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Daylighted, Inc., a Delaware corporattion (“Daylighted”) provides software as a software for the streaming of online content from a media player. Pursuant to the terms of this Customer Agreement (this “Agreement”), Daylighted is licensing the Software to the “Customer” on a monthly or annual basis in the form of a subscription.
This Customer Agreement is made and entered into, as of the “Effective Date”, date at which the payment for the subscription is made by the Customer and received by Daylighted, by and between Daylighted and the Customer.
"Products" shall include the hardware products ("Equipment" or "Media Player") and the software licensed by Daylighted for use with the Equipment ("Software").
"Content" means the audio and visual information, graphics, text, images, videos, music, software and documents made available in the course of using the Software, including any information uploaded by the Customer.
"Service" or "Subscription" shall include the plan and device plan chosen by the clients on the online form and paid for, monthly or annually.
"Customer" should designate the registered user on Daylighted.com, represented either by a corporate entity or by an individual and who is reachable
2. SOFTWARE LICENSE
2.1 Ownership and License. Daylighted grants Customer a limited, non-transferable, non-exclusive, non-assignable license to use the Software, as embedded in the Equipment, for Customer’s business purposes during the Term. Except as otherwise provided in this Agreement, Daylighted and if applicable, its licensors, retain all right, title and interest in and to the Service, Software and Documentation.
2.2 Limitations. Daylighted reserves all rights not expressly granted to Customer herein. Customer shall not (a) reverse engineer any of the Software; (b) de-compile, disassemble or otherwise obtain the source code corresponding to any of the Software not already provided in source code format; (c) modify, incorporate into other software, or create a derivative work of, any part of the Software; (d) copy the structure or organization of the Software in contravention of the U.S. Copyright Act or other applicable laws and/or regulations (e) rent, lease, lend, sell, resell, sublicense, transfer, assign, share, publish, distribute, commercially exploit or make available the Software in any manner whatsoever, to any other third party; (f) alter or remove any trademark, copyright or other proprietary notice of Daylighted contained within the Software; (g) use the Software for purposes of competitive analysis of the Software, the development of a competing software product or service or any other purpose that is to Daylighted’s commercial disadvantage; (h) build or create a competitive software product or service using similar ideas, features, functions or graphics of the Software or copy any such ideas, features, functions or graphics of the Software; (i) combine the Software or any part thereof with, or incorporate the Software or any part thereof, in any other software or programs; (j) use the Software in violation of any foreign, federal, state or local law, regulation or rule; or (k) make use of the Software in any manner not stipulated within this Agreement or the documentation accompanying the Software.
The Customer agrees not to use the Software to stream or show Content that is defamatory, obscene, indecent, violently graphic, or discriminatory against any class of persons. For purposes of this Agreement, "Content" means the audio and visual information, graphics, text, images, music, software and documents made available in the course of using the Software
3. SERVICE AND EQUIPMENT
3.1 Payment terms
Fees for the Software are set forth on the Daylighted website. The Customer is responsible for paying for all fees and agrees to pay Daylighted on the date any outstanding fees are due. The Customer can contact Daylighted at firstname.lastname@example.org to claim their payment history. Daylighted reserves the right to modify its fees and charges and introduce new charges at any time; however such fee changes will not apply during the current Agreement term. All fees are exclusive of any applicable federal or state sales or use taxes. The Customer is solely responsible for paying all such taxes and government charges. Customer’s failure to pay any outstanding balance within on the applicable due date will result in the immediate suspension of the Software and services and deactivation within twenty four (24) hours until such outstanding balance is paid in full. Nothing in this Agreement requires Daylighted to extend credit to the Customer.
The Customer agrees to provide Daylighted with a valid credit card and complete and accurate billing and contact information and hereby authorizes Daylighted to deduct monthly fees and other charges against such credit card through the Stripe service. This information includes the Customer’s legal company or individual name, street address, e-mail address, and name and telephone number of an authorized billing contact or credit card holder. The Customer agrees to update all such credit card and other billing and contact information within three (3) business days of any change to it. If Daylighted is unable for any reason to bill or process any credit card charges, Daylighted will take commercially reasonable efforts to contact you by email and notify you to provide another credit card to Daylighted; provided, however, that the Customer agrees that Daylighted may suspend the Customer’s account during such time until the Customer provides another credit card and charges are processed and paid in full. If any credit card, billing or contact information provided by any the Customer is false or fraudulent, Daylighted, in addition to any remedies available by law, reserves the right to immediately terminate your access to the Software
3.2 Payment renewal
If the Customer selected the annual payment option, this Agreement shall be automatically renewed on the anniversary of the effective date of this Agreement and on each anniversary thereafter for an additional term of one year (each, a "Renewal Term"), with each Renewal Term subject to termination as provided herein. If the Customer selected the monthly payment option, this Agreement shall be automatically renewed on the monthly anniversary of the effective date of this Agreement and on each month thereafter, with each month subject to termination as provided herein.
3.3 Equipment. The Equipment is part of the subscription as a rental agreement, rented to the Customer as part of the Service. The Equipment includes a media player as well as cables to connect to a display. When the order is received, Daylighted will ship a media player on which the service will be already installed. The media box requires a mouse to be run in order to set up the wifi credentials. The price doesn’t include any installation fee. The Customer is responsible for the installation. In case of loss, destruction, or dysfunction of the media player due to the Customer’s negligence or for any reasons other than technical issues, which will be reviewed by Daylighted technical team under the warranty conditions, Daylighted will charge the Customer a replacement fee of $99 for a new device + shipping and taxes
2.4 Service. Daylighted shall provide Customer with access to the Service during the Term at the price set forth in the Order Form, and Company may use the Service during the Term for Company’s internal business purposes and solely for display on the Equipment on Customer’s premises.
3.5 Support. Daylighted will provide Customer with reasonable email support from 8am-5pm PST Monday through Friday. Only the current version of the Software will be supported. Customer must install any new versions of the Software within thirty (30) days of receipt. Daylighted reserves the right to charge Customer for support issues that could have been resolved by reference to the Documentation or arise from Customer’s negligence, misuse of the Product or Service, and issues relating to third party equipment and software. Daylighted will provide Customer with any new versions of the Software that Daylighted in its sole discretion makes available to its other customers at no charge.
4. REPRESENTATIONS AND COVENANTS OF CUSTOMER
4.1 Artist Credit. The Customer agrees to always display artists credits through signage or mobile application along with the display of the representation of the artwork on the screen, through mobile app download, banner display on the screen, or a tablet device (to be ordered separately).
4.2 Collection and use of data. Daylighted may, directly or indirectly, through the services of others, collect and store information regarding use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used. You agree that Daylighted may use such information for any purpose related to any use of the Software by the Customer, including but not limited to, (i) improving the performance of the Software or developing upgrades; and (ii) verifying compliance with the terms of this Agreement and enforcing Daylighted’s rights, including all Intellectual Property Rights in and to the Software.
5.1 Equipment Warranty. Daylighted warrants that the Equipment will be free from material defects in material and workmanship, under normal use, given proper installation and maintenance, for the period of twelve (12) months from the date of original shipment.
5.2 Software Warranty. Daylighted warrants that the Software will perform in material conformance to Daylighted’s published specifications, at the time of purchase, for a period of ninety (90) days from the date of original shipment. Daylighted makes no warranty or representation that the Software will work in combination with any hardware or applications Software provided by third parties, that the operation of the Software will be uninterrupted or error free, or that all defects in the Software will be corrected.
5.3 Service Warranty. Daylighted warrants that the Service will perform in substantial conformance with the Documentation.
5.4 Non-Infringement. To the best of Daylighted’s knowledge, neither the Software Service nor any Deliverable will infringe, violate or misappropriate the Intellectual Property Rights of any party anywhere in the world. Furthermore, Daylighted is not aware of any pending or threatened claims, suits, actions, or charges pertaining to the Software Service or any Deliverable. Daylighted agrees that it will notify The Customer immediately if Daylighted becomes aware of any actual or potential claims, suits, actions, allegations or charges that could affect either party’s ability to fully perform its duties or to exercise its rights under the Agreement.
5.5 Warranty Exceptions. Daylighted makes no warranty of the Products and Service with respect to defective conditions or nonconformities resulting from any of the following: (i) repair, modification, alteration, installation or maintenance not performed by Daylighted; (ii) use or operation in an application, environment or manner not in accordance with Daylighted's or its vendors’ specifications or operating instructions; (iii) any unauthorized use of Software; or (iv) failure to maintain Software at Daylighted's current release level or within at least one (1) previous release level unless specified otherwise in Daylighted's documentation.
5.6 Warranty Disclaimer. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, DAYLIGHTED MAKES NO OTHER WARRANTIES REGARDING THE PRODUCTS OR SERVICES AND HEREBY DISCLAIMS ANY AND ALL SUCH OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE ALL HEREBY EXCLUDED
6.1 Indemnification by Daylighted. Daylighted will, at its expense and at Customer’s request, defend, indemnify and hold harmless Customer and its subsidiaries and affiliates, and their respective successors, officers, directors, employees, contractors and agents from and against any and all claims, actions, demands, liabilities, settlements, costs, damages and fees (including reasonable attorneys’ fees) resulting from any allegation that the Service or Software misappropriates, violates or infringes any third party’s intellectual property or proprietary right, to the extent such amounts are directly attributable to such allegations; provided that Customer (a) gives Daylighted prompt written notice of any such claim, (b) permits Daylighted to control and direct the defense or settlement of any such claim, and (c) provides Daylighted all reasonable assistance (at the expense of Daylighted) in connection with the defense or settlement of any such claim. Notwithstanding the foregoing, Daylighted shall have no obligations under this Section solely to the extent any infringement claim is based upon or arising out of (i) any modification or alteration to the Service or Software not approved by Daylighted, (ii) any combination or use of the Service or Software with products or services not supplied by Daylighted or approved in writing by Daylighted in advance of such combination, or (iii) use of the Service or Software not in accordance with the Documentation or outside the scope of the license granted under this Agreement.
6.2 Indemnification by Customer. Customer will, at its expense and at Dayighted’s request, defend, indemnify and hold harmless Daylighted and its subsidiaries and affiliates, and their respective successors, officers, directors, employees, contractors and agents from and against any and all claims, actions, demands, liabilities, settlements, costs, damages and fees (including reasonable attorneys’ fees) resulting from Customer’s use of the Products or Service other than as permitted by this Agreement or in the Documentation; provided that Daylighted (a) gives Customer prompt written notice of any such claim, (b) permits Customer to control and direct the defense or settlement of any such claim, and (c) provides Customer all reasonable assistance (at the expense of Customer) in connection with the defense or settlement of any such claim.
7. INTELLECTUAL PROPERTY
Daylighted alone owns all right, title and interest, including all related Intellectual Property Rights in and to Software. This Agreement is not a sale and does not convey to the Customer any rights of ownership in or related to the Software or the Intellectual Property Rights owned by Daylighted. The Daylighted name, logo, and the product names associated with the Software are trademarks of Daylighted or third parties, and no right or license is granted to the Consumer to use them. The Consumer agrees to use commercially reasonable efforts to safeguard the Software from infringement, misappropriation, theft, misuse or unauthorized access. For purposes of this Agreement, "Intellectual Property Rights" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
8. LIMITATION OF LIABILITY
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR LOST PROFITS, LOSS OF USE, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR ANY OTHER SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY. EXCEPT FOR CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL DAYLIGHTED'S RELATING TO THIS AGREEMENT EXCEED THE AMOUNT PAID TO DAYLIGHTED BY CUSTOMER FOR THE EQUIPMENT, SOFTWARE, OR SERVICES GIVING RISE TO SUCH LIABILITY. THESE LIMITATIONS SHALL APPLY WHETHER OR NOT DAYLIGHTED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
9.1 Term. This Agreement is effective as of the Effective Date and continues until all subscriptions have been terminated, unless terminated earlier in accordance with this Section. Each subscription commences on the Effective Date and continues for the Term specified therein.
9.2 Termination for Cause. Either party may terminate this Agreement if the other party fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach.
9.3 Termination for Convenience. Customer may terminate this Agreement at any time by giving Daylighted at least thirty (30) days’ written notice; provided that (i) Daylighted shall not be required to refund any fees previously paid by Customer, and (ii) Customer shall be responsible for any unpaid fees due Company prior to the date of the termination notice.
9.4 Termination obligations. In any case of termination from either party, the Customer will have to return the equipment in the thirty (30) days following the termination date. In case the equipment is not received by the Daylighted team upon the thirty days after termination, the Customer will be charged as if the equipment was lost, which occurs a $99 automatic charge.
9.5 Survival. All terms of this Agreement, including Exhibits, addenda and amendments hereto, which by their nature are intended to survive any termination or expiration of this Agreement, shall so survive.
10. PROMOTIONAL USE OF LIKENESS AND BRAND
10.1 Promotion. The Customer grants to Daylighted the right to use the Customer’s brand, name, logo, and photographs related to Daylighted service, equipment, and exhibition for promotional purposes. The Customer waives any and all rights to bring any and all claims related to such use, including for defamation, disparagement, or infringement.
11.1 Entire Agreement and Amendments. This Agreement and the orders accepted by Daylighted hereunder constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior agreements between the parties whether written or oral relating to the same subject matter. No modification, amendments or supplements to this Agreement shall be effective for any purpose unless in a writing signed by duly authorized representatives of each party.
11.2 Assignments. Customer shall not transfer or assign its rights under the Agreement or delegate the performance of its obligations hereunder, without the express written consent of Daylighted.
11.3 Equitable Relief. Customer acknowledges that any breach of its obligations under this Agreement with respect to the proprietary rights or confidential information of Daylighted will cause Daylighted irreparable injury for which there are inadequate remedies at law, and therefore Daylighted will be entitled to equitable relief in addition to all other remedies provided by this Agreement or available at law.
11.4 Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of California and the United States, excluding conflict of laws provisions. Any suit hereunder will be brought in the federal or state courts with jurisdiction to hear such suits located in San Francisco, California.
11.5 Attorneys’ Fees. If an action is commenced to enforce or interpret any of the terms of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees and expenses, in addition to any other relief to which the prevailing party may be entitled.
11.6 Force Majeure. Either party’s performance of any part of this Agreement will be excused to the extent that it is unable to perform due to natural disasters, terrorism, riots, insurrection, war, extraordinary governmental action, material labor strikes (excluding strikes by the party’s own workforce), or any other cause which is beyond the reasonable control of such party (the “Affected Party”), not avoidable by reasonable due diligence, and provided that such cause is not attributable to the Affected Party (a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the Affected Party will promptly notify the other party of the Force Majeure Event, including an estimate of its expected duration and probable impact on the performance of the Affected Party’s obligations under this Agreement. In addition, the Affected Party will (i) exercise commercially reasonable efforts to mitigate damages to the other party and to overcome the Force Majeure Event and (ii) continue to perform its obligations under this Agreement to the extent it is able. If any failure or delay caused by a Force Majeure Event continues for ten (10) days or longer, the party unaffected by such event will have the right to terminate this Agreement without cost or liability upon notice to the Affected Party and to receive a refund of all pre-paid fees for any performance not yet delivered.