END USER LICENSE AGREEMENT

 

THIS END USER LICENSE AGREEMENT (hereinafter “AGREEMENT”) is an agreement between you an individual, organization or commercial entity (hereinafter “LICENSEE”) and Signal360, Inc., a Delaware corporation with offices at 251 Fifth Avenue, Floor 6, New York, NY  10016  (“SIGNAL360”) for the Signal360 SDK software (hereinafter the "SIGNAL360 SDK"), the Signal360 REST API (hereinafter the "REST API") and any Signal360 Channel broadcast software and/or hardware including, without limitation, the Signal360 Desktop Broadcaster, the Signal360 Portable Beacon, the Signal360 Mini-Broadcaster, the Signal360 HD-SDI Broadcaster, and any software files encoded with SIGNAL360 proprietary technology to function as a Channel as described on and downloadable and/or purchasable at SIGNAL360's distribution website at www.signal360.com (hereinafter the “CHANNEL PRODUCT(S)”). The SIGNAL360 SDK, REST API and the CHANNEL PRODUCTS (and the CHANNELS that they create as defined below) shall be collectively referred to herein as the "SIGNAL360 TECHNOLOGY."The SIGNAL360 TECHNOLOGY may also include any electronic documentation, associated media, website services, printed documentation and other printed materials which are downloaded and/or shipped with the above-described SIGNAL360 TECHNOLOGY. SIGNAL360 and LICENSEE are each a "PARTY" and shall be collectively referred to as the "PARTIES."

 

By downloading, installing, copying, purchasing or otherwise using the SIGNAL360 TECHNOLOGY or any updates to the SIGNAL360 TECHNOLOGY you agree to the terms of this AGREEMENT, set out below, in their entirety and if you do not agree to the terms of this AGREEMENT in their entirety do not purchase, download, install or use the SIGNAL360 TECHNOLOGY, terminate the installation process immediately and completely remove the SIGNAL360 TECHNOLOGY including all program files, installation files, ancillary files, documentation files and any other SIGNAL360 TECHNOLOGY files from all your computer or other hardware systems on which they are installed.

 

1.         ADDITIONAL DEFINITIONS

 

In addition to the terms defined above, the following terms shall have the meanings set forth as follows:

 

"AFFILIATE(S)" shall mean any employee or contractor over which LICENSEE has direct managerial control or any entity in which LICENSEE has greater than 50% voting equity.

 

"CHANNEL(S)" shall mean one or more audio component(s) that, when digitally activated, carries an audio signal via specified SIGNAL360 PRODUCTS which audio signal instructs software applications with preinstalled SIGNAL360 SDK to retrieve and display digital content.

 

"LICENSEE LOCATION(S)" shall mean all buildings, venues and other physical locations owned, operated and/or controlled by LICENSEE or its AFFILIATES by operation of law or contract (e.g., lease, deed, etc...).

 

2.         LICENSE GRANT

 

This end user license AGREEMENT by and between the PARTIES, unless incorporated into a separate written agreement between the PARTIES, supersedes all previous obligations between the PARTIES and governs the licensing, support and use of the SIGNAL360 TECHNOLOGY by the LICENSEE whereby SIGNAL360 grants LICENSEE a non-exclusive, non-transferable limited-use license to use the SIGNAL360 TECHNOLOGY only and strictly under the terms of this AGREEMENT. The license term is one (1) year at the end of which the license will automatically renew itself annually for successive one year periods until its termination as provided in this AGREEMENT. The license granted pursuant to this AGREEMENT describes and governs how LICENSEE may use the SIGNAL360 TECHNOLOGY; this license does not provide for the actual purchase and delivery of CHANNEL PRODUCTS or digital activation of the CHANNELS as described on www.signal360.com which purchases and/or activation must be transacted on SIGNAL360's distribution website at www.signal360.com or via a separate agreement between the PARTIES.

 

3.         PAYMENT AND TAXES

 

SIGNAL360 will accept payments for the purchase of CHANNEL PRODUCTS and/or CHANNEL activation by any means and at prices as provided on SIGNAL360's distribution website at www.signal360.com or otherwise agreed to in writing between the PARTIES.

 

4.         SIGNAL360 TECHNOLOGY USE LICENSE

 

            4.1.      SIGNAL360 SDK

 

The SIGNAL360 SDK may be used by, for or on behalf of LICENSEE and/or its AFFILIATES on an unlimited number of computer or mobile hardware systems (hereinafter "SYSTEMS") in accordance with the following provisions: LICENSEE may reproduce the SIGNAL360 SDK as well as incorporate the SIGNAL360 SDK into LICENSEE's software applications ("LICENSEE'S SOFTWARE") except that (i) all copies of the SIGNAL360 SDK, including versions of the SIGNAL360 SDK which are incorporated into LICENSEE'S SOFTWARE, must bear the copyright notices contained in the original and must conspicuously display the words "Powered by Signal360" on a screen that users of the LICENSEE'S SOFTWARE will clearly notice, and (ii) LICENSEE may not reproduce or incorporate the SIGNAL360 SDK into the software applications of any third parties without SIGNAL360's express written consent which is not here given. For the avoidance of doubt LICENSEE may not offer to design or develop software applications that incorporate the SIGNAL360 SDK for sale, lease or sublicensing to any third parties.

 

            4.2.      CHANNEL PRODUCTS

 

The CHANNEL PRODUCTS may be used by, for or on behalf of LICENSEE and/or its AFFILIATES at LICENSEE LOCATIONS in accordance with the following provisions: Any single CHANNEL PRODUCT, whether it is a hardware CHANNEL PRODUCT (e.g., the Signal360 Portable Beacon) or a software CHANNEL PRODUCT (e.g., software files encoded with SIGNAL360 proprietary technology to function as a CHANNEL when broadcast by a public announcement system), may only be used at a single LICENSEE LOCATION consisting of such physical range as able to be broadcast by the hardware CHANNEL PRODUCT or by a single public announcement system broadcasting a software CHANNEL PRODUCT. LICENSEE may not alter or reproduce the hardware CHANNEL PRODUCTS to amplify their natural range of broadcast, nor may LICENSEE alter or reproduce the software CHANNEL PRODUCTS to amplify their range of broadcast by, for example, broadcasting them on multiple public announcement systems. LICENSEE may not lease, resell or sublicense the CHANNEL PRODUCTS to any third parties without SIGNAL360's express written consent which is not here given.

 

4.3.      REST API

 

The REST API may be used by, and as described below, sometimes must be used for or on behalf of LICENSEE and/or its AFFILIATES on an unlimited number of computer or mobile hardware systems (hereinafter "SYSTEMS") in accordance with the following provisions: In every instance where the LICENSEE uses its own content management system to manage active CHANNELS, such content management system must use the REST API to communicate with SIGNAL360's proprietary content management system at www.signal360.com or studio.signal360.com. The REST API may not be reproduced, altered or used for any purpose not expressly provided under this AGREEMENT.

 

4.4.      CHANNELS

 

The CHANNELS created by the activation and use of SIGNAL360 TECHNOLOGY are proprietary to SIGNAL360 and may be used by, for or on behalf of LICENSEE and/or its AFFILIATES in accordance with the following provisions: Regardless of whether LICENSEE uses SIGNAL360's content management system or LICENSEE's own content management system for the management of the CHANNEL, LICENSEE may not at any time allow, sell, lease or sublicense the ability to manage the CHANNEL to any third-parties except via the CHANNEL sharing mechanism that is available via SIGNAL360's content management system. For the avoidance of doubt, every user who wishes to manage CHANNELS via any content management system must be separately licensed by SIGNAL360 to do so. This provision reiterates the same provision in Section 2 which states that LICENSEE may not lease, resell or sublicense the CHANNEL PRODUCTS to any third parties without SIGNAL360's express written consent which is not here given.

 

4.5.      RESERVATION OF RIGHTS

 

All rights not expressly granted herein are expressly reserved to SIGNAL360.

 

5.   OWNERSHIP AND CONFIDENTIALITY

 

LICENSEE shall be deemed to be the owner of all proprietary rights, including but not limited to copyrights in LICENSEE'S SOFTWARE, and any other work product created by LICENSEE as part of LICENSEE'S SOFTWARE, except that SIGNAL360 retains all ownership, title, rights and interest in and to the SIGNAL360 SDK and CHANNEL PRODUCTS or any addition, modifications and improvements thereof developed by SIGNAL360 or LICENSEE as part of incorporating the SIGNAL360 SDK into LICENSEE'S SOFTWARE. LICENSEE'S right to use the SIGNAL360 SDK as part of LICENSEE'S SOFTWARE is licensed by and subject to the terms of this AGREEMENT. For the avoidance of doubt, LICENSEE agrees that it shall have no right to use or copy the SIGNAL360 SDK, whether or not it is incorporated into LICENSEE'S SOFTWARE, without an active license from SIGNAL360 which, in the event of the termination of this AGREEMENT, SIGNAL360 is not obligated under any circumstances to provide.

 

SIGNAL360 warrants and LICENSEE acknowledges and agrees that SIGNAL360 TECHNOLOGY including all standard release thereof and any related patents, trademarks, copyrights, trade secrets or other proprietary information technologies methodologies or software architecture are the exclusive and commercially valuable proprietary products and intellectual property of SIGNAL360 and LICENSEE acknowledges and agrees that SIGNAL360 has invested substantial time and economic resources in the design and development of the SIGNAL360 TECHNOLOGY which required the efforts of skilled software development experts and that SIGNAL360 treats the SIGNAL360 TECHNOLOGY as confidential and the SIGNAL360 TECHNOLOGY constitute trade secrets regardless of whether the SIGNAL360 TECHNOLOGY is or may be copyrighted or patented. Title, full ownership and all proprietary rights to the SIGNAL360 TECHNOLOGY shall remain with SIGNAL360 and the LICENSEE shall have no right, title or interest to the SIGNAL360 TECHNOLOGY except LICENSEE has the right to use the SIGNAL360 TECHNOLOGY for its own business or other applications as set forth in this AGREEMENT and furthermore the LICENSEE understands that, prior to delivery of the SIGNAL360 TECHNOLOGY, SIGNAL360 has acted to protect its ownership rights by embedding product license keys, serial numbers, concurrent user limitations, monitored object limits, usage monitoring, expiration dates, license monitoring, current release version checking, anti-piracy software and other devices in the SIGNAL360 TECHNOLOGY but that such devices will not substantially interfere with normal and authorized use of the SIGNAL360 TECHNOLOGY by the LICENSEE. LICENSEE shall not and has no right to make any claim or representation of LICENSEE's ownership or deny or challenge any claim of SIGNAL360's ownership of the SIGNAL360 TECHNOLOGY; or make adaptations or derivative works of the SIGNAL360 TECHNOLOGY except to incorporate the SIGNAL360 SDK into LICENSEE'S SOFTWARE pursuant to this AGREEMENT; or examine, disclose, copy, modify, decompile, reverse engineer, emulate, visually display or reduce the SIGNAL360 TECHNOLOGY; or sell, assign, transfer, sub-license, sublease, distribute or disclose the SIGNAL360 TECHNOLOGY, the use of the SIGNAL360 TECHNOLOGY or any portion of  the SIGNAL360 TECHNOLOGY, to any other person corporation or other entity which is not an AFFILIATE of LICENSEE; or take any other act which jeopardizes SIGNAL360's rights or interests in the SIGNAL360 TECHNOLOGY.

 

6.         SIGNAL360 TECHNOLOGY USE, PRIVACY & LICENSEE INDEMNITIES

 

LICENSEE acknowledges and agrees that SIGNAL360's role under this AGREEMENT is solely that of a supplier and that it is solely the LICENSEE's responsibility to determine its own needs and requirements and satisfy itself that the SIGNAL360 TECHNOLOGY meets such needs and requirements and that furthermore the LICENSEE acknowledges and agrees that LICENSEE is responsible for the selection and use of the SIGNAL360 TECHNOLOGY to achieve LICENSEE's objectives. LICENSEE hereby absolutely and unconditionally agrees to indemnify and defend SIGNAL360 and to hold SIGNAL360 harmless from and against any and all claims, liabilities, costs, expenses, actions arising, made, incurred or suffered directly or indirectly by any person from or in connection with LICENSEE's use or misuse, whether accidental or deliberate, of the SIGNAL360 TECHNOLOGY.

 

LICENSEE acknowledges and agrees that the SIGNAL360 TECHNOLOGY functions as a medium for information transfer between various computer hardware and software, accordingly, SIGNAL360 may record and store any information, regardless of its content (the "INFORMATION"), which is transferred via the SIGNAL360 TECHNOLOGY. By transferring INFORMATION via the SIGNAL360 TECHNOLOGY, LICENSEE grants SIGNAL360 a royalty-free, worldwide license to store, copy and transfer the INFORMATION as necessary to effectuate the use of the SIGNAL360 TECHNOLOGY. Whereas SIGNAL360 agrees to treat any user information collected via its user registration forms on www.signal360.com in accordance with the terms of its privacy policy for the transfer and storage of user information on www.signal360.com, the terms of which are expressly incorporated herein, LICENSEE agrees that any personally identifiable information or contact information that LICENSEE transfers via the SIGNAL360 TECHNOLOGY shall not be governed by SIGNAL360's privacy policy because SIGNAL360 has no means by which to discriminate between the information which is included in the INFORMATION. Accordingly LICENSEE agrees to indemnify and defend SIGNAL360 and to hold SIGNAL360 harmless from and against any and all claims, liabilities, costs, expenses, actions arising, made, incurred, or suffered directly or indirectly by any third-party if such party's privacy is in any way violated by what LICENSEE chooses to transfer via the SIGNAL360 TECHNOLOGY as part of the INFORMATION.

 

LICENSEE further acknowledges and agrees to indemnify and defend SIGNAL360 and to hold SIGNAL360 harmless from and against any and all claims, liabilities, costs, expenses, actions arising, made, incurred, or suffered directly or indirectly by any third-party if such party's intellectual property rights, rights of publicity, or any other rights are in any way violated by what LICENSEE chooses to transfer via the SIGNAL360 TECHNOLOGY as part of the INFORMATION.

 

7.         LIMITED WARRANTIES & SIGNAL360 INDEMNITIES

 

SIGNAL360 warrants that the SIGNAL360 TECHNOLOGY is free of viruses, trojans, and other malware ("MALICIOUS SOFTWARE") except that SIGNAL360 does not and cannot warrant that users will not use the SIGNAL360 TECHNOLOGY to upload MALICIOUS SOFTWARE to SIGNAL360's or LICENSEE's content storage servers, which content storage servers the SIGNAL360 TECHNOLOGY uses to store and transfer information between various computer hardware and software. Accordingly, SIGNAL360 makes no warranty that any user-uploaded content delivered via the SIGNAL360 TECHNOLOGY is free of MALICIOUS SOFTWARE, the risks of which LICENSEE expressly assumes.

 

SIGNAL360 further warrants that the SIGNAL360 TECHNOLOGY is the sole intellectual property of SIGNAL360 and that the SIGNAL360 TECHNOLOGY does not knowingly infringe on any third-party's patent, trademark or copyrights.

 

SIGNAL360 further agrees that it shall, during the term of this AGREEMENT, maintain a cyber liability insurance policy in a reasonable amount, but in no event less than One Million Dollars ($1,000,000) per incident and One Million Dollars ($1,000,000) annual aggregate with an appropriate deductible by a carrier rated at A minus or better by A.M. Best providing for indemnification of SIGNAL360 to cover any loss arising as a result of any real or alleged negligence on the part of SIGNAL360, its directors, officers, agents or employees with respect to SIGNAL360's obligations pursuant to its privacy policy and with respect to the limited warranties described in this Section 7.

 

8.         DISCLAIMER OF WARRANTIES

 

WITH THE EXCEPTION OF THE WARRANTIES CONTAINED IN SECTION 7 ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SIGNAL360 TECHNOLOGY IS PROVIDED "AS IS" AND SIGNAL360 AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, EITHERWHETHER EXPRESS OR, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND, FITNESS FOR A PARTICULAR PURPOSE AND TITLE.

 

MOREOVER, SIGNAL360 shall not be held liable for any damages or costs whether direct, indirect or consequential brought about  by proper or improper use of the SIGNAL360 TECHNOLOGY or by any defects or bugs in the SIGNAL360 TECHNOLOGY or by accidental or deliberate misuse of the SIGNAL360 TECHNOLOGY by the LICENSEE or any other party, or by the expiration of the license or any delays or failures in the provision of SIGNAL360 TECHNOLOGY license renewals to LICENSEE or any loss or interruption of the service or LICENSEE’S inability to use the SIGNAL360 TECHNOLOGY wholly or partially for whatsoever reason.

 

9.          LIMITATION OF REMEDIES

 

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SIGNAL360 OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SIGNAL360 TECHNOLOGY, EVEN IF SIGNAL360 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

WITH THE EXCEPTION OF THE WARRANTIES CONTAINED IN SECTION 6 ABOVE, SIGNAL360's liability in contract, tort or otherwise arising out of or in connection with the SIGNAL360 TECHNOLOGY or LICENSEE’s use of the SIGNAL360 TECHNOLOGY shall not exceed the SIGNAL360 TECHNOLOGY license fee paid directly to SIGNAL360 by LICENSEE or a maximum total liability to LICENSEE for all damages in the amount of one hundred dollars ($100 USD) whichever is less.

 

10.       TECHNICAL SUPPORT, PRODUCT UPDATES, DESIGNATED AGENTS

 

10.1.    TECHNICAL SUPPORT

 

SIGNAL360 may choose to but is not obligated to provide technical support for the SIGNAL360 TECHNOLOGY. Any availability of technical support shall be detailed on SIGNAL360's website at www.signal360.com or, if applicable, via a separate contract with LICENSEE.

     

10.2.    PRODUCT UPDATES, MANDATORY IF PROVIDED

 

SIGNAL360 may choose to but is not obligated to supply SIGNAL360 TECHNOLOGY updates for the purpose of including new features and/or feature enhancements and/or changes to documentation and/or bug fixes and/or any other changes to the SIGNAL360 TECHNOLOGY as and when they become available at SIGNAL360’s sole discretion via the World Wide Web. With respect to the SIGNAL360 SDK, any updates provided by SIGNAL360 shall be incorporated into LICENSEE SOFTWARE no later than thirty (30) days from the provision of such update to LICENSEE; subsequent use of LICENSEE SOFTWARE that has not been so updated shall be deemed a material breach of this AGREEMENT by LICENSEE.

 

10.3.    DESIGNATED AGENTS

 

 SIGNAL360 may at its sole discretion deliver licenses, technical support and software updates to LICENSEE though a designated agent including but not limited to delivery of invoices as appropriate and collection of payments.

 

11.       TERMINATION

 

This AGREEMENT may be terminated by SIGNAL360 at any time, for cause, upon five (5) days' written notice to LICENSEE. For the purposes of this AGREEMENT, "cause" shall be defined as LICENSEE's breach of any term of this AGREEMENT including failure to pay fees pursuant to Section 3. This AGREEMENT may be terminated by SIGNAL360 at any time, without cause, upon thirty (30) days' written notice to LICENSEE. "Written notice," for the purposes of this clause, includes any notice conspicuously published on SIGNAL360's website at www.signal360.com. SIGNAL360 shall refund to LICENSEE any payments made pursuant to Section 3 above that prepay LICENSEE's use of the SIGNAL360 TECHNOLOGY beyond the termination of this AGREEMENT but, for the avoidance of doubt, LICENSEE shall not be refunded any payments of LICENSEE's use of the SIGNAL360 TECHNOLOGY prior to the termination of this AGREEMENT.

 

12.       AGREEMENT PREVAILS 

 

The terms and conditions of this AGREEMENT shall prevail notwithstanding any variance with the terms and conditions of any order submitted by LICENSEE with respect to the SIGNAL360 TECHNOLOGY, associated documentation or ancillary sources.

 

13.       HEADINGS AND PUNCTUATION

 

The headings to the sections herein are for convenience only and are not to be used as an aid to the interpretation of this AGREEMENT. Punctuation is used throughout this AGREEMENT as an aid to clear understanding.

 

14.       FORCE MAJEURE   

 

Neither party to this AGREEMENT shall be liable or deemed in default for any delay, failure in performance or interruption of service under this AGREEMENT resulting directly or indirectly from acts of God, civil or military authority, acts of a public enemy, war, riots, civil disturbances, insurrections, accidents, fire, explosions, earthquakes, floods, nor any element of any other cause beyond the reasonable control of such party.

 

15.       ASSIGNMENT             

 

LICENSEE may not assign or delegate its obligations under this AGREEMENT without the prior written consent of SIGNAL360.

 

16.        ENTIRE AGREEMENT

 

THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT, ALL UNDERSTANDINGS AND ALL REPRESENTATIONS EXPRESSED OR IMPLIED BETWEEN THE PARTIES WITH RESPECT TO THE CHANNEL PRODUCTS AND SUPERSEDES ALL PRIOR ORAL AND WRITTEN COMMUNICATIONS.

 

17.       MODIFICATION

 

THIS AGREEMENT MAY BE MODIFIED BY SIGNAL360 FROM TIME TO TIME. SIGNAL360 SHALL CONSPICUOUSLY PUBLISH NOTICE OF ANY PROPOSED MODIFICATION ON ITS WEBSITE AT WWW.SIGNAL360.COM AT LEAST SEVEN (7) DAYS PRIOR TO SUCH MODIFICATION. IT IS LICENSEE'S RESPONSIBILITY TO CHECK SIGNAL360'S WEBSITE FROM TIME TO TIME TO BE AWARE OF ANY PROPOSED MODIFICATION TO THIS AGREEMENT. ANY DOWNLOAD, PURCHASE AND/ORUSE OF SIGNAL360 TECHNOLOGY BY LICENSEE FOLLOWING ANY MODIFICATION OF THIS AGREEMENT BY SIGNAL360 SHALL SERVE AS LICENSEE'S AGREEMENT TO SUCH MODIFICATION.

 

18.       GOVERNING LAW

 

This AGREEMENT shall be governed solely by the laws of the State of New York, U.S.A.

 

19.       FORUM, ARBITRATION

 

Any disputes arising out of this AGREEMENT shall be litigated in the state of Federal courts in New York County, New York. Upon the election of either party, any controversy or claim arising out of or relating to this AGREEMENT shall be determined by arbitration in accordance with the International Arbitration Rules of the American Arbitration Association in New York, New York, U.S.A.

 

20.       SEVERABILITY

 

If any provision of this AGREEMENT is prohibited by law or judged by a court to be unlawful void or unenforceable the provision shall to the extent required be severed from this AGREEMENT and rendered ineffective as far as possible without modifying the remaining provisions of this AGREEMENT and shall not in any way effect any other circumstances of or the validity or enforcement of this AGREEMENT.

 

21. WAIVER

 

No delay neglect or forbearance on the part of either party in enforcing against the other party any term or condition of this AGREEMENT shall either be or be deemed to be a waiver or in any way prejudice any right of that party under this AGREEMENT and no right power or remedy of any other right power or remedy available to the party.

 

22. LANGUAGE

 

This AGREEMENT is made only in the English language. If there is any conflict in the meaning between the English language version of this AGREEMENT and any version or translation of it in any other language the English language version shall prevail at all times.

 

23. FINAL CLAUSE

 

This is the final clause of your license AGREEMENT.