Terms of Sale and Service Agreement

Our Terms of Service outlines how we deliver our services and what you can expect.

AGREEMENT: These Terms of Sale, Service and Use (the/these TOS) are entered into by and between Screenly, Inc., a Delaware corporation formed under the laws of the United States, (“Screenly”) and you (Customer/Licensee/User) for any and all products and services arising out of or reasonably related to the product and service of Screenly known as Screenly (“Screenly”). Unless otherwise indicated in a writing signed by Screenly, all provisions of these TOS are incorporated expressly and by reference into any other agreement as between you and Screenly (including but not necessarily limited to a written, click-wrap, click and accept, or electronic agreement) with regard to the purchase and/or license of Screenly through any applicable Purchase Order and/or download or other transfer of any kind. Except where specifically designated otherwise, all provisions in these TOS shall be applicable to your purchase, use and/or receipt of service of, from and related to either Screenly OSE and/or Screenly Pro (as defined hereunder).

1. DEFINITIONS

1.1 Screenly: is the product and/or service provided and developed by Screenly as embodied by any and all software, hardware, content and code associated with its creation, maintenance and existence, past, present and continuous and without limitation shall include the Screenly Software, Service, System and Website wherever they exist. Subject to changes in the development process, the following elements are features and items comprising and related to the product and service that is Screenly:

I. Raspberry Pi® is the Linux-based device platform for which Screenly has been developed and on which it is exclusively intended to operate. More information on Raspberry Pi® may be found here. Screenly is not affiliated with Raspberry Pi in any fashion. Raspberry Pi is a registered trademark of the Raspberry Pi Foundation.

II. Asset: is any content of any kind including any image, url, code, video file, audio file, or any other material which is or can be, consistent with these TOS, uploaded by any Customer or agent/allowed party of the same, to Screenly and/or any node which is interfaced with Screenly directly or indirectly.

III. Node: is any Raspberry Pi or any other operating device, any screen connected to or interfaced with Screenly and/or a Raspberry Pi or any other end source receiving and/or displaying any asset through Screenly.

IV. Content, including any asset, is any material, existing on or in Screenly or any node or related device, in any fashion, from any origin and in any form whether digital, electronic, posted, deleted, archived, embedded, linked or contained in any subpage or existing as data, designs, text, images, graphics or code whether object, source or otherwise, and without limitation may generally be considered any material which we have provided on or as part of Screenly or any other product of Screenly, or which you have provided, posted or uploaded to the same. Where specifically referenced, Third Party Content shall be considered any of the same as described immediately above.

V. Playlist: means any collection of assets

VI. Screenly OSE: is the open source, free to use edition of Screenly which is unsupported by Screenly

VII. Screenly Pro: is the commercial edition of Screenly that is fully supported by Screenly

1.3 Screenly.io is Screenly’s suite of online service links and directory to products and information provided by Screenly and its partners and subsidiaries, located at http://www.screenly.io.

1.4 Screenly.io is Screenly’s suite of online services, products and information embodied by Screenly, located at http://www.screenly.io and providing Customer with all primary services, products and information contemplated under these TOS and/or allowing access to the same.

1.5 Product is any good that is the subject of the TOS either directly or by reference alone, including but not limited to Screenly and any and all other goods developed and/or provided by Screenly.

1.6 Service is any provision of any action or activity to Customer by Screenly or provided to or by any third party as referenced in the TOS, including any maintenance, technical support or any other actions performed or to be performed by Screenly in relation to one of Screenly’s Products or other Services.

1.7 Documentation is any and all user manuals, training materials, product instructions, descriptions or specifications, technical information, license agreements, supporting materials and/or other information relating to Products or Services offered or provided by Screenly, whether distributed in print, electronically or digitally.

1.8 Purchase Order is an order issued either electronically by click-through or in hardcopy or otherwise by You to Screenly for Products or Services to be purchased, licensed or provided under the TOS or any other applicable terms as referenced herein.

1.9 Software is the machine readable (object code) version of the computer programs, products or services listed from time to time as available directly for purchase and/or license by Screenly through purchase, license or otherwise including firmware, and any copies made, bug fixes for, updates to, or upgrades thereof.

1.10 Allowed Parties is any person, entity or party which Customer allows, whether directly or indirectly, or with authorization or without, to use, access, view, transfer, license, sublicense, or otherwise conduct any activity with or related to Screenly in any fashion, irrespective of whether or not such allowance is otherwise consistent with these TOS.

1.11 Effective Date is the date the TOS are electronically accepted, click-accepted or in the absence of any of the foregoing, the TOS shall be effective from the date Customer places a Purchase Order.

1.12 Territory is the World

2. SCOPE

2.1 The TOS set forth the terms and conditions for Customer’s purchase and utilization of Screenly. The rights and obligations set forth herein are solely for application in the Territory and solely for i) Customer’s personal or business use. Customer may make Screenly available for use by other end users and/or other third parties but in all cases additional parties using Screenly shall be subject to the terms and conditions set forth herein and in no case shall Customer transfer or assign its own rights or obligations under the TOS absent express written permission from Screenly. Customer is solely responsible for any actions or activities by allowed parties.

TERMS FOR SCREENLY PRO

If you are a party purchasing or otherwise making authorized use of Screenly Pro the terms in this section apply to you in addition to any other terms in these TOS which may be applicable (unauthorized use shall still subject you to all limiting/restricting or responsibility creating terms contained herein but shall entitle you to no rights discussed).

3. PRICES

3.1 Prices for Screenly shall be those specified in Screenly’s then current listing as set-forth upon or within Screenly.io and/or Screenlyapp.com, less any applicable discount at the time of acceptance of the Purchase Order or in accordance with an applicable, valid written price quotation, if any, submitted by Screenly to Customer for such Products or Services.

3.2 All prices are exclusive of any freight, handling and shipping insurance charges, taxes, fees and duties or other similar amounts, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or the TOS otherwise. Customer shall pay any taxes related to Products and Services provided pursuant to the TOS (except for taxes based on Screenly’s revenue income) or shall present an exemption certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on any invoice. Notification concerning tax responsibility is made for the sole purpose of information Customer that Screenly is not responsible for Customer’s proper reporting and/or monitoring in this regard and that in no event does Screenly make any representation or issue any advice to Customer regarding Customer’s specific tax situation or tax laws generally.

4. ORDERS

4.1 Customer shall purchase and/or license Screenly, by placing an online order and/or issuing a Purchase Order, signed, if requested by Screenly, or (in the case of electronic transmission) sent by it or its authorized representative, indicating its identity. No contingency contained on any electronically placed order or any Purchase Order shall be binding upon Screenly. The terms of the TOS shall apply, regardless of any additional or conflicting terms on any Purchase Order or other correspondence or documentation submitted by Customer to Screenly, and any such additional or conflicting terms to the TOS are deemed rejected by Screenly unless Screenly otherwise grants express written approval.

4.2 Customer’s payment shall be confirmed through the standard acknowledgment process as provided by whichever third party payment processing service Screenly elects to employ; currently Stripe®. Screenly is currently accepting payment for purchase of a Screenly Pro License via credit card. Screenly is not responsible for confirming acknowledgement of payment.

4.3 When visiting the order-page for Screenly Pro on the Screenly website, Customer shall have the option upon submission of payment information to download a trial version of Screenly (excluding hardware package purchases). The trial version of Screenly is free, but access to it shall still require payment information submission as upon the expiration of the trial version, Customer shall be automatically charged for the full version of Screenly Pro and issued a license. At any point during the trial period, Customer may cancel its remaining trial and will not be charged at the expiration of the trial period. The free trial period for Screenly Pro is 14 days. The free trial version of Screenly Pro is intended to and shall only be compatible with connection to a single node.

4.4 The hardware players in Screenly Pro hardware packages are leased from Screenly. After twelve (12) months of active subscription (at the same or higher subscription level), the customer may keep these units free of charge.

5. UPLOADS

Screenly cannot guarantee that any and/or all assets of Customer will be uploaded to and/or be compatible with Screenly successfully or completely nor can Screenly guarantee that such assets will always be displayed in a playlist as desired or appear and/or be transmitted as desired on or to any given node or other intermediary or end source.

Screenly is not intended for use with any asset which is entirely unique and original as an asset/content within Screenly and of which no other copy or duplicate file exists because assets uploaded to Screenly may be altered or impacted during the upload and/or display process and may also be erased by Screenly for non-payment of service fees or other violations of these TOS.

6. PAYMENT

6.1 Upon and subject to credit approval by Screenly wherever applicable, payment shall be processed upon the connection/interfacing of Customer’s first node with Screenly. Prior to connecting a node with Screenly, Customer may upload assets but they shall not be displayable until such time as Customer connects a node and payment processing commences. All payments shall be made in the currency of the price listing for Screenly as posted upon the page(s) of Screenlyapp.com and/or screenly.io, as accessed by Customer, or in one of the local currencies made available by Screenly, subject to Customer and Screenly entering into a local currency agreement.

6.2 If at any point Customer’s payment is not processed or is otherwise rejected, and the upload/support/display of Customer’s assets has already commenced or been completed, Screenly reserves the right to immediately cease display and to discontinue any applicable support of Customer’s assets until such time that Customer remedies payment outstanding. In such an event Screenly shall treat Customer as in breach of the TOS and shall in any event reserve the right without prior notice to Customer, to cease support and display permanently by erasing Customer’s assets from Screenly and terminating Customer’s allowance for using or accessing Screenly in any fashion. In any event where Screenly has been provided to Customer to any extent where payment is due but is not satisfied, any sum not paid by Customer when due shall bear interest from the due date to the date of payment, such interest shall run day to day and after as well as before any judgment at a rate of i) ten per cent per annum or ii) the maximum rate permitted by applicable law, whichever is less.

7. GENERAL PROPRIETARY RIGHTS, LICENSE AND USE FOR CONTENT AND SOFTWARE

7.1 Subject to the terms contained in the TOS, Screenly grants to Customer a non-exclusive, non-transferable license to use and otherwise utilize Screenly for Customer’s personal or business use during the term and within the scope of the TOS solely as permitted by Section 2.0 (Scope) this Section 7.0 and otherwise as described and limited herein. Customer may not assign or sublicense, to any person or entity, or third party any rights or obligations set forth herein; any third party using Screenly through Customer’s making it available shall become subject to all provisions set forth in the TOS.

7.2 Any content which you submit, post to or otherwise transmit or make available to Screenly and/or to or through Screenly generally shall result in you granting to us a non-exclusive, non-transferrable, royalty-free, perpetual, worldwide license for the use of such content for our own internal purposes including but not limited to metric or analytic undertakings consistent with our Privacy Policy, and the use of such content by us for purposes which without limitation may include or be similar to training, reference, analysis or comparison. YOU AGREE, REPRESENT AND WARRANT THAT NO CONTENT WHICH YOU SUBMIT, POST TO OR OTHERWISE TRANSMIT OR MAKE AVAILABLE TO OR THROUGH SCREENLY OR SCREENLY GENERALLY SHALL BE, OR SHALL BE VIEWABLE AS INFRINGING UPON THE RIGHTS OF SCREENLY OR OF ANY THIRD PARTIES INCLUDING ANY VIOLATION OF ANY COPYRIGHT, TRADEMARK, PATENT, TRADE SECRET, MORAL RIGHT WHERE APPLICABLE, RIGHT OF PUBLICITY, RIGHT OF PRIVACY, RIGHT CLAIMABLE UNDER ANY INTERNATIONAL TREATY OR CONVENTION, LIBELOUS, DEFAMATORY, FRAUDULENT, THREATENING, ILLEGAL, OR OTHERWISE INCONSISTENT WITH ANY RIGHTS HELD BY YOU, SCREENLY, OR ANY THIRD PARTY IN ACCORDANCE WITH ANY APPLICABLE LAW, EITHER FOREIGN OR DOMESTIC. If any content transmitted or provided by you violates these restrictions or any other provision of these TOS, you shall be viewed as being in violation of these TOS and may be subject to immediate suspension or termination of your privileges of use of Screenly or any service or product of Screenly generally, as well as the indemnification and defense of Screenly as detailed hereunder.

You also understand and agree that any content existing in any part of a Screenly system or service, including any aspect of Screenly and/or posted/provided/submitted/uploaded by you may (but not necessarily will) be subject to the review of Screenly personnel or independently contracted parties (without any obligation on the part of Screenly to do so) and that such content may be required to be transmitted through various systems and/or presented in a slightly altered or otherwise not original state in order to be compatible with our Site, Service, System and Software. Screenly makes no assurance of content/asset review or standards of any kind and accepts no responsibility for doing so, but where any asset is provided by you to Screenly, Screenly may remove/erase such asset(s) without prior notice to you if such asset(s) violate these TOS.

8. LIMITED WARRANTY

8.1 IF UPON PURCHASE BY CUSTOMER SCREENLY PRO IS NOT WORKING IN ACCORDANCE WITH THE SPECIFICATIONS PROVIDED IN THIS TERMS OF SERVICE AND SALE OR AS SET FORTH IN OUR FAQ, OR IS NOT RECEIVED UPON PURCHASE, CUSTOMER MAY NOTIFY SCREENLY WITHIN 30 DAYS OF DISCOVERING SUCH ISSUE AND SCREENLY WILL MAKE ALL REASONABLE ATTEMPTS TO REMEDY ANY MALFUNCTION.

SCREENLY MAKES NO OTHER WARRANTIES OR REPRESENTATIONS ABOUT THE USABILITY, PERFORMANCE, FUNCTIONALITY, SAFETY OR COMMERCIAL, TECHNICAL OR PERSONAL VIABILITY OF SCREENLY. CUSTOMER SHALL NOT MAKE ANY WARRANTY COMMITMENT, WHETHER WRITTEN OR ORAL, ON SCREENLY’S BEHALF. CUSTOMER SHALL INDEMNIFY SCREENLY AGAINST ANY WARRANTIES MADE IN ADDITION TO SCREENLY’S STANDARD WARRANTY STATEMENTS AS PROVIDED IN THIS SECTION 8.0 OR ANY MISREPRESENTATION OF SCREENLY’S REPUTATION OR OF SCREENLY’S PRODUCTS AND SERVICES.

8.2 SERVICES DESCRIBED HEREIN SHALL BE PERFORMED CONSISTENT WITH INDUSTRY STANDARDS. CUSTOMER MUST NOTIFY SCREENLY PROMPTLY, BUT IN NO EVENT MORE THAN THIRTY (30) DAYS AFTER COMMENCEMENT OF THE SERVICES, OF ANY CLAIMED BREACH OF THIS WARRANTY. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THIS WARRANTY SHALL BE, AT SCREENLY’S OPTION, RE-PERFORMANCE OF THE SERVICES, OR TERMINATION OF THE TOS OR THE APPLICABLE SERVICE AND RETURN OF THE PORTION OF THE SERVICE FEES PAID TO SCREENLY BY CUSTOMER FOR SUCH NON-CONFORMING SERVICES.

8.3 THE LIMITED WARRANTIES REFERENCED IN THIS SECTION 8.0 DO NOT APPLY IF SCREENLY A) HAS BEEN ALTERED OR CHANGED IN ANY FASHION (INCLUDING ANY MODIFICATIONS TO ITS OPERATING SYSTEM OR COMPATIBILITY PARAMETERS), EXCEPT AS BY SCREENLY, B) HAS NOT BEEN INSTALLED, OPERATED, REPAIRED, USED OR MAINTAINED IN ACCORDANCE WITH INSTRUCTIONS MADE AVAILABLE BY SCREENLY EITHER IN THE TOS OR OTHERWISE, C) HAS BEEN SUBJECTED TO ABNORMAL OR UNUSUAL PHYSICAL OR ELECTRICAL STRESS OR ENVIRONMENTAL CONDITIONS, MISUSED, OR NEGLIGENTLY HANDLED OR OPERATED; D) IS ACQUIRED BY CUSTOMER FOR BETA, EVALUATION, TESTING, DEMONSTRATION PURPOSES OR OTHER CIRCUMSTANCES FOR WHICH SCREENLY DOES NOT RECEIVE A PAYMENT OF A PURCHASE PRICE OR LICENSE FEE.

8.4 EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8.0, SCREENLY HEREBY DISCLAIMS AND CUSTOMER WAIVES ALL REPRESENTATIONS, WARRANTIES, CONDITIONS OR OTHER TERMS (WHETHER EXPRESS, IMPLIED, OR STATUTORY), INCLUDING, WITHOUT LIMITATION, ANY WARRANTY, CONDITION, OR TERM a) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, REASONABLE CARE AND SKILL, NON-INFRINGEMENT, SATISFACTORY QUALITY, ACCURACY, OR SYSTEM INTEGRATION, OR b) ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN THE INDUSTRY. TO THE EXTENT PERMITTED BY LAW, IF A WARRANTY, CONDITION, OR TERM CANNOT BE DISCLAIMED, SUCH WARRANTY, CONDITION, OR TERM SHALL BE LIMITED IN DURATION TO THE APPLICABLE EXPRESS WARRANTY PERIOD.

9. CONFIDENTIAL INFORMATION

All terms, conditions, provisions and otherwise, provided in Screenly’s Privacy Policy, which may be found at Screenly.io are hereby incorporated expressly and by reference into this Section 9.0 “Confidential Information.”

9.1 “Confidential Information” to be disclosed by Customer under these TOS may be information regarding Customer’s network operations, technical plans, marketing, financial and personal data. Further, “Confidential Information” to be disclosed may be information regarding Screenly’s products and services, technical, financial and marketing data, information relating to future product and service development, and information which may be posted from time to time on Screenly.io and/or Screenlyapp.com. Except to the extent applicable under the Screenly and Screenly Privacy Policy, content uploaded to Screenly for use with Screenly, otherwise interfaced with Screenly by Customer and otherwise considerable as an asset, shall not be considered “Confidential Information” unless specifically designated as such in a writing signed by Screenly.

9.2 The receiving party (“Receiving Party”) of any Confidential Information may use the Confidential Information solely for the purpose of furtherance of the business relationship between the parties (if applicable), as provided in the TOS and the Privacy Policy, and shall not disclose the Confidential Information to any third party, other than to employees of the Receiving Party who have a need to have access to and knowledge of the Confidential Information, solely for the purpose(s) authorized above, unless written or electronic permission is granted by the Disclosing Party to the Receiving Party as provided in the TOS and the Privacy Policy. Notwithstanding the foregoing, when Screenly is the Receiving Party, it may disclose Confidential Information to any employee or contractor of Screenly or Screenly’s directly and indirectly wholly owned subsidiaries having a need within his or her authorized scope of employment to have access to or knowledge of the Confidential Information. Each party shall take appropriate measures by instruction and agreement prior to disclosure to such employees to assure against unauthorized use or disclosure.

9.3 The Receiving Party shall have no obligation with respect to information that i) was rightfully in possession of the Receiving Party without any obligation of confidentiality prior to receiving it from the Disclosing Party; ii) is, or subsequently becomes, legally and publicly available without breach of the TOS; iii) is rightfully obtained by the Receiving Party from a source other than the Disclosing Party without any obligation of confidentiality; iv) is developed by or for the Receiving Party without use of the Confidential Information and such independent development can be shown by documentary evidence; or v) is disclosed by the Receiving Party pursuant to and in accordance with a valid order issued by a court or government agency, provided that the Receiving Party provides a) prior written notice to the Disclosing Party of such order and b) the Disclosing Party prior opportunity to oppose or restrict such disclosure. Upon written demand by the Disclosing Party, the Receiving Party shall: i) cease using the Confidential Information, ii) return the Confidential Information and all copies, notes or extracts thereof to the Disclosing Party within seven (7) days of receipt of demand except where transfer and/or storage capabilities mandate a different time frame, and iii) upon request of the Disclosing Party, certify in writing that the Receiving Party has complied with the obligations set forth in this paragraph.

9.4 Each party shall retain all right, title and interest to such party’s Confidential Information. No license to any intellectual property (or application for intellectual property protection) is either granted or implied by the conveying of Confidential Information. The Receiving Party shall not reverse-engineer, decompile, or disassemble any software, methods, systems, devices, apparatuses or other utility elements disclosed to it and shall not remove, overprint or deface any notice of copyright or confidentiality, trademark, trade-secret, logo, legend, or other notices of ownership from any originals or copies of Confidential Information it obtains from the Disclosing Party or from any copies the Disclosing Party is authorized to make.

9.5 Neither party shall disclose, advertise, or publish either the existence, the subject matter, any discussions relating to, or any of the terms and conditions, of the TOS (or any summary of any of the foregoing) to any third party without the prior written consent of the other party. Any press release, publication, advertisement or public disclosure regarding these TOS is subject to both the prior review and the written approval of both parties.

10. TERM AND TERMINATION

10.1 The TOS shall commence on the Effective Date and continue thereafter for a period of one year, unless sooner terminated, as set forth below. The TOS shall be automatically renewed thereafter, for successive one (1) year periods, unless at least forty-five (45) days prior to the date of any such renewal, either party shall have given written notice to the other of its intention that the TOS not be renewed. The TOS shall automatically terminate at the end of the annual period during which such notice is given. Upon termination of the TOS or in any other instance where Customer does not agree to abide by the TOS, Customer shall cease to have any permission to use Screenly and Screenly shall no longer store, transmit or display to the benefit or use of Customer, any Customer data, content or assets otherwise except that Screenly may continue to store Customer data as required and allowed for Screenly’s own internal use as detailed by the TOS and Privacy Policy. Upon termination the obligation to return and/or discontinue storage or use of Customer date shall not extend to data held or stored by any third parties and Screenly shall bear no responsibility of any kind from such use/storage as may arise.

10.2 In no event shall termination actively occur during a period which the requirements of termination would disrupt Screenly’s secure transfer and storage of data and/or its provision of services to Customers under the TOS; in such an event, where termination is requested and/or mandated, it shall be instituted at the earliest reasonable convenience following such period where transfer, storage and/or service might otherwise be compromised.

10.3 Either party may terminate these TOS at any time by providing the other party with at least forty-five (45) days’ prior written notice of termination, but so long as Customer is using or otherwise accessing Screenly or allowing the same, Customer shall be subject to these TOS and they shall endure. Early termination does not void contractual payment obligations.

10.4 A party may terminate these TOS immediately by written notice if i) the other party ceases or threatens to cease to carry on business as a going concern; or ii) the other party becomes or is reasonably likely to become subject to voluntary or involuntary proceedings in bankruptcy or liquidation; or iii) a receiver or similar officer is appointed with respect to the whole or a substantial part of the other party’s assets; or iv) an event similar to any of the foregoing occurs under any applicable law.

10.5 If a party breaches any of the provisions of these TOS, the non-breaching party may terminate these TOS as follows: a) immediately upon providing written notice to the breaching party if the breach is not capable of being cured, and b) thirty (30) days after providing written notice to the breaching party if the breaching party fails to cure such breach within such thirty (30) day period.

10.6 In addition to the aforementioned, Screenly may terminate the TOS immediately upon written notice in the event that Customer is in breach of any portion of this agreement.

10.7 Upon termination or expiration of the TOS, a) Screenly reserves the right to cease all further delivery/execution/transfer of Product or Services, b) all outstanding invoices immediately become due and payable by electronic transfer or certified or cashier’s check, and c) all rights and licenses of Customer under the TOS shall terminate. If Screenly agrees to complete delivery/execution/transfer of any further Products or Services due against any existing Purchase Orders then Customer shall pay for such Products or Services in advance by electronic transfer or certified or cashier’s check.

10.8 In the event of termination of the TOS for any reason, Customer shall have no rights to damages or indemnification of any nature related to such termination (but not limiting any claim for damages it might have on account of Screenly’s breach of the TOS, even if the breach gave rise to termination, such liability being governed by and subject to the limitations set forth elsewhere in these TOS), specifically including no rights to damages or indemnification for other commitments in connection with the business and good will of Customer or indemnities for any termination of or impact upon a business relationship. Screenly has no notice of any contractual or business relationship of Customer as any result of or related to Screenly unless expressly indicating in a writing signed by Screenly, and has no notice or ability to predict damages of any kind which might arise from the same.

10.9 In the event that, following the expiration or termination of the TOS, Customer places Purchase Orders and Screenly accepts such Purchase Orders, then any such Purchase Orders shall be governed by the TOS notwithstanding the earlier expiration or termination of the TOS.

11. COMPLIANCE WITH LAWS

11.1 In connection with the sale or distribution of Screenly and/or any Screenly Products or Services, or otherwise in carrying out its obligations under this Agreement, Customer represents and warrants the following:

a) Customer shall obtain all licenses, permits and approvals required by any government or applicable authority, including any restrictions upon data disclosure or transfer or intellectual property contained in such data, and Customer shall indemnify, defend and otherwise hold harmless Screenly for any claims brought against Customer or Screenly arising out of or related to Customer’s breach of Customer’s representations and warranties provided herein or any damages, judgments, fees (including reasonable Attorney’s Fees) incurred by Screenly for the same.

b) In no event shall Screenly be obligated under this Agreement to take any action or omit to take any action that Screenly believes, in good faith, would cause it to be in violation of any laws identified or otherwise contemplated in this Agreement or otherwise as may apply.

c) No person working for or on behalf of Screenly (“Screenly Personnel”) has i) any ownership interest or other right or interest in the profits and/or revenues of Customer, or ii) has or will receive any payment or other benefit as a result of any transaction under this Agreement. Customer shall promptly report to Screenly any proposed transaction or dealing with Screenly Personnel that may violate this section.

d) Customer, its owner(s), principals, directors and officers have not been formally charged with, convicted of, or plead guilty to, any offense involving fraud or corruption.

e) Customer, its owner(s), principals, directors and officers have not been listed by any government or public agency (such as the United Nations or World Bank) as debarred, suspended, or proposed for suspension or debarment or otherwise ineligible for government procurement programs or placed upon any watch list or hailing from any region which would restrict Customer’s ability to legally (under the laws of the United States) use Screenly and/or to abide by these TOS.

f) Notwithstanding any other provision in this Agreement, Screenly may suspend performance or terminate this Agreement immediately upon written notice if Customer breaches any of the representations and warranties set forth in this section. Customer will indemnify, defend and otherwise hold harmless Screenly for any violation by Customer of any provision of this Section.

12. LIMITATION OF LIABILITY

12.1 Subject to the following paragraph, and notwithstanding anything else in the TOS to the contrary, all liability of Screenly, its affiliates, officers, directors, employees, agents and suppliers collectively for claims under the TOS or otherwise howsoever arising (including, without limitation, in contract, tort (including negligence) and/or under any indemnity) shall be limited separately for Products and Services purchased and/or otherwise used, uploaded, downloaded or accessed in any fashion to the money paid to Screenly for such Products and/or Services, separately and as applicable, under the TOS and only in the amount of such transactions during the twelve (12) month period preceding the event or circumstances first giving rise to such liability. This limit of liability for Products and Services is cumulative and not per-incident (i.e., the existence of two or more claims will not enlarge this limit). Where no transaction has occurred due to the lack of any purchase (such as use of Screenly OSE), then liability shall be strictly limited to $100 cumulatively for the life of the use and or accessing of the concerned product(s) as described in this, Section 12.1.

12.2 Nothing in these TOS shall limit the liability of Screenly, its affiliates, officers, directors, employees, agents and suppliers to Customer for Screenly’s liability arising from fraudulent misrepresentation, or any liability of Screenly which cannot be excluded under applicable law.

13. WAIVER OF CONSEQUENTIAL AND OTHER DAMAGES

Subject to the exceptions enumerated below in this paragraph, and notwithstanding anything else in the TOS to the contrary, in no event shall Screenly, its respective affiliates, officers, directors, employees, agents or suppliers be liable for any special, incidental, indirect or consequential damages, or lost revenue, lost profits, or lost or damaged data, loss of use, loss of goodwill, loss of anticipated savings, wasted expenditure (other than any expenditure necessarily incurred in order to discharge the innocent party’s duty to mitigate) whether arising in contract, tort (including negligence), or otherwise, even if such party has been informed of the possibility thereof. The foregoing waiver shall not apply to any liability arising out of i) fraudulent misrepresentation, ii) any terms which cannot be excluded under applicable law, iii) amounts due for Products and Services purchased/used/transferred with respect to the payment for which no bona fide dispute exists (refunds).

14. OPERATIONAL LIMITATIONS

I. Screenly is only intended for use on the Raspberry Pi.

II. Screenly requires an internet connection using Ethernet or WiFi with a supported network interface card.

III. Screenly requires an screen with 1080p HD resolution.

TERMS FOR SCREENLY OSE

15. GENERAL APPLICABILITY

If you are downloading, using or otherwise accessing Screenly OSE, then the terms and conditions described above at SECTION ONE, SECTION TWO, SECTION FIVE, SECTION SEVEN, SECTION NINE, SECTION ELEVEN, SECTION TWELVE AND SECTION THIRTEEN still apply to you in full force unless and except some term of the same pertains only to specific rights of purchase/pricing and/or some other aspect of service support pertaining only to Screenly Pro. Notwithstanding the foregoing, all other terms hereunder still apply to you and should be reviewed thoroughly.

16. TERMINATION

You have no rights to terminate these TOS. If you give any indication of non-assent and/or non-compliance with these TOS either expressly, impliedly or by your actions or activities, any and all rights under these TOS afforded to you shall immediately cease and you shall no longer be allowed to use or access Screenly. It shall be the right of Screenly to terminate these TOS with respect to you , to the same effect, at any time without any reason.

17. NO WARRANTY

Screenly does not guarantee that our Site, Services and/or System or any aspect of Screenly will be error free or completely secure, or will operate in an uninterrupted manner, or that errors or defects will always be corrected. YOUR USE OF THE WEBSITE, THE SYSTEM, AND OUR SERVICES AND OF SCREENLY GENERALLY IS AT YOUR SOLE RISK. SCREENLY MAKES NO WARRANTY THAT OUR WEBSITE, SYSTEM OR SERVICES OR SCREENLY GENERALLY WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS. OUR SERVICES, SITE AND SYSTEM AND SCREENLY GENERALLY ARE PROVIDED TO YOU “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OR CONDITION OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT (INCLUDING, WITHOUT LIMITATION, PATENT, TRADEMARK OR COPYRIGHT INFRINGEMENT), AVAILABILITY, RELIABILITY, TIMELINESS, ACCURACY, SECURITY, COMPLETENESS, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT OR SYSTEM INTEGRATION, WHETHER ARISING BY LAW, EQUITY, CUSTOM OR CONDUCT. SCREENLY MAKES NO WARRANTY OF ANY KIND AS TO THE RESULTS THAT MAY BE OBTAINED FROM OUR SERVICES. FURTHERMORE, SCREENLY MAKES NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, REGARDING ANY OFFER SERVED/PRESENTED VIA OUR SERVICES OR ANY PRODUCTS, OR ANY SERVICES OR BENEFITS ORDERED OR OTHERWISE ACQUIRED THROUGH OUR COMPANY OR SYSTEM OR ANY TRANSACTIONS ENTERED INTO THROUGH OUR SERVICES/SYSTEM OR ANY OTHER PLACE WHERE SCREENLY MAY BE AVAILABLE AND/OR ACCESSIBLE. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED FROM OUR SITE, INCLUDING ANY CODE, OR THROUGH THE USE OF ANY OF OUR SERVICES, IS DONE AT YOUR SOLE RISK AND DISCRETION AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE CAUSED TO YOUR SYSTEM, YOUR SERVICES, YOUR ASSETS, YOUR NODES, YOUR BRAND/IMAGE/REPUTATION, YOURSELF OR THE LIKE AS A RESULT OF THIS DOWNLOAD OR YOUR USE OF OUR SERVICES AND/OR SYSTEM AND/OR SCREENLY OTHERWISE.

18. NO SUPPORT

Your use and/or accessing of Screenly OSE shall not be supported by Screenly in any fashion except to the extent that Screenly, at its sole discretion, may provide updates and/or changes to Screenly OSE from time to time and you are otherwise not afforded any rights of service or support from Screenly for Screenly OSE.

GENERAL TERMS

The terms and conditions discussed hereunder apply to all users and/or purchasers or licensees or accessing parties of Screenly OSE, Screenly Pro or any other version as may exist except where a single version is specifically referenced.

20. CHOICE OF LAW

The validity, interpretation, and performance of the TOS shall be controlled by and construed under the laws of the United States, in the jurisdiction of the City and County of San Francisco and the Northern District of California as if performed wholly within this territory and jurisdiction, and without giving effect to the principles of conflicts of law. The parties specifically disclaim the application of the UN Convention on Contracts for the International Sale of Goods. Notwithstanding the foregoing, either party may seek interim injunctive relief in any court of appropriate jurisdiction with respect to any alleged breach of such party’s intellectual property or proprietary rights.

21. FORCE MAJEURE

Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including, without limitation, acts of God, earthquakes, labor disputes, industry-wide shortages of supplies, actions of governmental entities, riots, war, terrorism, fire, epidemics, internet viruses, or delays of common carriers or other circumstances beyond its reasonable control. The obligations and rights of the defaulting party shall be extended for a period equal to the period during which such event prevented such party’s performance.

22. LOSS OF ASSETS

INCLUDED IN THE LIABILITY LIMITATIONS DISCUSSED AT SECTION 12 (TWELVE), SCREENLY SHALL NOT BE LIABLE OR RESPONSIBLE FOR LOSS OF OR DAMAGE TO ANY ASSETS DURING CUSTOMER’S USE OR ACCESSING OF SCREENLY OR AT ANY TIME BEFORE OR AFTER. SCREENLY MAKES EVERY EFFORT TO PROTECT AND PRESERVE THE ASSETS OF ITS CUSTOMERS AND WILL ABIDE BY ALL TERMS STATED IN THE PRIVACY POLICY BUT IN CERTAIN CASES CONNECTION ISSUES WITH SERVERS, STORAGE SOURCES, INTERMEDIATE TRANSMITTERS, NODES AND OTHER DEVICES, SOURCES OR DESTINATIONS NOT AFFILIATED WITH SCREENLY CAN CAUSE SOME ASSETS TO BE LOST AND OR DAMAGED OR OTHERWISE IMPACTED IN TRANSFER, UPLOAD AND/OR DISPLAY; THIS LOSS CAN BE UNAVOIDABLE AND SCREENLY DOES NOT BEAR RESPONSIBILITY FOR ANY LOSS SUCH AS THIS OR OF A SIMILAR NATURE.

23. REMOTE SERVICE BAN

Included in the liability limitations discussed at Section 12, Screenly shall not be liable or responsible for any ban upon or termination of service from any source/service/system not affiliated with Screenly as any result of Customer’s use of Screenly. Customer is strongly advised to review the use policies of Customer’s servers, service providers and any other system or service which Customer may utilize in using and/or accessing Screenly (including Raspberry Pi), prior to using Screenly.

24. NO WAIVER

The waiver by either party of any right provided under the TOS shall not constitute a subsequent or continuing waiver of such right or of any other right under these TOS. No waiver of any kind by Screenly is implied by these TOS and no waiver by Screenly shall be effective or construed unless such is made expressly.

25. ASSIGNMENT

Neither the TOS nor any rights or obligations under the TOS shall be assigned by Customer without the Screenly’s prior written consent. Any attempted unauthorized assignment shall be void and of no effect. Screenly may assign the TOS and any right or obligation under it without Customer’s approval, to any Affiliate or any party who becomes an owner of 51% or more of the business assets constituting either Screenly and/or Screenly. Notwithstanding any assignment by Customer, Customer shall remain liable for the payment of all amounts due under the TOS.

26. SEVERABILITY

In the event that part of or one or more terms of the TOS become or are declared to be illegal or otherwise unenforceable by any court of competent jurisdiction, each such part or term shall be null and void. All remaining terms of the TOS shall remain in full force and effect. Notwithstanding the foregoing, if this paragraph is invoked and, as a result, the value of the TOS is materially impaired for either party, as determined by such party in its sole discretion, then the affected party may terminate these TOS by written notice with immediate effect to the other.

27. REVISIONS

The TOS may be revised from time to time by Screenly without approval of or notice to Customer. Customer is hereby advised to that any continued use of Screenly upon a revision of the TOS shall constitute Customer’s acceptance of any revisions to the TOS. Customer is therefore advised to periodically review the TOS so that Customer may be well informed of any changes; Customer is particularly urged to review the TOS prior to each time Customer utilizes Screenly for a new asset upload/display or interfacing with a new node.

28. NO AGENCY

The TOS do not create any agency, partnership, joint venture, or franchise relationship. No employee of either party shall be or become, or shall be deemed to be or become, an employee or agent of the other party by virtue of the existence or implementation of these TOS. Neither party shall assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.

29. ENTIRE AGREEMENT

The TOS constitute the entire agreement between the parties concerning the subject matter of the TOS and replace any prior oral or written communications between the parties, all of which are excluded. There are no conditions, understandings, agreements, representations or warranties, expressed or implied, that are not specified herein.

END DOCUMENT