date, unless terminated earlier or renewed in accordance with the terms stipulated hereunder, during which the Subscription Services are delivered and the Agreement is in effect.
"Third-Party Services" means online, web-based applications and other software products as well as services that are provided by third parties.
"Users" means all persons authorized by the Customer to use the Cleeng SaaS, who have been given user identifications by the Customer or by Cleeng at the Customer's request. Each User must have a unique email address and username and is required to generate a password for the account, and is responsible for the security and confidentiality of the information accessed in the Cleeng SaaS.
Cleeng shall make the Subscription Services available to the Customer pursuant to this Agreement during the Subscription Term. Subscription Services are made available at a Fee, as specified in an applicable Order Form(s).
Within the Subscription Services, the Customer is entitled to access the Cleeng SaaS, receive updates of the Cleeng SaaS and Cleeng’s standard B2B Support (as further specified in the SLA), which are included in the Fees.
Cleeng at all times uses commercially reasonable efforts to provide the Subscription Services in accordance with the highest industry standards.
To benefit from the Subscription Services, subject to the Customer’s compliance with the terms of this Agreement, including timely payment of the Fees, Cleeng hereby grants the Customer a non-exclusive, non-transferable and non-sublicensable right to access and use the Cleeng SaaS, including the Documentation, and other software (if any) provided by Cleeng within the scope of Subscription Services, for the Customer’s business purposes.
To access the Cleeng SaaS the Customer’s Users will be furnished with usernames and they will be required to generate passwords. The Customer shall safeguard the confidentiality of the usernames and passwords required for access to the Cleeng SaaS and take other commercially reasonable steps to ensure that no person or entity shall have unauthorized access to or use of the Cleeng SaaS. Multiple logins under a single username by different Users are prohibited.
Cleeng may make changes or updates to the Cleeng SaaS during the Subscription Term, including to reflect changes in technology, security standards, industry practices, patterns of system use, or availability of Third-Party Services. Changes to the Cleeng SaaS will not result in a material reduction in the level of performance, security or availability of the Cleeng SaaS provided to the Customer for the then current Subscription Term.
The Customer is required to adhere to the current specifications and usage practices of the Subscription Services as described in the API documentation available at https://developers.cleeng.com/. Cleeng reserves the right to adjust the performance of the Subscription Services or to terminate the Agreement (Termination for Cause) if the Customer does not comply with these specifications. However, the Customer will have a 30-day period to address and cure any alleged non-compliance following written notice of the claim.
Cleeng retains the right to adjust service performance or terminate the Agreement (Termination for Cause) if the Customer fails to provide the necessary data.
Cleeng may periodically revise the specifications and/or data requirements for using the API, providing the Customer with reasonable written notice.
Cleeng will, if ordered by the Customer, provide standard scope of Professional Services related to the onboarding and integration of Cleeng's Services. The scope of these services is specified in Cleeng Standard Statement of Work which can be found at: https://publisher.support.cleeng.com/hc/en-us/articles/4821389348380-Cleeng-Standard-Statement-of-Work. Such consultancy services will be provided at a reasonable level of skill, care and experience, and may be subject to fees.
Any additional Professional Services shall be provided only if agreed upon in writing.
Cleeng shall:
(i) provide the Subscription Services in accordance with the terms of this Agreement, including, in accordance with the Documentation and the SLA
(ii) provide Subscription and Professional Services in a professional manner, with reasonable skill and care;
(iii) provide B2B Support to the Customer within the scope specified in the SLA at no additional charge;
(iv) use commercially reasonable efforts to make the Cleeng SaaS available in accordance with the SLA;
(v) provide Subscription Services based on the settings presented by the Customer in the Cleeng SaaS;
(vi) make the reports regarding purchase of the Customer's Contents by Managed Users available via the Cleeng SaaS;
(vii) provide Subscription Services only in accordance with applicable laws and government regulations applicable to Cleeng’s provision of Subscription Services and Professional Services to its customers generally (i.e. regardless of the Customer’s particular use of Subscription Services or Professional Services) and subject to the Customer’s use of Subscription Services in accordance with the Agreement and the Documentation.
Moreover, the management of User purchases includes authentication and the verification of entitlement. Consequently, prior to the release of the Customer Content to an individual Managed User, Cleeng shall: (i) confirm the Managed User’s authorization to access Customer Content and (ii) verify the Managed User’s entitlement to access the requested Customer Content.
In order for the Subscription Services to function as intended, Cleeng is dependent on cooperation with the Customer and the provision by Customer of all information that is reasonably required. The Customer warrants that all information provided is correct and up to date and that the Customer shall promptly update provided information or provide additional information if so reasonably required for Cleeng to provision the Subscription Services.
The Customer shall
(i) be responsible for its and the Users’ compliance with this Agreement and the Documentation,
(ii) be solely responsible for the accuracy, quality, integrity and legality of the Customer Data, the means means by which the Customer acquired the Customer Data, the Customer’s use of the Customer Data with the Cleeng SaaS;
(iii) use commercially reasonable efforts to prevent unauthorized access or use of Subscription Services and promptly notify Cleeng of any such incidents.
(iv) use the Subscription Services only in accordance with this Agreement, Documentation and applicable laws and government regulations.
The Customer is solely responsible for any change to the Customer Content conditions, including, price, availability or membership benefits.
Cleeng shall be entitled to engage sub-contractors and sub-suppliers in delivering the Subscription Services and to disclose to them Customer’s Data, to the extent it is necessary to provide the Subscription Services under the Agreement. Cleeng will ensure that its sub-contractors and sub-suppliers sign confidentiality agreements that are equally stringent as those outlined in this Agreement.
The Customer acknowledges that Cleeng may allow such providers of Third-Party Services to access the Customer Data as required for the interoperation of such Third-Party Service with the Subscription Services.
Cleeng shall be responsible for the acts and omissions of the providers of Third-Party Services engaged directly by Cleeng to the same extent that Cleeng would be responsible if Cleeng was performing the services of each such provider directly under the terms of this Agreement.
Any acquisition or engagement done by the Customer involving Third-Party Services engaged by the Customer, and any exchange of data between the Customer and that third-party provider, is solely between the Customer and the applicable third-party provider. The Customer’s access to and use of such Third-Party Services shall be governed solely by the terms and conditions of such Third-Party Services. Cleeng does not whatsoever warrant or support ‘Third-Party Services’ engaged by the Customer. Cleeng assumes no liability for any issues arising from Customer’s engagement with third-party providers.
The Customer’s use of any Third-Party Services engaged by the Customer is at the Customer’s own risk. If the Customer enables Third-Party Services for the use with the Subscription Services, Cleeng shall not be responsible for any disclosure, modification or deletion of Customer’s Data resulting therefrom. Cleeng does not endorse, and makes no representation, warranty or commitment, and shall have no liability or obligation whatsoever in relation to the Customer’s use of any such Third-Party Services. Any contract entered into and any transaction completed via any such Third-Party Services is between the Customer and the relevant third party, and not Cleeng.
Cleeng will provide the Subscription Services and the Professional Services to the Customer at the pricing and for the Fees agreed in the Order Form. Fees may be based on a Minimum Commitment and can be subject to overages, depending on the actual use of the Subscription Services.Fees may be adjusted under the following circumstances:
(i) the number of Managed Users or transactions changes;
(ii) an agreed upon Minimum Commitment is exceeded;
(iii) the Customer activates additional Products/elements of the Subscription Services;
(iv) Cleeng identifies that the Subscription Services are used in excess of the other limitations specified in the Agreement;
(v) the number of Authenticated Users is higher than 20 times the number of Managed Users;
(vi) the parties mutually change the Fees.The Customer can increase the Minimum Commitment at any time and it should be agreed in writing. The Minimum Commitment can be decreased only at the end of the Subscription Term, by providing Cleeng with sixty (60) days prior written notice.
Discounts, if applicable under a given Order Form, are valid for the term of that Order Form only. Upon renewal, the discounts automatically expire and Cleeng’s standard, non-discounted Fees shall apply unless agreed otherwise by both parties in writing.
If no Order Form is agreed, Cleeng default pricing will then apply
The Customer shall pay all fees specified in this Agreement in due time. The Customer’s payment obligations shall be made without any suspension or setoffs and Fees paid are non-refundable.
Unless the Order Form specifies otherwise, Cleeng will invoice the Minimum Commitment Fees for the Subscription Services annually in advance, with payment due at the start of each billing period. Based on the records available in the Cleeng SaaS, Cleeng automatically determines the number of Managed Users and transactions. Fees for the use of the Subscription Services exceeding the Minimum Commitment (“Overage Fees”) will be invoiced monthly in arrears unless specified differently on the Order Form. If overage tiers are defined in an Order Form, the Overage Fees will be calculated based on those tiers.
All invoiced charges are payable within 30 days of the invoice date, except if otherwise specified in the Order Form.
In the event of late payment, Cleeng reserves the right to deduct amounts payable by the Customer directly from amounts owed or apply interest penalties (Euribor + 2 percent per month) for late payments.
Notwithstanding any other rights and without liability to the Customer, Cleeng is entitled to suspend or restrict performance of all services provided under the Agreement, at 14 days’ email notice to the Customer, in the event of: (i) non-payment of Fees due to Cleeng, until such amounts are paid in full; or (ii) in the event that Cleeng reasonably believes that there is a substantial financial or regulatory risk associated with the provision of the services to the Customer, until such risk is mitigated.
All invoices will be delivered electronically via email using the notification addresses stated in an Order Form, if requested and indicated by the Customer, or via the Cleeng dashboard. Any changes in the invoicing contact details should be immediately notified by e-mail to the other party of the Agreement.
In the event the Customer instructs Cleeng to invoice another entity from the Customer’s group for the services provided under this Agreement, Cleeng will address invoices to an entity indicated by the Customer. However, in any case the Customer will remain fully responsible for timely payments under the Agreement.
Cleeng shall be entitled to adjust all Fees upwards annually, on the anniversary of the Start Date, on the basis of the inflation rate for the last available 12-month period, expressed in the Index.
Cleeng's Fees, as outlined in the Order Form or any part of the Agreement, do not include taxes, such as value-added, sales, use, or withholding taxes, unless explicitly stated otherwise. The Customer shall bear responsibility for all taxes related to their payment obligations under this Agreement and for the correct and timely payment of all direct taxes applicable to the distribution and publication of the Customer Content. Should applicable law mandate the Customer to deduct any Taxes from payments to Cleeng, the payment amount will be increased to ensure Cleeng receives the net sum equivalent to the original Fee. Cleeng is solely responsible for taxes assessed against its own income, property, and employees. Each party is solely responsible for its own federal, provincial, and state unemployment insurance, as well as any similar taxes and assessments.
In case a purchase order or any other similar document is required by the Customer in order for an invoice to be paid, the Customer is obliged to timely issue such purchase order, provide such purchase order and its number to finance@cleeng.com, and/or take any other action required under its internal company procedures to ensure that the invoices issued by Cleeng hereunder are paid by due dates specified in Section 5.2 of this Master Subscription Agreement. Such purchase order (or similar) will in no event cause payment due date to be extended.
In the event a purchase order (or similar) is not issued by the Customer on time, Cleeng remains entitled to invoice the Customer for the due amounts under this Agreement and charge interest as from the payment due date.
Purchase orders or other similar documents, issued by the Customer, will in no event supersede, modify, supplement the terms and conditions of Agreement or become part of Agreement. Any such document will not become binding on Cleeng and will have no legal effect.
Subject to the limited rights expressly granted hereunder, Cleeng, its Affiliates, its licensors and Third-Party Services providers reserve all of their right, title and interest in and to the Cleeng SaaS, to all the components of the Subscription Services and to anything developed or delivered to the Customer by Cleeng or on Cleeng’s behalf when providing Subscription Services pursuant to this Agreement, including all of their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
Cleeng shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Subscription Services any suggestions, enhancement requests, recommendations or other feedback provided by the Customer, including Users, relating to the operation of the Subscription Services.
The Customer shall not (i) permit any third party to access the Subscription Services except as permitted in this Agreement, (ii) create derivative works based on the Subscription Services, (iii) attempt to or copy, frame or mirror any part or content of the Subscription Services, other than copying or framing on the Customer’s own intranets or otherwise for the Customer’s own internal business purposes, (iv) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Cleeng SaaS; (v) access the Subscription Services in order to build a competitive product or service, (vi) attempt to obtain, or assist third parties in obtaining, access to the Subscription Services other than as permitted under this Agreement, (vii) license, sell, resell, rent, lease, transfer, assign, distribute, or otherwise commercially exploit, or otherwise make the Subscription Services available to any third party, (viii) use the Subscription Services to store or transmit Malicious Code, infringing, libelous, or otherwise unlawful or tortuous material, or to store or transmit material in violation of third-party privacy rights, (ix) interfere with or disrupt the integrity or performance of the Subscription Services or third-party data contained therein or (x) use the Subscription Services in a manner that could result in a violation of anti-money laundering, counter terrorist financing and similar legal and regulatory obligations (including, without limitation, where Cleeng cannot verify the Customer’s identity or other required information about the Customer’s business).
Cleeng reserves the right, without liability or prejudice to its other rights under this Agreement, to disable the Customer’s access to the Subscription Services in the event of a breach of Clause 6.2. of this Agreement provided that: (i) to the extent reasonably practicable, Cleeng will notify the Customer in advance of disabling such access, and (ii) to the extent such breach is remediable, the Customer does not remedy such breach within 7 days of such notice (where provided). The Customer’s obligations to pay Fees for the Subscription Services remain unaffected.
As between Cleeng and the Customer, the Customer exclusively owns all rights, title and interest in and to all of the Customer’s Data, including the Customer's Content. The Customer is solely responsible for all Customer Content. The Customer represents and warrants that it is fully entitled to distribute and make public the Customer's Content.
The Customer is not allowed to use the Subscription Services in connection with services which may reasonably be considered - in Cleeng’s reasonable discretion - defamatory, discriminating, promoting bigotry, hatred or harm, pornographic, infringing, unnecessary aggrieving, which otherwise violates applicable laws, ordinances or regulations or is otherwise unfit for association with Cleeng.
Use of the Subscription Services in breach of section b. above is prohibited and may result in an immediate termination of the Subscription Services by Cleeng without any liability to the Customer. The Customer’s obligations to pay Fees for the Subscription Services until the end of the Subscription Term remain unaffected.
"Confidential Information" means all confidential information disclosed by Cleeng or the Customer ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. The Customer’s Confidential Information shall include Customer’s Data and Customer's Contents; Cleeng’s Confidential Information shall include, but is not limited to, the details of Subscription Services; and Confidential Information of each party shall include the terms and conditions of this Agreement, business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. The existence of this Agreement and the fact of cooperation between the parties may be disclosed by either party.
Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
The Customer grants approval to Cleeng to use the Customer’s company name and logo in marketing collateral and Cleeng's web site.
The parties may decide to conduct additional marketing activities, including, but not limited to:
a) the development and joint issuance of news-oriented press releases: selection release or go live release;
b) the Customer serving as the subject for a written case study or video case study on the selection and implementation of Cleeng’s solution;
c) participate in conferences, panels, podcasts, interviews and other public events.
Both parties will mutually review and approve all additional marketing activities and marketing materials prior to publication and/or issuance.
Both parties must approve all marketing materials in writing before publication.
Cleeng warrants that: (i) it will perform all contracted services in a professional manner (ii) the Subscription Services shall be performed materially in accordance with the Agreement and the Documentation, and (iii) the functionality of the Cleeng SaaS will not be materially decreased during the Subscription Term. However, like any other technology product and service provider Cleeng cannot warrant that, despite all of our efforts, the Subscription Services will meet the Customer’s requirements, be error-free, provided with no interruptions or that Cleeng is able to correct all errors. Cleeng will use commercially reasonable efforts to minimize the consequences of any errors and interruptions.
Each party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will not transmit to the other party any Malicious Code.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
Cleeng will indemnify and defend the Customer from and against any claim brought by a third party against the Customer alleging that the Customer’s use of the Cleeng SaaS as permitted hereunder infringes or misappropriates a third party’s valid patent, copyright, trademark or trade secret (an “IP Claim”). Cleeng shall, at Cleeng’s expense, defend such IP Claim and pay damages finally awarded against the Customer in connection therewith, including reasonable fees and expenses of attorneys engaged by Cleeng for such defense, provided that (a) the Customer promptly notifies us of the threat or notice of such IP Claim; (b) Cleeng will have sole, exclusive control and authority to select defense attorneys, defend and/or settle any such IP Claim (however, Cleeng shall not settle or compromise any claim that results in liability or admission of any liability by the Customer without the prior written consent of the Customer); and (c) the Customer fully cooperate with us in connection therewith. If use of the Cleeng SaaS by the Customer, Users or Managed Users has become, or, in our opinion, is likely to become, the subject of any such IP Claim, Cleeng may, at its option and expense (i) procure for the Customer the right to continue using the Cleeng SaaS as set forth hereunder; (ii) replace or modify elements of the Cleeng SaaS to make them non-infringing; or (iii) if options (i) or (ii) are not commercially reasonable or practicable as determined by Cleeng, terminate the Customer’s subscription to the Cleeng SaaS and repay the Customer, on a pro-rata basis, any Fees paid to Cleeng for the unused portion of the Subscription Term for the Cleeng SaaS. Cleeng will have no liability or obligation under this Section 9.1. with respect to any IP Claim if such claim is caused in whole or in part by (a)Cleeng’s compliance with designs, data, instructions or specifications provided by the Customer; (b) modification of the Cleeng SaaS by anyone other than Cleeng or our personnel; or (c) the combination, operation or use of the Cleeng SaaS with other hardware or software where the Cleeng SaaS would not by itself be infringing.
The Customer will defend and hold Cleeng harmless against any claim made or brought against Cleeng by a third party, alleging that (i) Customer’s Data, (ii) Customer’s use of Customer’s Data in the Subscription Services, (iii) Customer’s use of the Subscription Services in violation of this Agreement, or (iv) Third-Party Services enabled by the Customer for use or interoperation with the Subscription Services, infringe or misappropriate a third party’s valid patent, copyright, trademark or trade secret, or (v) the Customer’s use of the Subscription Services or any part thereof in breach of the provisions of this Agreement, any applicable law, rule or regulation, infringes a third-party’s rights, and shall indemnify Cleeng for any damages finally awarded against, and for reasonable attorney’s fees incurred by Cleeng in connection with any such claim; provided, that Cleeng (a) promptly gives the Customer written notice of the claim; (b) gives the Customer sole control of the defense and settlement of the claim (provided that the Customer may not settle any claim unless the settlement unconditionally releases Cleeng of all liability); and (c) provides to the Customer, at Customer’s expense, all reasonable assistance.
This Section 9 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.
A PARTY’S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE FEES, EXCLUDING FEES FOR MERCHANT PRODUCT, PAID BY THE CUSTOMER TO CLEENG IN THE SIX MONTHS PRECEDING THE INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER'S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE. THE CUSTOMER ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION 10.1. IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF CLEENG WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. CLEENG HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE THE CUSTOMER WITH THE RIGHTS TO ACCESS AND USE THE SUBSCRIPTION SERVICES PROVIDED FOR IN THIS AGREEMENT. THE LIMITATIONS SET FORTH IN SECTION 10.1. SHALL NOT APPLY TO CLAIMS OR DAMAGES RESULTING FROM THE PARTIES’ IP CLAIMS INDEMNITY OBLIGATIONS IN SECTION 9 OF THIS AGREEMENT.
IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, LOST SALES, BUSINESS OR REVENUES, LOST DATA (WHERE SUCH DATA IS LOST IN THE COURSE OF TRANSMISSION VIA THE SUBSCRIPTION SERVICES OR OVER THE INTERNET THROUGH NO FAULT OF CLEENG), BUSINESS INTERRUPTION, LOSS OF GOODWILL, COSTS OF COVER OR REPLACEMENT, OR FOR ANY OTHER TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR FOR ANY OTHER INDIRECT LOSS OR DAMAGES INCURRED BY THE OTHER PARTY OR ITS AFFILIATES IN CONNECTION WITH THIS AGREEMENT, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
This Agreement becomes effective on the date of signing by both parties and continues until the end of the Subscription Term specified in an Order Form. A Subscription Term of one (1) year shall apply if no term has been included in the Order Form.
Except as otherwise specified in an Order Form, the initial Subscription Term shall automatically renew for additional periods of one (1) year, unless either party gives the other notice on non-renewal at the latest six (6) months before the end of the then current Subscription Term.
Without prejudice to sec. 5.3, the fees during any renewal term shall be the same as that during the prior term unless Cleeng shall have given the Customer written notice of a pricing increase at least seven (7) months before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.
a. The Customer shall be entitled to terminate the Agreement for convenience at any time, however, no refund shall be made in the event of such termination for convenience, and all Fees due under the Agreement, including, in particular, the Minimum Commitment Fees for the Subscription Services until the end of the agreed term, shall be due and payable immediately upon termination.b. A party may terminate this Agreement: (i) upon 30 days written notice to the other party of a material breach of this Agreement if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors (“Termination for Cause”). c. Should the provision of any Subscription Services become unlawful pursuant to any applicable law, Cleeng shall be entitled to terminate the said Subscription Services immediately, without incurring any liability or being obligated to provide compensation.
Termination of this Agreement will not affect either party's existing rights or liabilities, whether arising under this Agreement or by law.
Upon Termination for Cause by the Customer due to reasons attributable to Cleeng, Cleeng shall refund the Customer any prepaid Fees covering the remainder of the Subscription Term after the effective date of termination. Upon Termination for Cause by Cleeng due to reasons attributable to Customer, the Customer shall pay any unpaid fees covering the remainder of the Subscription Term after the effective date of termination.
In no event shall any termination relieve the Customer of the obligation to pay any fees payable to Cleeng for the period prior to the effective date of termination.
The Customer will have access to the Cleeng SaaS for a period of three (3) months after the termination of the Agreement in order for the Customer to download data from the Cleeng SaaS. Cleeng is not obliged to retain the Customer’s Data after this three (3) month period and Cleeng may need to store certain data after the termination pursuant to applicable laws and regulations. In the event of a Termination for Cause by Cleeng due to reasons attributable to Customer, Cleeng is entitled to shorten the period of the data retention upon prior notice to the Customer.
Section 5 (Fees and Payment), 6 (Proprietary Rights), 7 (Confidentiality), 8.3 (Disclaimer), 9 (Indemnification), 10 (Limitation of Liability), 11.4 (Consequences of Early Termination), 11.5 (Return of Customer’s Data), and 13 (Miscellaneous) shall survive any termination or expiration of this Agreement.
The Parties waive the right to rescind the Agreement. Article 6:265 of the Dutch Civil Code is excluded.
In the performance of their obligations under this Agreement, each party shall adhere to all applicable Sanctions Laws, inclusive of export controls. Each party hereby represents that it is not a Restricted Person. The Customer shall refrain from permitting access to, or use of, the Subscription Services by (a) Restricted Persons, (b) Users or Managed Users situated within Restricted Jurisdictions, or (c) in any manner that would contravene Sanctions Laws. Cleeng shall bear no obligation or liability in the event that governmental or regulatory action restricts access to the Subscription Services. The Customer acknowledges and agrees that this Agreement and any Order Form expressly preclude any right of access to the Subscription Services from jurisdictions wherein such governmental or regulatory restriction is in effect. Cleeng reserves the unconditional right to decline to enter into, or to terminate, a contractual relationship with any entity or individual on the basis of export control restrictions, embargoes, sanctions, or other legally permissible considerations.
Each Party shall comply with all applicable anti-bribery and anti-corruption laws, including but not limited to the Dutch Criminal Code (Wetboek van Strafrecht), the UK Bribery Act 2010, the U.S. Foreign Corrupt Practices Act (FCPA), and any other relevant legislation. Neither Party shall, directly or indirectly, offer, promise, give, solicit, or accept any bribe, facilitation payment, inducement, or improper advantage in connection with this Agreement. Each Party shall implement and maintain adequate procedures to prevent bribery and corruption.
If a Party becomes aware of any breach or suspected breach of this clause, it shall promptly notify the other Party and provide reasonable assistance in any investigation. A breach of this clause shall be deemed a material breach, entitling the non-breaching Party to terminate this Agreement with immediate effect and seek any applicable remedies under law.
Neither party shall be responsible for delays or non-performances, except for the Customer’s obligation to pay Fees, due to causes or occurrences beyond its or its suppliers or sub-contractors control, including, but not limited to, civil disobedience, casualty or accident, war, hostility or sabotage, labor disputes, acts of terrorism, government actions, electronic breakdowns, failure by Internet providers or the like that is not caused by the obligated party (Force Majeure Event). If either party is affected by a Force Majeure Event it shall as soon as reasonably practical notify the other party in writing, and take all reasonable steps to mitigate the effect of the Force Majeure Event. If such an event continues for more than thirty (30) days, either of us may cancel unperformed Services upon written notice. This section does not excuse either party’s obligation to take reasonable steps to follow normal disaster recovery procedures or any obligation to pay for Services. In the event of termination, and if applicable, Cleeng will refund prepaid fees for terminated Services for the period following the effective date of termination.
Except as otherwise specified in this Agreement or Order Form, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, or (iii) the first business day after sending by email. Notices to the Customer shall be addressed to the system administrator designated by the Customer for the Customer’s Subscription Services account, and in the case of billing-related notices, to the relevant billing contact designated by the Customer. Notices to Cleeng shall be addressed to legal@cleeng.com.
Should Cleeng collect, store and process the Customer’s personal data as part of the Subscription Services it will be deemed to do so, except when providing Merchant Product (as regulated under the Merchant Schedule), only on behalf of the Customer and on the Customer’s instructions, as a data processor, for the purpose of performing its contractual undertakings arising from this Agreement. Processing of personal data under Agreement is governed by the terms set out in the Data Processing Addendum (“DPA”) available on the website: https://cleeng.com/data-processing-agreement. The DPA constitutes an integral part of the Agreement, is hereby incorporated to it by reference and is deemed valid without the necessity to put parties’ written signatures in the body of DPA. Either party’s acceptance of Agreement constitutes the party’s agreement to the DPA, its schedules (including EU Standard Contractual Clauses, if applicable) and appendices.
No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
If any provision of this Agreement is found to be illegal, invalid or unenforceable, the provision shall be modified and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
Neither party may assign any of its rights or obligations hereunder without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, Cleeng may without the consent of the Customer assign its rights and obligations to (i) a company in which Cleeng owns more than 50 per cent of the votes or to a company which owns more than 50 per cent of the votes in Cleeng and (ii) a third party which acquires by way of an asset transaction a business or a division from Cleeng.
This Agreement may only be amended by a written agreement between the parties, setting out a clear intention of the parties to amend the terms and conditions of this Agreement and signed by the requisite number of authorized signatories of each party.
This Agreement may oThe terms specified in this Master Subscription Agreement and in Schedule 1 - SLA shall apply to any applicable Order Forms that may be signed by the parties for the provision of any services.This Agreement, including all Order Forms, the SLA, Merchant Schedule, SoW and addenda hereto contains all the terms and conditions agreed between the parties regarding its subject matter and supersedes any prior agreement, understanding or arrangement between the parties, whether oral or in writing. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to this Agreement except as expressly stated in this Agreement. Neither Party shall have any remedy in respect of any untrue statement made by the other upon which that party relied in entering into this Agreement (unless such untrue statement was made fraudulently) and that Party's only remedies shall be for breach of contract as provided in this Agreement.nly be amended by a written agreement between the parties, setting out a clear intention of the parties to amend the terms and conditions of this Agreement and signed by the requisite number of authorized signatories of each party.
This Agreement shall be governed by and construed in accordance with the substantive laws of the Netherlands, without reference to the choice of law provisions thereof and the applicability of the United Nations Convention on Contracts for the International Sale of Goods 1980, which is excluded.
Before resorting to any legal proceedings, the parties agree to use their best efforts to negotiate in good faith and settle amicably any dispute that may arise. All disputes arising in connection with the Agreement or further agreements resulting therefrom, shall be settled in accordance with the Arbitration Rules of the Netherlands Arbitration Institute (NAI). The place of arbitration shall be Amsterdam, the Netherlands, and procedural laws of the Netherlands shall apply to the arbitration procedure. The proceedings shall be conducted in English. The arbitral tribunal shall consist of three arbitrators and decide according to the rule of law.
Version: April, 2025.
All Services provided by Cleeng B.V. ("we" or "us") to Customers ("you") are governed by the Cleeng Master Service Agreement. The Agreement between you and us is comprised of an Order Form containing the Services ordered, the fees applicable and the details of the Customer and this Cleeng Master Service Agreement and Statement of Works ("SOWs"). If the Services include the Merchant Module Services the terms in the Merchant Schedule apply in addition to the terms of the Agreement.
We understand if you have any questions regarding the Agreement or about the way we operate. Please do not hesitate to contact us if should you have any questions. We are happy to answer them.
Index
In this Agreement, the following terms written with a capital letter shall have the meaning as set out below:
Agreement, an Order Form and this Cleeng Master Service Agreement, including the schedules thereto and SOWs;
Authenticated Users: a User who is registered to the Customer’s service(s), and who has logged into the service at least once in the calendar month;
Cleeng Application, online environment and API made available to you by us in which you can provide instructions and information, manage settings and review reports in your visual dashboard;
Customer Content, any and all content distributed by you or on your behalf;
Merchant Schedule, schedule containing additional terms applicable to the Merchant module;
Minimum Commitment, minimum number of Managed User on which basis fees are calculated;
Module: a product & service package provided by Cleeng to its Customers;
Order Form, the (electronic -) document executed between you and us to order specific Services;
Personal Data, personal data as defined in article 4 of the General Data Protection Regulation (EU/2016/679);
Purchased Services, means Services that you purchase under an Order Form, as distinguished from free services or those provided pursuant to a free trial;
SLA, Service Level Agreement in which key performance indicators for specific Services are agreed upon;
SOW, a statement of work for the provision of ad-hoc Services described in more detail in the SOW;
Managed Users, a VOD subscriber or a pay-per-view buyer, or any other User, who has a valid entitlement access to the Customer Content offers in a given month, regardless of the offer type (live/svod), payment gateway (Cleeng Merchant, or external), or discount (excluding Authenticated Users and free trials without payment obligations attached);Services, all products and services provided by us;
Term, the agreed period during which the Services are delivered and the Agreement is in effect;
User, anyone accessing the Cleeng Application.
Average Contact Rate, the amount of inquiries received per month divided by the average number of Managed Users during that month
a. We strive to provide Services to the best of our ability and to offer state of the art Services. We shall at all times provide Services with commercially reasonable efforts. We will respect and protect your privacy, data and personal information. Like us, you run your own business, service your customers, protect your customers’ data, report and pay taxes, and observe all laws, rules, and regulations.
b. In order for the Services to function as intended we are dependent on your good faith cooperation and the provision of all information that is reasonably required in order for us to deliver the Services. You warrant that all information provided is correct and up to date and that you shall promptly update provided information or provide additional information if so reasonably required for our provision of the Services.
c. We may make changes or updates to the Services (such as infrastructure, security, technical configurations, application features, etc.) during the Term of the Agreement, including to reflect changes in technology, industry practices, patterns of system use, and availability of third party content and software. Changes to the Services will not result in a material reduction in the level of performance, security or availability of Services provided to you for the then current Term of the Agreement.
d. You order Services by means of the execution of an Order Form or SOW. Services are subject to and governed by the Agreement. In case of discrepancies between an Order Form/SOW and the Cleeng Master Service Agreement, the contents of the Order Form/SOW prevail. All Orders Forms and SOWs are subject to our confirmation.
e. For the Term, you are entitled to make non-exclusive and royalty-free use of whitepapers, brochures, trials and demo environments as made available to you by Cleeng from time to time.
a. In order to benefit from the Services, we shall provide you with access to the Cleeng Application and one or more Module(s). In this respect you shall be furnished with a username and password required to access the Cleeng Application.
b. You agree to safeguard the confidentiality of the usernames and passwords required for access to the Cleeng Application. Services will be performed based on the settings in the Cleeng Application and you are responsible for all information you provide to us via the Cleeng Application.
c. You (or Third Parties you contract with) may build your own interfaces using our APIs. You can also use the interface provided by Cleeng.
a. Fees due for Purchased Services are set out in the Order Form or, as applicable, as available via at https://cleeng.com/pricing. Fees may be based on a Minimum Commitment. The Fees may vary if (i) the number of Managed Users changes (ii) you exceed an agreed upon threshold for Managed Users, (iii) you add additional Services, (iv) we agree on a fee change.
b. Reports regarding purchases of Customer Content by Managed Users are available via the Cleeng Application.
c. If a fee change is applicable during the course of a billing period your fees will be adjusted at the beginning of the next billing period up to the tier price that corresponds with the number of Managed Users. This process will continue for each Billing Period. Based on the records available in our platform, we automatically determine the number of Managed Users. You can increase at any time your commitment of Managed Users. Note, you may only reduce the amount of Managed Users, at the anniversary of the agreement.
d. The applicable fees and commercial terms are exclusive of taxes and levies and are listed in the Order Form: Cleeng Rate Card. Note, the “$” sign means USD in all our documents, except if explicitly stated otherwise.
e. You may receive invoices Monthly, Quarterly and/or Yearly. Invoices can only be emitted in USD or EUR, or GBP. All amounts payable to us are to be paid on the due date indicated on the invoice or if no due date is indicated, within 30 days of the date of the invoice. If some invoice(s) are outstanding for more than 30 days, we are entitled to deduct the amounts payable to us from amounts that we owe you.
f. All amounts payable to us shall be paid without suspension, set off and free and clear of, and without deduction of, any taxes, levies, imposts, charges, with holdings and/or duties of any nature which may be levied or imposed, including without limitation value added tax and withholding tax. If you are at any time required by any applicable law to make any such deduction from any payment due to us under this Agreement, then the amount due to us in respect of such payment shall be increased by such amount as will result, notwithstanding the making of such deduction, in our receipt on the due date for payment of each amount, of a net sum equal to the amount that we would have received if you had not been required to make such deduction.
g. We are entitled to annually adjust fees for Services on the basis of relevant price indexes of economies (such as inflation rates) which affect our business and other costs relevant to the industry sector in which we operate. We shall notify you of such a change two (2) months in advance. In the event you do not agree to the amended fees you must notify us within one (1) month after a notification has been issued. In such event, we shall continue to provide the Services for the un-amended fees and, except if agreed otherwise, the Agreement shall terminate upon expiry of the then current Term.
h. Users purchases’ management is comprised of authentication and entitlement. Before Customer Content is released to an individual Managed Users we shall validate whether or not the Managed Users is a person authorized to accessCustomer Content and we shall validate whether or not the Subscriber is entitled to access the requested Customer Content.
i. Discounted fees are valid for the initial Term only. Upon renewal of the Agreement, our standard non-discounted fees shall apply.
a. For the Term and purpose of the Agreement we grant you, subject to timely payment of all fees, the non-exclusive, non-transferable and non-sublicensable right to access and use the Cleeng Application and other software provided by us in the context of the Services.
b. You or your licensors retain all ownership and intellectual property rights in and toCustomer content. We or our licensors retain all ownership and intellectual property rights to the applications, software and other works provided in the context of the Services and to anything developed or delivered by or on behalf of us pursuant to the Agreement.
c. You are the sole responsible for any change to the Customer Content conditions, including, price, content availability or membership benefits.
d. You agree to indemnify and hold us harmless against any and all third party claims, actions, liability, demands, damages and/or loss of any nature whatsoever together with all costs, expenses and/or other liabilities incurred in connection with any use of the Services and/or any part there of in breach of the provisions of the Agreement, contrary to any applicable law, rule, regulation and/or order, and/or in a manner which infringes the rights of a third party.
e. In the context of the Services provided and on our website for reference purposes, we may use and/or make public your logo, trademarks, trade names and other information provided by you. You may withdraw such consent at any time at your own discretion.
a. As part of your Subscription, you are entitled to receive our standard professional Customer support. Email and chat support are included in your fees. Email and Chat support can be accessed through the Cleeng Application, or by emailing support@publisher-cleeng.zendesk.com.
b. By default, we commit to use all commercially reasonable efforts to achieve a 24-hour response time between the business hours. Also, Chat Support may be available from within the Cleeng Application, and is staffed between the business hours of 8 AM and 6 PM CET (messages can also be left after hours, and will be responded to the following business day).
c. At any time, you may elect for a higher Customer support package. Contact our team for further information.
d. If you require support on the migration of data into or from the Cleeng Application, such support requires the execution of a separate Order Form on which arrangements on data sources, data quality, timing and costs are agreed upon. Contact our team for further information.
a. We commit to use all commercially reasonable efforts to achieve an average minimum uptime of 99.8% (measured on a quarterly basis) of the Cleeng Application, excluding from the uptime calculation any downtime caused by acts or omissions of Customers, third parties, changes implemented on specific Customer request, general internet failures, or force majeure. You must immediately notify us of any downtime of the Cleeng Application which it experiences and to provide all reasonably requested co-operation in investigating and resolving any such downtime. We report on availability, scheduled maintenance and general incidents via https://status.cleeng.com.
b. We use all commercially reasonable efforts to avoid having to take the Cleeng Application offline for executing planned maintenance. Should under circumstances such maintenance nevertheless prove necessary, we will provide as much notice as practically possible and plan such maintenance in a manner and on a date and time to minimize the impact taking all our Customers into consideration. Should under emergency situations (e.g. in case of force majeure event, internet failure or terrorist attack) unplanned maintenance be necessary to the Cleeng Application necessitating it to be taken offline, we will use all available resources to keep the required downtime to the absolute minimum.
c. As a cloud based platform, we continuously improve our Service and the Cleeng Application. Planned maintenance to the Cleeng Application will happen in the standard weekly maintenance window on Wednesday 07:00 – 07:15 hours CET, or at other times as determined by us and communicated to you.
d. In respect of the optional Hi5 Module (customer care), we agreed with you on a specific SLA for this Service. The SLA depends on the average contact rate, defined as the amount of inquiries received per month divided by the average number of Managed Users during that month. Presently, the typical average contact rate is less than 2% for SVOD services, and less than 3% for Pay-Per-View services. If at any time during the Term, the actual average contact rate for the relevant service is more than 2 (two) times the typical average contact rate applicable at that time, calculated per rolling 12-hour period on a prorated basis, the broadcaster shall:
- without delay and in any event within 2 weeks, take adequate measures to mitigate the excessive contacts, and,
- if the level of such actual average contact rate is not back to the level of the typical average contact rate, or lower, within 2 weeks, you shall pay the associated overage fees, being 0.50USD per contact.
a. We warrant that we will perform Services in material aspects as described in the Agreement and in a professional manner. However, like any other technology product and service provider we cannot warrant that, despite all of our efforts, the Cleeng Application and the Services will be provided for error-free, uninterrupted or that it is able to correct all errors. We will use commercial reasonable efforts to minimize the consequences of any errors and interruptions.
b. You recognize that the internet technical infrastructure is highly fragmented and may lead to unpredictable interruption(s) of the Cleeng Application and the Services, beyond anyone’s control. For example, we do not control the transfer of data and content over the internet and as such the Cleeng Application and the Services may be subject to limitations, errors, delays and other issues inherent in the use of communication facilities such as the internet.
c. To the extent not prohibited by mandatory law, the warranties in the Agreement are exclusive and there are no other express or implied warranties or conditions regarding merchantability, quality or fitness for a particular purpose.
a. We understand that the security of Customer Content is an important aspect of your business. A breach of security exists if a significant public (not being Users) can access Customer Content. We will take action in order to help you remedy a breach of security as provided in this section.
b. In order to enable us to effectively respond to a breach of security, you shall promptly notify us via support@publisher-cleeng.zendesk.com and/or via the Cleeng Application and at all times within 72 hours should you become aware of the occurrence of any (suspected) breach of security, and provide as much details as possible about the nature of the breach.
c. On receipt of a notification, we shall use commercially reasonable endeavors to determine if the breach of security is caused by or facilitated by a User. Should this be the case, we will cut off the access to Customer Content for that particular User. You understand that any breach of security resulting from any act or default by you shall only be remedied at your expense and that we have no obligation for a breach of security other than as stated in this section.
a. We will (on your behalf) receive or otherwise have access to information or data that constitutes Personal Data. We shall process Personal Data in accordance with the data processing agreement available via [link].
b. We may:
- Compile statistical and other information related to the performance, operation and use of the Services;
- Use data in aggregated form for security and operations management, to create statistical analyses, and for research and development purposes.
c. Apart from the exceptions referred under clause 11 subsection c below, we will not transmit Data outside the EEA without your prior written consent except to jurisdictions otherwise in compliance with applicable EU data protection legislation.
d. Cleeng shall use commercial reasonable efforts to ensure that data and information contained in the Cleeng Application are current and up to date. You nevertheless bear the final responsibility to assess the accuracy data and information contained in the Cleeng Application. You are responsible for your own tax reporting positions, and for conducting your own due diligence in respect of any taxes due by you.
a. You will - if necessary - enter into agreements with other suppliers or providers of materials, hardware, third party software and other platforms Services deemed necessary for the operation of the Cleeng Application Services. We exclude liability for any goods or applications Services supplied by third party suppliers.
b. Any third party content made accessible by us is provided on an "as-is" and "as-available" basis without any warranty of any kind.
c. You acknowledge that:
- the nature, type, quality and availability of third party content may change at any time during the period Cleeng Application Services is provided for; and
- features of the Cleeng Application Services that interoperate with third parties such as but not limited to Facebook, Google, Apple, PayPal, Zendesk, Adyen, Amazon Web Services (AWS), Looker and Twitter, etc. depend on the continuing availability and proper performance of such third parties’ respective application programming interfaces (APIs) for use with the Services.
- features referred under c subsection ii. may operate outside the EEA. Please refer to their terms for further details. For AWS, we rely on EU Model Clauses to facilitate data transfers outside the EEA.
a. You must at all times fully comply with the current specifications and usage practices of the Services as described in API documentation available at https://developers.cleeng.com/. We have the right to adjust performance or to terminate the Agreement if you are not compliant with the specifications. Notwithstanding the previous sentence, you shall have a right to cure any alleged non-compliance within thirty (30) days of receipt of written notice of any claim of non-compliance.
b. You must ensure that all Personal Data and transaction information requested by Cleeng to validate the authenticity of the user transaction is provided in time and in full. Cleeng has the right to adjust performance or to terminate this Agreement if we do not receive the required data.
c. We may revise from time to time the specifications and/or data requirements needed to use the API, by giving you reasonable written notice. You shall have the right to terminate the Agreement with notice in the event that such modifications are an unreasonable burden for your business.
a. By virtue of the Agreement, we both may have access to information that is of a confidential nature ("Confidential Information"). For the avoidance of doubt, Confidential Information shall include:
- the terms of the Agreement;
- all information whether of a technical nature or otherwise relating in any manner to the business or affairs of the disclosing party as may be communicated to the receiving party pursuant to this Agreement;
- Personal Data; and
- all know-how, techniques, ideas, principles and concepts which underlie any element of the Services, and which may be apparent by the use, testing or examination thereof.
b. During the term of the Agreement and after its termination or expiration for any reason whatsoever, each party shall:
- keep the Confidential Information confidential;
- not disclose the Confidential Information to any other person other than with the prior written consent of the disclosing party, or in accordance with d) below; and
- not use the Confidential Information for any purpose other than the performance of its obligations under the Agreement.
c. A party’s Confidential Information shall not include information that:
- is or becomes a part of the public domain through no act or omission of the other party;
- was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party;
- is lawfully disclosed to the other party by a third party without restriction on the disclosure; or
- is independently developed by the other party.
d. Parties may disclose Confidential Information for purposes of the Agreement only to those employees, agents or subcontractors (which for this purpose includes our subcontractors) involved in the Services who are required to protect it against unauthorized disclosure in a manner no less protective than required under this Agreement, and who are themselves governed by a non-disclosure agreement or other confidentiality arrangements.
e. The obligations of confidentiality shall not apply to any Confidential Information which:
- is in the public domain, or which becomes generally available to third parties by publication or through no fault of the receiving Party;
- the receiving party is able to show to the reasonable satisfaction of the disclosing party was lawfully in its possession prior to such disclosure and was not acquired directly or indirectly from the disclosing party;
- is lawfully obtained by the receiving party from a third party not similarly bound by such confidentiality obligations; or
- is required to be disclosed by law or by any regulatory or governmental authority. In this event the receiving party shall notify the disclosing party as promptly as practicable, and if possible prior to making any disclosure, and shall use its reasonable endeavours to seek confidential treatment of such information.
a. We do not exclude, or limit our liability, to the extent our liability may not be excluded or limited pursuant to mandatory law in which events no limitation or exclusion of liability shall apply, typically in case of gross negligence or willful intent.
b.Unless performance is permanently impossible, for example in the case of obligations in respect of live events, we are liable only after you issue a notice of default in which you grant us a reasonable term to remedy the breach and we attributably fail to fulfil our obligations after that term has passed.
c. Our total liability – regardless of the legal ground a claim is based on – is limited to direct damages only and shall not exceed the fees (exclusive of taxes) paid to us by you under the agreement during the six (6) months period immediately preceding the date when such liability arises.
d. Our liability for indirect damages, such as consequential damages, loss of profits, loss of savings, loss of goodwill, loss due to business interruption, loss as a result of claims of your customers, loss arising from use of third parties or third party materials prescribed to us by you, is excluded.
e. The provisions of this section and all other limitations and exclusions of liability also apply for the benefit of all (legal) persons that we engage in the performance of the Agreement.
a. Neither of us shall be responsible for failure or delay of performance outside the reasonable control of the obligated party if caused by: an act of war, hostility, or sabotage, pandemic, electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export, import or other license); or other event outside the reasonable control of the obligated party. We agree to use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than thirty (30) days, either of us may cancel unperformed Services and affected orders upon written notice. This section does not excuse either party’s obligation to take reasonable steps to follow normal disaster recovery procedures or any obligation to pay for Services. In the event of termination, and if applicable, we will refund prepaid fees for terminated Services for the period following the effective date of termination.
a. Services are entered into for the term indicated in the Order Form and cannot be terminated during such term unless indicated otherwise in the Order Form. A term of one (1) year shall apply if no term has been included in the Order Form.
b.After the initial term the Subscription is constantly renewed for additional one (1) year periods unless a Subscription or the Agreement is terminated in accordance with the below section on termination.
a. The Agreement is entered into for an Initial Term as set out in the Order Form and, unless terminated, constantly automatically renews for additional one (1) year periods. The Agreement may be terminated by written notice by either of us at the end of its term with adherence of a two (2) months' notice period. Furthermore you are entitled to terminate the Agreement at any moment, however no refund shall be made in the event of such termination for convenience and all fees due under the Agreement become payable upon termination.
b. The Agreement may be terminated immediately by written notice by either of us if any action or proceedings under any bankruptcy or insolvency law are taken by or against the other party, or if any event similar to any of the foregoing under the law of any jurisdiction has occurred in respect of the defaulting party.
c. The Agreement may be terminated by either of us if the other party commits a material breach of any term of this Agreement which in the case of a breach capable of being remedied, has not been remedied within thirty (30) days of a written request to remedy the same.
d. In the event the provision of any of the Services is unlawful under any law applicable to such Services, we are entitled to immediately terminate the provision of such Services without incurring any form of liability or any compensation due.
e. Any termination of the Agreement shall not affect any other rights to which either of us may be entitled hereunder or at law, including any accrued rights or liabilities of either of us. If the Agreement is terminated within a year, Cleeng will incur a termination fee and it may set off such costs against the deposit as provided for in the Merchant Schedule. All fees agreed until a given term become payable upon a termination of the Agreement unless the Agreement is terminated by you based on b) or c) above.
f. You will have access to the Cleeng Application for a period of three (3) months after the termination of the Agreement in order for you to download data from the Cleeng Application. We are not obliged to retain your data after this three (3) month period and we may need to store certain data after termination pursuant to applicable laws and regulations. Cleeng does not store payment information, such as credit card details, therefore payment information cannot be transferred.
g. Furthermore, continued use of the Cleeng Application after termination will be charged against our standard pricing terms. The Agreement continues to govern you for any continued use of the Services after termination.
h. The Parties waive the right to rescind the Agreement. Article 6:265 DCC is excluded.
a. The Agreement replaces all prior agreements and arrangements between us relating to its subject matter and constitutes the entire understanding relating to the subject matter of this Agreement. No oral representations, warranties or promises shall be implied as terms of this Agreement unless expressly incorporated herein. The applicability of your purchasing or other conditions is excluded.
b. If any term of the Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with another term consistent with the purpose and intent of the Agreement.
c. Any variation of or addition to the Agreement shall only be of any force or effect if reflected in writing and signed by both of us and expressed to amend the Agreement.
d. A waiver by either of us of a breach of any term or condition of this Agreement in any one instance shall be in writing and shall not be deemed as a continuing waiver or a waiver of any other or subsequent breach unless the written notice so provides.
e. Any notice issued to Cleeng under the Agreement shall be in writing and addressed to support@publisher-cleeng.zendesk.com.
f. We are entitled to assign, cede or transfer or otherwise dispose of any of its rights and obligations under the Agreement, provided that we shall give you prompt written notice of such assignment, cession, transfer or disposal.
g. Notwithstanding any other rights, we are entitled to suspend performance of the Services in the event of non-payment of Fees due to us and in the event that we reasonably believe that there is a substantial financial or regulatory risk associated with the provision of Services to you.
h. You hereby grant Cleeng the non-exclusive and royalty free right to use your name, logo and trademark on its website and promotional materials. You agree to reasonably cooperate with Cleeng should it request you to cooperate with the provision of a reference or the release of a press statement in connection with the execution or performance of the Agreement.
a. The Agreement is exclusively governed by and construed in accordance with Dutch law, without reference to the choice of law provisions thereof and the applicability of the United Nations Convention on Contracts for the International Sale of Goods 1980 is excluded. In the absence of an amicable agreement, any dispute arising out of or related to this Agreement shall be determined by means of Netherlands Arbitration Institute (NAI) and in accordance with the NAI rules. The place of arbitration shall be London, the United Kingdom but the procedural laws of the Netherlands shall apply to the arbitration procedure. The arbitration shall be conducted in the English language. The arbitral tribunal shall consist of three arbitrators and decide according to the rule of law.
b. Before resorting to any legal proceedings, we both agree to use our best efforts to negotiate in good faith and settle amicably any dispute that may arise.
Version: March 22th, 2022.
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