END USER SOFTWARE LICENSE AGREEMENT
IMPORTANT - READ CAREFULLY: This End User Software License Agreement (“Agreement”) is a legal contract between BoardActive Corporation (“BoardActive”) and the second party to this Agreement (“Customer”) that governs Customer’s right to access and use BoardActive’s proprietary visual signage software that connects advertisers to consumers via their mobile devices (the “Software”). Customer’s right to access and use the Software is strictly conditioned on Customer’s agreeing to comply with this Agreement. If Customer is accepting this Agreement on behalf of a legal entity (e.g. an employee accepting on behalf of his/her employer), Customer represents and warrants that Customer has the authority to bind that entity to this Agreement and Customer’s acceptance of this Agreement will be treated as the acceptance of the entity. In that event, "Customer” will refer and apply to that entity. Any actual use or attempt to use the Software shall be deemed to be additional proof of Customer’s agreement to comply with this Agreement. BY DOWNLOADING, INSTALLING OR OTHERWISE ACCESSING OR USING THE SOFTWARE, CUSTOMER AGREES TO BE BOUND BY THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER MAY NOT DOWNLOAD, INSTALL, ACCESS OR USE THE SOFTWARE.
1. License Terms, Proprietary Rights of BoardActive
1.1 Grant of License In return for Customer’s payment in full of any fees charged by BoardActive for the Software, BoardActive grants Customer a non-exclusive, non-transferable, non-assignable license, without the right to sublicense, to access, install and use the Software, in object code format only, on a single device owned or controlled by Customer. Customer may use the Software solely in connection with the BoardActive solution and only as specified by BoardActive, this Agreement and any documentation.
1.2 Restrictions on Use Except as otherwise stated expressly in this Agreement, Customer: (a) may use the Software solely for Customer’s personal use; (b) may not sell, resell, license, sublicense, lease or otherwise provide access to the Software to any other person; (c) may not use the Software to provide services to or for the benefit of any third party; (d) may not use the Software for the purposes of developing, or assisting others in the development, of solutions that compete with or that are otherwise substitutable for the Software; (e) may not use the Software for any purposes that are contrary to applicable laws and regulations; and (f) may not reverse engineer, decompile or in any other way attempt to discern the source code to the Software.
1.3 Ownership and Intellectual Property Customer acknowledges that the Software and all copyrights, patents, trade secrets, trademarks and other proprietary rights associated with the Software (“Intellectual Property”) are the sole property of BoardActive. Customer shall gain no right, title or interest in the Software, or any rights to any of BoardActive’s Intellectual Property, by virtue of this Agreement other than the licenses granted in Section 3.1. Customer hereby assigns to BoardActive any Intellectual Property rights associated with any suggestions for improvements or enhancements from Customer resulting in modification or enhancement of the Software.
1.4 BoardActive Website BoardActive’s website may include additional terms and conditions applicable to the Software. Accordingly, Customer agrees to check BoardActive’s website regularly for such terms and conditions. Any terms and conditions on BoardActive’s website shall be deemed to be automatically incorporated by reference into this Agreement five (5) days after BoardActive posts such terms and conditions on its website.
1.5 Upgrades BoardActive may provide Customer with updates to the Software from time to time. These updates are designed to improve, enhance and further develop the Software and may take the form of bug fixes and enhanced functions. Customer agrees to receive such updates as part of Customer’s use of the Software.
2. Term and Termination
2.1 Term The term of the license granted to Customer shall begin on the date that Customer is deemed to have accepted this Agreement and shall continue in perpetuity, subject to termination earlier in accordance with Section 2.2 below. Any fees paid by Customer are non-refundable and Customer understands and acknowledges that BoardActive has a “no return” and “no refund” policy.
2.2 Termination BoardActive reserves the right to terminate this Agreement for cause if Customer breaches any of its obligations under this Agreement. Upon termination of this Agreement, Customer shall, no later than the effective date of such termination (a) discontinue the use of the Software, (b) purge the Software from Customer’s device(s), and (c) if requested by BoardActive, certify to BoardActive in writing that it has complied with the foregoing obligations. The termination of this Agreement for any reason shall not extinguish or diminish the Customer’s obligations under Sections 1.3, 4.2, and 5, which obligations shall continue and survive termination of this Agreement together with any other provisions of this Agreement that by their terms to not expire at a specific point in time.
3. Limited Warranties, Disclaimers and Remedies
3.1 Limited Warranty BoardActive warrants that for ninety (90) days commencing on the date of delivery of the Software to Customer the Software will perform in all material respects the functions set forth in the Software documentation. The foregoing warranty shall not apply to the extent that any failure of the Software to meet the foregoing warranty is caused by: (a) a combination of the Software with any program, equipment or device not supplied by BoardActive; (b) any modification or customization of the Software by or on behalf of the Customer; (c) the Customer’s failure to properly use or access the Software, as appropriate, or access or install any upgrades; or (d) any circumstance beyond the reasonable control of BoardActive. No employee or agent of BoardActive is authorized to give a greater or different warranty than as expressly provided for herein. Notwithstanding anything to the contrary in this Agreement, BoardActive shall have no responsibility for, and make no warranties with regards to, any third party product or software.
3.2 Disclaimers THE SOFTWARE IS PROVIDED TO CUSTOMER ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT WARRANTY OF ANY KIND. BOARDACTIVE DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM BOARDACTIVE OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. BOARDACTIVE DOES NOT REPRESENT OR WARRANT THAT: (I) THE SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS OR WILL BE ERROR FREE OR THAT ANY ERRORS WILL BE CORRECTED; OR (II) THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED. INFORMATION PROVIDED THROUGH THE SOFTWARE MAY BE DELAYED, INACCURATE, OR CONTAIN ERRORS OR OMISSIONS, AND BOARDACTIVE AND ITS THIRD PARTY LICENSORS WILL HAVE NO LIABILITY WITH RESPECT THERETO. BOARDACTIVE MAY CHANGE OR DISCONTINUE ANY ASPECT OR FEATURE OF THE SOFTWARE OR THE USE OF ALL OR ANY FEATURES OR TECHNOLOGY IN THE SOFTWARE AT ANY TIME WITHOUT PRIOR NOTICE TO CUSTOMER. CUSTOMER’S ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE SOFTWARE IS TO UNINSTALL AND CEASE USE OF THE SOFTWARE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
4. Limitation of Liability; Indemnification
4.1 Limitation of Liability IN NO EVENT WILL BOARDACTIVE OR ANY OF ITS OFFICERS, DIRECTORS, OWNERS, EMPLOYEES OR AUTHORIZED AGENTS (COLLECTIVELY, THE "BOARDACTIVE GROUP") AND BOARDACTIVE’S THIRD PARTY LICENSORS BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST DATA, LOST PROFITS, LOSS OF GOODWILL, LOST REVENUE, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE INSTALLATION OR USE OF OR INABILITY TO USE THE SOFTWARE UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT THE BOARDACTIVE GROUP WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL BOARDACTIVE'S AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS AAGREEMENT, TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, EXCEED THE AMOUNT PAID, IF ANY, BY CUSTOMER FOR THE SOFTWARE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY, SUCH AS FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
4.2 Indemnification Customer agrees to defend, indemnify and hold harmless the BoardActive Group from any claims, damages, losses, liabilities or expenses incurred by a member of the BoardActive Group as a result of or in connection with any breach by Customer of the terms of this Agreement or any negligence or wrongful conduct by Customer in the use of the Software, or any use by Customer of the Software.
5.1 Confidentiality. Customer acknowledges and agrees that the Software and all information related thereto or disclosed or delivered to Customer in relation to this Agreement (“BoardActive’s Information”) represent BoardActive’s confidential and proprietary information. Customer agrees to keep BoardActive’s Information confidential by exercising the necessary care required to prevent its disclosure to unauthorized persons and to prevent unauthorized persons from accessing the BoardActive Information in any manner. Notwithstanding the above, Customer will not disclose, divulge, distribute, publish, transmit, or transfer BoardActive’s Information to any third party or use BoardActive’s Information for any purpose whatsoever other than as expressly authorized by this Agreement. Customer’s obligations with respect to BoardActive’s Information deemed “trade secret” under applicable law shall remain in effect for as long as BoardActive’s Information remains a trade secret. Customer’s obligations with respect to BoardActive’s Information that is not deemed to be a trade secret shall remain in effect for a period of three (3) years following the later of (i) Customer’s receipt of BoardActive’s Information, or (ii) the termination of this Agreement.
6.1 U.S. Government Restricted Rights This Section only applies if Customer is an agency of the federal government of the United States. The following applies to all acquisition of the Software by or for the U.S. government or by any prime contractor or subcontractor under any contract, grant or other activity with the U.S. government. The Software and services utilizing such Software provided to Customer hereunder are “commercial items” as that term is defined at 48 C.F.R. 2.101 (October 1995) consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995) and other applicable acquisition regulations and are provided to the U.S. Government only as a commercial item. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202 (June 1995), all U.S. Government users and licensees acquire the Software and its associated documentation with only those rights and subject to the restrictions set forth in this Agreement. Notwithstanding the foregoing, the Software may not be acquired by the U.S. government pursuant to a contract incorporating clauses prescribed by FAR Subpart 27.4 (June 1987) or DFARS Subpart 227.4 (Oct. 1988). If this Agreement is inadequate to meet the government’s needs or is inconsistent in any respect with Federal law, the government should return the Software, unused, to BoardActive.
6.2 Injunctive Relief Customer acknowledges that remedies at law may be inadequate to provide BoardActive with full compensation in the event of Customer’s material breach of this Agreement, and that BoardActive shall therefore be entitled to seek injunctive relief in the event of any such material breach without the need to post bond or prove the inadequacy of monetary damages. Notwithstanding any provision to the contrary in any document, even if such document is identified as having priority to this one, BoardActive may immediately assert its right to injunctive relief within any jurisdiction and to any entity (without application of any choice of venue rules) it reasonably believes may have the ability grant the requested relief without any obligation to offer Customer an opportunity to cure.
6.3 Governing Law This Agreement shall be construed and governed in accordance with the laws of the State of Georgia of the United States of America, without regard to its rules regarding conflicts of law. Neither the Uniform Commercial Code, the Uniform Computer Information Transactions Act, nor the United Nations Convention on the International Sale of Goods shall apply to this Agreement. Customer agrees to submit to the personal and exclusive jurisdiction of the state and federal courts located within Fulton County within the State of Georgia.
6.4 International Restrictions Customer represents and warrants and covenants that it will not export the Software (i) to any individual located in any nation to which export, transshipment, or re-export is prohibited by U.S. law or regulation at that time (collectively, the "Restricted Nations"); (ii) to any business or organization owned, controlled by or acting on behalf of an individual, business or organization in a Restricted Nation; (iii) to the governments of a Restricted Nation or any business or organization owned, controlled by or acting on behalf of a government of a Restricted Nation; or (iv) to any individual, group or organization on the U.S. Department of Treasury's Office of Foreign Assets Control's list of Specially Designated Nationals or the U.S. Department of Commerce's Bureau of Export Administration's List of Denied Persons, as each may be amended from time to time. Customer represents and warrants that Customer and any organization Customer is acting on behalf of (a) is not an individual located in a Restricted Nation; (b) is not a business or organization owned, controlled by or acting on behalf of an individual, business or organization in a Restricted Nation; (c) is not a government of a Restricted Nation; (d) is not a business or organization owned, controlled by or acting on behalf of a government of a Restricted Nation; and (e) is not an individual, group or organization on the U.S. Department of Treasury's Office of Foreign Assets Control's list of Specially Designated Nationals or the U.S. Department of Commerce's Bureau of Export Administration's List of Denied Persons. If any laws or regulations require that the Software or Service, the data gained therefrom, or this Agreement be registered with or approved by a governmental entity, Customer shall comply with such requirements after prior written notice to BoardActive specifying the required registration or approval; provided, however, that no such registration shall claim an ownership interest in any of BoardActive’s property or technology. Such compliance shall be at Customer’s sole expense and solely for the benefit of BoardActive. BoardActive shall provide to Customer reasonable assistance in Customer’s compliance with the above requirements. Customer will defend, indemnify, and hold BoardActive, and BoardActive’s officers, directors, employees, shareholders, agents, suppliers, or representatives harmless from and against any and all damages and expenses, including legal fees, incurred directly or indirectly as a consequence of Customer’s failure to comply with this Section. This obligation shall survive termination of this Agreement.
6.5 Waiver / Severability The failure of BoardActive to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is for any reason held unenforceable or invalid then this Agreement shall be construed as if such provision were not contained in this Agreement.
6.6 Assignment Customer may not assign, sublicense, or transfer this Agreement without the prior written consent of BoardActive. Any attempt by Customer to sublicense, assign, or transfer any rights, duties, or obligations hereunder is null and void. Notwithstanding the forgoing, a valid assignment of the Ordering Document shall automatically constitute a valid assignment of this Agreement. BoardActive may assign, sublicense, or transfer this Agreement, in whole or in part, at will and without notice to Customer.
6.7 Entire Agreement Except as otherwise noted herein, this Agreement comprises the entire Agreement between Customer and BoardActive with respect to the subject covered, and supersedes any other agreement or discussion, oral or written, with respect to the subject matter of this Agreement.