Last update: 19 May 2020
These Terms of Service (“Terms”) are a legal agreement between Talarian S.à.r.l. herein “Talarian”, having its principal place of business at 30, Bd Grande-Duchesse Charlotte, L-1330 Luxembourg, and the person or entity agreeing to the terms herein (“Licensee”, “Customer”, “You” or “you”). By using or accessing any part of Playengo (the “Service”), You agree that You have read, understand, and agree to be bound by all of the terms and conditions contained herein. If You do not agree to these Terms, You must not use or access the Service. If You are entering into this Terms on behalf of a company, You represent that You have the authority to bind that company to these Terms. If You have purchased a license to use Playengo through a Talarian reseller, You also agrees to comply with the terms of any agreement between You and such reseller. In the event of an inconsistency between these Terms and any such reseller agreements, these Terms shall control.
WHEREAS, Talarian has developed a digital signage solution named “Playengo” (the “Service”) which it makes available to its customers; and
WHEREAS, Licensee wishes to obtain a non-exclusive license to access and use the Service, and Talarian is willing to grant such non-exclusive license to Licensee on the terms set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual promises hereinafter set forth, the parties hereto agree as follows:
1. Scope of Agreement.
- (a) Service. Playengo is an online digital signage solution comprising multiple components including, but not limited to, an administration console (“Console”) located at https://cloud.playengo.com, a player software (“Player”, or the “Software”), available on supported platforms, installed on Licensee’s hardware, and any such additional module that Talarian may release to its Licensee from time to time. This Agreement sets forth the terms and conditions under which Licensee accesses and uses the Service.\
Licensee may connect to the administration console using any Internet browser supported by the Service and install the player software on any supported device. Licensee understands and acknowledges that Licensee is solely responsible for obtaining the Internet access and all equipment necessary to use the Service, for appropriately configuring Player hardware and software.
- (b) Order Forms. The number of Player licenses, the subscription term for the Service and the applicable licensing fees will be specified in one or more order forms (each, an “Order Form”) which are executed by the parties pursuant to this Agreement. Each Order Form will be governed by the terms of this Agreement. In the event of any conflict or inconsistency between the terms and conditions of this Agreement and the terms of any Order Form, the terms and conditions of this Agreement shall govern, and the conflicting or inconsistent provision in the Order Form will have no force or effect unless expressly stated otherwise in the Order Form.
3. Professional Services.
4. Licensee Responsibilities and Content.
- (a) Licensee Responsibilities. Licensee is responsible for obtaining, configuring and maintaining all computer hardware, software and communications equipment needed to access and use the Service, and for provisioning, configuring, securing and paying all third-party services (e.g., ISP, telecommunications, etc.) required to use the Service. Licensee is responsible for the accuracy, quality and legality of Licensee data and documents. Licensee acknowledges and agrees: (1) that Licensee is responsible for its employees, agents and contractors abiding by all local, state, national, and international laws and regulations applicable to Licensee’s and its Users’ use of the Service; (2) not to use the Service for illegal purposes; and (3) not to interfere or disrupt networks connected to the Service. Licensee shall be solely responsible for its actions and the actions of its employees, agents and contractors and other Users. Licensee shall not (a) sell, resell, rent or lease the Service, (b) use the Service to store or transmit infringing, libelous, otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (c) use the Service to store or transmit malicious code, or (d) interfere with or disrupt the integrity or performance of the Service or any third party documents or data contained therein. Licensee is solely responsible for maintaining backups of Licensee’s content thereon as recommended in the Service documentation. Licensee shall comply with the relevant policies of the applicable service provider (Google Cloud Platform Acceptable Use Policy available at: https://cloud.google.com/terms/aup). Licensee will indemnify, defend, and hold Talarian harmless from and against any damages, expenses and costs arising from or relating to Licensee’s failure to comply with the relevant policies of the applicable service provider.
- (b) Licensee Content. As between Licensee and Talarian, Licensee retains all right, title and interest in any and all data, files, attachments, text, images, personally identifiable information, and other content that Licensee and Licensee’s Users upload or submit or cause to be submitted to the Service (collectively, “Licensee Content”). Licensee may not upload, post or otherwise make available through the Service any material protected by copyright, trademark, or any other proprietary right without first having obtained all rights, permissions and consents necessary (a) to make the Licensee Content available on or through the Service, and (b) to grant Talarian the limited rights to use Licensee Content as set forth in this Agreement. The burden of determining whether any Licensee Content is protected by any such right is on Licensee.
- (c) Backups of Licensee Content. Licensee is solely responsible for creating backups of the Licensee Content. Licensee and Licensee’s Users may delete the Licensee Content at any time through the user interface, application programming interface or administration console of the Service, subject to Section 5 (e) (Deletion of Licensee Content).
- (d) Talarian’s Use of Licensee Content. Licensee agrees that Talarian may use the Licensee Content to provide the Service and its features to Licensee and Licensee’s Users, including by making the Licensee Content available for viewing, download and modification by permitted Users and Players. Licensee hereby grants Talarian a non-exclusive, royalty-free, worldwide license (including the right to sublicense through multiple tiers to applicable service providers as necessary to provide the Service) to access, use, reproduce, distribute, store, transmit, modify, adapt, reformat, display, and create derivative works of Licensee Content, solely as required for the purpose of providing the Service to Licensee and Licensee’s Users.
- (e) Aggregate Data. Talarian may gather statistical data, analytics, trends and other aggregated or otherwise de-identified data derived from the Licensee Content and Licensee’s Users use of the Service (“Aggregate Data”). For the avoidance of doubt, Aggregate Data does not include personal data. Talarian may use Aggregate Data to improve, support and operate the Service. Talarian will not distribute Aggregate Data in a form that identifies Licensee or Licensee’s Users, nor will Talarian identify Licensee as the source of any Aggregate Data without Licensee’s consent.
5. Term & Termination.
- (a) Term. The term of this Agreement will begin on the Effective Date and, unless it is earlier terminated, will continue for the license term specified on the applicable Order Form (the “Initial Period”). Upon the expiration of the Initial Period this Agreement we will provide you with a new Order Form with the new pricing condition for subsequent one year period.
- (b) Termination. Either party may terminate this Agreement, effective immediately without further notice, in the event that the other party materially breaches this Agreement and does not remedy such breach within thirty (30) calendar days of the date on which the breaching party receives written notice of such breach. To the maximum extent permitted by the applicable law, either party may, but is under no obligation to, terminate this Agreement immediately by giving written notice to the other party in the event that the other party files a petition in bankruptcy or is adjudicated a bankrupt or insolvent, or makes an assignment for the benefit of creditors or an arrangement pursuant to any bankruptcy law, or if the other party discontinues or dissolves its business or if a receiver is appointed for the other party or for such party’s business and such receiver is not discharged within 60 days.
- (c) Effects of Termination. Upon the termination of this Agreement for any reason: (i) Licensee shall cease use of the Service immediately; (ii) Talarian’s obligations to perform the Support Services shall immediately terminate; (iii) Licensee shall pay to Talarian the full amount of any outstanding fees due hereunder within thirty (30) days of termination; and (iv) within ten (10) calendar days of such termination, each party shall destroy or return all confidential and/or Confidential Information (as defined in Section 11) of the other party in its possession, and will not make or retain any copies of such information in any form, except that the receiving party of such Confidential Information may retain one (1) archival copy of such information solely for purposes of ensuring compliance with this Agreement. Notwithstanding the foregoing, the following terms shall survive the termination of this Agreement, together with any other terms which by their nature are intended to survive such termination: Sections 2(b) (Service Access and Users) (last sentence only), 2(d) (Restrictions), 2(e) (Proprietary Rights), 2(g) (Licensee Feedback), 4 (Licensee Responsibilities), 5(c) (Effects of Termination), 8(c) (Disclaimer of Warranties), 9 (Indemnification), 10 (Limitation of Liability), 12 (Confidentiality) 13 (Governing Law & Jurisdiction), 14 (Notices), and 15 (General Provisions).
- (d) Suspension. Talarian reserves the right to suspend or terminate Licensee’s access to the Service with or without notice if Talarian reasonably determines that: (a) there is a threat or attack on the Service (including a denial of service attack) or other event that may create a risk to the Service, Talarian, Licensee, or any user of the Service; (b) Licensee’s or its Users’ use of the Service or Licensee Content disrupts or poses a security risk to the Service or any user of the Service, may harm Talarian’s systems, or may subject Talarian or any third party to liability; (c) Licensee or any User is using the Service for fraudulent or illegal activities; (d) Licensee or any User’s use of the Services does not follow Talarian’s published documentation, performance guidelines or performance recommendations provided by Talarian’s technical support; (e) Licensee’s use of the Service is not consistent with good faith commercial practice and usage of the Service. (f) subject to applicable law, Licensee has ceased to continue Licensee’s business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding; (g) Licensee or any User is using the Service or other Talarian property in breach of this Agreement; or (h) Licensee is in default of its payment obligations hereunder (collectively, “Service Suspensions”). Talarian will make commercially reasonable efforts, circumstances permitting, to provide written notice of any Service Suspension to Licensee, and to provide updates regarding resumption of Licensee’s access to the Service following any Service Suspension.
- (e) Deletion of Licensee Content. Talarian will delete the Licensee Content promptly after any termination or expiration of this Agreement, but Licensee understands that deleted content may persist in backup copies for a necessary period of time after termination or expiry whilst deletion is carried out. As set forth in Section 4 (c), Licensee is solely responsible for creating any back-ups of the Licensee Content for Licensee’s own purposes.
6. Fees & Payment Terms.
The fee(s) specified on the Order Form are due and payable on the Effective Date. Recurring fees shall be paid in advance on a monthly or yearly basis as specified on the Order Form. Any non-recurring license fees shall be payable on the dates set forth in the applicable Order Form. A decrease in the number of license will only take effect for the following annual period. Any additional license added to the Agreement will be invoiced pro rata according to the number of months remaining until the anniversary date of the Agreement, including the month in which the license was added to the Agreement. All fees are exclusive of all taxes, levies or duties, and Licensee will be responsible for payment of such taxes, levies or duties, excluding only taxes based solely upon Talarian’s net income. Except as otherwise mutually agreed upon by the parties in writing, each party is responsible for its own expenses under this Agreement. All fees payable under this Agreement are non-refundable. Talarian will issue an invoice for the fees due hereunder.
7. Use of Logo.
During the term of this Agreement, Licensee hereby agrees that Talarian shall have the right, but not the obligation, to include Licensee’s logo solely on Talarian’s website to identify Licensee as a customer who uses the Service.
8. Warranties; Availability and Disclaimer of Warranties.
- (a) General Representations and Warranties. Each party represents and warrants to the other party that: (i) it has the full power and authority to enter into this Agreement and to carry out its obligations under this Agreement; and (ii) it has complied, and will in the future comply, with all applicable laws, rules and regulations in connection with the execution, delivery and performance of this Agreement.
- (b) Subject to the terms and conditions of this Agreement, Talarian will make the Service available to Licensee in accordance with the Service Level Agreement available online at https://www.playengo.com/sla (the “SLA”). Talarian does not make any representations or guarantees regarding uptime or availability of the Service unless specifically identified in the SLA. The Service may be unavailable at certain times as specified in the SLA, including during any unanticipated or unscheduled downtime or unavailability of all or any portion of the Service as a result of system failures or force majeure events. Certain enhancements to the Service made generally available at no cost to all subscribing customers during the Initial Period or applicable Renewal Period will be made available to Licensee at no additional charge. However, the availability of some new enhancements to the Service may require the payment of additional fees, and Talarian will determine at its sole discretion whether access to any other such new enhancements will require an additional fee. The terms of this Agreement will apply to, and the Service includes, any enhancements, updates, upgrades and new modules to the Service subsequently provided by Talarian to Licensee.
- (c) Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAW: (I) THE SERVICE AND ANY THIRD PARTY OFFERINGS ARE PROVIDED TO LICENSEE ON AN “AS IS” BASIS, WITH ANY AND ALL FAULTS, AND WITHOUT ANY WARRANTY OF ANY KIND; AND (II) TALARIAN, ON BEHALF OF ITSELF AND ITS SUPPLIERS AND LICENSORS, EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. TALARIAN DOES NOT WARRANT THAT THE SERVICE OR THIRD PARTY OFFERINGS WILL MEET LICENSEE’S REQUIREMENTS, THAT THE OPERATION OF THE SERVICE OR THIRD PARTY OFFERINGS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SERVICE OR THIRD PARTY OFFERINGS WILL BE CORRECTED. LICENSEE EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE USE OF THE SERVICE AND ALL RESULTS OF SUCH USE IS SOLELY AT LICENSEE’S OWN RISK. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TALARIAN OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTIES PROVIDED HEREIN.
- (a) By Licensee. Licensee shall, at its expense indemnify, defend and hold Talarian harmless from and against any third party claims to the extent such claims allege: (i) that Licensee Content or its use by Talarian in the provision of the Service infringes or misappropriates any third-party’s intellectual property rights; or (ii) Licensee’s willful misconduct, fraud, misrepresentation, or violation of law.
- (b) By Talarian. Talarian shall, at its expense, defend Licensee from third party claims brought against Licensee, and shall pay or reimburse Licensee for all damages, costs and expenses payable by Licensee to such third party to the extent they are awarded in a final judgment or agreed to in a settlement, as a result of any third party claims against Licensee alleging that the Service infringes or misappropriates any patent issued prior to the Effective Date, copyright, or trade secret; provided that Licensee: (1) promptly notifies Talarian in writing of the claim; (2) grants Talarian sole control of the defense and settlement of the claim; and (3) provides Talarian, at Talarian’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim.
- (c) Exceptions. Talarian’s above indemnity obligations do not apply to damages, costs and expenses arising from (1) any use of the Service beyond the scope of license granted herein, (2) any modification or derivative works of the Service made by or for Licensee, (3) use of a superseded infringing version of the Service (or component thereof) by Licensee after release of a non-infringing version by Talarian, or (4) any use or combination of the Service with any technology, software or hardware not supplied by Talarian (including any Third Party Offering, if such alleged infringement would be avoided by use of the Service without such technology, software or hardware.
- (d) Mitigation. If a claim of infringement occurs that is subject to Section 8(b) and not subject to the exceptions in Section 8(c), or if Talarian determines that a claim is likely to occur, Talarian may, in Talarian’s sole discretion: (1) procure for Licensee the right or license to continue to use the Service, free of the infringement claim; or (2) replace or modify the Service, to make it non-infringing provided that the replacement Service substantially conforms to Talarian’s then-current specification for the Service. If these remedies are not reasonably available in Talarian’s opinion, Talarian may elect to terminate this Agreement, in which case Licensee shall be entitled a pro rata refund of license fees already paid to Talarian for the then-current Initial Period or Renewal Period, as applicable. If Talarian elects any option under this Section 9(d), such remedy shall be Licensee’s sole and exclusive remedy for any claim of intellectual property rights infringement.
- (e) Exclusive Remedy. Sections 9 (b) through 9(d) state the sole and exclusive obligations and liability of Talarian for any intellectual property rights infringement and are in lieu of any warranties of non-infringement, all of which are disclaimed.
10. Limitation of Liability.
- (a) Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAW, EXCEPT FOR BREACHES OF SECTION 12 OR SECTION 2(d), IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR RELIANCE DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOST DATA, LOSS OF USE AND LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SERVICE, REGARDLESS OF THE LEGAL THEORY UPON WHICH ANY CLAIM FOR SUCH DAMAGES IS BASED AND EVEN IF SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF, OR COULD REASONABLY HAVE PREVENTED, SUCH DAMAGES.
- (b) Limitation of Damages. EXCEPT FOR ITS INDEMNIFICATION OBLIGATIONS OR FOR BREACHES OF SECTION 12 OR SECTION 2(d) OR IN THE EVENT OF WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, EACH PARTY’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT OR THE SERVICE, WILL NOT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY LICENSEE IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. LICENSEE AGREES THAT TALARIAN’S SUPPLIERS AND LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER OR AS A RESULT OF THIS AGREEMENT. IN THE CASE OF TALARIAN’S INDEMNIFICATION OBLIGATIONS, TALARIAN’S CUMULATIVE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO FIVE HUNDRED THOUSAND DOLLARS ($500,000).
- (c) Failure of Essential Purpose. THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY EVEN IF THIS AGREEMENT OR ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
- (d) Allocation of Risk. The sections of this Agreement that address indemnification, limitation of liability and the disclaimer of warranties allocate the risk between the parties. This allocation of risk is an essential element of the basis of the bargain between the parties.
In performing their respective obligations under this Agreement, the Parties will comply with all applicable national or international trade and export laws and regulations. The Party conducting an export or re-export shall be responsible for obtaining any required licenses or authorizations. Each Party shall reasonably cooperate with, and exercise reasonable efforts to support the Party making the export or re-export in obtaining any necessary licenses or authorizations required to perform its obligations under this Agreement.
12. Confidentiality and Privacy.
- (a) Confidential Information. “Confidential Information” means all non-public information disclosed in written, oral or visual form by either party to the other. Confidential Information may include, but is not limited to, services, pricing information, computer programs, source code, names and expertise of employees and consultants, know-how, and other technical, business, financial and product development information. “Confidential Information” does not include any information that the receiving party can demonstrate by its written records (1) was rightfully known to it without obligation of confidentiality prior to its disclosure hereunder by the disclosing party; (2) is or becomes publicly known through no wrongful act of the receiving party; (3) has been rightfully received without obligation of confidentiality from a third party authorized to make such a disclosure; or (4) is independently developed by the receiving party without reference to confidential information disclosed hereunder.
- (b) Obligation of Confidentiality. Neither party will use any Confidential Information of the other party except as expressly permitted by this Agreement or as expressly authorized in writing by the disclosing party. The receiving party shall use the same degree of care to protect the disclosing party’s Confidential Information as it uses to protect its own Confidential Information of like nature, but in no circumstances less than a reasonable standard of care. The receiving party may not disclose the disclosing party’s Confidential Information to any person or entity other than to those of its employees and contractors who: (i) are subject to a written agreement with the receiving party that includes use and confidentiality restrictions that are at least as protective as those set forth in this Agreement, and (ii) need access to such Confidential Information solely for the purpose of fulfilling the receiving party’s obligations or exercising the receiving party’s rights hereunder. The foregoing obligations will not restrict the receiving party from disclosing Confidential Information of the disclosing party: (1) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the receiving party required to make such a disclosure gives reasonable notice to the disclosing party prior to such disclosure; and (2) on a confidential basis to its legal and financial advisors.
- (c) Privacy. The Parties agree that any processing of Licensee’s personal data by Talarian shall be governed by the terms and conditions of the Data Processing Agreement, which is annexed to this Agreement, available at this link: Data Processing Agreement
13. Governing Law & Jurisdiction.
This Agreement will be construed and interpreted in all respects in accordance with the laws of Luxembourg, without reference to its choice of law rules. Notwithstanding anything in this Agreement to the contrary, either party may seek injunctive or other equitable relief in any court of competent jurisdiction to protect any actual or threatened misappropriation or infringement of its intellectual property rights or those of its licensors, and each party hereby submits to the jurisdiction of such courts and waives any objection thereto on the basis of improper venue, inconvenience of the forum or any other grounds. Licensee agrees that any breach of the license restrictions or other infringement or misappropriation of the intellectual property rights of Talarian or its licensors may result in immediate and irreparable damage to Talarian for which there is no adequate remedy at law. The United Nations Convention on Contracts for the International Sale of Goods in its entirety is expressly excluded from this Agreement. Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity, performance or termination, shall be submitted to the exclusive jurisdiction of the courts of Luxembourg.
All notices permitted or required under this Agreement shall be in writing and shall be delivered by personal delivery, e-mail, or by certified or registered mail, return receipt requested. Mailed notices shall be sent to the addresses set forth on the first page of this Agreement. Licensee also consents to receive communications from Talarian electronically by e-mail. Licensee agrees that all agreements, notices, disclosures, and other communications that Talarian provides to Licensee electronically satisfy any legal requirement that such communications be in writing, to the extent permitted by applicable law.
15. General Provisions.
Licensee may not assign any rights under this Agreement without the prior written consent of Talarian, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, either party may assign this Agreement without the other party’s consent to: (a) an affiliate; or (b) any person, firm, organization, corporation or other entity which succeeds to the business of the party as a going concern of such party by acquisition, merger, reorganization or otherwise. Any purported assignment in violation of the preceding sentence is null and void. Subject to the foregoing, this Agreement shall be binding upon, and inure to the benefit of, the successors and assigns of the parties thereto. Except as otherwise specified in this Agreement, this Agreement may be amended or supplemented only by a writing that refers explicitly to this Agreement and that is signed on behalf of both parties. No waiver will be implied from conduct or failure to enforce rights. No waiver will be effective unless in a writing signed on behalf of the party against whom the waiver is asserted. If any term of this Agreement is found invalid or unenforceable that term will be enforced to the maximum extent permitted by law and the remainder of this Agreement will remain in full force. The parties are independent contractors and nothing contained herein shall be construed as creating an agency, partnership, or other form of joint enterprise between the parties. This Agreement represents the entire agreement between the parties relating to its subject matter and supersedes all prior and/or contemporaneous representations, discussions, negotiations and agreements, whether written or oral, except to the extent Talarian makes any software or other products and services available to Licensee under separate written terms. The terms on any purchase order, confirmation, or similar document submitted by Licensee to Talarian will have no effect and are hereby rejected. This Agreement, together with the Data Processing Agreement annexed to it, shall not be interpreted or construed to confer any rights or remedies on any third parties. Neither party shall be liable to the other party or any third party for failure or delay in performing its obligations under this Agreement when such failure or delay is due to any cause beyond the control of the party concerned, including, without limitation, acts of God, governmental orders or restrictions, fire, or flood, provided that upon cessation of such events such party shall thereupon promptly perform or complete the performance of its obligations hereunder. This Agreement may be entered into in one or more counterparts, each of which will be deemed an original, and all of which taken together shall constitute one and the same instrument.