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General Terms & Conditions

Version Effective as of June 6, 2024

1.3 Technology ordered by the Customer shall be identified in the Order Documentation. Supplemental terms and conditions (“Supplemental Terms”) applicable to the Technology ordered by Customer shall be incorporated within the Order Documentation.

1.4 These Terms and Conditions, the Order Documentation and the Supplemental Terms constitute a binding agreement between the Parties.

2.2 “Cloud Services” means cloud-based Haivision services provided and accessed by the Customer over the internet.

2.3 “Confidential Information” shall have the meaning set forth in Section 3.

2.4 “Content” means any data or material that is used, encoded, transcoded, modified, copied, adapted, showed, published, transmitted and/or distributed through the Technology by Customer, including, without limitation, graphics, text, video, and audio material, whether copyrighted or not, trademarks or service marks.

2.5 “Customer” means the (a) the customer or (b) the Reseller identified in the Order Documentation.

2.6 “Customer Data” means: (a) the Content; (b) Customer’s Confidential Information; and (c) Customer’s Personal Data.

2.7 “Customer Device” means hardware used by the Customer to access, connect to, or pair with Cloud Services.

2.8 “Designated System” means the computer hardware, information technology systems, including the operating system and back-end system, used in conjunction with the Technology.

2.9 “Documentation” means any technical materials related to the Technology, which is provided by Haivision including, but not limited to, reference manuals, specifications, or database schemas.

2.10 “Haivision” means Haivision Systems Inc., its subsidiaries and affiliates.

2.11 “Hardware” means the equipment manufactured by Haivision, or provided by Haivision as part of a Designated System.

2.12 “Intellectual Property” means any and all proprietary rights provided under patent law, copyright law (registered and unregistered copyrights and unpublished work of authorship), trademark law, design patents or industrial design law, semiconductor chip law, or any other statutory provision or common law principle applicable to the protection of intangible proprietary information or rights, including trade secret law, which may provide a right in either idea, formula, algorithm, concept, invention, or know-how generally, or the expression or use of such ideas, formulae, algorithms, concepts, inventors or know-how, and any and all applications, registrations, licenses, sub-licenses, continuation, reissues, extensions, franchises, agreements or any other evidence of a right in any of the foregoing.

2.13 “Licensed Software” means the executable version of a computer software or firmware, program, or code, in object code format, licensed to Customer by Haivision. Licensed Software may contain Open-Source Software and the Customer’s use of such Open-Source Software shall be in accordance with the Open-Source License terms associated with such Open-Source Software.

2.14 “Open-Source Software” means any software licensed under Open-Source License Terms.

2.15 “Open-Source License Terms” means the licensing and/or distribution models commonly known as “open- source software” or “free software” or any other licensing and/or distribution models pursuant to which software is made generally available to the public in source code form under terms that permit modification and redistribution of such software.

2.16 “Order Documentation” means quotations, purchase orders, other agreements, or any similar document accepted by Haivision, detailing the Technology ordered by Customer.

2.17 “Party” means Haivision or Customer, individually, and collectively, “Parties.”

2.18 “Personal Data” means any information that constitutes “personal data” under applicable laws and that is collected, processed, or generated through usage of the Technology.

2.19 “Product(s)” means Hardware and Licensed Software.

2.20 “Professional Services” means the professional services ordered by Customer pursuant to a Statement of Work.

2.21 “Reseller” means the entity that purchases the Technology from Haivision for resale to Authorized Users.

2.22 “Security Breach” means any act or omission that materially compromises the security, confidentiality, and integrity of Customer Data.

2.23 “Services” means the Cloud Services, the Electronic Program Guide Services, the Professional Services, and the Support Services.

2.24 “Statement of Work” means an agreement that details the scope of work for a Professional Services engagement.

2.25 “Subscription” means access by Customer of a subscription on a recurring basis to one or more Services.

2.26 “Supplied Product” means any Product which is not sold by Haivision (and purchased by Customer), but instead is supplied for Customer use, including on a trial basis, loaned, leased, and/or rented to Customer, so that the Product is subject to a return obligation on the part of Customer.

2.27 “Support Services” means support services purchased by Customer.

2.28 “Technology” means the Products and Services ordered by Customer pursuant to the accepted Order Documentation.

3.3 Confidential Information shall not include information which:. (i) becomes known to the public through no act of the Receiving Party; (ii) was known to the Receiving Party, or becomes known to the Receiving Party from a third party having the right to disclose it and having no obligation of confidentiality to the Disclosing Party with respect to the applicable information; or (iii) is independently developed by the Receiving Party.

4.2 Except as set forth in these Terms and Conditions, all right, title and interest in any suggestions, ideas, enhancement requests, feedback, recommendations or other similar information (collectively, “Feedback”) provided by Customer to Haivision shall be the sole property of Haivision, so long as they relate to the Technology, and Customer hereby assigns to Haivision, without limitation of any kind, all of its rights, titles and interests therein, Customer accepting such assignment. Haivision shall have the full, unencumbered right to use and otherwise fully exploit the feedback.

5.2 The Customer is solely responsible for the Customer Data and Content directly or indirectly delivered, transferred, or disclosed to Haivision, or otherwise inputted or processed by the Technology. Haivision exercises no control over and accepts no responsibility for the Content or Customer Data, including, without limitation, violations of Intellectual Property rights, the lawful collection, use and disclosure of Personal Data, or inaccuracies.

5.3 Customer is responsible for Content. Customer will ensure that Content, and Customer’s and Customer Devices’ Use of Content or the Services, will not violate the Haivision Acceptable Use Policy located at https://www.haivision.com/legal/acceptable-use-policy/, or any applicable laws or any third party Intellectual Property right.

5.4 Customer represents and warrants to Haivision that the Customer has and will maintain, throughout the Term, all necessary rights and permissions (including rights and permissions in and to any applicable Intellectual Property) to use and distribute the Content. Customer agrees to pay or to obtain a waiver by relevant third parties from all royalties, license fees (e.g., BMI, ASCAP, SESAC, CCLI, etc.) and/or similar amounts due to any owner of any of the Intellectual Property in the Content applicable to the use and broadcast of the Content.

7.2 Haivision shall (a) notify the Customer without undue delay upon becoming aware of a Security Breach affecting Customer Data, and (b) provide the Customer with the information reasonably required related to a Security Breach in accordance with applicable laws.

8.2 Customer may withhold payment of disputed charge(s) provided that: (i) all undisputed amounts are paid when due; (ii) Customer identifies the specific charge(s) in dispute and provides a reasonably detailed written explanation of the basis for the dispute within ten (10) days of the invoice date; and (iii) Customer agrees to reasonably cooperate with Haivision in investigating and resolving the dispute pursuant to Section 15. In the event the dispute is resolved in favor of the Customer, the Customer’s sole and exclusive remedy for such a dispute shall be an adjustment or credit to the Customer’s account. All amounts paid are non-refundable except as otherwise set forth in these Terms and Conditions.

8.3 Customer agrees to pay Haivision for those taxes which Haivision is required to collect as per applicable laws, and without any deduction or withholding for or on account of any and all applicable sales, use, excise, import, export, value-added and similar taxes, and governmental charges (collectively “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Haivision has a legal obligation to pay or collect Taxes for which Customer is responsible under this Section 8.4, Haivision shall invoice Customer for such amounts (and Customer agrees to pay such amounts), unless Customer provides Haivision with a valid exemption certificate issued by the appropriate taxing authority prior to invoicing.

8.4 Customer further agrees to provide Haivision with complete and accurate billing information, including, Customer legal name, registered business address and the name and phone number of a primary customer contact. The Customer is responsible for updating such information without undue delay.

9.2 Haivision agrees to indemnify and hold harmless Customer from and against all Losses incurred in connection with Claims against Customer arising from any allegation that the use of the Technology as contemplated hereunder infringes or misappropriates Intellectual Property right of such third party that is enforceable in the United States. Haivision shall not be liable, and shall have no obligation under this Section 9.2, for any Claim based upon: (i) any modifications to the Technology by Customer which modifications have not been approved in writing by Haivision; (ii) any combination of the Technology with other products or services, data or other materials to the extent such Claim would have been avoided but for such combination; (iii) Haivision’s implementation of a Customer originated design or modification to the extent such Claim would have been avoided but for such implementation; and (iv) Customer’s use of the Technology other than as expressly permitted by these Terms and Conditions or as otherwise approved in writing by Haivision.

9.3 If the use of the Technology by Customer has become, or in Haivision’s opinion is likely to become, the subject of any claim of infringement, Haivision may at its option and expense: (i) procure for Customer the right to continue using the Technology as set forth hereunder; (ii) replace or modify the Technology to make the Technology non-infringing so long as the modified Technology has at least equivalent functionality; (iii) substitute an equivalent for the Technology; or (iv) if options (i), (ii), or (iii) are not reasonably practicable, terminate the related Order Documentation (subject to a refund of pre-paid fees (if any) for the remaining part of the then-current Order Documentation term).

9.4 The remedies set forth in Sections 9.2 and 9.3 shall be the exclusive remedies of the Customer with respect to infringement or misappropriation of third-party Intellectual Property rights of any kind.

9.5 The indemnified Party shall provide the indemnifying Party with: (a) prompt written notice of any Claim for which it seeks indemnification hereunder; (b) reasonable information and assistance in settling and/or defending the Claim; and (c) sole authority and control of the defense and/or settlement of the Claim; provided, that, neither Party may settle any Claim without the indemnified Party’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed.

Customer will not make any representations or warranties with respect to Haivision or the Technology including to Authorized Users, except as authorized in advance in writing by Haivision.

The total liability of Haivision (including all its affiliates, employees, subcontractors, and agents) for any damages arising out of or in connection with the performance or the breach of these Terms and Conditions, whether arising by statute, contract, tort, or otherwise, will not exceed the amounts paid by and not otherwise refunded to, Customer during the twelve (12) months preceding the event which gave rise to such claim.

The Customer acknowledges that Haivision has entered into any agreement incorporating these Terms and Conditions in reliance on the above limitations of liability, and that they constitute a basis of the bargain between the Parties. The Parties have agreed that the limitations specified above will apply even if any limited remedy specified in these Terms and Conditions is found to have failed in its essential purpose.

13.2 Product or Services Term.
For Products and Services, the Term begins on the date set forth below (the “Commencement Date”) and continues until the termination date indicated for each Product or Service, in the applicable Order Documentation or Statement of Work (the “Termination Date”):

(a) For Subscriptions for Cloud Services (including Supplied Product, if any), the Commencement Date shall be the date at which the Cloud Services become active and available to Customer, or an alternative date as specified in the Order Documentation.

(b) For Licensed Software installed on Hardware, if Haivision is not responsible for commissioning the system pursuant to a Statement of Work, the Commencement Date is the shipment date of the Hardware. If Haivision is responsible for commissioning the system pursuant to a Statement of Work, the Commencement Date is the date by which Haivision determines the system to be commissioned.

(c) For Licensed Software not installed on Hardware, the Commencement Date is the date at which the license is issued to Customer, or the date agreed upon between the Parties which is memorialized in the Order Documentation, which shall be no later than ninety (90) days from the invoice date. Notwithstanding the foregoing, a Licensed Software’s Commencement Date may be postponed if required for the performance of Professional Services, or if the Parties agree otherwise in writing.

14.2 In the case of a Subscription for Cloud Services, the fees to be paid after a termination are calculated based on the minimum monthly charge(s) plus any overages incurred during the active subscription period and may include fees for unreturned Supplied Product.

14.3 You acknowledge that upon termination of your access to as Cloud Service, you will lose all access to the Cloud Services and to any Customer Data that we may be storing on your behalf. It is your responsibility to download your Customer Data prior to any termination of your account.. We do not accept any liability for any termination of the Cloud Services or for Customer Data that is deleted in connection with such termination.

17.2 Further, Customer represents and warrants that: neither it nor any of its affiliates will export, re-export, distribute or otherwise transfer or re-transfer the Technology, directly or indirectly, separately or as part of a system to any country for which the competent authorities require an export license, other governmental approval or letter of assurance, without first obtaining such license, approval or letter. This includes any country on Canada’s Area Control List or subject to the Canadian Economic Sanctions or any country sanctioned by the U.S. Government, including any Specially Designated National and Blocked Person (“SDN”) on the list of such persons and entities issued by the U.S. Treasury Office of Foreign Assets Control (OFAC).; and, Customer is not located in or under the control of a national or resident of, a jurisdiction where this transaction is prohibited.

19.2 The Parties are independent contractors. Neither Party shall be deemed to be an employee, agent, partner or legal representative of the other for any purpose, and neither shall have any right, power or authority to create any obligation or responsibility on behalf of the other.

19.3 Haivision may assign, sublicense, or transfer any or all its rights or obligations hereunder. Except in the context of a bona fide corporate reorganization, of a merger and acquisition, or a sale of assets (whether partial or total), Customer may not assign, transfer, or delegate any of its rights or obligations hereunder (whether by operation of law or otherwise) without the prior written consent of Haivision. Any unauthorized assignment transfer or delegation by Customer shall be considered null and void.

19.4 Trademarks, distinctive designs, logos and works of authorship (the “Marks”) used or designated by Haivision relating to the foregoing are the property of Haivision. No right or license is granted to Customer regarding the Marks. Customer agrees that Haivision may use the Marks of Customer for promotional and marketing purposes, such as for customer references and proposals. Customer can revoke its consent for the use of the Marks of Customer for these purposes at any time by e-mail at: trademarks@haivision.com.

19.5 Haivision may access Customer’s system for the purposes of troubleshooting any problems reported by the Customer, onboarding, providing support or maintenance, or performing setup and pre-configuration. Customer may monitor such access by (i) requiring prior notice of any proposed access or (ii) verifying the occurrence of such access in the applicable activity log.

19.6 Each Party acknowledges that any breach of these Terms and Conditions with respect to Haivision’s Intellectual Property rights or either Party’s Confidential Information may cause such Party to incur irreparable harm and significant injury that would be difficult to ascertain and would not be compensable by damages alone. Accordingly, each Party acknowledges and agrees that, in addition to any and all remedies that the non-breaching Party may have at law or otherwise with respect to such a breach, the non-breaching Party will have the right to seek specific performance, injunction or other appropriate equitable relief without having to post a bond or other consideration in connection therewith.

19.7 All notices required or given under these Terms and Conditions will be given in writing or by electronic mail and will be deemed to have been given when (i) delivered personally with receipt of delivery: (ii) upon delivery when sent by overnight delivery service within the United States or Canada; (iii) on the third business day after being sent by certified or registered mail, return receipt requested; or upon receipt of delivered by electronic mail, and will be sent to the parties at their respective addresses shown above, or at such other address as either Party may hereafter designate by written notice to the other.

Supplemental Terms

Hardware Supplemental Terms

Licensed Software Supplemental Terms

Supplied Product Supplemental Terms

Cloud Services Supplemental Terms

Electronic Program Guide (EPG) Supplemental Terms

Support Services Supplemental Terms

Professional Services Supplemental Terms