X1 Application Program Agreement
This X1 Application Program Agreement (this “Program Agreement”) provides the terms of a limited license that Comcast Cable Communications Management, LLC (“Comcast”) is providing to authorized participants of the X1 Application Program (“X1 App Program”) to develop a web application as part of the X1 App Program (any such web application developed by you or on your behalf, an “Application”) for devices that Comcast has designated as being part of the X1 App Program (each, an “X1 Device”), such as a device that provides the Xfinity Flex streaming service, and is between Comcast and the entity that owns or controls the Company Account that is accepting this Program Agreement (“you”).
BY CHECKING THE BOX AND PRESSING “SUBMIT” YOU ARE ENTERING INTO A BINDING LEGAL AGREEMENT WITH COMCAST WHEREBY YOU ARE AGREEING TO COMPLY WITH THE TERMS OF THIS PROGRAM AGREEMENT. YOU REPRESENT AND WARRANT THAT THE INDIVIDUAL ENTERING INTO THIS PROGRAM AGREEMENT ON YOUR BEHALF HAS THE FULL LEGAL AUTHORITY TO ENTER INTO THIS PROGRAM AGREEMENT ON YOUR BEHALF. PLEASE READ THIS PROGRAM AGREEMENT CAREFULLY BEFORE CHECKING THE BOX AND PRESSING “SUBMIT” BELOW. The term of this Program Agreement (the “Term”) begins when you press “Submit” below, and continues until this Program Agreement is terminated as set forth herein.
This Program Agreement governs your right to use certain materials for the development of Application(s) for the X1 Device(s) of Comcast and/or one or more other multichannel video programming distributors that receive from Comcast technology and services, as a managed service, to distribute content (e.g., web applications) via X1 Devices (each, a “Syndication Partner”). Each Syndication Partner and Comcast may be referred to herein as, a “X1 Operator”.
This Program Agreement does not provide the terms on which any Application(s) may be made available via any X1 Device. You must enter into a separate distribution agreement with the applicable X1 Operator prior to any Application(s) being made available to end users via that X1 Operator’s X1 Devices. Please note that Comcast has no obligation with respect to any Application, including having no obligation to certify, make available, promote or market any Application(s).
Subject to the terms and conditions of this Program Agreement, your compliance with the terms of the X1 App Program, and any other agreement relating to any Application(s), Comcast grants you, during the Term, a limited, non-exclusive, non-transferable, non-sublicensable, royalty-free, revocable license to:
- (a) in all cases solely for the purposes of developing and testing Application(s):
- (i) access and use the developer portal(s) for the X1 App Program (each, a “Portal”);
- (ii) access, use, and copy the tools and developer materials provided in connection with the X1 App Program, such as (at Comcast’s election) application programming interfaces, software, software development kits, libraries, services, sample code, content and hardware (all tools and developer materials, including any modifications or derivatives thereof, the “Tools”) and, to the extent that any of the Tools are executable software, to install such executable software on a reasonable number of compatible platforms that are owned or controlled by you, and on the Hardware (as defined below); and
- (iii) access, use, and copy documentation (e.g., specifications) and policies (i) made available via any Portal or (ii) otherwise provided to you by Comcast in connection with the X1 App Program (collectively, the “Documentation” and together with the Portals and Tools, the “Materials”); and
- (b) if you enter into an agreement with Comcast or any Syndication Partner to make any Application(s) available on a production basis via any X1 Device (each, a “Distribution Agreement”), access and use the Materials for the purpose of developing, maintaining and supporting such Application(s) if and when being made available via a X1 Device pursuant to that Distribution Agreement. For clarity, Comcast is not obligated to enter into a Distribution Agreement, or to permit you to make available any Application via any X1 Device.
- (a) In General.
- With respect to the Materials, you will not:
- (i) (A) modify, translate, reverse engineer, decompile, or disassemble the Materials or otherwise attempt to: (1) defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection mechanisms in the Materials, including, without limitation, any such mechanism used to restrict or control the functionality of the Tools; or (2) derive the source code or the underlying ideas, algorithms, structure or organization from the Tools; (B) use or reproduce the Materials in a manner not permitted by this Program Agreement; (C) sell, assign, license, disclose, or otherwise transfer or make available the Materials, any copies of the Materials, or any information derived from the Materials in any form to any third parties; (D) remove or alter any proprietary notices or marks on the Materials; or (E) store or cache the Materials, except as expressly stated in this Program Agreement;
- (ii) use any Materials in any way: (A) other than for the purpose of developing, maintaining and/or testing one or more Applications, as explicitly licensed to you in Section 1; (B) that is unauthorized or that otherwise places a burden on Comcast’s systems (e.g., by spamming Comcast servers with calls); (C) in connection with any unauthorized use of or access to any service, including without limitation to make illegal copies or illegal distribution of content; (D) to engage in any unlawful activity, or to transmit or store any information, data or material in violation of any applicable laws, rules, regulations and orders of any governmental authority; or (E) to transmit content that is obscene, unlawful, threatening, defamatory or that infringes the intellectual property of any person;
- (iii) use or otherwise export or re-export any Tools except as authorized by United States law;
- (iv) export or re-export the Tools: (A) into any U.S. embargoed countries or (B) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List or any other restricted party lists (and you represent and warrant that you are not located in any such country or on any such list); and
- (v) use any Tools for any purposes prohibited by United States law.
- (b) Hardware.
- With respect to any hardware (including any related equipment, embedded software, and any updates thereto) provided to you in connection with the X1 App Program (“Hardware”), you agree that:
- (i) (A) you will use the Hardware only at the location to which Comcast ships such Hardware and/or other locations for which you obtained prior written permission from Comcast; (B) you will not submit the Hardware for certification or classification or listing by any federal or state regulatory body or agency or by Underwriters Laboratories, Inc. (UL); (C) Readme files and other instructional materials for Hardware are available on or as instructed by any Portal; (D) the terms and conditions governing any Public Software (as defined in Section 3(b)) included in the Hardware are available on or as instructed by any Portal(s); and (E) Comcast reserves the right to charge a fee for the Hardware or to request additional information about the recipient(s) including any information that Comcast deems necessary to fulfill its export compliance obligations;
- (ii) subject to the terms and conditions herein, any Hardware provided to you is licensed, not sold, for your non-exclusive and non-transferable use solely for testing and certifying the Application(s);
- (iii) any Hardware provided to you will be sent to your address as set forth in the order form;
- (iv) if you ship Hardware outside of the United States, you will act as the exporter and U.S. Principal Party in Interest and will be responsible for obtaining all necessary validated export licenses and permits necessary to ship the Hardware outside of the United States;
- (v) without limiting the restrictions in this Program Agreement, during the Term or otherwise while you are in possession of the Hardware, you may not (and may not permit any third party to) do any of the following without the prior written consent of Comcast: (A) use the Hardware in connection with services offered by Comcast to residential or business subscribers; or (B) assign, transfer, pledge, hypothecate, rent, lease, sell, sublicense, share, or otherwise transfer or dispose of any portion of the Hardware;
- (vi) Comcast reserves the right to demand the return of any Hardware provided to you at any time, and you shall return such Hardware promptly following such demand;
- (vii) you will be responsible for the shipping and handling cost required to ship the Hardware to you and to return the Hardware to Comcast (or its designee); and
- (viii) you are responsible for all activity occurring through and/or with respect to the Hardware.
- For clarity, all references to “Tools” in this Program Agreement are deemed to include “Hardware”.
- (c) End User Data.
- You acknowledge that, in connection with your use of the Materials, you may receive certain end user information to facilitate the operation of your Application(s) for those X1 Devices covered by a Distribution Agreement (e.g., if you have entered into a Distribution Agreement with a Syndication Partner, you may receive end user information associated with that Syndication Partner’s end users, which end user data Comcast is providing as part of its provision of services to the Syndication Partner). You agree that your storage and use of such end user information shall comply with (i) all applicable laws, regulations, rules, regulations and orders of any governmental authority and (ii) all data and security requirements and guidelines available to you on or via a Portal.
3. Additional Terms and Notices
- (a) Portal.
- (i) As of the Effective Date, the Portal is located at https://developer.xfinity.com. Comcast reserves the right to change the location of any Portal at any time upon notice to you, including by posting a notice on a Portal.
- (ii) In order to access any Portal, (A) you may be required to create an account (“Company Account”) and (B) each of your team members may be required to create a developer account (each, a “Developer Account” and, collectively, with the Company Account, the “Account”). Comcast may use any information provided as part of the registration process to communicate with you. You will (and will ensure that each of your team members will): (A) take reasonable precautions to protect the credentials and Account; (B) be responsible for all conduct that occurs under the Account; and (C) promptly notify Comcast of any use of the Account that is not authorized pursuant to this Program Agreement. Comcast reserves the right to deny any account creation request, and to revoke and disable any team member’s credentials associated with the Account (and/or access to the Account) and/or Portal access (or any part thereof, including any Tools and/or Documentation) at any time for any reason without notice or liability. You agree that: (A) all information provided to Comcast via the Account will be accurate, timely and complete, and you will ensure that the information remains current at all times, (B) you will have only one Company Account, it being acknowledged that multiple of your team members may have individual Developer Accounts associated with the Company Account and (C) the Tools and Documentation available via any Portal (and all information provided via the Tools) are Comcast Confidential Information.
- (b) Tools.
- You acknowledge that the Tools may include software that contains, or is derived in any manner (in whole or in part) from, any software that is distributed as free software, open source software (e.g., Linux) or similar licensing or distribution models (“Public Software”). Public Software is governed by the terms and conditions of the applicable Public Software license. In the event of a conflict or inconsistency between the license for any Public Software included in any Tool(s) and this Program Agreement, the terms and conditions of the applicable Public Software license will govern as to such Public Software only when such Public Software is included in such Tool(s). For clarity, software licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following are considered “Public Software”: (i) GNU’s General Public License (GPL) or Lesser/Library GPL (LGPL); (ii) the Artistic License (e.g., PERL); (iii) the Mozilla Public License; (iv) the Netscape Public License; (v) the Sun Community Source License (SCSL); (vi) the Eclipse Public License; (vii) the BSD License; and/or (viii) the Apache License.
- (c) Documentation.
- By entering into this Program Agreement, you also are agreeing to comply with the then-current Documentation at all times during the Term. You should review the Documentation carefully before accessing or utilizing any Tools (and prior to requesting access to any Tools), and during the Term on a regular basis. If at any time you are unable or unwilling to comply with all terms of the then-current Documentation, you must promptly notify Comcast so that Comcast may, at Comcast’s election, terminate this Program Agreement. In the event of a conflict between this Program Agreement and the terms of any Documentation, the terms of this Program Agreement shall govern.
- (d) Updates and Modifications.
- You acknowledge that Comcast may update or modify the Materials, in whole or in part, from time-to-time and that such updates and modifications may affect the manner in which you access or use the Materials.
- (e) No Support or Service.
- (i) At its sole option and discretion, Comcast may provide maintenance and support services, or provide bug fixes, updates, upgrades, modifications, enhancements, supplements, and new releases or versions of the Materials (“Support”), but you agree that: (A) Comcast is under no obligation to provide such Support; and (B) no continuing obligation will be created by Comcast if such discretionary Support is provided.
- (ii) You acknowledge that Comcast is not obligated to provide any services in connection with the Materials, including installation, internet service, cable television service or any other service. Your use of the Hardware will require self-installation and internet services, both of which you are responsible for supplying at your sole expense.
- (iii) You agree that Comcast: (a) cannot and does not guarantee or promise that any Portal and/or any Tool(s) will be operational or that it will meet any performance standards and (b) reserves the right to change, add, or remove features or functionalities of any Portal and/or any Tool(s) at any time, in its sole discretion.
4. Intellectual Property Matters.
- (a) Ownership.
- As between you and Comcast, Comcast owns all right, title and interest in and to X1 Devices and any of Comcast’s other devices and systems, such as servers and databases (the X1 Devices and such other devices and systems collectively, the “X1 Platform”) and all other Materials. Comcast reserves all rights not expressly granted herein.
- (b) Feedback.
- You may, at your sole discretion, provide Comcast with comments concerning the X1 App Program (e.g., the Tools, Documentation and/or any X1 Device) and/or your evaluation or use thereof, including bug reports, evaluations, proposed product integrations (and associated metrics and learnings) (“Feedback”). In the event that you provide Comcast with Feedback, you agree that Comcast and its designees will be free to copy, modify, create derivative works of, publicly display, disclose, distribute, transmit, make, have made, import, sell, have sold, license and sublicense, incorporate and otherwise use and exploit the Feedback, including derivative works thereof, for any and all commercial and non-commercial purposes in any media now known or later developed with no obligation of any kind to you.
- (a) “Comcast Confidential Information” means all information Comcast discloses to you in connection with the X1 App Program that is marked confidential and/or that would otherwise reasonably be considered confidential information, including the Materials, Account credential(s), and all results, usage statistics, data or other information (in the aggregate or otherwise) derived from analyzing or using the Materials, and any other documents provided to you by Comcast in connection with the X1 App Program or relating to any Support.
- (b) You agree (i) to protect Comcast Confidential Information using at least the same degree of care that you use to protect your own confidential information of similar importance, but using no less than a reasonable degree of care, (ii) to use Comcast Confidential Information solely in connection with your development, maintenance and testing of the Application(s) (and, if applicable, as permitted by the provisions of the applicable Distribution Agreement(s)), and not for any other purpose, including, but not limited to, supporting any litigation and (iii) not to disclose Comcast Confidential Information to anyone other than your employees, contractors, consultants, and/or agents engaged by you (“Personnel”), on a strict need to know basis and solely as permitted herein. You may disclose Comcast Confidential Information to the extent required by all applicable laws, rules, regulations and orders of any governmental authority only if you notify Comcast of such requirement before disclosing the Comcast Confidential Information and obtain protective treatment of the Comcast Confidential Information. You acknowledge that damages for improper disclosure of Comcast Confidential Information are irreparable; therefore, Comcast is entitled to equitable relief, including temporary restraining orders, preliminary injunctions, and permanent injunctions, in addition to all other remedies. You represent that your Personnel, either as a condition of employment or in order to obtain Comcast Confidential Information, are subject to non-disclosure obligations at least as restrictive as those contained herein. Further, you represent that you are responsible and liable for your Personnel’s use of the Comcast Confidential Information and their compliance with the terms of this Program Agreement.
- (c) You acknowledge that nothing in this Program Agreement prevents Comcast from currently or in the future developing and/or testing (or having developed or tested) products, services, data, information and/or technology that may be similar to your products, services or information. Accordingly, Comcast cannot agree, and expressly disclaims, any confidentiality obligations or use restrictions, express or implied, with respect to any information that you may provide in connection with this Program Agreement (including Feedback), and you agree that any such information you provide will be non-confidential.
6. Representations, Warranties and Covenants.
You represent, warrant and covenant that:
- (a) you have and will maintain (at your sole cost and expense) all rights, powers, and authorities necessary to enter into this Program Agreement and perform your obligations hereunder;
- (b) the individual entering into this Program Agreement on your behalf has the authority to do so on your behalf;
- (c) when entered into, this Program Agreement will constitute a legal, valid and binding obligation enforceable against you in accordance with its terms;
- (d) you and/or your affiliates are not in active or threatened litigation against Comcast or any of Comcast’s affiliates;
- (e) your entry into this Program Agreement and the performance by you of your obligations and duties hereunder do not and will not violate any agreement to which you are a party or by which you are otherwise bound, including your charter documents, and will comply with all applicable laws, rules, regulations and orders of any governmental authority;
- (f) the Application(s) (and each element thereof) and all of your other software and systems that interact with the X1 Platform: (i) will not infringe, violate or misappropriate any rights of any third party, (ii) shall at all times comply with all applicable laws, rules, regulations and orders of any governmental authority; and (iii) will not include any contaminants, viruses, worms, trap doors, back doors or other unauthorized, hidden or harmful programs (including malware);
- (g) on behalf of yourself and your current and future affiliates, you agree that neither you nor any of your affiliates will: (i) assert, authorize, assist, or encourage against Comcast, Comcast’s affiliates (including any future affiliates), or any subscribers (in relation to products and services provided by Comcast or Comcast’s affiliates to such subscribers) (each, a “Comcast Protected Party”) any claim for patent, copyright or trademark infringement, or for misappropriation of trade secrets to the extent such claims are based on (A) any of the Comcast Confidential Information that you accessed or used or (B) the X1 Platform (or any element thereof, such as X1 Devices); or (ii) enjoin or seek to enjoin (including without limitation administrative remedies such as exclusion orders and/or cease and desist orders) the activities of any authorized participants of the X1 App Program (each, an “Authorized Participant”) based on any claim of patent infringement to the extent such claim is based on an Authorized Participant’s participation in the X1 App Program, provided that such Authorized Participant has (A) agreed to substantially reciprocal protections for you, and (B) not first asserted any claim of patent infringement against you based on your participation in the X1 App Program;
- (h) you are solely responsible for the Application(s) (and all elements thereof), including: (i) the development, support, maintenance and security of such Application(s) at your sole cost and expense; (ii) the hosting and serving of such Application(s) at your sole cost and expense; (iii) all royalties and other fees payable to any applicable licensor(s) or any third party, (e.g., intellectual property rights, privacy and publishing rights, etc.), including residuals or other payments to guilds or unions, rights for music clearances, such as public performance, synchronization rights and mechanical rights; and (iv) all other fees, taxes, payments or obligations arising out of the activities occurring pursuant to this Program Agreement;
- (i) no software or service included in the Application would subject any software not incorporated into the Application(s) to any condition, such as requiring that any software be: (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making derivative works; or (iii) redistributable at no charge; and
- (j) your use of the Materials, and all interactions between your devices and systems and the X1 Platform (or any element thereof, such as any X1 Device) shall comply with security requirements provided by Comcast, including the System Security Requirements.
At all times during the Term, you shall maintain at your own expense from an insurance carrier that is nationally recognized in the United States: a commercial general liability insurance policy and a media perils errors and omissions insurance policy, each in the minimum amount of US$1,000,000 per occurrence and US$3,000,000 in the aggregate. Promptly after you enter into this Program Agreement, you shall supply to Comcast at email@example.com a standard ACORD certificate with respect to each of the foregoing policies, which shall provide that such insurance cannot be modified, terminated, or canceled except upon thirty (30) days’ prior written notice to Comcast. No revisions shall be made to any such policy that could adversely affect Comcast’s rights without Comcast’s prior written consent. Each such policy shall (a) provide coverage for all matters arising during the Term, without regard to when a claim is made; (b) name as additional insured Comcast, its affiliates, and the officers, directors, agents and employees of the same; (c) provide primary and non-contributory coverage, regardless of any other insurance carried, whether it be primary, excess, contingent or on any other basis; (d) provide for severability of interests with respect to the additional insureds; and (e) contain an endorsement that negates any “other insurance” clause in such policy and provides a waiver of subrogation against Comcast.
To the fullest extent permitted by all applicable laws, rules, regulations and orders of any governmental authority, you agree to indemnify, defend, and hold harmless Comcast, Syndication Partners, and each of their affiliates (including future affiliates) and each of their respective successors and assigns, and the past and present directors, officers, employees, contractors and agents of each of the foregoing against all claims, and losses, expenses, damages, and costs (including reasonable attorney fees) arising out of or related to: (a) your breach of any provision of this Program Agreement or of any certification, covenant, representation or warranty made by you pursuant to this Program Agreement; (b) the Application (including any elements thereof and/or any access to or use of the Application and/or any such elements in accordance with this Program Agreement); (c) your use of the X1 App Program and X1 Platform (including any Materials) in a manner not permitted by this Program Agreement; (d) your gross negligence or willful misconduct; and (e) receipt, collection, storage, use or disclosure of any data received and/or collected by you in connection with the X1 App Program (e.g., data received by you through the Materials or interaction with any element of the X1 Platform).
9. DISCLAIMER OF WARRANTIES.
- (a) YOUR USE OF AND ACCESS TO THE X1 PLATFORM (AND/OR ANY ELEMENT THEREOF, SUCH AS X1 DEVICES) AND X1 APP PROGRAM (INCLUDING THE MATERIALS), IS AT YOUR SOLE RISK AND EXPENSE, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGES OR LOSSES THAT RESULT FROM SUCH USE, INCLUDING DAMAGE TO COMPUTER SYSTEMS OR OTHER DEVICES, OR LOSS OF DATA. COMCAST EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, TIMELINESS, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY A PARTY OR THAT PARTY’S AUTHORIZED REPRESENTATIVE WILL CREATE A WARRANTY NOT EXPRESSLY STATED IN THIS PROGRAM AGREEMENT. THIS DISCLAIMER APPLIES EXCEPT TO THE EXTENT PROHIBITED BY ALL APPLICABLE LAWS, RULES, REGULATIONS AND ORDERS OF ANY GOVERNMENTAL AUTHORITY.
- (b) IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE YOUR RIGHTS WITH RESPECT TO CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
10. LIMITATION OF LIABILITIES.
COMCAST, ITS AFFILIATES (INCLUDING FUTURE AFFILIATES) AND THEIR RESPECTIVE AGENTS, LICENSORS AND SYNDICATION PARTNERS WILL NOT BE LIABLE UNDER ANY THEORY OF LIABILITY ARISING OUT OF OR RELATED TO THIS PROGRAM AGREEMENT FOR ANY DAMAGES WHATSOEVER (INCLUDING DIRECT DAMAGES, INCIDENTAL DAMAGES, SPECIAL DAMAGES, PUNITIVE DAMAGES, AND INDIRECT OR CONSEQUENTIAL DAMAGES (SUCH AS DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS DISRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES)), NO MATTER HOW SUCH DAMAGES MAY HAVE BEEN CAUSED, AND EVEN IF SUCH PARTY HAS BEEN AWARE OF THE POSSIBILITY OF ANY SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY.
11. Termination and Suspension; Survival.
- (a) Termination and Suspension.
- Notwithstanding anything to the contrary in any other agreement, including any Distribution Agreement, Comcast may terminate this Program Agreement and/or suspend your access to the Materials (in whole or in part) at any time, in its sole discretion. Upon any termination or suspension, you shall immediately, at your sole cost and expense: (a) stop using the Materials, (b) destroy any and all Materials and other Comcast Confidential Information in your possession (including any copies thereof and any Tools that are software that you may have downloaded to any device), other than Hardware and (c) return all Hardware to Comcast. At Comcast’s request, you agree to provide to Comcast written certification of such destruction.
- (b) Survival.
- Sections 2(c), 4, 5, 6(g) and 8-13, and any provision of the Documentation that states it will survive termination of this Program Agreement, will survive the termination of this Program Agreement. In addition, all provisions of this Program Agreement relating to Hardware shall survive the termination of this Program Agreement until you return such Hardware to Comcast.
You agree to: (a) implement and maintain sufficient processes and procedures to satisfy Comcast’s requests related to your use of the X1 Platform and Materials, and (b) promptly provide information requested by Comcast regarding your use of the X1 Platform and/or Materials, the Application and/or any element thereof (e.g., any third-party providers of products of services utilized by the Application).
13. General Legal Terms.
- (a) Entire Agreement.
- This Program Agreement (together with any Distribution Agreement and any terms and requirements provided to you in connection with the X1 App Program, including the Materials) constitutes the entire agreement between the parties with respect to the subject matter and supersedes and merges all prior proposals, understandings and contemporaneous communications.
- (b) No Assignment.
- You may not assign any of the rights or obligations granted hereunder, voluntarily or by operation of law (including without limitation in connection with a merger, acquisition, or sale of assets) except with the express written consent of Comcast, and any attempted assignment in violation of this paragraph is void.
- (c) Modifications.
- Comcast may amend the terms of this Program Agreement and the Documentation at any time, in its sole discretion. Comcast will use reasonable efforts to provide notice of such amendment to this Program Agreement or Documentation, as applicable, on a Portal. Regardless, such amendments are effective immediately when posted on a Portal(s), unless the notice from Comcast specifically identifies a different effective date for such amendments. You agree that your continued use of the Tools and/or any Portal constitutes your acceptance of the modified Program Agreement and/or Documentation, as applicable. However, Comcast may, at its option, require you to affirmatively indicate your acceptance of any such amendment to this Program Agreement and/or Documentation, as applicable in order to continue to access or use the Portal and/or the Tools. For clarity, this Program Agreement may not be amended by any party other than Comcast, and in the event of any conflict between this Program Agreement and the terms of any agreement with any party (e.g., in any Distribution Agreement), the terms of this Program Agreement shall govern.
- (d) Relationship of the Parties.
- This Program Agreement does not create or imply any partnership, agency or joint venture.
- (e) No Third-Party Beneficiaries.
- Nothing in this Program Agreement is intended to or shall confer upon any person or entity any legal or equitable right, benefit or remedy of any nature under or by reason of this Program Agreement other than (i) the parties, (ii) the parties’ respective successors and permitted assigns; (iii) in the case of Comcast, Syndication Partners and Comcast Protected Parties; and (iv) Authorized Participants (but in the case of parties covered by this clause (iv), only as expressly provided herein).
- (f) Affiliates and Vendors.
- Each party may utilize any vendor, affiliate, third-party consultants and/or independent contractor(s) (collectively, “Vendors”) acting on such party’s behalf in connection with the transactions contemplated by this Program Agreement, it being acknowledged (i) by you that Comcast may, in its sole discretion, require such Vendor to sign a separate agreement relating to Vendor’s use of the Materials and (ii) each party shall be responsible of a breach of its Vendors of any provision of this Program Agreement.
- (g) Press; Other Statements.
- You agree not to issue any press releases or announcements, or any marketing, advertising, or other promotional materials, related to this Program Agreement (and/or the transactions contemplated herein) without the prior written approval of Comcast. In addition, you agree not to disparage or negatively portray Comcast, its affiliates, the X1 App Program (including any Materials), or any of Comcast’s or any of its affiliate’s services, businesses, practices, or policies.
- (h) Choice of Law; Venue.
- This Program Agreement will be governed by and construed in accordance with the law of the Commonwealth of Pennsylvania, without regard to or application of conflicts of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
- (i) Binding Arbitration.
- All disputes and claims arising out of or relating to this Program Agreement will be submitted to and finally resolved by binding arbitration in accordance with the applicable Commercial Arbitration Rules (including discovery rules and procedures) of the American Arbitration Association (the “AAA”). The parties agree to use the AAA's Expedited Procedures, notwithstanding that the matter in controversy may exceed $75,000. The parties will mutually agree upon the selection of a single neutral arbitrator (who need not be on the AAA's National Roster) who must have the following qualifications: (i) be licensed to practice law in Pennsylvania for at least ten (10) years; and (ii) have familiarity with software application technology and distribution, and the associated agreements. If the parties are unable to mutually agree upon the selection of an arbitrator within fifteen (15) business days of the commencement thereof, the AAA will select from the AAA National Roster of Arbitrators, a neutral arbitrator who as closely as possible meets the above qualifications. The arbitration will be governed by the Federal Arbitration Act, 9 U.S.C. 1, et seq. The decision of the arbitrator will be binding and conclusive on all parties involved, and judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction thereof. All materials submitted, produced and/or created in connection with any arbitration, including witness statements, and any determination and/or award issued by the arbitrator, will be kept confidential by the parties and everyone involved in the arbitration (including the arbitrator), and if necessary, the arbitrator will be empowered to fashion protective orders. The prevailing party in any such arbitration will be entitled to collect from the non-prevailing party all costs of the arbitration, including reasonable attorneys' fees. The arbitration will occur in Philadelphia, Pennsylvania. ALL PARTIES TO THE ARBITRATION MUST BE INDIVIDUALLY NAMED. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS ACTION OR CONSOLIDATED BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), SUBSCRIBERS OR OTHER PERSONS.
- (j) No Waiver.
- Failure by Comcast to enforce any provision of this Program Agreement will not be deemed a waiver of future enforcement of that or any other provision.
- (k) No Inference; Construction.
- Each of you and Comcast, and its respective counsel has had an opportunity to review this Program Agreement, which will be interpreted fairly in accordance with its terms and conditions, and without any inference in favor or against either party. Headings and captions used herein are intended for convenience only and should not be used to interpret the meaning of any provision. All uses of the word “including” shall not be limiting, and shall be read as “including without limitation.”
- (l) Severability.
- If any part of this Program Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the remaining provisions of this Program Agreement will remain in full force and effect.
- (m) Notice.
- Comcast may provide notices relating to this Program Agreement to you through the email address provided as part of the registration process to gain access to a Portal or by posting notices in a Portal. You consent to receive notices relating to this Program Agreement as set forth in the preceding sentence, and agree that such notices satisfy any legal communication requirements. Notices provided via email will be deemed received by you upon Comcast sending such email. Notices provided by posting on a Portal will be deemed received by you upon Comcast posting such notice. Except where otherwise indicated in this Program Agreement, you may provide notices relating to this Program Agreement to Comcast at the support email identified on any Portal, or another mechanism as provided by Comcast on any Portal.