THIS IS AN AGREEMENT BETWEEN THE COMPANY YOU REPRESENT (“CUSTOMER”) AND SCALA, INC. OR AN AFFILIATED COMPANY OF SCALA THAT IS PROVIDING THE SERVICES TO CUSTOMER DESCRIBED BELOW (“SUPPLIER”).   CUSTOMER MUST ACCEPT THIS AGREEMENT BEFORE CUSTOMER CAN RECEIVE THE ENTITLEMENTS TO ACCESS AND USE THE SERVICES.   YOU ARE URGED TO READ THIS AGREEMENT CAREFULLY BEFORE CLICKING “ACCEPT.”  BY CLICKING ACCEPT, YOU ARE CREATING A LEGALLY BINDING AGREEMENT BETWEEN CUSTOMER AND SUPPLIER AND YOU ARE REPRESENTING THAT YOU ARE AUTHORIZED TO DO SO.

BACKGROUND:  Customer has or will enter into an agreement (“Reseller Agreement”) with a company (“Reseller”) authorized to resell Services and Hardware (as hereinafter defined) to be provided by Supplier.

SUPPLIER and Customer agree as follows:

Definitions. The following terms shall have the following meanings when used throughout the Agreement.
“Available” or “Availability” means the ability to access and use the SUPPLIER SaaS Offering or Hosting Services, as applicable.
“Content Manager Software” means software and proprietary technology that includes a server-based application that schedules and manages the transmissions of multimedia content to digital signage displays. Content Manager Software is provided on a hosted basis as part of the SUPPLIER SaaS Offering and is hosted by SUPPLIER if Hosting Services are purchased.
“Customer Content” means computer files, including but not limited to, data, images, information, photographs, illustrations, graphics, audio and video clips, or text that is uploaded by or on behalf of Customer to the Service Center in connection with the use of the SUPPLIER SaaS Offering or Hosting Services.
“Deliverables” means the items specified as a deliverable in any Statement of Work for Professional Services.
“Designer Cloud Service” has the meaning given such term in Section 2.12.
“Designer Software” means SUPPLIER’s software and proprietary technology used to design or create content for digital signage displays.
“Documentation” means any and all documentation provided by SUPPLIER to its customers generally that describe or relate to the functional, operational or performance capabilities of the Software or Services, regardless of whether such materials be in written, printed, electronic or other format, including all user, operator, system administration, technical, support and other manuals, functional specifications and help files, including any updates, changes and corrections to any of the forgoing that may be made during the Term (defined below). Documentation includes the provisions of Appendix A to this Agreement and the descriptions of Software contained on SUPPLIER’s website at https://docs.SUPPLIER.com.
“Excused Downtime” means where the SUPPLIER SaaS Offering or Hosting Service is not Available due to Scheduled Maintenance, a Force Majeure Event or an Outside Issue.
“Fees” means the compensation payable to SUPPLIER for the Services, Supplied Software and Hardware as set forth in the Order. Such Fees shall be valid for the period of time set forth in the Order. Thereafter, absent mutual written agreement, such Fees shall become SUPPLIER’s then current fees for the Services, Supplied Software and Hardware.
“Force Majeure” is defined in Section 9.8.
“Hardware” means media players, screens and other equipment sold by SUPPLIER and listed in Schedule 1- Pricing Table some of which is SUPPLIER Branded Hardware and some of which is third-party Hardware.
“Harmful Code” means viruses, worms, time bombs, time locks, drop dead devices, traps, access codes, trap door devices or any other code designed to disrupt, disable, erase, alter, harm or otherwise impair a system or network.
“Intellectual Property Right” means any legally recognized patent rights, copyrights, moral rights, trademark rights, trade name rights, service mark rights, trade dress rights, trade secret rights, proprietary rights, privacy rights, and publicity rights.
“Order” refers to any purchase order or SOW for Services, Supplied Software or Hardware mutually executed by Customer and Reseller.
“Outside Issue” means any of the following events: (i) any failure or defect in, or interruption in the delivery of, electrical power; (ii) Permitted User error; (iii) the failure of Customer Content to conform to SUPPLIER’s Media Guidelines; (iv) improper installation or use of the Supplied Software by Customer or Permitted Users or alteration or unauthorized integration of Supplied Software by Customer or Permitted Users; (v) any failures, defects or disruptions caused by Unauthorized Users; or (vi) any interruptions, disruptions or failures in Customer’s equipment, broadband or network access services or in Internet services generally.
“Permitted Users” means any Customer and their respective employees, representatives, consultants, contractors, and agents to whom a Customer gives permission to access the SUPPLIER SaaS Offering or Hosting Services and Customer Content via user identification and password combination or any method requiring authentication of an individual’s identity.
“Player Software” means software and proprietary technology that provides multimedia playback of content.
“Playback Device” means the hardware device owned or leased by Customer used to receive and/or play content managed, distributed, routed or delivered directly or indirectly from the SUPPLIER SaaS Offering or Hosting Services.
“Professional Services” means services other than the SUPPLIER SaaS Offering, Hosting Services, or support services. Professional Services would include installation and customization of Software or content management services as described in Section 2.1.3 below.
“Response” means a telephonic or email response from SUPPLIER acknowledging the receipt of a ticket for a Service Interruption.
“Restore” means that the SUPPLIER SaaS Offering or Hosting Services are made Available with a temporary or permanent solution.
“Personnel” means SUPPLIER’s employees, subcontractors and agents performing Services hereunder.
“Scheduled Maintenance” means any scheduled outages or down-time for maintenance, upgrades, enhancements or changes to the SUPPLIER SaaS Offering, including Software Maintenance on the Content Manager Software performed in accordance with Section 2.8.
“Services” means collectively, Software Services and, to the extent purchased under an Order, support services as defined in Appendix B and Professional Services as described in Section 2.1.2.
“Service Center” means the facility where the cloud computing platform provided by the Platform Provider is located.
“Service Interruption” means where the SUPPLIER SaaS Offering or Hosting Services are not Available for reasons other than Excused Downtime.
“Software” means Content Manager Software and Supplied Software, collectively, as existing on the Effective Date and as may be later modified by SUPPLIER in accordance with the provisions hereof. Software may include software, or software modules, applications or code developed and owned by SUPPLIER or any affiliated company that is part of the Supplier group of companies.
“Software Maintenance” means updates to the Software, such as, but not limited to, bug fixes, enhancements, new releases, and other improvements to the Software which are provided as described in Section 2.9.1.
“Software Services” means the SUPPLIER SaaS Offering or Hosting Services, as applicable, and Designer Cloud Service, if purchased by Customer.
“Statement of Work” or “SOW” means a written addendum to this Agreement that describes the Professional Services to be provided and, if applicable, the Deliverables to be provided as well as (a) the work schedule, including delivery and completion dates for those Services and Deliverables; (b) the basis for compensation; (c) the locations where the Professional Services will be provided; (d) the respective activities and tasks to be performed by the parties; and (e) such additional terms as the parties may mutually agree to. Each SOW shall specifically identify this Agreement and indicate that it is subject to the terms hereof. In the event of conflict, this Agreement shall control unless the SOW expressly states that it overrides this Agreement with regard to the conflicting provision.
“Supplied Software” means the object code form of Designer Software, Player Software or any other SUPPLIER software product as may be supplied to Customer under a purchase order.
“Third Party Software” means software, referred to as redistributable code that is licensed to SUPPLIER by third party licensors for redistribution with the Supplied Software.
“Unauthorized User” means any individual or entity, not a Permitted User, which accesses or attempts to access the SUPPLIER SaaS Offering or Hosting Services through Customer’s administrative account or through Permitted User’s access rights.
Services.
Purchase of Services
Customer’s Network. In connection with the execution of this Agreement, Customer is purchasing either the SUPPLIER SaaS Offering or Hosting Services through mutual execution of an Order. Customer may, from time to time, expand the scope of the SUPPLIER SaaS Offering or Hosting Services it purchases (the “Customer’s Network“) in accordance with this Agreement, by issuing purchase orders for additional Player Software licenses or connections. The SUPPLIER SaaS Offering or Hosting Services, as so expanded, shall be governed by the terms of this Agreement. The Content Manager Software may be hosted on a server dedicated to Customer’s exclusive use (for an additional fee) or a server shared among various end users (see Appendix A). Services provided on a shared server are subject to certain limitations regarding the maximum size of the Customer’s Network, maximum Data Storage and monthly Data Transfer, timing on implementation of Maintenance, the availability of encryption and other matters. Customer should inquire to determine if a shared or dedicated server best suits Customer’s needs. Hosting Services are only available to customers on a dedicated server using Supplier as the Platform Provider.
Professional Services. SUPPLIER and Customer may enter into one or more Statements of Work for Professional Services. SUPPLIER shall perform the Professional Services and provide any Deliverables in accordance with this Agreement and the SOW and shall use commercially reasonable efforts to complete the Professional Services and provide the Deliverables in accordance with the schedule in the SOW. The SOW may specify acceptance criteria and an acceptance testing process for Deliverables. SUPPLIER’s obligations in the SOW may be subject to certain assumptions and completion of certain requirements by Customer, as set forth in the SOW. Each party may notify the other party in writing whenever it identifies the need to provide a Professional Service or Deliverable additional to or different from those set forth in the initial SOW, including changes to Fees, performance and obligations of a party (a “Change Order”). Neither party shall be obligated under a Change Order unless such Change Order is signed by both parties.
Content Management Services. If SUPPLIER is to provide content management services under a SOW then SUPPLIER shall receive original Customer Content from Customer and code or format that Customer Content for optimal use with SUPPLIER’s Content Manager Software. SUPPLIER may upload the formatted Customer Content to the hosted Content Manager Software or may return the formatted Customer Content to Customer for uploading to the Content Manager Software. SUPPLIER shall use commercially reasonable efforts to protect the Customer Content while in SUPPLIER’s possession but is not responsible for Customer Content that may be lost, altered, intercepted or stored during its transmission across networks, such as the internet, which are not owned or operated by SUPPLIER. SUPPLIER and Customer shall not knowingly introduce, and shall use commercially reasonable efforts to avoid introducing, any Harmful Code into the Customer Content. Except for the coding and formatting described above, SUPPLIER shall not review, edit or modify Customer Content in any way in connection with content management services. Customer shall have the obligations regarding Customer Content set forth in Section 4.2.
SUPPLIER Representations and Warranties.
SUPPLIER will utilize trained and skilled professionals who possess experience relevant to the Services they will perform. SUPPLIER will provide all Services in a professional, competent and reasonably efficient manner in accordance with prevailing standards of SUPPLIER’s industry.
SUPPLIER warrants the following for a period of ninety (90) days following delivery of the particular Deliverable or the performance of such Professional Services (the “Warranty Period”): (i) the Professional Services performed will substantially conform to any applicable requirements set forth in the SOW and (ii) Deliverables will materially conform to the corresponding functional, technical and other specifications set forth in the applicable SOW for such Deliverable. In the event of a breach of the foregoing warranty, SUPPLIER will use commercially reasonable efforts to cure or correct such failure within 30 days. The foregoing warranty is expressly conditioned upon (a) Customer providing SUPPLIER with prompt written notice of any claim hereunder prior to the expiration
thereof, which notice must identify with particularity the non-conformity; (b) Customer’s full cooperation with SUPPLIER in all reasonable respects relating thereto, including, in the case of modified software, assisting SUPPLIER to locate and reproduce the non-conformity; and (c) with respect to any Deliverable, the absence of any alteration or other modification of such Deliverable by any person or entity other than SUPPLIER or a SUPPLIER subcontractor.
SUPPLIER represents that: (i) it shall comply and shall cause its Personnel to comply with all laws,, rules, regulations, and ordinances of any governmental body applicable to SUPPLIER in the performance of the Services (collectively, “Applicable Laws”); (ii) it has obtained, or will timely obtain, any and all permits, licenses, and third party consents necessary to deliver the Services and Deliverables, and otherwise perform its obligations under the Agreement; and (c) it has sufficient rights in the Software and Deliverables to grant the Customer the rights granted under the Agreement.
SUPPLIER SaaS Offering. If the SUPPLIER SaaS Offering is purchased and paid for by Customer, SUPPLIER grants to Permitted Users of Customer a worldwide, non-transferable, non-exclusive license during the Term to access the SUPPLIER hosting network at the Service Center and use, by browser interface over the Internet (URL), the Content Manager Software maintained by SUPPLIER via a cloud computing platform provided by SUPPLIER or a third party subcontractor to SUPPLIER (the “Platform Provider”) for purposes of loading, storing, accessing, using, scheduling, managing and transmitting Customer Content maintained on such hosting network (collectively, the “SUPPLIER SaaS Offering”). The SUPPLIER SaaS Offering and Supplied Software shall be used only for the respective internal business purposes of a Customer or, to the extent provided for herein, a Permitted User. In providing the SUPPLIER SaaS Offering, SUPPLIER will provide, host, monitor and manage the server side hardware and server side software, server side telecommunications hardware and software, server side security software and other software that is reasonably necessary to operate and maintain the SUPPLIER SaaS Offering. SUPPLIER currently uses either  Amazon Web Services  or the Stratacache data center  as the Platform Provider. SUPPLIER shall have the right to change the Platform Provider to another industry leading provider of such services who satisfies the requirements of this Agreement upon not less than 90 days’ prior written notice to Customer. Maintenance for the Content Manager and Player Software is included in the fee for the SUPPLIER SaaS Offering.
Hosting Services. If Hosting Services are purchased and paid for by Customer, SUPPLIER grants to Permitted Users of Customer a worldwide, non-transferable, non-exclusive license during the Term to access the SUPPLIER hosting network at the Service Center and use, by browser interface over the internet (URL) the cloud computing platform provided by the Platform Provider (such right of access and use, the “Hosting Services”). Hosting Services shall be used for purposes of (a) accessing and using the Content Manager Software licensed by Customer on a perpetual or term basis pursuant to an Order and (b) loading, storing, accessing, using, scheduling, managing and transmitting Customer Content maintained on such hosting network. The Hosting Services and Supplied Software shall be used only for the respective internal business purposes of a Customer or, to the extent provided for herein, a Permitted User. In providing the Hosting Services, SUPPLIER will provide, host, monitor and manage the server side hardware and server side software, server side telecommunications hardware and software, server side security software and other software that is reasonably necessary to operate and maintain the Hosting Services. SUPPLIER currently uses either Amazon Web Services or the Stratacache data center as the Platform Provider.   SUPPLIER shall have the right to change the Platform Provider to another industry leading provider of such services who satisfies the requirements of this Agreement upon not less than 90 days’ prior written notice to Customer. Maintenance for the Content Manager and Player Software is provided for an additional charge under separate terms.
Loss of Customer Content/Backup Procedures. Customer acknowledges that servers and storage systems can and do fail and the risk of data loss is always present when any data is stored on a computer system of any kind. The Software Services, including Customer Content, may at times not be recoverable by SUPPLIER as a result of electrical power interruptions, “down time” and/or other factors which may or may not be beyond SUPPLIER’s control. In the event of any loss of Customer Content for any reason, SUPPLIER will apply commercially reasonable efforts to attempt to restore the latest version of such information. Any such restoration however, may not be the most current version of any particular file or data. As part of the Software Services, SUPPLIER will backup and archive Customer Content in accordance with the procedures set forth in Appendix
A. Customer agrees that SUPPLIER is not responsible for any Customer Content that may be lost, altered, intercepted or stored without authorization during its transmission across networks not owned and/or operated by SUPPLIER.
Data Protection.
Security Measures. SUPPLIER shall insure that the Platform Provider maintains and enforces at the Service Center physical security procedures that are commensurate with industry standards and at least as rigorous as those set forth in Appendix A. SUPPLIER shall maintain, and shall insure that the Platform Provider maintains and enforces, as applicable, electronic security procedures regarding the Services and the Software that are commensurate with industry standards and at least as rigorous as those set forth in Appendix A. SUPPLIER will provide Customer with a complete copy of, or access to, the most recent SSAE 16 SOC TYPE 2 or equivalent audit report made available by the Platform Provider.
Data Breach. SUPPLIER shall promptly notify Customer if SUPPLIER becomes aware of a data breach at the Service Center that could affect Customer Content. SUPPLIER shall update Customer regarding steps being taken to address the data breach and any loss or theft of Customer Content.
Data Protection Laws. SUPPLIER shall comply with all data protection and privacy laws that apply to the Services being provided by SUPPLIER. The parties do not expect that SUPPLIER will be receiving and processing personal data of individuals. If SUPPLIER agrees in writing to receive and process personal data, additional provisions, including the completion of a mutually acceptable data controller-data processor agreement, may be required.
Disaster Recovery. During the Term, SUPPLIER and the Platform Provider will maintain and comply with a disaster recovery plan for recovery of the Software Services, Content Manager Software and Customer Content that complies with Appendix A. SUPPLIER shall provide Customer with at least ninety (90) days prior written notice of any material change in SUPPLIER’s disaster recovery plan. SUPPLIER shall test its disaster recovery plan no less than once per year.
Harmful Code. SUPPLIER will use commercially reasonable efforts to not introduce any Harmful Code into the Software, or into the systems used to provide the Services, or into the computing systems or networks of the Customer and will use commercially reasonable efforts to prevent others from doing so. During the period of such duty, SUPPLIER will perform regularly scheduled virus checks on the computing platform used to provide the Services using the latest current commercially available virus detection and scanning software.
Availability SLA. SUPPLIER will make the SUPPLIER SaaS Offering or Hosting Services Available twenty-four (24) hours a day, seven (7) days a week, at least 99.0% of the time as measured on a monthly basis, excluding Excused Downtime (the “Availability Requirement”). SUPPLIER will have failed to meet the Availability Requirement only if the SUPPLIER SaaS Offering or Hosting Services fail to achieve the 99.0% Availability described above, as measured over the period of a given calendar month, in accordance with the following formula:
a = [(b – c)-d] x 100
b – c
“a” = the actual percentage of the Availability in such month; “b” = the total number of minutes in such month;
“c” = the total number of minutes of Excused Downtime in such month; and “d” = the total number of minutes of Service Interruption in such month.
Scheduled Maintenance. Scheduled Maintenance shall be performed in accordance with industry standard practice during a maintenance window of 0300 to 0700 UTC every Monday (plus backups occur nightly at 0300 UTC). SUPPLIER will provide at least five (5) days’ notice of any changes in this schedule for Scheduled Maintenance; provided that shorter notice is permitted in emergency situations where provision of 5 days’ notice would adversely affect customers generally.  All emergency outages will be communicated to Customer.
Availability Data. If Customer requests, SUPPLIER shall provide Customer with URL access to a live feed of Availability Data concerning the SUPPLIER SaaS Offering and Hosting Services.
Remedies. If SUPPLIER fails to meet the required level of Availability for 3 consecutive months, or for 5 months in a 12 – month period then Customer may immediately terminate the Agreement and shall not be required to pay, and may obtain a refund of any prepaid amounts for, recurring monthly fees after the date of termination.
Software Maintenance and Support Services.
Software Maintenance for the SUPPLIER SaaS Offering. Software Maintenance on the hosted Content Manager Software consists of maintaining such Software to a commercially available and stable version of such Software. The timing for updates to the Content Manager Software is in SUPPLIER’s discretion. Software Maintenance on the Content Manager Software shall be performed during Scheduled Maintenance, unless SUPPLIER notifies Customer otherwise. Software Maintenance on the Player Software consists of making Software updates available to Customer for downloading as and when offered to SUPPLIER SaaS Offering customers generally. SUPPLIER shall not be responsible for (i) providing Software Maintenance on any APIs or software modifications performed by parties other than SUPPLIER, or (ii) insuring that Software Maintenance provided by SUPPLIER is compatible, or will integrate, with any such APIs or modifications.
Support Services. Customer or Reseller serves as the primary contact point for basic support services and directly handles First Level Support as described in Appendix B. For issues beyond First Level Support:
Direct Purchase Option: If the Customer has chosen to purchase additional support services directly from SUPPLIER, SUPPLIER will provide Second Level Support and higher as required and described in Appendix B.
Reseller Support: If the Customer has not purchased direct support services from SUPPLIER, Reseller will provide Second Level Support as described in the Reseller Agreement. SUPPLIER will provide back-end support services to Reseller as required for Third Level Support and higher, detailed in Appendix B.
Suspension of Services. In addition to any other rights granted to SUPPLIER herein, SUPPLIER reserves the right to suspend this Agreement and Customer’s access to the Services if Customer’s account becomes delinquent (falls into arrears) or violates any other material obligation of Customer under this Agreement. Customer will continue to be charged any recurring fees for the Software Services during any period of suspension. SUPPLIER reserves the right to impose a reconnection fee in the event Customer’s access to the Software Services is suspended and thereafter Customer requests access to such Services.
Access to Customer’s Network. In the event SUPPLIER Personnel require access to Customer’s computer network, SUPPLIER agrees they will (i) do so only for the purpose of providing Services to Customer and not for any other purpose; (ii) not access any information that is confidential or proprietary to Customer, its Affiliates or their employees, agents, customers or suppliers unless SUPPLIER has a “need to know” in order to perform SUPPLIER’s obligations under this Agreement; and (iii) not disclose any of that confidential or proprietary information to any other person other than to Customer and/or other SUPPLIER Personnel with a “need to know” in order to perform SUPPLIER’s obligations under this Agreement.
Designer Cloud Service. Customers using SUPPLIER’s Enterprise platform (Content Manager Software and Player Software) in their SUPPLIER SaaS Offering or Hosting Services may elect to subscribe to SUPPLIER’s “Designer Cloud Service” (as defined below). The Designer Cloud Service is a user-based subscription offering in a multi-tenant cloud environment and it is not considered part of the SUPPLIER SaaS Offering or Hosting Services. Customer pays a per-seat fee for access to Designer Cloud and the number of purchased seats are added to the Customers’ Content Manager file. Customer assigns those seats to individual users (“Designer Cloud Users”) through Customer’s administrative account. If Customer purchases and pays for the Designer Cloud Service, SUPPLIER grants to Designer Cloud Users a worldwide, non-transferable, non-exclusive license during the term of the SUPPLIER SaaS Offering or Hosting Services to access the SUPPLIER hosting network at the Service Center and use, by browser interface over the Internet (URL), the Designer Cloud Software maintained by SUPPLIER via a cloud computing platform provided by the Platform Provider for purposes of designing, creating, and modifying Customer Content and loading Customer Content onto the Content Manager Software included with Customer’s SUPPLIER SaaS Offering or Hosting Services (collectively, the “Designer Cloud Service”). The Designer Cloud Service shall be used only for the internal business purposes of Customer and its Designer Cloud Users. In providing the Designer Cloud Service, SUPPLIER will provide, host, monitor and manage the server side hardware and server side software, server side telecommunications hardware and software, server side security software and other software that is reasonably necessary to operate and maintain the Designer Cloud Service. The Designer Cloud Software shall have the features and functions described in the Documentation for the Designer Cloud Software.  Software Maintenance for the Designer Cloud Software is included in the Fee if the Designer Cloud Service is purchased on an annual subscription – per user basis and that Maintenance consists of maintaining such Software to a commercially available and stable version of such Software. The timing for updates to the Designer Cloud Software is in SUPPLIER’s discretion. Software Maintenance on the Designer Cloud Software shall be performed during Scheduled Maintenance, unless SUPPLIER notifies Customer otherwise.
Accessing Customer Content and Monitoring Use. Customer acknowledges that SUPPLIER requires access to Customer Content in order to perform its obligations under this Agreement and accordingly grants SUPPLIER a non-exclusive, non-transferable license to copy, store, transmit, maintain and view Customer Content solely as necessary to provide the Software Services and insure compliance with this Agreement.
In addition, Customer acknowledges and agrees that SUPPLIER may review and monitor Customer’s access to and use of the Software Services, the Site and Supplied Software, including technical information such as IP-address and browser type and version used by Customer, in order to ensure compliance with this Agreement and to evaluate and improve the performance of the Software Services, Site and Supplied Software. SUPPLIER shall not disclose to third parties, or use for any other purpose, Customer Content or information collected during SUPPLIER’s review and monitoring of Customer’s access and use.
Supplied Software and Hardware.
License Term. For the SUPPLIER SaaS Offering, SUPPLIER shall provide such number of licenses to Player Software as are ordered by Customer pursuant to an Order and the term of the license to such Software shall be equal to the term of the SUPPLIER SaaS Offering. For Hosting Services, SUPPLIER shall provide such number of licenses to Content Manager, Designer and Player Software as are purchased by Customer pursuant to an Order and the terms governing such licenses shall be as set forth below.  The license for all Designer Software is perpetual.
Scope of License.  The license for all Player Software or Designer Software ordered by Customer in connection with the SUPPLIER SaaS Offering shall be subject to the following provisions:
SUPPLIER hereby grants to the Customer, exercisable by and through the Permitted Users, a nonexclusive, royalty-free, irrevocable (except as provided herein), non-transferable right and license to use the Supplied Software and Documentation only for the internal business purposes of Customer and in accordance with the terms of this Agreement. Designer Software may be used on only one, single-use computer. Player Software may be installed and used on as many Playback Devices that have a corresponding valid player license. Customer may internally transfer the Supplied Software to a different computer or Playback Device (a “Transferred Installation”), provided that the Supplied Software and any copies thereof are permanently uninstalled and/or deleted from the device from which the Software is transferred.
In connection with the creation, development or management of content files, and/or the planning or scheduling of information using Supplied Software and the SUPPLIER SaaS Offering (including, but not limited to, media creation and/or management, template message creation, metadata, schedules, layouts, timetables, playlists, or triggers), Customer may publish or transmit files for playback (i) to one or more properly licensed individual Playback Devices; (ii) to an audio visual network of screens showing identical content controlled by a properly licensed individual Playback Devices , and (iii) for preview and approval purposes over the web or other means. Notwithstanding the above, Customer shall not directly or indirectly, use or cause to be used for playback content files, plans, schedules or other information created, developed or managed with SUPPLIER Software without also having properly licensed SUPPLIER Software for every directly or indirectly involved Playback Device.
Customer may make one (1) copy of the Supplied Software and one (1) copy of the related Documentation for archival or back-up purposes, only.
The license granted hereunder includes the right of Customer to use the Third Party Software in Object Code form, solely in connection with the authorized operation and use of the Supplied Software in conformance with the terms and conditions of this Agreement. For the avoidance of doubt, Customer may not decouple, disassemble or otherwise separate the Third Party Software from the Supplied Software or use the Third Party Software except in connection with the use and operation of the Supplied Software as permitted hereunder.
This Agreement only gives Customer limited rights to use or access the Supplied Software. SUPPLIER reserves all other rights. Customer shall not, and shall not permit any Permitted User to: (i) work around any technical limitations in the Supplied Software; (ii) publish the Supplied Software for others to copy; (iii) make more copies of the Supplied Software than authorized under this Agreement; (iv) sell, lease, rent, redistribute, assign, sublicense, or transfer the Supplied Software and/or Third Party Software; (v) reproduce, decompile, reverse engineer or disassemble the Supplied Software and/or Third Party Software, including unbundling or decompiling any SUPPLIER Tools and Objects (as hereinafter defined) incorporated in the Supplied Software or any Deliverable; (vi) offer the use of the Supplied Software to third parties as an application service provider, service bureau or remote-hosted service; (vii) deliver, export, transfer or otherwise distribute the Supplied Software acquired hereunder to, or use the Supplied Software acquired hereunder in, a country other than the country in which the Supplied Software was purchased (including, for the avoidance of doubt, in connection with a Transferred Installation) or (viii) allow a Playback Device to access directly or indirectly a computer or server where the Supplied Software is installed without a corresponding license for such device.
MPEG and AVC Visual Standards:
NOTICE ABOUT THE MPEG-2 VISUAL STANDARD. This software may include MPEG-2 visual decoding technology. MPEG LA, L.L.C. requires this notice: USE OF THIS PRODUCT IN ANY MANNER THAT COMPLIES WITH THE MPEG 2 VISUAL STANDARD IS PROHIBITED, EXCEPT FOR USE DIRECTLY RELATED TO (A) DATA OR INFORMATION (i) GENERATED BY AND OBTAINED WITHOUT CHARGE FROM A CONSUMER NOT THEREBY ENGAGED IN A BUSINESS ENTERPRISE, AND (ii) FOR PERSONAL USE ONLY; AND (B) OTHER USES SPECIFICALLY AND SEPARATELY LICENSED
BY MPEG LA, L.L.C. If you have questions about the MPEG-2 visual standard, please contact MPEG LA, L.L.C., 250 Steele Street, Suite 300, Denver, Colorado 80206; http://www.mpegla.com.
NOTICE ABOUT THE AVC VISUAL STANDARD. This software may include AVC visual decoding technology. MPEG LA,
L.L.C. requires this notice: THIS PRODUCT IS LICENSED UNDER THE AVC PATENT PORTFOLIO LICENSE FOR THE PERSONAL USE OF A CONSUMER OR OTHER USES IN WHICH IT DOES NOT RECEIVE REMUNERATION TO (i) ENCODE VIDEO IN COMPLIANCE WITH THE AVC STANDARD (“AVC VIDEO”) AND/OR (ii) DECODE AVC VIDEO THAT WAS ENCODED BY A CONSUMER ENGAGED IN A PERSONAL ACTIVITY AND/OR WAS OBTAINED FROM A VIDEO PROVIDER LICENSED TO PROVIDE AVC VIDEO. NO LICENSE IS GRANTED OR SHALL BE IMPLIED FOR ANY OTHER USE. ADDITIONAL INFORMATION MAY BE OBTAINED FROM MPEG LA, L.L.C. SEE HTTP://WWW.MPEGLA.COM
THIS PRODUCT IS LICENSED UNDER THE VC-1 PATENT PORTFOLIO LICENSE FOR THE PERSONAL AND NON- COMMERCIAL USE OF A CONSUMER TO (i) ENCODE VIDEO IN COMPLIANCE WITH THE VC-1 STANDARD (“VC-1 VIDEO”) AND/OR (ii) DECODE VC-1 VIDEO THAT WAS ENCODED BY A CONSUMER ENGAGED IN A PERSONAL AND NON-COMMERCIAL ACTIVITY AND/OR WAS OBTAINED FROM A VIDEO PROVIDER LICENSED TO PROVIDE VC-1 VIDEO. NO LICENSE IS GRANTED OR SHALL BE IMPLIED FOR ANY OTHER USE. ADDITIONAL INFORMATION MAY BE OBTAINED FROM MPEG LA, L.L.C. SEE HTTP://WWW.MPEGLA.COM
Supplied Software Warranty. Supplied Software provided in connection with the SUPPLIER SaaS Offering shall substantially conform to the Documentation for the 90 day period after installation. Defects shall be promptly corrected. SUPPLIER shall not be responsible for defects resulting from Customer’s improper installation, operation or modification of the Supplied Software or Customer’s unauthorized combination or use of the Supplied Software with third party hardware or software.
Certain Customer Responsibilities
Accounts and Passwords. SUPPLIER shall assign Customer an administrative account and Customer may establish as many Permitted User accounts within its administrative account as it chooses. Customer is responsible for adding and deleting Permitted User accounts and for the confidentiality of Permitted User passwords.
Compliance. Customer shall (i) be responsible for each Permitted User’s compliance with corresponding obligations under this Agreement in connection with the Permitted User’s use of the SUPPLIER SaaS Offering, Hosting Services and Software, (ii) be solely responsible for the accuracy, quality and legality of Customer Content including information from third party systems or websites used in Customer Content and shall be solely responsible for insuring that Customer Content does not infringe upon or violate the rights, including Intellectual Property Rights, of third parties, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the SUPPLIER SaaS Offering, Hosting Services or Software by Unauthorized Users, and notify SUPPLIER promptly of any such unauthorized access or use, (iv) use the SUPPLIER SaaS Offering and Hosting Services in accordance with applicable l laws and regulations, (v) use commercially reasonable efforts to avoid posting any Harmful Code, (vi) be responsible for acquiring any authorizations or licenses needed for interfaces and links to third party systems and websites used in Customer Content. Customer will immediately notify SUPPLIER of any unauthorized use of Customer’s account or any other breach of security related to Customer’s account or the Services. SUPPLIER is not liable for any loss or damage arising from Customer’s failure to comply with any of the foregoing obligations. SUPPLIER reserves the right, in its sole discretion, to restrict, suspend, or terminate any Permitted User’s access to all or any part of Services at any time, with or without prior notice, and without liability, in the event that SUPPLIER reasonably determines that Customer or any Permitted User has violated any of the restrictions contained in this Section 4. SUPPLIER reserves the right to investigate and take appropriate action against anyone who, in SUPPLIER’s reasonable opinion, is suspected of violating this Agreement, including without limitation, reporting Customer or any Permitted User to law enforcement authorities.
Restrictions. Customer shall not (i) copy, modify or make derivative works based upon the SUPPLIER SaaS Offering, Hosting Services or Software (ii) (a) build a competitive product or service based on non- SUPPLIER Software, (b) build a product using similar ideas, features, functions or graphics of the SUPPLIER SaaS Offering or Hosting Services, or (c) copy any ideas, features, functions or graphics of the SUPPLIER SaaS Offering or Hosting Services. Customer shall not authorize nor allow any Permitted User to: (i) circumvent or attempt to circumvent user authentication or security (i.e. cracking or hacking) of any internet or intranet site or other
SUPPLIER account including but not limited to, accessing data not intended for the Permitted User, logging into a server or account the Permitted User is not expressly authorized to access, or probing the security of other networks (i.e. initiating scans). Customer shall ensure that its Permitted Users comply with the restrictions described herein.
Connectivity; Playback Devices. Customer is responsible for connectivity to the Platform Provider and for procuring all Playback Devices.