Tightrope Media Systems, Inc.
TIGHTROPE GENERAL SERVICES TERMS
These Tightrope General Services Terms (the “Services Terms”) state the terms and conditions under which Tightrope Media Systems, Inc. (“Tightrope”) provides Carousel Academy™ training, Carousel creative design services, account management, and other services to Carousel Cloud and Carousel 7 software products customers (collectively, the “Services”). Tightrope is a Minnesota corporation with its principal office in Minneapolis, Minnesota, U.S.A.
PLEASE READ THESE TERMS CAREFULLY BEFORE AGREEING TO OR ACCEPTING THE SERVICES.
Tightrope Services purchased from Distributors are subject to the pricing, payment, and taxes terms agreed upon with such Distributor, and such terms shall take precedence over these Services Terms.
Capitalized terms that are defined in these Services Terms, such as “Tightrope” or “Services,” have the specific definitions given to them whenever they are used in these Services Terms.
The Services are provided to Tightrope customers (the “Customer”) pursuant to the pricing and other terms stated in an invoice or order form issued by Tightrope or a Distributor. Services descriptions, pricing, and other information is available on the Carousel website. Services may also be provided pursuant to a statement of work. Tightrope and Distributor invoices, order forms, and statements of work are referred to collectively herein as a “Service Order.” To the extent a Service Order conflicts with these Services Terms, these Services Terms shall govern unless the Service Order expressly states otherwise.
Tightrope will provide Customer with the deliverables or work product as stated in the applicable Services description. Any data or deliverables to be provided by Customer to Tightrope in connection with the Services will also be stated in the Services description or will be communicated separately to Customer.
Changes or additions to a Service Order must be accepted by an authorized representative of Tightrope and Customer. Tightrope and Customer may enter multiple Service Orders subject to these Services Terms provided all such Service Orders are accepted by an authorized representative of both parties.
Tightrope reserves the right to change these Services Terms at any time in its sole business discretion. Any such changes shall not affect Service Orders entered prior to the effective date of such changes unless the Customer expressly agrees otherwise.
2. Fees and Payment Terms
(a) In General
Tightrope will provide the Services for the fees stated in the applicable Service Order. Unless stated otherwise in the Service Order, Tightrope will provide Customer with monthly invoices for the term the Services are provided. Invoices shall be due and payable within fifteen (15) days after receipt unless the Service Order provides otherwise. Customer will reimburse Tightrope for travel, administrative, and out-of-pocket expenses as provided by the Service Order. Tightrope will keep reasonably detailed records of any expenses for which it seeks reimbursement.
(b) Carousel Academy
Customers can purchase access to Carousel Academy online courses individually or in packages. Access is provided for a defined term and will expire upon conclusion of the term whether or not the courses have been viewed. All online course fees are payable in advance. Carousel Academy on-site training courses is also available for purchase on a case-by-case basis.
(c) Carousel Custom Channel Design
Customers can purchase one or more Carousel Custom Channel Design services packages. Fees for the Custom Channel Design packages vary based on the level of customization offered. Each package includes a maximum number of design revisions, after which no further customization will be allowed without additional fees. Full package descriptions are available on the Carousel website. A package is considered fulfilled after the final revision is made and the Carousel Custom Channels are electronically delivered to the Customer, or installed on the Customer’s Carousel 7 installation or Carousel Cloud account. All Custom Channel Design package fees are payable in advance.
All sales, use, value-added, excise, or other taxes that Tightrope is required to collect from Customer pursuant to applicable law will be in addition to all fees charged for the Services. Tightrope shall pay all federal, state, and local taxes that it is liable for based on the receipt of fees from Customer, including all applicable income taxes, self-employment taxes, estimated taxes, and sales and use taxes.
(e) Failure to Pay
If a Customer obtaining Services directly from Tightrope fails to make any payment when due, then:
(i) Tightrope may charge Customer interest on the past due amount at the rate of 1.5% per month or the highest rate permitted under applicable law, whichever is lower;
(ii) Customer shall reimburse Tightrope for all reasonable costs incurred in collecting any late payments or interest, including attorneys' fees, court costs and collection agency fees; and
(iii) Tightrope may suspend or terminate the Services upon notice to Customer.
If Customer purchases Service from a Distributor, the payment and remedy terms agreed upon with such Distributor shall control in the event Customer fails to make payment when due.
3. Proprietary Rights
Tightrope may create, make, and deliver documents, graphics, designs, software code, and related materials to Customer in providing Services pursuant to a Service Order (the “Work Product”). Tightrope hereby assigns all copyrights, trademark rights, and trade secret rights in and to Work Product to Customer provided such Work Product is expressly identified in a Service Order. Tightrope will execute and assist Customer in preparing any separate legal instruments or agreements that are necessary for Customer to obtain, register, perfect, or maintain any copyrights, trademarks or trade secret rights in Work Product. Customer will reimburse Tightrope at its standard hourly rates for all time Tightrope employees, agents, or consultants spend in providing such assistance. Customer will also reimburse Tightrope for all costs and expenses its employees, agents, and consultants necessarily incur in providing the assistance. Work Product constituting original works of authorship made by Tightrope, solely or with others, within the scope of Tightrope’s Services for Customer, shall be considered “works made for hire” to the fullest extent allowed by the U. S. Copyright Act (Title 17 U.S. Code).
Other than Work Product, Tightrope and its licensors shall retain or own all intellectual property rights worldwide to any and all new or pre-existing documents, graphics, designs, data, reports, analyses, videos, software code, development tools, technology, concepts, discoveries, inventions, processes, techniques, methods, know-how, improvements, and other materials or items that Tightrope uses, develops, makes, conceives, or creates in providing Services to Customer (the “Tightrope Technology”). If the Work Product incorporates, uses, or includes any pre-existing or new Tightrope Technology, Tightrope shall retain all intellectual property worldwide to such Tightrope Technology, and Tightrope hereby grants Customer a nonexclusive, irrevocable, fully-paid, worldwide, and perpetual license to use such Tightrope Technology as necessary for Customer to use and exercise its rights to the Work Product.
The Services may require that Tightrope and Customer disclose or provide certain confidential technical, product, financial, or business information to each other (“Confidential Information”). Confidential Information is limited to information which is clearly marked “confidential” or “proprietary” in any readable form, or which a person exercising reasonable business judgment would have understood to be confidential or proprietary under the circumstances of the disclosure.
Tightrope and Customer will hold all Confidential Information of the other party in strict confidence and will only use it to perform their obligations and exercise their rights with respect to the Services. Confidential Information may only be disclosed to employees, agents, consultants, and professional advisors who have a good faith need to know such information for the purposes of the performance of the Services, provided the person receiving the information has a confidentiality obligation to the party receiving the information which is at least as protective of the discloser’s rights under these Services Terms. The receiving party shall protect and safeguard Confidential Information against unauthorized disclosure by procedures no less stringent than those it uses for protecting its own confidential or proprietary information of a similar nature, and in any event by use of no less than a reasonable degree of care.
These Services Terms imposes no obligation with respect to information which a party can establish by legally sufficient evidence: (a) is now or hereafter becomes generally known or available to the public through no act or omission by the receiving party; (b) was known by the party prior to receipt from the discloser and without restriction as to its use or disclosure; (c) is rightfully acquired by the party from a third party who has the right to disclose it and who provides it without restriction as to its use or disclosure; or (d) is independently developed by the party without access to the discloser’s Confidential Information.
Tightrope and Customer retain all intellectual property rights worldwide in and to their respective Confidential Information.
The confidentiality provisions of these Services Terms shall survive the termination of the Services by Tightrope for three (3) years, except that Confidential Information qualifying as a trade secret under applicable law shall be protected for as long as it retains such status.
6. Term and Termination.
Tightrope shall provide the Services for the term stated in the applicable Service Order. Unless a Service Order provides otherwise, Customer may terminate the Services at any time and for any reason, with or without cause, by providing Tightrope with five (5) business days’ notice.
Either party may terminate a Service Order if the other party is in material breach of its terms and has not cured the breach within thirty (30) days of receipt of a notice from the other party specifying the breach. Consent to extend the cure period shall not be unreasonably withheld, provided the breaching party is making diligent, good faith efforts to cure the breach.
All terms and conditions of these Services Terms which by their nature are intended to survive the termination of the Services, including but not limited to the proprietary rights and confidentiality terms, shall survive such termination and remain in full force and effect.
7. Warranties and Disclaimers
Tightrope and Customer represent and warrant that: (a) they are duly organized, validly existing and in good standing as a corporation or other legal entity under the Laws of the jurisdiction of its incorporation or other organization; (b) they have the full right, power and authority to enter into, and to perform their respective obligations under these Services Terms and all applicable Service Orders; (c) the person accepting these Services Terms and all applicable Service Orders has been duly authorized by all necessary corporate or organizational action to do so; and these Services Terms and all applicable Service Orders will constitute legal, valid, and binding obligations of Tightrope and Customer, enforceable against each such party in accordance with their terms.
Tightrope represents, warrants, and covenants to Customer that it will perform the Services with the required skill, experience, and qualifications, and in a professional and diligent manner, and that it will devote adequate resources to meet its obligations under these Services Terms.
Customer’s remedy for any breaches of the Services warranty stated in the preceding paragraph will be the re-performance of the Services by Tightrope. If Tightrope is unable to re-perform the Services as warranted, Customer’s second and final remedy will be to recover the portion of the fees paid to Tightrope for the non-conforming Services in an amount not to exceed the total amount paid or payable for Services under the applicable Service Order. THIS PARAGRAPH STATES THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACHES OF THE SERVICES WARRANTY, AND TIGHTROPE’S ENTIRE LIABILITY FOR SUCH BREACHES.
EXCEPT AS SET FORTH EXPRESSLY IN THESE SERVICES TERMS, TIGHTROPE IS PROVIDING THE SERVICES AND ANY WORK PRODUCT “AS IS” AND WITHOUT ANY EXPRESS WARRANTIES AS TO QUALITY, SPECIFICATIONS, CONDITION, OR ATTRIBUTES. TIGHTROPE DISCLAIMS ALL IMPLIED WARRANTIES OR CONDITIONS CONCERNING THE PERFORMANCE, OPERATION, OR QUALITY OF ANY WORK PRODUCT, INCLUDING ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. No agent or employee of Tightrope is authorized to make any warranty obligations on behalf of Tightrope or modify the limitations stated in this section.
8. Liability Limitations
TO THE FULLEST EXTENT ALLOWED BY LAW, TIGHTROPE AND ITS AFFILIATES, LICENSORS, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, ADVISORS, AND CONTRACTORS WILL NOT BE LIABLE TO ANY CUSTOMER, USER, OR THIRD PARTY FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF OR RELATED TO ANY SERVICES, INCLUDING LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE.
THE AGGREGATE LIABILITY OF TIGHTROPE TO ANY CUSTOMER FOR CLAIMS RELATING TO THE SERVICES, WHETHER BASED ON CONTRACT, TORT, OR OTHER LEGAL RIGHT OR REMEDY, WILL BE LIMITED TO THE TOTAL FEES PAID OR OWING BY CUSTOMER FOR THE SERVICES ORDER PURSUANT TO WHICH SUCH SERVICES ARE PROVIDED.
IN ALL CASES, TIGHTROPE AND ITS AFFILIATES, LICENSORS, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, ADVISORS, AND TECHNOLOGY CONTRACTORS, WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE.
Tightrope is an independent contractor for all purposes in performing the Services. These Services Terms and all Service Orders shall not be construed or interpreted to create an employment, agency, partnership, or joint venture relationship between Tightrope and Customer or any third parties.
Any notice permitted or required by these Services Terms or a Service Order shall be deemed given on the date of personal delivery or five (5) days after deposit in the United States mail, postage fully prepaid, return-receipt requested. Notices shall be addressed to Tightrope at its principal office address and to Customers at its street or email address of record with Tightrope. Personal delivery of a notice via a nationally-recognized courier will be valid upon delivery provided the courier obtains a signed receipt. Notice by email shall be valid provided the sender receives an acknowledgement of receipt by a return email or by another means providing a written record.
These Services Terms are governed by Minnesota law and applicable U.S. federal and international laws. All legal actions to enforce or interpret these terms shall be commenced exclusively in the state or federal courts located in Hennepin County, Minnesota. To the fullest extent allowed by law, Customers hereby consents to the exclusive jurisdiction and venue of such MINNESOTA courts.
Customer may not assign or otherwise transfer their rights under these Services Terms or a Service Order without Tightrope’s prior written consent, which consent may be withheld for any reason in Tightrope’s sole discretion. Tightrope may freely assign Tightrope’s rights and obligations under these Services Terms or a Service Order to any third party as Tightrope determines in its sole business discretion.
These Services Terms shall be binding upon, and inure to the benefit of, the parties and their permitted respective successors and assigns.
Any waiver or failure by Tightrope to exercise its rights under these Services Terms will not create a continuing waiver of such rights. If any provision of these Services Terms is held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby, and will be interpreted, to the extent possible, to achieve the purposes as originally expressed in the invalid, illegal or unenforceable provision.
Tightrope shall not be in default or otherwise liable for any delay in or failure of their performance of the Services where such delay or failure arises by reason of any Act of God, or any government or any governmental body, acts of the common enemy, the elements, strikes or labor disputes, or other similar or dissimilar cause beyond the reasonable control of such party.
Signatures or other affirmative indications of acceptance of the terms and conditions of these Services Terms, any Service Orders, and any related agreements that are recorded or made and delivered solely in electronic form shall have the same effect and create the same binding legal obligation as a signature made and delivered in hard copy form.
10. Contact Information
Questions, comments or concerns about these Services Terms and related matters may be sent to Tightrope at the following street or email address:
Tightrope Media Systems, Inc.
430 N First Ave., Suite 400
Minneapolis, MN 55401
Copyright © 2018-2019. Tightrope Media Systems, Inc. All rights reserved.
Last revised: June 3, 2019.