Tightrope Media Systems, Inc.
CAROUSEL 7 END-USER SOFTWARE LICENSE AGREEMENT
This Carousel End-User Software License Agreement (the “License”) states the terms and conditions under which Tightrope Media Systems, Inc. (“Tightrope,” “we,” “our”) licenses its Carousel™ brand server software for use by end users (the “User,” “you,” “your”) with Carousel™ brand and supported third-party hardware appliances (collectively, the “Products”).
The Carousel 7 Software includes the Carousel server software and the Carousel player (the “Player”) software components. This License only applies to the server software (the “Software”). Tightrope provides users with the Player software for installation and use on individual electronic devices. The Player software is provided subject to the separate Carousel Player License Agreement which may be accessed on the Carousel website and must be accepted during the Player installation and registration process.
Tightrope distributes the Software directly and through its authorized distributors and dealers. Subject to the terms of this License, Tightrope retains all intellectual property rights worldwide in and to the Software. If you purchased a license to the Software from an authorized Tightrope distributor or dealer, you must expressly accept and agree to be bound by this License when you first use the Software. Further, all persons that you authorize to use the Software shall be bound by this License.
PLEASE READ THIS LICENSE CAREFULLY IN ITS ENTIRETY. YOU MUST CLICK “ACCEPT” WHEN SHOWN THIS LICENSE TO ACCEPT IT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS LICENSE, YOU ARE NOT AUTHORIZED TO USE THE SOFTWARE.
We license one (1) copy of the Software for use with each Product. Your use of the Software is subject to your acceptance of this License. Subject to such acceptance, for the term of this License, Tightrope hereby grants you a limited, non-exclusive, non-transferable, non-sublicensable, right and license to copy, install, and use one copy of the Software on a Product for your own internal business purposes, and to make and maintain up to one (1) additional copy of the Software for back-up or archival purposes. If you do not accept the terms and conditions of this License, you are not authorized to use the Software.
2. THIRD PARTY SOFTWARE.
To the extent the Software includes proprietary software code or other intellectual property licensed by us from a third party, we hereby grant you a license to such software and materials that is co-extensive with the licenses granted to our Software under Section 1. If the Software includes any free or open source software code, such code is provided to you subject to the express terms of the applicable free or open source software license. You are bound by the same free or open source software license terms even though you are not executing a separate free or open source license agreement. For the full term of this License, we will maintain a current record of all free and open source software code incorporated into the current release of the Software and the name of the license governing such code. We will provide Users with access to these records upon request.
3. RESTRICTIONS ON USE.
The Software is licensed, not sold. This License only grants you the usage rights stated in Sections 1 and 2.
All copies of the Software made by you (a) will be the exclusive property of Tightrope; (b) will be subject to the terms and conditions of this License; and (c) must include all trademark, copyright, patent, and other intellectual property rights notices contained in the original copy of the Software.
You may not: (a) modify, translate, or create any derivative works of the Software, or combine the Software with any other software programs or technology; (b) decompile or reverse engineer any portion of the Software or attempt to discover any source code or underlying ideas or algorithms of the Software; (c) sell, assign, sublicense, rent, lease, loan, provide, distribute, or otherwise transfer all or any portion of the Software; (d) make, have made, reproduce, or copy the Software other than for archival or backup purposes; (e) remove or alter any trademark, logo, copyright or other proprietary notices appearing in the Software computer files or display screens; (f) cause or permit any other party to do any of the foregoing; or (g) engage in any other conduct that, directly or indirectly, violates the terms of this License.
The Software enables Users to preview HTML content from a standard browser. This functionality is intended solely for previewing content and not for ongoing content display. Ongoing content management and display requires a valid Software license from Tightrope for each Product used to manage and display such content.
4. AUDIT RIGHTS.
A. Tightrope may audit your use of the Software to ensure that you are in compliance with this License. Any such audit shall be conducted (i) on not less than three (3) days' prior notice to you, and (ii) no more than twice annually except for good cause shown. Tightrope also may audit your computer systems within three (3) months after the end of the Term to ensure you have ceased use of the Software and removed all copies of the Software from such systems as required hereunder. You shall cooperate fully with Tightrope's personnel conducting such audits and provide all access requested by Tightrope to records, systems, equipment, information, and personnel, including machine IDs, serial numbers, and related information. Tightrope may conduct audits only during your normal business hours and in a manner that does not unreasonably interfere with your business operations.
B. If we determine from any audit pursuant to this section that your use of the Software exceeds or exceeded the use permitted by this License, then you shall pay Tightrope the retroactive license fees for such excess use within 15 days following the date of Tightrope's written payment request to you, and also pay for valid licenses as necessary to bring your use in compliance with this License. If the use exceeds or exceeded the use permitted by this License by more than 5%, then shall also pay to Tightrope its reasonable costs incurred in conducting the audit.
C. Tightrope's remedies under this section are cumulative and are in addition to, and not in lieu of, all other remedies Tightrope may have at law or in equity, whether under this License or otherwise.
5. PRIVACY AND DATA USE.
When using the Software, you may be asked whether you are willing to allow us to monitor your usage patterns remotely for our software development and research purposes. We use the information we gather remotely exclusively for our software development and research efforts. Our objective in gathering the data is to improve and upgrade the Software functionality and enhance its value to our customers. Your participation in this monitoring is entirely voluntary. If you decide not to participate in the monitoring program, we will not track your Software use in any way.
Tightrope owns all patent, copyright, moral rights, trademarks, trade secrets, and other intellectual property rights in and to the Software and Carousel brand Products that are recognized by any legal jurisdiction worldwide. The Software is licensed and not sold to you. Tightrope reserves all ownership and intellectual property rights not expressly granted to you under this License.
7. TERM AND TERMINATION.
This License is effective and legally binding on the date you accept it and will continue in force until terminated. You may terminate this License at any time by permanently deleting the Software from the Product and also deleting all archival and back-up copies of the Software in your possession. This License will terminate immediately without notice from us if you fail to comply with any provision of this License. Either party may terminate this Agreement immediately upon written notice if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days after written notice of breach by the non-breaching party.
8. SOFTWARE WARRANTY.
A. LIMITED WARRANTY. We warrant that the Software will perform substantially as described in the current version of our user manual and other documentation posted on the Carousel website located at http://www.carouselsignage.com (the “Carousel Website”).
B. TERM OF WARRANTY. The limited warranty covers the Software for one year after the initial User acquires the Product from us. If you receive supplements, updates, or replacement Software during that year, they will be covered for the remainder of the warranty term or 30 days, whichever is longer. If the first User transfers the software, the remainder of the warranty period will apply to the recipient. To the extent permitted by law, any implied warranties, guarantees, or conditions only apply for the term of the limited warranty. Some states do not allow such implied warranty limitations, so the limitations may not apply to you. They also might not apply to you because some countries may not allow limitations on how long an implied warranty, guarantee, or condition lasts.
C. EXCLUSIONS. The Software warranty does not cover problems caused by your acts or failures to act, the acts of others, or any events beyond our reasonable control.
D. REMEDY FOR BREACH OF WARRANTY. Tightrope will correct or replace the Software at no charge during the warranty term. If Tightrope cannot repair or replace it, we will refund the amount you paid for the Software. We will also repair or replace supplements and updates to the Software at no charge. You must return the Software to Tightrope with proof of purchase to obtain a refund. These are your only remedies for breach of Tightrope’s limited Software warranty.
E. NO WARRANTY FOR EMERGENCY USE. The Software is not designed or intended for emergency notification or use in life-threatening situations requiring fail-safe performance, including without limitation, situations involving severe weather or natural disasters, terroristic threats or risks, potential mass shootings, riots or other public unrest, or any other situation in which the failure of the Software could lead to death, personal injury, or severe physical or property damage (collectively, “Emergency Situations”). TIGHTROPE EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR USE IN EMERGENCY SITUATIONS.
F. NOT HIPAA OR FEDRAMP COMPLIANT. The Software does not comply with the privacy and security requirements for protected health information (“PHI”) imposed by the Health Insurance Portability and Accountability Act (“HIPAA”). USERS ARE PROHIBITED FROM USING THE SOFTWARE TO TRANSMIT, MANAGE, DISPLAY, OR STORE PHI UNDER ANY CIRCUMSTANCES. The Software also does not comply with the Federal Risk and Authorization Management Program (“FedRAMP”) program requirements. Customers are prohibited from using the Software in any case in which FedRAMP compliance is required.
G. WARRANTY DISCLAIMER. EXCEPT FOR THE LIMITED EXPRESS WARRANTY STATED IN THIS SECTION, THE SOFTWARE IS PROVIDED TO YOU “AS IS.” ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, ARE HEREBY DISCLAIMED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR AGAINST INFRINGEMENT.
A. Tightrope will indemnify, defend, and hold you and your officers, managers, directors, agents, independent contractors, employees, permitted successors, and permitted assigns harmless from and against any actual or threatened suit, demand or claims, damages, costs, liabilities and expenses (collectively, an “Action”) arising out of or relating to an actual or alleged infringement by the Software of a patent, copyright, trademark or other proprietary rights of a third party under U.S. law.
B. Tightrope’s indemnification obligation under Section 9(A) does not apply to the extent that an Action arises from any allegation of or relating to:
(i) any documents, data, content or specifications, open source software, hardware or other products, facilities, equipment or devices that are not supplied by Tightrope;
(ii) operation or use of the Software in or with, any computer equipment, software, or other technology not provided by Tightrope;
(iii) modification of the Software other than: (x) by Tightrope in connection with this License; or (y) with Tightrope’s express written authorization and in strict accordance with Tightrope’s written directions and specifications;
(iv) failure to timely implement any maintenance release, modification, update or replacement of the Software made available to you by Tightrope;
(v) use of the Software after Tightrope’s notice to you of such activity's alleged or actual infringement, misappropriation or other violation of a third party's rights;
(vi) negligence, abuse, misapplication, or misuse of the Software by you;
(vii) use of the Software by you or on your behalf that is outside the purpose, scope, or manner of use authorized by this License or in any manner contrary to Tightrope’s instructions; or
(viii) events or circumstances outside of Tightrope’s commercially reasonable control (including any third-party hardware, software or system bugs, defects or malfunctions).
10. LIMITATION OF LIABILITY.
OTHER THAN LIABILITY RELATED TO TIGHTROPE’S INDEMNIFICATION OBLIGATIONS UNDER THE PRECEDING SECTION, IN NO EVENT WILL TIGHTROPE OR YOU BE LIABLE UNDER THIS LICENSE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SOFTWARE. TIGHTROPE WILL HAVE NO MONETARY LIABILITY TO YOU FOR ANY PURPOSE RELATED TO THE USE OR LICENSING OF THE SOFTWARE UNLESS WE HAVE EXPRESSLY AGREED TO ASSUME SUCH LIABILITY.
11. EXPORT RESTRICTIONS.
The Software may be subject to United States export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the software. These laws include restrictions on destinations, end users and end use. Contact us for additional information on exporting the Software.
12. MAINTENANCE AND SUPPORT SERVICES.
Tightrope will provide User with basic maintenance and support services for one (1) year after the date the Software is delivered to User pursuant to this License. Maintenance and support services provided after such date will require the payment of ongoing maintenance fees.. Maintenance and support services will include provision of such updates, bug fixes, patches, and error corrections (“Updates”) as Tightrope makes generally available to all licensees of the Software then entitled to maintenance and support services. Tightrope may develop and provide Updates in its sole discretion, and User agrees that Tightrope has no obligation to develop any Updates at all or for particular issues. Use of all Updates will be subject to User’s compliance with the terms of this License. Maintenance and support services do not include any new version or new release of the Software that Tightrope may issue as a separate or new product, and Tightrope may determine whether any issuance qualifies as a new version, new release, or Update in its sole discretion.
A party may not assign, subcontract, delegate, or otherwise transfer any of its rights or obligations under this License without the other party’s prior written consent, except that both parties may assign this License to a legal entity which acquires substantially all of its assets or management control of the business as part of a merger, acquisition, consolidation, exchange of interests, or similar transaction. Any required consents to assignment shall not be unreasonably withheld or delayed. Any prospective assignee must be able to fulfill all of the assignor’s obligations under this Agreement.
14. GENERAL TERMS.
This License constitutes the entire agreement between you and Tightrope and supersedes any and all prior proposals, agreements, or communications with respect to its subject matter. This License may only be changed with the express authorization of Tightrope. You may not assign or otherwise transfer this License to anyone. This License is governed by the laws of the State of Minnesota, United States, and controlling U.S. federal law. No conflict of laws provisions of any jurisdiction shall apply to the interpretation or enforcement of this License. Tightrope and the User hereby disclaim the application of the 1980 U.N. Convention on Contracts for the International Sale of Goods. If this License is found invalid or unenforceable by a court of competent jurisdiction, the remaining portions will remain in full force and effect, and the invalid provision will be enforced to the maximum extent permitted by law as necessary to effect the intent of the License. All notices required under this License will be in writing and deemed to have been duly made when personally served, delivered by a nationally-recognized next-day courier service, or five (5) days after mailing via U.S. Certified First Class Mail or its international equivalent. Notices shall be sent to Tightrope at the address show on the contact page of the Carousel Website. We will send any required notices to you at the address to which you have requested such notices be sent in a written notice sent to us.
Tightrope Media Systems, Inc.
430 N First Ave., Suite 400
Minneapolis, MN 55401
Copyright © 2015-2019 Tightrope Media Systems, Inc. All rights reserved.
Last Modified: June 3, 2019.