This Software License and Service Agreement (“Agreement”) is entered by and between any and all users of the Software as herein defined (“Customer”), and OSM Solutions, LLC, a Texas limited liability company headquartered at 8705 Shoal Creek Blvd #206. Austin, Texas 78757 (“Vendor”). The Agreement is immediately effective upon the date that Customer first accesses the Software (the “Effective Date”).
Vendor provides a software application known as Menuboard Manager® (the “Base Application”), an application related to the operation of digital signage systems. The parties have agreed that Vendor may also provide Documentation, Hardware, installation services, Customer support, and maintenance of the Software and Hardware. Therefore, in consideration of the mutual covenants, terms, and conditions set forth below, including those outlined on Attachments A (which are incorporated into this Agreement by reference), the adequacy of which consideration is hereby accepted and acknowledged, the parties agree as follows:
TERMS AND CONDITIONS
1.1. “Store” refers to Customer physical location.
1.2. “Installed Monitors” refers to display monitors that Customer owned prior to this
agreement and monitor purchases from Vendor and which Vendor’s Menuboard
Manager® software application is installed.
1.3. “Software” refers to Vendor’s Menuboard Manager® software application, in
object code format.
1.4. “Hardware” may include, but will not be limited to, commercial display devices,
commercial mount solutions, cables, audio systems, and other audiovisual equipment.
1.5. “Authorized Platform” means the device or operating system, or both, on which
Customer is authorized to use the Software pursuant to this Agreement.
1.6. “Authorized Site” means a location where Customer is authorized to use the Software.
1.7. “Documentation” means all user manuals and other written material created by Vendor
to describe the functionality or assist in the use of the Software.
2. SOFTWARE LICENSE
2.1 License Grant. Vendor hereby grants to Customer a nonexclusive limited license to use and publicly display the Software on Installed Monitors as necessary for Customer’s internal business purposes, provided Customer complies with the restrictions set forth in Section 2.2 (Restrictions on Software Rights). Such internal business purposes do not include use by any parent, subsidiary, affiliate, or franchisee of Customer, or any other third party, and Customer shall not permit any such use. This license may be revoked by Vendor in accordance with the terms of this Agreement, and it will immediately expire upon the termination of this Agreement.
2.2. Restrictions on Software Rights. Copies of the Software transferred to Customer pursuant to this Agreement are licensed, not sold, and customer receives no title to or ownership of any copy of the Software itself. Furthermore, Customer receives no rights to the Software other than those specifically granted in this Section 2. Without limiting the generality of the foregoing, Customer shall not: (a) modify, create derivative works from, distribute, publicly perform, or sublicense the Software; (b) use the Software for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Software; or (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive any of the Software’s source code. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1) of the Commercial Computer Software – Restricted Rights clause at FAR 52.227-19, subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, or subparagraph (d) of the Commercial Computer Software – Licensing at NASA FAR supplement 16-52.227-86, or their equivalent, as applicable.
2.3. Authorized Platform. The Software requires the use of Samsung commercial displays and Google Chrome web browsers to operate.
2.4. Authorized Site. Customer may use the Software in its stores that are located in the United States. Additional new stores may be requested by Customer and as approved by Vendor, with approval not being unreasonably withheld. This Agreement does not extend to any locations outside the United States.
3. VENDOR SERVICES
3.1. Vendor will provide such products and services (“Products and Services”) as required by any statement of work agreed by the parties, which may include but is not limited to a quote or invoice issued by Vendor (“Statement of Work”). Upon execution, a Statement of Work will become part of this Agreement. In the event of any conflict with a Statement of Work, the terms of this main body of this Agreement will govern.
3.2. Starting upon delivery of the Software, Vendor will provide maintenance upgrades to the Software on an as-needed basis. These maintenance upgrades include installing new versions of Software to provide additional or improved functionality, or if necessary for the security or integrity of the digital signage system. Vendor may provide supporting Documentation as reasonably needed.
3.3. Customer shall use the website Support functions (email, phone, chat if available) to initiate all support requests.
3.4. Vendor agrees to negotiate in good faith with any of Customer’s franchisees to execute an agreement containing substantially similar terms to this Agreement (“Franchisee Agreement”), subject to Vendor consent and approval. Unless expressly agreed by Vendor, the provisions of this Subsection 3.4 are limited to Customer’s franchisees that have retail stores in the USA.
4.1. Customer shall pay Vendor for Products and Services according to the terms required by each Statement of Work. Each Statement of Work will include an Annual Menuboard Manager® Service Contract Fee (“Subscription Fee”), which is paid by Customer to Vendor as consideration for the license granted under this Agreement and the right to use the Software. Subscription Fee renewals will be renewed and invoiced annually from the date of the original invoice. The Subscription Fee is nonrefundable, including in the event either party terminates this Agreement pursuant to Section 10.
4.2. Additional fees for labor not included in a Statement of Work will be assessed on an hourly basis. Vendor will obtain verbal or written permission from Customer prior to performing work for which additional fees will be assessed. Additional fees may be assessed for Vendor’s travel time to Customer sites.
4.3. Additional service fees will be assessed in the event Vendor arrives at Customer’s site to install, replace, or repair digital signage systems and the site is inaccessible or otherwise not ready for the installation, replacement, or repair.
4.4. Vendor shall submit itemized invoices to Customer for the payments required by this Section 4, and all invoices will be due and payable within 30 days of Vendor’s transmission of the invoice. Any balance remaining unpaid longer than this 30 days will accrue interest at a rate of 5% per month.
4.5. Vendor may provided Menuboard Manager® software demonstration accounts for Customer’s technology laboratory at no cost. Customer will not be required to purchase service agreements for these demonstration accounts in Customer’s technology laboratory, provided that the accounts are designated exclusively for Customer’s internal use, testing and evaluation. If Customer violates this provision, Vendor may invoice Customer for all applicable fees at the standard rates in effect at the time of such violation.
5.1. “Confidential Information” refers to the following items one party to this Agreement (“Discloser”) discloses to the other (“Recipient”): (a) any document Discloser marks “Confidential”; (b) any information Discloser orally designates as “Confidential” at the time of disclosure, provided Discloser confirms such designation in writing within 10 business days; (c) any object code or source code disclosed by Vendor, whether or not marked as confidential; (d) this Agreement, whether or not marked as confidential; and (e) any other nonpublic, sensitive information disclosed by Discloser. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Recipient’s possession at the time of disclosure; (ii) is independently developed by Recipient without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Recipient’s improper action or inaction under this Agreement; or (iv) is approved for release in writing by Discloser.
5.2. Nondisclosure. During the period this Agreement is in effect and at all times afterwards, the Recipient shall not use Confidential Information for any purpose other than to facilitate the transactions contemplated by this Agreement (the “Purpose”). Recipient: (a) shall not disclose Confidential Information to any employee or contractor of Recipient unless such person needs access in order to facilitate the Purpose; and (b) shall not disclose Confidential Information to any other third party without Discloser’s prior written consent. Without limiting the generality of the foregoing, Recipient shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Recipient shall promptly notify Discloser of any misuse or misappropriation of Confidential Information that comes to Recipient’s attention. Notwithstanding the foregoing, Recipient may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. To the extent permitted by law, Recipient shall give Discloser prompt notice of any such legal or governmental demand and reasonably cooperate with Discloser in any effort to seek a protective order or otherwise to contest such required disclosure, at Discloser’s expense. The obligations under this provision survive the termination of this Agreement.
5.3. Injunction. Recipient agrees that breach of this Section 5 would cause Discloser irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy Discloser may have at law or in equity, Discloser will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security at the time such relief is requested.
5.4. Termination and Return. Upon termination of this Agreement and Discloser’s written request, Recipient shall return all copies of Confidential Information to Discloser or certify, in writing, the destruction thereof.
5.5. Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Except to the extent that another section of this Agreement specifically provides to the contrary, Discloser will retain all right, title, and interest in and to all Confidential Information.
6.1. Warranty of Function. Vendor represents and warrants that Vendor is the owner of the Software or has the right to grant to Customer the license to use the Software in the manner and for the purposes set forth in this Agreement without violating any rights of a third party. Additionally, Vendor warrants that the Software will be free from defects for the duration of this Agreement, provided that this warranty does not cover defects in the Software media due to Customer’s misuse of the Software media or an accident subsequent to delivery to Customer.
TO THE EXTENT ANY OF THE SOFTWARE’S FUNCTIONALITY IS DEPENDENT ON CUSTOMER PROVIDED SOFTWARE OR OTHER SYSTEMS, VENDOR PROVIDES NO WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO THE CUSTOMER-PROVIDED SOFTWARE OR SYSTEMS AND ITS COMPATIBILITY WITH THE SOFTWARE, AND VENDOR WILL NOT BE LIABLE FOR ANY FAILURE OF SOFTWARE THAT RESULTS FROM A FAILURE OF CUSTOMER-PROVIDED SOFTWARE OR SYSTEMS.
6.2. Vendor Services Warranty. Vendor represents and warrants that all services recited in Section 3 will be performed in a professional and workmanlike manner.
6.3. Warranty of Authority to Enter Agreement. Each party represents and warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no known pending or threatened claim or litigation will have a material adverse impact on its ability to perform as required by this Agreement.
6.4. Third-Party Components. Vendor shall: (a) pass through to Customer any warranty right it receives from a third-party provider of digital signage system components not authored or manufactured by Vendor (“Third Party Components”); and (b) reasonably cooperate with Customer in enforcing such rights, at Customer’s expense.
VENDOR PROVIDES NO WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO THIRD-PARTY COMPONENTS, AND VENDOR WILL NOT BE LIABLE FOR ANY FAILURE OF ANY THIRD-PARTY COMPONENT TO FUNCTION AS EXPECTED OR AS INTENDED BY CUSTOMER.
6.5. Warranty Disclaimers. EXCEPT FOR THE EXPRESS WARRANTIES SPECIFIED ABOVE IN THIS SECTION 6, VENDOR MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
6.6. Remedies for Breach of Warranty. In the event of breach of the warranties in Subsections 6.1 and 6.2, Vendor shall: (a) repair the Software in question; (b) replace the Software in question with software of substantially similar functionality; or (c) if such attempts do not succeed after 60 days, refund all amounts paid by Customer for such Software. The remedies stated in the preceding sentence, in conjunction with the Customer’s right to terminate this Agreement, constitute Customer’s sole remedy and Vendor’s maximum liability for breach of the warranty in Section 6.2.
6.7. Intellectual Property. Customer represents and warrants that it has the right to use and display any and all intellectual property presented to Vendor or uploaded to the Software in connection with this Agreement, including, but not limited to, trademarks, service marks, trade dress, copyrighted materials, trade secrets, and patented materials.
7.1. Indemnification by Vendor. Vendor shall defend, indemnify, and hold harmless Customer against any “Vendor Indemnified Claim,” meaning any third-party allegation, threat, claim, suit, or proceeding against Customer arising out of, related to, or alleging infringement, misappropriation, or violation of any patent, copyright, trade secret, or other intellectual property right by the Software that is not also
covered by paragraph 7.4.
7.2. Litigation of Vendor Indemnified Claim. Vendor’s obligations set forth in Subsection
7.1 will be excused to the extent that Customer’s failure to provide prompt notice of the Vendor Indemnified Claim or reasonably to cooperate materially prejudices the defense. Vendor will control the defense of any Vendor Indemnified Claim including appeals, negotiations, and any settlement or compromise thereof.
7.3 Exclusions to Vendor Indemnification. Vendor’s obligations set forth in Subsection
7.1 do not apply to the extent that a Vendor Indemnified Claim regarding intellectual property infringement arises out of: (a) Customer’s breach of this Agreement to the extent the infringement would not have occurred but for such breach; (b) revisions to the Software made without Vendor’s written consent to the extent the infringement would not have occurred but for such revision; (c) video, graphic, text, or other content provided by Customer that is uploaded to the Software or displayed on Installed Monitors.
7.4. Indemnification by Customer. Customer shall defend, indemnify, and hold harmless Vendor against any “Customer Indemnified Claim,” meaning any third-party allegation, threat, claim, suit, or proceeding against Vendor arising out of, related to, or alleging: (a) infringement or violation of a copyright, trademark, trade secret, privacy, or confidentiality right by written materials, images, logos, video, or other content uploaded to the Software or displayed on Installed Monitors through Customer’s account; (b) infringement of a patent by making or using the Software in combination with hardware or software not provided by Vendor; (c) infringement of a patent wholly or partially related to Customer’s feature requests; or (d) Customer’s actions in breach of this Agreement.
7.5. Litigation of Customer Indemnified Claim. Customer’s obligations set forth in Subsection 7.4 will be excused to the extent that Vendor’s failure to provide prompt notice of the Customer Indemnified Claim or reasonably to cooperate materially prejudices the defense. Customer will control the defense of any Customer Indemnified Claim including appeals, negotiations, and any settlement or compromise thereof.
8. LIMITATION OF LIABILITY
8.1. Dollar Cap Limitation of Liability. EXCEPT WITH RESPECT TO EITHER PARTY’S OBLIGATIONS SET FORTH IN SECTIONS 5 AND 7, NEITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER FOR THE PRODUCTS OR SERVICES FOR WHICH DAMAGES ARE CLAIMED.
8.2. Exclusion of Consequential Damages. EXCEPT WITH RESPECT TO EITHER PARTY’S OBLIGATIONS SET FORTH IN SECTIONS 5 AND 7, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
8.3. Clarifications and Disclaimers. THE LIABILITIES LIMITED BY SECTIONS 8.1 (Dollar Cap) AND 8.2 (Exclusion of Consequential Damages) APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF VENDOR IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL THEIR ESSENTIAL PURPOSE(S). If applicable law limits the application of the provisions of this Section 8, Vendor’s liability will be limited to the maximum extent permissible.
9. TERM AND TERMINATION
9.1. Termination by Customer. Customer may terminate this Agreement with or without cause by giving Vendor thirty (30) days’ written notice of its intent to terminate.
9.2. Termination by Vendor. Vendor may immediately terminate this Agreement or limit the scope of Services if any act or omission by Customer threatens Vendor’s reputation or ability to do business. Vendor may terminate this Agreement without cause by giving Customer thirty (30) days’ written notice of its intent to terminate.
9.3. Effects of Termination. Upon termination of this Agreement, the licenses granted in Section 2 will terminate, and Customer shall cease all use of the Software and delete all copies in its possession or control. The following provisions will survive termination of this Agreement: (a) any obligation of Customer to pay for Software or services rendered before termination; (b) Sections 5, 7, and 8; and (d) any other provision of this Agreement that must survive to fulfill its essential purpose.
10. INDEPENDENT CONTRACTORS
The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. The parties agree that no Vendor employee or contractor will be an employee of Customer, and no Customer employee or contractor will be an employee of Vendor. Customer will be responsible for all employment rights and benefits of Customer employees, including without limitation: (a) federal, state, and local income and employment taxes and social security contributions; (b) workers’ compensation, health benefits, vacation pay, holiday pay, profit sharing, retirement, pension, disability benefits, and other health and welfare benefits, plans, or programs; and (c) insurance.
11. ALTERNATE DISPUTE RESOLUTION
11.1. Except as provided in Subsection 11.2, any claim arising out of or related to this Agreement, including without limitation claims related to the parties’ negotiations and inducements to enter into this Agreement, shall first be submitted in writing to the other respective party for consideration through attempted informal resolution. Thereafter, any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall first be submitted to mediation in good faith in Austin, Travis County, Texas by a mediator appointed by The Company. Both parties will share the costs of mediation.
11.2. Any such conflicts that are not resolved by mediation shall be submitted to confidential, mandatory, binding arbitration in Austin, Texas, with the parties sharing equally the cost of arbitration. Arbitration will proceed according to the commercial rules of the American Arbitration Association. This Section 11.2 does not limit either party’s right to provisional or ancillary remedies from a court of competent jurisdiction before, during, or after the pendency of any arbitration, and the exercise of any such remedy does not waive either party’s right to arbitration. Judgment on an arbitration award may be entered by any court with competent jurisdiction, as set forth in Section 12 of this Agreement. 11.3. As the sole exception to the mandatory arbitration provision in Subsection 11.2, each party may, to the extent the other party has in any manner violated or threatened to violate the seeking party’s intellectual property rights, seek injunctive or other appropriate relief in any state or federal court in the state of the state of Texas, USA.
12.CHOICE OF LAW AND JURISDICTION
This Agreement will be governed solely by the internal laws of the State of Texas, without reference to (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties or (b) other international laws. The parties consent to the personal jurisdiction and exclusive jurisdiction of the federal and state courts of Austin, Texas.
Notices pursuant to this Agreement shall be sent to the addresses below, or to such others as either party may provide in writing. Such notices will be deemed received at such addresses upon the earlier of (a) actual receipt or (b) delivery in person or by certified mail return receipt requested.
For Vendor: OSM Solutions, LLC
8705 Shoal Creek Blvd #206.
Austin, TX 78757
For Customer: Mailing Address or Email Address on File
14. TECHNOLOGY EXPORT
Customer shall not: (a) permit any third party to access or use the Software in violation of any U.S. law or regulation; or (b) export the Software or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the Software in, or export the Software to, a country subject to a United States embargo.
Neither party may assign this Agreement or any of its rights or obligations hereunder without the other party’s express written consent, except that either party may assign this Agreement to the surviving party in a merger of that party into another entity or in an acquisition of all or substantially all that party’s assets. An assignment authorized pursuant to the preceding sentence shall not become effective unless and until the assignee agrees in writing to be bound by all the assigning party’s rights and obligations set forth in this Agreement. Except to the extent forbidden in this Section 16, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
16. FORCE MAJEURE
No damage, delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by electrical outage, storms, flooding, lightning, acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
18. NO WAIVER
Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement of representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement. The failure of each party to enforce any provision of this Agreement will not be deemed a waiver of the provision(s) or of such party’s right thereafter to enforce that or any other provision.
19. CONFLICTS AMONG ATTACHMENTS
In the event of conflict with the main body of this Agreement, the main body of this Agreement will govern. In addition, no Statement of Work or other attachment incorporated into this Agreement after execution of this main body of this Agreement will be construed to amend this main body unless it specifically states its intent to do so and cites the section or sections amended.
20. EXECUTION IN COUNTERPARTS
This Agreement may be executed in one or more counterparts. Each counterpart will be an original, but all such counterparts will constitute a single instrument.
The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.
22. ENTIRE AGREEMENT
This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
Except where expressly allowed, this Agreement may not be modified except in a written agreement signed by authorized representatives of both parties.
This Support Procedure is provided pursuant to the Software License and Service Agreement by and between OSM Solutions, LLC and Customer. This Support Procedure is incorporated into the Agreement. In the event of any conflict with this Support Procedure, the main body of the Agreement will govern. The provisions of this Support Procedure govern only the subject matter herein and not any other subject matter covered by the Agreement. Capitalized terms not otherwise defined in this Support Procedure will have the meanings given in the main body of the Agreement. Vendor may unilaterally amend this Support Procedure from time to time by sending an amended version to Customer. Such an amendment will become effective 30 days after such notice. Customer’s continued use of the Software after such 30-day notice period will confirm Customer’s consent to such amendment.
1. Vendor will provide support workflow documentation to Customers for training purposes.
2. In the event support is needed, the Customer may initiate a support ticket by email to: firstname.lastname@example.org or email@example.com. Support tickets may be opened to request content changes or to report problems with the operation of Software or Hardware OSM Solutions has sold to the Customer. Support requests will be addressed within 24 hours; however, Vendor’s does not guarantee resolution of the support request within 24 hours Vendor will evaluate the support ticket and, if necessary, run remote diagnostic checks to determine the best course of action, thereafter including in the Initial Response the planned course of action.
3. In the event of a hardware failure of one or more of the Installed Monitors sold to the customer by the Vendor, Vendor will, on behalf of Customer, initiate warranty service with the manufacturer of the Installed Monitors. Vendor will not be required to assist with initiating warranty service claim for Installed Monitors purchased from a third party.
4. If requested by Customer and at Customer’s expense per Section 4.2 of the Agreement(Additional Fees), Vendor will dispatch a technician to the applicable Customer site. Such dispatch will take place as soon as practicable, dependent on technician availability. Vendor will coordinate with the technician to resolve the support request in a timely manner.
5. In the event of a warranty hardware replacement, Customer will be responsible for receiving the hardware shipment and for complying with any terms of the warranty, which may include retention of the defective unit until the manufacturer schedules pickup. Any costs or fees related to Customer’s responsibilities under this paragraph shall be borne solely by Customer.
6. If Vendor needs to dispatch a technician to the Customer site in order to address a support request, Customer shall provide access to the site at a mutually agreeable time. Service calls are billed to the customer whenever a technician is dispatched.